Amicus Curiae Brief — South Carolina v. Gathers

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DEC 6 1988

SPANIOL, JR.

CLERK

Supreme Court of the United

OCTOBER TERM, 1988

STATE OF SOUTH CAROLINA,

Petitioner,

DEMETRIUS GATHERS,

Respondent.

On Writ of Certiorari

to the Supreme Court of South Carolina

BRIEF FOR AMICUS CURIAE

THE MID-AMERICA LEGAL FOUNDATION

JOSEPH A. Morris

THE Mip-AMERICA LEGAL FOUNDATION

20 North Wacker Drive

Chicago, Illinois 60606

(312) 263-5163

Counsel for Amicus Curiae

December 9, 1988

—

Pandick Technologies, Inc, Chicago @ (312) 236-0200

TABLE OF AUTHORITIES CITED

INTRODUCTION.......

STATEMENT

ARGUMENT

CONCLUSION

TABLE OF CONTENTS

THE SOUTH CAROLINA SUPREME COURT

HAS DEVISED AND APPLIED A _ READ-

ING OF THIS COURT'S HOLDING IN

BOOTH V. MARYLAND THAT IS NOT COM-

MANDED BY THIS COURT'S DECISION IN

THAT CASE. BOOTH IS SO SUSCEPTIBLE

TO ERRONEOUS INTERPRETATION THAT

IT SHOULD BE LIMITED SEVERELY OR

OVERRULED ALTOGETHER

THIS COURTS DECISION IN BOOTH

V. MARYLAND MISCONSTRUED THE

REQUIREMENTS OF THE EIGHTH AMEND-

MENT AND WAS WRONGLY DECIDED

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TABLE OF AUTHORITIES

CASES Page(s)

Barclay v. Florida, 463 U.S. 939 (1983) ..... 12, 13, 14

Barefoot v. Estelle, 463 U.S. 880 (1983) ........... 12

Booth v. Maryland, 482 U.S. —_., 107 S.Ct. 2529, 96

LE. 34 660 C1GSF) . occ ccccceseeuneeenen pagsim

California v. Ramos, 463 U.S. 992

(ROB .cccccccccsesnennne 11, 12, 13, 14

Coker v. Georgia, 433 U.S. 584 (1977) ............ 10

Cooper v. State, Ind. S.Ct.

(Ne. 46600-B701-CR-6l) .....cccccccsececes 2,7

Gregg v. Georgia, 428 U.S. 153 (1976) ..... 8,11, 12, 13

Jurek v. Texas, 428 U.S. 262 (1976) ............. 12

Lockett v. Ohio, 438 U.S. 586 (1978) ............. 12

McClesky v. Georgia, 481 US —, 107 S. Ct. 1756, 95

L635 S68 GGG) oc cccccccsesennl 14, 15

Mills v. Maryland, 486 U.S. —__, 108 S.Ct. 1860, 100

OR YY SSS trt—“‘“CO:;t™~™~C~S 5

People v. Crews, 122 Ill. 2d 266, 119 Ill. Dec. 308,

668 NI. 38 1260 CORRE oo ccccccceseueennl 7

Roberts v. Louisiana, 431 U.S. 663 (1977) ........ 12

State v. Gathers, __ S.C. ___. , 369 S.E. 2d 140

(RGBED ccc ccccccccsecsesueeunnnn 4

State v. Keith, _.. Mont. ___ , 754 P. 2d 474

(Gent. 1GGED .. wc ccccccccccseunnee 7

iii

, Page(s)

