Amicus Curiae Brief — South Carolina v. Gathers

s

ys 3 No. 88-305

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

STATE OF SOUTH CAROLINA,

Petitioner,

VS.

DEMETRIUS GATHERS,

Respondent.~

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF OF PROFESSORS OF LAW

BARBARA BABCOCK, MICHAEL CHURGIN,

WALTER E. DELLINGER, SANFORD LEVINSON,

FRANK MICHELMAN, AVI SOIFER, AND

ROBERT WEISBERG AS AMICUS CURIAE

——

—

DEAN HILL RIVKIN

University of Tennessee

College of Law

1505 W. Cumberland ©

Knoxville, TN 37996-1800

(615) 974-2331

Counsel for Amici Curiae

No. 88-305

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1988

STATE OF SOUTH CAROLINA,

vs.

DEMETRIUS GATHERS,

spon

On Writ of Certiorari to the

Supreme Court of South Carolina

=> 55555555555 55555555 ES SS SSS SSS SS SS SS SS

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Professors of Law Barbara Babcock,

Michael

Sanford

Soifer,

Curiae

Churgin, Walter E. Dellinger,

Levinson, Frank Michelman, Avi

and Robert Weisberg As Amicus

respectfully move the Court,

pusuant to Rule 36.3, for leave to file

-2«

the attached Brief as amicus curiae in

Support of the Respondent.

i. Respondent has consented to this

filing, but counsel for Petitioner

refused to consent to the filing unless

he was able to review the contents of the

Brief, which proved impossible due to

the time constraints involved, neces-

Sitating this Motion.

2. Amici are professors of con-

stitutional law at five law schools in

the United States. Barbara Babcock and

Robert Weisberg are professors of law at

Stanford Law School, Frank Michelman is a

professor of law at Harvard Law School,

Walter E. Dellinger is a professor at

Duke University Law School, Michael

Churgin and Sanford Levinson are

professors at the University of Texas Law

School, and Avi Soifer is a professor at

Boston University Law School. Counsel

— a

for amici is a professor of law at the

University of Tennessee Law School.

3. Amici wish to file this brief to

suggest to the Court that this case

presents an issue more significant than

whether the Court’s decision in Booth v.

Maryland, 96 L. Ed. 2d 440 (1987) was

correct, mamely whether it would be

inadvisable for the Court to overrule

Booth even if a majority of the Court now

believes it was incorrectly decided, in

view of the substantial risk that doing

so would erode the Court’s' moral

authority. Amici believe that serious

consideration should be given to the

larger consequences of any decision to

overrule Booth, consequences which reach

beyond the parameters of constitutionally

permissible evidence and argument in a

capital sentencing trial and implicate

the reasons the Court’s pronouncements

— a

carry moral authority, namely that they

are seen as arising from impartial and

reasoned judgments. Amici submit that

the conditions which permit the Court to

overrule precedent without undermining

its moral authority are not so clearly

present that the Court can overrule Booth

without, creating a substantial risk of

incurring such erosion.

DATED this 31st day of January,

1989.

Respectfully submitted,

Dean Hill Rivkin

University of Tennessee

College of Law

1505 W. Cumberland

Knoxville, TN 37996-1800

(615) 974-2331

Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI ....ccccvccesevsces 1

SUMMARY OF ARGUMENT .....-+e ee eeeeeeee 1

ee ee ee eee ee ee 4

A. Stare Decisis Nurtures Pubiic

Faith In The Judiciary As A

Source Of Impersonal And

Reasoned Judgments.......-++++++: 10

B. There Is No Sufficient Basis

For Overruling Booth v. :

Maryland ...--..e eee reer ee eeenees 20

CONCLUSION... cccccccccccccevcsceceres 29

LE O UTHORITIES

Page

Cases:

Ake v. Oklahoma, 470 U.S. 68

(1985) oreo eeweee ee ee eeeeeeseeee 15

Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1982) .. 11

Arizona v. Rumsey, 467 U.S. 203

(1984) eweeeeeeee eee eeeeeeeeees 18

Booth v. Maryland, 96 L.Ed.2d

440 (1987) See eee eee eee eee ee es s-PaSSiIM

Braswell v. United States, 101

L.Ed.2d 98 (1988) eoeeeeeeneeeee 13

Brown v. Board of Educ., 347 U.S.

