# Booth v. Maryland > Supreme Court of the United States · September 21, 1987 · 482 U.S. 496 URL: https://www.frixlaw.com/law-library/cases/9431037 ## Case - **Full name:** Booth v. Maryland - **Court:** Supreme Court of the United States - **Decided:** September 21, 1987 - **Citations:** 482 U.S. 496; 107 S. Ct. 2529; 96 L. Ed. 2d 440; 1987 U.S. LEXIS 2616 - **Precedential status:** Published - **Opinion:** Dissent by White - **Judges:** Powell, Brennan, Marshall, Blackmun, Stevens, White, Rehnquist, O'Connor, Scalia - **Cited by:** 1,124 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by Payne v. Tennessee, 501 U.S. 808 (1991). - Negative treatments: 4 - Distinguished by: 13 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9431037 ## How later opinions describe it (automated extraction) - concluding that “[a]l-lowing the jury to rely on [victim impact information] ... could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill,” and that “[t]he prospect of a ‘mini-trial’ … - holding purpose of allocution is to provide a convicted murderer the opportunity to make an unsworn statement in mitigation of the death penalty without being subject to cross-examination and that factual content of allocution is not limited to the record in the case - holding that testimony that victims were “butchered like animals” and that victims’ son “doesn’t think anyone should be able to do something like that and get away with it” violated the Eighth Amendment (internal quotation marks omitted) - holding that victim impact evidence is “irrelevant to a capital sentencing decision, and that its admission creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner” - holding that victim impact evidence is inadmissible in a capital case because it creates a constitutionally unacceptable risk that “the jury may impose the death penalty in an arbitrary and capricious manner” ## Opinion text Justice White, with whom The Chief Justice, Justice O’Connor, and Justice Scalia join, dissenting. “[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” Gregg v. Georgia, 428 U. S. 153, 184 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). The affront to humanity of a brutal murder such as petitioner committed is not limited to its impact on the victim or victims; a victim’s community is also injured, and in particular the victim’s family suffers shock and grief of a kind difficult even to imagine for those who have not shared a similar loss. Maryland’s legislature has decided that the jury should have the testimony of the victim’s family in order to assist it in weighing the degree of harm that the defendant has caused and the corresponding degree of punishment that should be inflicted. This judgment is entitled to particular deference; determinations of appropriate sentencing considerations are “‘peculiarly questions of legislative policy,’” id., at 176 (quoting Gore v. United States, 357 U. S. 386, 393 (1958)), and the Court should recognize that ‘“[i]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people,’” 428 U. S., at 175 (quoting Furman v. Georgia, 408 U. S. 238, 383 (1972) (Burger, C. J., dissenting)). I cannot agree that there was anything “cruel or unusual” or other *516 wise unconstitutional about the legislature’s decision to use victim impact statements in capital sentencing hearings. The Court’s judgment is based on the premises that the harm that a murderer causes a victim’s family does not in general reflect on his blameworthiness, and that only evidence going to blameworthiness is relevant to the capital sentencing decision. Many if not most jurors, however, will look less favorably on a capital defendant when they appreciate the full extent of the the harm he caused, including the harm to the victim’s family. There is nothing aberrant in a juror’s inclination to hold a murderer accountable not only for his internal disposition in committing the crime but also for the full extent of the harm he caused; many if not most persons would also agree, for example, that someone who drove his car recklessly through a stoplight and unintentionally killed a pedestrian merits significantly more punishment than someone who drove his car recklessly through the same stoplight at a time when no pedestrian was there to be hit. I am confident that the Court would not overturn a sentence for reckless homicide by automobile merely because the punishment exceeded the maximum sentence for reckless driving; and I would hope that the Court would not overturn the sentence in such a case if a judge mentioned, as relevant to his sentencing decision, the fact that the victim was a mother or father. But if punishment can be enhanced in noncapital cases on the basis of the harm caused, irrespective of the offender’s specific intention to cause such harm, 1 I fail to see *517 why the same approach is unconstitutional in death cases. If anything, I would think that victim impact statements are particularly appropriate evidence in capital sentencing hearings: the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, see, e. g., Eddings v. Oklahoma, 455 U. S. 104 (1982), by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family. The Court is “troubled by the implication that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy,” and declares that “our system of justice does not tolerate such distinctions.” Ante, at 506, n. 8. It is no doubt true that the State may not encourage the sentencer to rely on a factor such as the victim’s race in determining whether the death penalty is appropriate. Cf. McCleskey v. Kemp, 481 U. S. 279 (1987). But I fail to see why the State cannot, if it chooses, include as a sentencing consideration the particularized harm that an individual’s murder causes to the rest of society 2 and in particular to his family. To the extent that the Court is concerned that sentencing juries might be moved by victim impact statements to rely on impermissible factors such as the race of the victim, there is no showing that the statements in this case encouraged this, nor should we lightly presume such misconduct on the jury’s part. Cf. McCleskey v. Kemp, supra. The Court’s reliance on the alleged arbitrariness that can result from the differing ability of victims’ families to articu *518 late their sense of loss is a makeweight consideration: No two prosecutors have exactly the same ability to present their arguments to the jury; no two witnesses have exactly the same ability to communicate the facts; but there is no requirement in capital cases that the evidence and argument be reduced to the lowest common denominator. The supposed problems arising from a defendant’s rebuttal of victim impact statements are speculative and unconnected to the facts of this case. No doubt a capital defendant must be allowed to introduce relevant evidence in rebuttal to a victim impact statement, but Maryland has in no wise limited the right of defendants in this regard. Petitioner introduced no such rebuttal