Sumner v. Shuman, — U.S. __, 107 S. Ct. 2716, 97

EEE EE 12

Thompson v. Oklahoma, 487 U.S. ____, 108 S.Ct. 2687,

ce cece 15

Tison v. Arizona, __ U.S.___, 107 S.Ct. 1676, 95

ttt ce es 8, 10, 11, 12

Woodson v. North Carolina, 428 U.S. 280

Teen tt ee 8,11

Zant v. Stephens, 462 U.S. 862 (1983) ........ 12, 13

Constitution

U.S. Const., Amendment VIII................... ~

Other Materials

G. Fletcher, RETHINKING CRIMINAL LAW (1978) ....... 10

E. van den Haag, PUNISHING CRIMINALS (1975) ...... 10

H. L. A. Hart, PUNISHMENT AND RESPONSIBILITY

Ne ccc cc cee 10

R. Nozick, ANARCHY, STATE AND UTOPIA (1974) ....... 10

, PHILOSOPHICAL EXPLANATIONS (1981) ....... 10

R. Pilon, Criminal Remedies: Restitution, Punish-

ment, or Both?, 88 Etnics 348 (1978) ........... 10

F. Pollack and F. Maitland, THE HISTORY OF ENGLISH

EE 10

S. Schulhofer, Harm and Punishment: a Critique of

Emphasis on the Result of Conduct in the Criminal

Law, 122 uPA. LREV. 1497 (1974) ............ 9,10

J. Stephen, 3 HISTORY OF THE CRIMINAL Law (1883) .... 10.

Page

R. Weisberg, Deregulating Death, 1983 SUP. CT. REV

Re ere Te ee eee eee ee he 13

M. Young, A Constitutional Amendment For Victims

Of Crime: the Victim’s Perspective, 34 WAYNE L. REV.

Ek Od ER rrr ee ae ee 9

No. 88-305

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

STATE OF SOUTH CAROLINA,

Petitioner,

DEMETRIUS GATHERS,

Respondent.

On Writ of Certiorari

to the Supreme Court of South Carolina

BRIEF FOR AMICUS CURIAE

THE MID-AMERICA LEGAI, FOUNDATION

INTRODUCTION

The Mid-America Legal Foundation, as amicus curiae,

files this brief in support of the State of South Carolina

and respectfully urges this Honorable Court, in reversing

the decision of the Supreme Court of South Carolina in the

case at bar, to overrule or profoundly limit its own holding

in Booth v. Maryland, 482 U.S. —_, 107 S.Ct. 2529, 96

L.Ed.2d 440 (1987).

INTEREST OF AMICUS CURIAE

The Mid-America Legal Foundation (“MALF”) is a

national nonprofit public interest law center which under-

takes litigation, administrative proceedings, legal studies,

and educational activities in matters promoting political,

economic, and civil liberties; preserving constitutional gov-

ernment, including the separation and limitation of gov-

ernmental powers; and defending the rights of innocent

victims of crime.

MALF has a deep interest in the American criminal

justice system and works to enhance its fairness and effi-

cacy. MALF firmly supports the principles that criminal

proceedings should properly take into account the effects of

crime upon its victims; that punishment should be justly

proportional to the wrongs that compel it and should serve

effectively to deter and prevent future crimes; and that

punishment should be determined in accordance with the

totality of circumstances surrounding a case.

Punishment should thus reflect the moral and pruden-

tial concerns that underlie our criminal law, and it is the

office primarily of Congress, State legislatures, and citizen

juries, rather than the judiciary, to voice the moral sensi-

bilities of the community that define those concerns. In

pursuit of these views, MALF participates as an amicus

curiae in leading cases affecting rights of victims of crimes,

including Cooper v. State of Indiana, Ind.S.Ct. (No. 45S00-

8701-CR-61) (amicus brief filed November 10, 1988), a case

presenting the question of whether this Court’s holding in

Booth v. Maryland, supra, forbids the introduction of vic-

tim-impact evidence in the sentencing phase of a capital

case tried to a judge without a jury.

STATEMENT

On Saturday, September 13, 1986, Richard Haynes left

his mother’s house in Charleston, South Carolina, to walk

in a public park. Haynes, a thirty-two year old physically

slight and mentally infirm man, was a self-proclaimed

“Reverend Minister” who frequently preached to strangers,

habitually carrying with him for that purpose various reli-

gious items such as Bibles, rosaries, statues, and religious

tracts.