wee Gee dnvbbecGeeekies kukcx 16

Enmund v. Florida, 458 U.S.

ie . seiesarr a anes Lanka 25

- Ford v. Wainwright, 477 U.S. 399

(1986) ..

eeweeneeceeeeeeeeseeneeees 14

Garcia v. San Antonio Transit

Authority, 469 U.S. 528

(1985) soneeeeeeeeeeeee se @ e® @#e @ @ * -e« 11 12

Johnson v. Mississippi, 100

L.Ed.2d 575 (1988) ........... 26

Lockett v. Ohio, 438 U.S. 586

Ce

Seeeceeseesceoeeeeee ee eee 6

* ji -

Maryland v. Wirtz, 392 U.S. 183

(1968) ecesoeoevevoeveveveeeeeee782878287 9 #

Miller v. Fenton, 474 U.S. 104

(1985) eeeeveveeveeeeee ee eevee ee eee

Mills v. Maryland, 100 L.Ed.2d 384

(1988) eeeeeveeveeeeeeeeeee ee ef * * * 6,7

Moragne v. States Marine Lines,

Inc., 398 U.S. 375 (1970) ..-- 9,10

Nat’l League of Cities v. Usery,

426 U.S. 833 (1976) «eee eeees

Puerto Rico v. Branstad, 97 L.Ed.2d

187 (1987) eeeeveeeeeenteente#e#e#e#eeeee

Smith v. Allwright, 321 U.S. 649

(1944) eoeeeeeeeeeeeeeeeeee eee &

Solesbee v. Balkcom, 339 U.S. 399

9 (1950) ceeeeeveveveeeeeee eee eee @

State v. Bell, 293 S.C. 391, 360

S.E.2d 706 (1987), cert. denied,

108 S.Ct. 734 (1988) cee eeeeees

State v. Howard, 293 S.C. 462

369 S.E.2d 132 (1988) .......--

Tison v. Arizona, 95 L.Ed.2d

127 (1987) eeeeeseeseneecese feeee#ete @

Zant v. Stephens, 462 U.S. 862

(1983) eeeeeeeeeenetensenerteeee ees * *# @

U.S. ex rel Smith v. Baldi, 344

U.S. 561 (1953) e*eeee#senfe#sSg5§gje#ee#e# # xr

- iii -

17

13

16

15

28

28

25

26

15

U.S. v. One Assortment of Eighty-

Nine Firearms, 456 U.S. 354

(1984) eoeeeteensteseeneeeneeeneeeeeeees 13

U.S. v. Miller, 471 U.S. 130

EE Gwee eousees SPREE Ene ; 13

United States v. Powell, 469 U.S

57 (1984) eoeereieieeeeeee#ee#s#eee#eee#8e¢e. 13

Vasquez v. Hillery, 474 U.S. 254

(1986) tee eeeeeeeeeeeeeeeseee ll, 14,18,23

ot} authorit;

Monaghan, Stare Decisis and

Constitutional Adjudication,

88 Columbia L. Rev. 723

es GD S6bekebeeesauecécn 8

Cardozo, The Nature of The Judicial

Pee COED ensesesbbaceces 11

Kelman, The Forked Path of Dissent,

1985 Supp. Ct. Rev. 227

(1985) sree eee eee eee eee eeeeees 12

J. Novak, J. Young and R. Rotunda,

Constitutional Law (1978) .... 17

Stevens, The Life Span of a Judge-

Made Rule, 58 N.Y.U. L. Rev.

19 (1983) edi ee ee 18

- fy «

ae

No. 88-305

——ooooOoOoOoOoOOOoOeeOOeOeeaeee

IN THE

UNITED STATES SUPREME COUR".

OCTOBER TERM, 1988

STATE OF SOUTH CAROLINA,

Petitioner,

vs.

DEMETRIUS GATHERS,

Respondent

On Writ of Certiorari To The

Supreme Court of South Carolina

CUS CURIAE OF PROFESSORS OF LAW

BARBARA BABCOCK, MICHAEL CHURGIN, WALTER

E. DELLINGER, SANFORD LEVINSON, FRANK

MICHELMAN, AVI SOIFER, AND ROBERT

WEISBERG AS AMICUS CURIAE

INTEREST OF AMICI

The interest of amici is set out in

the Motion accompanying this Brief.