evidence, probably because he considered, wisely, that it was not in his best interest to do so. 3 At bottom, the Court’s view seems to be that it is somehow unfair to confront a defendant with an account of the loss his deliberate act has caused the victim’s family and society. I do not share that view, but even if I did I would be unwilling to impose it on States that see matters differently. The Court’s concern that the grief and anger of a victim’s family will “inflame the jury,” ante, at 508, is based in large part on its view that the loss which such survivors suffer is irrelevant to the issue of punishment — a view with which I have already expressed my disagreement. To the extent that the Court determines that in this case it was inappropriate to allow the victims’ family to express their opinions on, for example, whether petitioner could be rehabilitated, that is obviously not an inherent fault in all victim impact statements and no reason to declare the practice of admitting *519 such statements at capital sentencing hearings per se unconstitutional. I respectfully dissent. Justice Scalia, with whom The Chief Justice, Justice White, and Justice O’Connor join, dissenting. The Court holds that because death is a “ ‘punishment different from all other sanctions,”’ ante, at 509, n. 12 (quoting Woodson v. North Carolina, 428 U. S. 280, 303-304 (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.)), considerations not relevant to “the defendant’s ‘personal responsibility and moral guilt’ ” cannot be taken into account in deciding whether a defendant who is eligible for the death penalty should receive it, ante, at 502 (quoting Enmund v. Florida, 458 U. S. 782, 801 (1982)). It seems to me, however — and, I think, to most of mankind — that the amount of harm one causes does bear upon the extent of his “personal responsibility.” We may take away the license of a driver who goes 60 miles an hour on a residential street; but we will put him in jail for manslaughter if, though his moral guilt is no greater, he is unlucky enough to kill someone during the escapade. Nor, despite what the Court says today, do we depart from this principle where capital punishment is concerned. The Court’s opinion does not explain why a defendant’s eligibility for the death sentence can (and always does) turn upon considerations not relevant to his moral guilt. If a bank robber aims his gun at a guard, pulls the trigger, and kills his target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt in both cases is identical, but his responsibility in the former is greater. Less than two months ago, we held that two brothers who planned and assisted in their father’s escape from prison could be sentenced to death because in the course of the escape their father and an accomplice murdered a married couple and two children. Tison v. Arizona, 481 U. S. 137 (1987). Had their father allowed the victims to live, the brothers could not be put to death; but because he decided to kill, the brothers may. *520 The difference between life and death for these two defendants was thus a matter “wholly unrelated to the[ir] blameworthiness.” Ante, at 504. But it was related to their personal responsibility, i. e., to the degree of harm that they had caused. In sum, the principle upon which the Court’s opinion rests — that the imposition of capital punishment is to be determined solely on the basis of moral guilt — does not exist, neither in the text of the Constitution, nor in the historic practices of our society, nor even in the opinions of this Court. Recent years have seen an outpouring of popular concern for what has come to be known as “victims’ rights” — a phrase that describes what its proponents feel is the failure of courts of justice to take into account in their sentencing decisions not only the factors mitigating the defendant’s moral guilt, but also the amount of harm he has caused to innocent members of society. Many citizens have found one-sided and hence unjust the criminal trial in which a parade of witnesses comes forth to testify to the pressures beyond normal human experience that drove the defendant to commit his crime, with no one to lay before the sentencing authority the full reality of human suffering the defendant has produced — which (and not moral guilt alone) is one of the reasons society deems his act worthy of the prescribed penalty. Perhaps these sentiments do not sufficiently temper justice with mercy, but that is a question to be decided through the democratic processes of a free people, and not by the decrees of this Court. There is nothing in the Constitution that dictates the answer, no more in the field of capital punishment than elsewhere. To require, as we have, that all mitigating factors which render capital punishment a harsh penalty in the particular case be placed before the sentencing authority, while simultaneously requiring, as we do today, that evidence of much of the human suffering the defendant has inflicted be suppressed, is in effect to prescribe a debate on the appropriateness of the capital penalty with one side muted. If that pen *521 alty is constitutional, as we have repeatedly said it is, it seems to me not remotely unconstitutional to permit both the pros and the cons in the particular case to be heard. Congress considers the effect of crime on its victims a relevant sentencing consideration. Thus, presentence reports prepared pursuant to Federal Rule of Criminal Procedure 32(c)(2) must include “information concerning any harm, including financial, social, psychological, and physical harm, done to or loss suffered by any victim of the offense . . . .” This Court’s cases also indicate that the harm caused by an offense may be the basis for punishment even if the offender lacked the specific intent to commit that harm. See, e. g., United States v. Feola, 420 U. S. 671 (1975) (conviction under 18 U. S. C. § 111 for assaulting a federal officer does not require proof that the defendant knew the victim’s status). 1 doubt that the Court means to suggest that there is any constitutional impediment, for example, to authorizing the death sentence for the assassination of the President or Vice President, see 18 U. S. C. §§ 1751 , 1111, a Congressman, Cabinet official, Supreme Court Justice, or the head of an executive department, 18 U. S. C. § 351 , or the murder of a policeman on active duty, see Md. Ann. Code, Art. 27, § 413(d)(1) (1982). The possibility that the jury would be distracted by rebuttal evidence is purely hypothetical, since petitioner introduced no such evidence. It is also unclear how distracting (as opposed to offending) the jury would disadvantage the defendant, and why, if there were some disadvantage to the defendant in pressing too hard a rebuttal to a victim impact statement, he should be heard to complain of the consequences of his tactical decisions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9431037. Public record. Not legal advice.