That evening, Respondent Demetrius Gathers and

three of his confederates came upon Haynes near a park

bench upon which were set out his religious items. With-

out provocation Gathers and the others brutally attacked

Haynes. Gathers first punched and then knocked Haynes

to the ground, where he was kicked and beaten. Gath-

ers then repeatedly beat Haynes on the head, first with a

bottle, and once that had broken, with an umbrella. As

the others began to depart, Gathers assaulted the semicon-

scious victim with the umbrella, pulling down Haynes’s

pants and pushing the umbrella tip into the victim’s anus.

Before leaving, Gathers and another ransacked Haynes's

possessions in search of something to steal, strewing the

rejected religious items around the prostrate victim.

Some time later the four assailants returned to

the scene from a nearby apartment complex. Gathers

approached the still prostrate Haynes and stabbed him to

death. None of these facts is now in dispute.

Gathers was indicted, tried and convicted by a jury of

murder and first degree criminal sexual conduct. During

the subsequent penalty hearing before the same jury, the

defense presented testimony from an expert, as well as

from Gathers’s mother, sister, cousin, and school teacher in

mitigation. The State reintroduced without objection the

evidence it had earlier presented during the guilt phase of

the trial.

In his closing argument the prosecutor reminded the

jury of what it already knew: The victim had been a phys-

ically and mentally vulnerable person. He was a religious

man whose spiritual precepts — including the “Game Guy’s

Prayer” — led him to accept life’s painful visitations with-

out resistance. He put faith and trust in other people; he

believed in his community.

After receiving instructions, the jury unanimously rec-

ommended the death penalty, whereupon the judge sen-

tenced Gathers to death.

Gathers’s conviction and sentence were reviewed on

appeal by the South Carolina Supreme Court. That

court upheld the conviction but reversed the sen-

tence, remanding for a new penalty hearing. State v.

Gathers, __.S.C.__., 369 S.E.2d 140 (1988). Relying

upon this Court’s decision in Booth v. Maryland, supra,

the South Carolina Supreme Court held that the Eighth

Amendment had been violated when the prosecutor com-

mented, during closing arguments at the penalty hearing,

upon the victim’s personal characteristics.

ARGUMENT

I. THE SOUTH CAROLINA SUPREME COURT

HAS DEVISED AND APPLIED A READ-

ING OF THIS COURT’S HOLDING IN

BOOTH v. MARYLAND THAT IS NOT COM.-

MANDED BY THIS COURT’S DECISION IN

THAT CASE. BOOTH IS SO SUSCEPTIBLE

TO ERRONEOUS INTERPRETATION THAT

IT SHOULD BE LIMITED SEVERELY OR

OVERRULED ALTOGETHER.

The South Carolina Supreme Court concluded that this

Court’s decision in Booth v. Maryland, 482 U.S. __, 107

S.Ct. 2529, 96 L.Ed.2d 440 (1987), compelled it to reverse

the death sentence imposed upon Demetrius Gathers in

the instant case. As the South Carolina tribunal read this

Court’s handiwork,

In Booth, the United States Supreme Court held

[that] the victim’s personal characteristics are not

proper sentencing considerations in a capital case.

State v. Gathers,__S.C.._., ——, 369 S.E.2d 140, 144

(1988).

In Booth the introduction in the penalty phase of a

murder trial of a victim impact statement allowed by

statute led to the invalidation of a capital sentence. The

victim impact statement in Booth consisted of descriptions

of the victims and of the emotional trauma suffered by

their survivors, and the survivors’ opinions and charac-

terizations of the crimes and their author. By contrast,

no victim impact statement or any other “formal! presenta-

tion”, Booth, 482 U.S. __, 107 S.Ct. at 2536, 96 L.Ed.2d at

452, was presented to the jury in the case at bar. Instead,

during the penalty phase the prosecutor simply rehearsed

evidence that the victim was a physically slight, mentally

feeble, self-proclaimed minister who preached tc strangers

and who habitually carried the religious items that his

murderers scattered around his body in their search for

something to steal.

The prosecutor's comments — based upon evidence

relating to the circumstances of the crime which properly

had been introduced before the same jury during the guilt

phase of the trial — contained no reference to the effect

the murder had upon the victim’s family or upon the com-

munity, nor did they convey the family’s opinions of the

crime or of the victim’s murderers. “At most, this thumb-

nail sketch... gave the jury a quick glimpse of the life

[respondent] chose to extinguish.” Mills v. Maryland, 486

US. __,_, 108 S.Ct. 1860, 1876, 100 L.Ed.2d 384, 408

(1988) (Rehnquist, C.J., dissenting). If anything, the pros-

ecutor’s words, including his recitation of the “Game Guy’s

Prayer” so beloved by the victim, served to show the jury

that Gathers’s brutality was thoroughly gratuitous, hav-

ing been inflicted upon a victim capable of, and inclined

toward, little resistance. This evidence went as much

to the circumstances of the crime and to the murderer's

nature as it did to the impact of the crime upon the victim

and his world.

In short, the South Carolina Supreme Court disre-

garded the salient factual differences distinguishing Booth

from the instant case. But perhaps the South Carolina tri-

bunal'’s error is understandable in light of the fact that this

Court’s majority opinion in Booth placed no limitations on

the sweeping holding it announced. On the contrary, the

majority brushed aside its own limiting rationale when,

after holding that only information which bears upon an

inquiry into the defendant’s “personal responsibility and

moral guilt” may be placed before the jury, Booth, 482 US.

at __, 107 S.Ct. at 2532-33, 96 L.Ed.2d at 448, it nev-

ertheless excluded information about the victim which it

conceded might well be relevant to that permitted inquiry.

The South Carolina Supreme Court was invited by the

incaution of this Court to draw the broadest possible rule

from Booth. It should not be surprising that it did so. This

Court’s majority in Booth, after all, did write that, “we

thus reject the contention that the presence or absence of

emotional distress of the victim’s family, or the victim's per-

sonal characteristics, are proper considerations in a capital

case.” Booth, supra, 482 U.S. at, 107 S.Ct. at 2535, 96

L.Ed.2d at 451 (emphasis added). And the majority insisted

that this was so even as it conceded that some information

about the victim or his famly might directly bear upon

the murderer’s blameworthiness. Booth, supra, 482 U-S.

at __, 107 S.Ct. at 2534, 96 L.Ed.2d at 450. The South

Carolina Supreme Court has uncritically applied an expan-

sive and exaggerated, but nonetheless plausible, reading of

Booth to the facts of the instant case, with the anomalous

result that evidence which is admissible during the guilt

phase of the trial cannot be introduced or commented upon

during the penalty hearing.

Booth is flawed because its holding lacks principled

limitations, and so will lead to perverse results such as

that reached below. It is already misleading other courts,

who are scrambling to understand Booth and to apply it

faithfully. The Supreme Court of Indiana is being asked

to read Booth to compel the total exclusion of all victim

impact evidence from the sentencing phase of a capital case

being tried solely to a bench, without a jury. Cooper v.

State of Indiana; Ind. S.Ct., No. 45S00-8701-CR-61, Brief of

Appellant 87-90 (filed September 6, 1988). That question

has already vexed courts in other States, which thus far

appear to be resisting the imposition of jury rules upon

bench sentencings. People v. Crews, 122 Il1.2d 266, 19 III.

Dec. 308, 522 N.E.2d 1167 (1988); State v. Keith, —_

Mont. __, 754 P.2d 474 (1988).

It is increasingly difficult to limit apprehension as to

the mischief that Booth may cause. If this Court’s major-

ity truly meant to exclude consideration of a victim's per-

sonal characteristics in imposing a sentence of death, does

that mean that Congress and the State legislatures are

absolutely barred from making the murder of a child, a

prison guard, a police officer, a legislator, a President of the

United States, or a justice of the United States Supreme

Court a capital offense? After all, the only thing that dis-

tinguishes these crimes from other killings is “the victim's

personal characteristics.”

This Court could not have meant what it said. Lower

courts and those who administer the criminal justice sys-

tem are thus left trying to reconcile as best they can the

conflicting meanings inherent in a vague, yet ambitious,

judicia! pronouncement. It is ironic that this Court, when

it sits, as in Booth, baldly as a legislature, is no less suscep-

tible than are the legislatures that the people have estab-

lished to the temptations of arbitrariness, ambiguity, and

overbreadth.

ll. THIS COURT’S DECISION IN BOOTH

vy. MARYLAND MISCONSTRUED THE

REQUIREMENTS OF THE EIGHTH

AMENDMENT AND WAS WRONGLY

DECIDED.

More than merely a case of careless craftsmanship,

Booth’s premises and reasoning are fundamentally wrong.

The new rule which Booth creates is an unwarranted intru-

sion into the substantive criminal law, especially into the

important roles played by legislatures and juries in shap-

ing and applying that law, as recognized in this Court's

Eighth Amendment jurisprudence. Booth stands at odds

with that jurisprudence, and should be overruled.

The Eighth Amendment to the United States Constitu-

tion commands, in pertinent part, that “cruel and unusual

punishment [shall not be] inflicted.” Central to the appli-

cation of this command is a determination of contemporary

standards regarding the infliction of punishment. Woodson

v. North Carolina 428 U.S. 280, 288 (1976). “Legislative

judgment weighs heavily in ascertaining such standards.”

Gregg v. Georgia, 428 U.S. 153, 175 (1976). Deference is

owed to legislative decisions for a further reason: “{I)n a

democratic society legislators, not courts, are constituted

to respond to the will and consequently the moral values

of the people.” Gregg, supra. Therefore:

Caution is necessary lest this Court become, ‘un-

der the aegis of the Cruel and Unusual Punish-

ment Clause, the ultimate arbiter of the standards

of criminal responsibility... throughout the coun-

try.’

Gregg, 428 U.S. at 176.

The principle of deference to state legislative judg-

ments has guided this Court in its major decisions constru-

ing the prohibition on cruel and unusual! punishment. See,

e.g., Gregg v. Georgia, 428 U.S. 153, 179-82 (1976); Wood-

son v. North Carolina, 428 U.S. 280, 297-99 (1976); Tison

v. Arizona, __ U.S. __,, 107 S.Ct. 1676, 1684-85, 95

L.Ed.2d 127, 141-143 (1987). Booth barely paid lip service

to this principle. No inquiry into legislative decisions of

the type conducted in Gregg, Woodson, or Tison was under-

taken. All that the majority in Booth did was to note in

passing that “at least 36 states permit the use [of] victim

impact statements in some contexts, reflecting a legislative

judgment that the effect of the crime on the victims should

have a place in the criminal justice system”. Booth, 482

U.S. at__., n.12, 107 S.Ct. at 2536, n.12, 96 L.Ed.2d at

452, n.12'

This clear evidence of legislative judgment was not

permitted to deflect the Booth majority from its conclusion

that consideration of the impact of the crime on the victim

is “constitutionally impermissible or totally irrelevant to

the sentencing process.” Booth, 482 U.S. at __ , 107 S. Ct.

at 2529, 96 L.Ed.2d at 448.

The rule announced in Booth not only lies athwart the

mainstream of legislative judgments regarding the role of

victims in the criminal justice system, it also flies in the

face of traditional concepts of culpability in the criminal

law. Booth stands for the proposition that the only permis-

sible considerations are those bearing upon the murderer's

“personal responsibility and moral guilt.” Under this view

harm does not matter, because contemplation of the harm

caused diverts attention from “individualized” considera-

tion of the defendant and his mental state, and thus pre-

sumably leads to tl e imposition of arbitrary and capricious

penalties.

But it is axiomatic that “the criminal law attributes

major significance to the harm actually caused by a defen-

dant’s conduct, as distinguished from the harm intended

or risked.” S. Schulhofer, “Harm and Punishment: A Cri-

‘As of August 1987, 48 States had statutes allowing victim

involvement in sentencing and 47 States had statutes permitting

victim impact statements to be introduced for consideration dur-

ing sentencing. Young, “A Constitutional Amendment for Vic-

tims of Crime: the Victim's Perspective”, 34 WAYNE L. REV. 51, 62

(Fall 1987). Congress, having also concluded that victim impact

statements are “useful tools in determining equitable penalties

during the sentencing of a convicted offender,” Omnibus Victim's

Protection Act: Hearing on 8.2420 Before the Subcommittee on

Criminal Law of the Senate Committee on the judiciary, 97th

Cong., 2d Sess. 55 (1982), had earlier passed similar legislation

at the Federal level.

tique of Emphasis on the Results of Conduct in the Crimi-

nal Law”, 122 UPAL. REV. 1497 (1974). In fact, actual dam-

age was once a prerequisite to the existence of a crime. F.

Pollack & F. Maitland, The HISTORY OF ENGLISH Law 508 n.4

(2d ed. 1959); 3 J. Stephen, HISTORY OF CRIMINAL Law 311-12

(1883). Commentators have long recognized that the struc-

ture of the criminal law reflects the notion that culpability

cannot be measured solely by conduct and state of mind,

but must also encompass the harm caused. R. Pilon, Crim-

inal Remedies: Restitution, Punishment, or Both? 88 eruics

348 (1978); H.L.A. Hart, PUNISHMENT AND RESPONSIBILITY,

130-132, 234 (1968); R. Nozick, PHILOSOPHICAL EXPLANATIONS

363 (1981); R. Nozick, ANARCHY, STATE AND UTOPIA 59-63

(1974); G. Fletcher, RETHINKING CRIMINAL LAW (1978) (con-

tinental legal systems embody the same considerations);

J. Hall, GENERAL PRINCIPLES OF CRIMINAL LAW 221-22 (2d ed.

1960); E. van den Haag, PUNISHING CRIMINALS 27-28, 192

(1975); Model Penal Code § 2.03.

Harm, like mens rea, is an essential consideration

in criminal punishment. This is so because, as the dis-

sent recognized in Tison, “the social purposes that the

Court has said justify the death penalty - retribution and

deterrence — are justifications that possess inadequate self-

limiting principles.” Tison v. Arizona, _.U.S. __,__,

107 S.Ct. 1676, 1699, 95 L.Ed.2d 127, 158 (1987) (Brennan,

J., dissenting). Just as a mens rea requirement eases the

rigors of a mechanical lez talionis, so harm can provide a

limiting principle for an otherwise unameliorated theory of

deterrence: “no punishment must cause more misery than

the offense unchecked.” H. Hart, PUNISHMENT AND RESPONSI.

BILITY 76 (1968), quoted in Tison, supra, n. 18.”

? Harm thus provides one of the central guideposts for the prin-

ciple of proportionality in criminal punishment that finds expres-

sion in the Eighth Amendment: “the States may not impose pun-

ishment that is disproportionate to the severnty of the offense or

| Footnote contmwed on the followng page

Harm is not the only consideration which Booth would

banish from the sentencing process. Application of the

rule enunciated in Booth — that the sentencer must focus

solely upon the defendant's “personal responsibility and

moral guilt” — would create a narrow and rigid sentenc-

ing procedure in which no other consideration, no matter

how important it is deemed by the state, could receive any

regard. But this Court’s decisions make clear that no such

narrow and rigid rule is required by the Eighth Amend-

ment. Instead, they make clear that a legislature may

highlight, and a jury is free to consider, factors which do

not focus solely on the defendant’s “personal responsibility

and moral guilt.”

Since Gregg, this Court’s Eighth Amendment deci-

sions have been primarily directed toward ensuring that

a State has established procedures by which “the jury is

given guidance regarding the factors about the crime and

the defendant that the State, representing organized s8oci-

ety, deems particularly relevant to the sentencing decision.”

Gregg, 428 U.S. at 192 (emphasis added). In Gregg and the

opinions which have followed it, this Court has displayed

a proper reluctance to “dictate to the State the particular

substantive factors that should be deemed relevant to the

capital sentencing decision.” Califernia v. Ramos, 463 US.

992, 999 (1982).

Three restrictions have been placed upon the States.

First, Gregg indicated that the State must establish pro-

cedures which would narrow the class of murderers eligi-

ble for the death penalty. Second, Woodson established

that the sentencer must be permitted to consider (not

required to consider only) the individual characteristics

2 (Contwnued)

to the individuals own conduct and culpability.” Tison, supra

(emphasis added). See Coker v. Georgia, 433 U.S. 584 (1977).

of the defendant and the crime.’ Third, Tison established

the threshold level of mental! state (reckless indifference

to human life when coupled with substantial participation

in its extinction) required pefore a defendant can be made

eligible for the death penalty. Beyond these restrictions,

“the Court has deferred to the State’s choice of substantive

factors relevant to the penalty determination.” California

v. Ramos, 563 U.S. 992, 1001 (1982).

generally by enumerating certain “aggravating factors”, at

crimes have caused or threatened greater harm to or dis-

ruption of the fabric of society and the legal order.‘

‘This second requirement was later elaborated to mean that

the jury may not be precluded from considering, as a mitigating

factor, any relevant evidence which the defendant wishes to put

forward. Lockett v. Ohio, 438 U.S. 586 (1978); .

Shuman, _. US. —, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987).

* California v. Ramos, 463 U.S. 992 (1983) (defendant commit-

ted murder during the course of a robbery); Barclay v. Florida,

463 U.S. 939 (1983) ( nsk

tinuing threat to society); Zant v. Stephens, 462 U.S. 862 (1983)

(murder committed by prison escapee); Roberts v. Louisiana, 431

U.S. 663 (1977) (murder of a police officer performing his regular

duties); Jurek v. Texas, 428 U.S. 262 (1976) (same as Barefoot,

supra), Gregg v. Georgia, 428 U.S. 153 (1976) (murder committed

during course of armed robbery).

Legislatures have often chosen, then, to proclaim as

most blameworthy those defendants who are most danger-

ous or harmful — not necessarily those most morally guilty,

i.e., those with the most purposeful mental states. There

is nothing amiss in this legislative judgment:

People may commit premeditated murder for non-

recurring personal reasons. But murders commit-

ted in the course of other serious crimes portend

more victims or more crimes, and often provoke

responses from victims, bystanders, and police so

as to generate a widening circle of violence and

disorder.

R. Weisberg, “Deregulating Death”, 1983 sup.cT.REV. 305,

330. Such legislative determinations would presumably

fail to pass muster under Booth.

In the same way that the rule in Booth would narrow

the range of sentencing factors a legislature may prescribe,

it would also unduly restrict the information the jury may

hear in exercising its guided discretion during sentencing.

The Eighth Amendment does not require such restriction,

as this Court’s decisions make clear. In Gregg, the plurality

stated:

The petitioner objects, finally, to the wide scope

of evidence and argument allowed at presentence

hearings. We think the Georgia Court wisely has

chosen not to impose unnecessary restrictions on

the evidence that can be offered at such a hearing

and to approve open and far-ranging argument.

Gregg, 428 U.S. at 203.

This Court has repeatedly held that, so long as one

valid statutory aggravating factor exists, a jury may prop-

erly consider “countless considerations”, Zant v. Stephens,

462 U.S. 862, 900 (1982), beyond those specified as statu-

tory aggravating factors in deciding whether a defendant

who is eligible for the death penalty should receive it.

Zant, supra, 462 U.S. at 879; California v. Ramos, 463 US.

992 (1983); Barclay v. Florida, 463 U.S. 939 (1983). In so

holding, this Court’s precedents have recognized, as Booth

does not, that there is a “fundamental difference between

the nature of the guilt/innocence determination ... and

the nature of the life/death choice at the penalty phase.”

Ramos, 463 U.S. at 1007. This Court explained:

In returning a conviction, the jury must sat-

isfy itself that the necessary elements of the par-

ticular crimes have been proved beyond a reason-

able doubt. In fixing a penalty, however, there

is no similar ’central issue’ from which the jury’s

attention may be diverted. Once the jury finds

that the defendant falls within the legislatively

defined category of person eligible for the death

penalty... the jury is then free to consider a myr-

iad of factors to determine whether death is the

appropriate punishment.

Ramos, 463 U.S. at 1008; see Barclay, 463 U.S. at 950.

Booth would blur the distinction between the guilt

trial and the penalty hearing; in its view the penalty phase

is a “trial” with one central issue: the moral guilt (or men-

tal state) of the defendant. Booth would deny the jury

the opportunity to consider any information not directly

focused on this inquiry. For example, Booth would pre-

sumably not permit a jury to consider, as this Court did

in Ramos, that a defendant not sentenced to death might

ultimately be released into the community.

More fundamentally, acceptance of Booth’s premises

would herald a rigid and mechanical sentencing process

in which the jury, unable to exercise its own morally

informed discretion as the community’s conscience, would

apply some lifeless logarithm of moral guilt. This is not

the jury’s proper role:

It is the jury’s function to make the difficult and

uniquely human judgments that defy codification

and that ‘buil[d] discretion, equity and flexibility

into a legal system.’

McClesky v. Georgia, 481 U.S. __, —, 107 S.Ct 1756,

1777, 95 L.Ed.2d 262, 291 (1987) (quoting H. Kalven & H.

Zeisel, THE AMERICAN JURY 498 (1966)).

This Court should reaffirm the central place of legis-

latures and juries in our criminal law, and reaffirm too

the vitality of its own Eighth Amendment precedents, by

overruling its decision in Booth.

CONCLUSION

Through the Cruel and Unusual Punishment Clause

of the Constitution the people of the United States have

authorized the courts “to judge whether certain punish-

ments are forbidden because, despite what the current soci-

ety thinks, they were forbidden under the original under-

standing of ‘cruel and unusual,’...; or because they come

within current understanding of what is ‘cruel and unusu-

al,’ because of the ‘evolving standards of decency’ of our

national society; but not because they are out of accord

with the perceptions of decency, or of penology, or of mer-

cy, entertained — or strongly entertained, or even held as

an ‘abiding conviction’ — by g majority of the small and

unrepresentative segment of our society that sits on this

Court.” Thompson v. Oklahoma, 487 U.S.__, ——, 108

S.Ct. 2687, 2719, 101 L.Ed.2d 702, 744-745 (1988)(Scalia,

J., dissenting) (emphasis added).

The question before the Court is whether or not a

judge or jury, by taking into account the harm, the conse-

quences, or the impact of a murderer’s crime necessarily,

and by dint of such consideration alone, imposes a cruel

and unusual punishment if a sentence of death is there-

after pronounced. There is no evidence that the Framers of

1787 or the Ratifiers of 1788 thought so. There is every evi-

dence that Congress and the State legislatures of today —

the voices of the national community who, in the discharge

of their offices, have provided for victim impact statements

— believe that consideration in sentencing of the impact of

a crime is just, moral, and constitutional.

Such a decision is for the legislatures to make. This

court should recognize their authority to do so and should

forightly abandon the strained and unsupportable reading

that it has given to the Eighth Amendment in Booth.

Respectfully submitted,

JosEPH A. Morris