SUMMARY OF ARGUMENT

The grant of certiorari to consider

whether Booth misconstrued the require-

— 2

ments of the Eighth Amendment and was

wrongly decided, apparently based on

nothing more than a change in the Court’s

composition between the time of the Booth

decision and now, is profoundly troubl-

ing, because it raises questions about

the extent to which the Court is prepared

to see respect for its authority

undermined by the “precipitous overrul-

ing” of a precedent. It is generally

agreed that stare decisis will permit the

Court to overrule a prior decision which

has come to be seen as erroneous if there

have been significant intervening changes

in society, its legal institutions, or in

legal doctrine. Otherwise, particularly

with regard to recently decided cases,

overruling a precedent, except to correct

the most egregious of errors, creates the

appearance that the change has. been

occasioned by a change in the identity of

e3-«

the identity of this Court’s personnel.

In a system that prizes stability and

self-restraint in judicial decision-

making, such a course would be counter-

productive and would deprive the law of

the basic discipline that legitimates it

in the eyes of the public.

In the brief time since Booth was

decided nothing has occurred that can

justify overturning it. Even those

Justices who disagreed with Booth have

pointed to nothing in the result or the

majority’s opinion that is worse than an

incorrect judgment call on a narrow issue

about which views can reasonably differ.

No major principle of constitutional law,

having the potential to shape the growth

of constitutional doctrine, is implicated

in the debate between the majority and

the dissent in Booth nor is there any

large issue of governmental power or

~— a

direction that rides on the question of

whether Booth is overruled; morever,

there is no indication that Booth has

been seen as such an aberration by the

states that it has caused disruption in

the administration of their capital

sentencing schemes.

In short, the substantive issue in

Booth is not important enough to warrant

reversing the Court’s position on it at

the cost of the harm which such a

reversal will do to the values of stare

decisis, and the appearance that will be

sis that the identity of the Court’s

personnel is the key factor driving the

decision to overrule.

ARGUMENT

Just two Terms ago, the Court held

in Booth v. Maryland

n , 96 L.Ed.2dad 440

(1987), that the Eighth Amendment

precluded the consideration of “victim

° § «

impact” evidence in the sentencing

process in a_ capital trial.?} The

decision was 5-4, and the controversy

between the majority and the dissent was

sharply defined and spirited. ?

1 The Victim Impact Statement

introduced in Booth’s trial included

three distinct types of information: a

description of the personal

characteristics of the victim of the

murder, a description of the emotional

impact of the crime on the victim’s

family members, and the family members’

opinions and characterizations of the

crime and the defendant. 96 L.Ed.2d at

448.

. The controversy centered on

evidence of the emotional impact of the

crime on the victim’s family members. In

the majority’s view, the Eighth Amendment

permits the defendant’s moral culpability

to be measured only in relation to his or

her purposeful behavior. 96 L.Ed.2d at

449-50. Since the impact of the crime on

the victim’s family members is rarely

known or in any way taken into account by

the defendant when the crime is

committed, from the majority’s

perspective, this evidence is generally

irrelevant to the assessment of the

defendant’s moral culpability. Id. In

the dissenters’ view, the Eighth

Amendment does not confine the assessment

of moral culpability to the defendant’s

purposeful behavior. 96 L.Ed.2d at 457

e 6 «

One term ago, another Booth issue

was presented in Mills v. Maryland, 100

L.Ed.2d 384 (1988). The issue was not

decided because a majority of the Court

held that the instructions at Mills’

capital sentencing trial violated Lockett

VY. Ohio, 438 U.S. 586 (1978). Mills v.

Maryland, 100 L.Ed.2d at 393-400.

However, a dissenting opinion joined by

four Justices expressed the view that

Booth was wrongly decided and should be

overruled. Id. 407-08 (Rehnquist, C.J.,

joined by O’Connor, Scalia, and Kennedy,

J.J., dissenting).

(White, J., dissentin ; .

(Scalia, J., Glesenhians + ¥~

their view, moral Culpability includes

responsibility for the harm inflicted by

a murder, even if unintended, the Eighth

Amendment does. not preclude the

sentencer’s consideration of the impact

of the crime on the victim’s famil

members. 96 L.Ed.2d at 457 Whi ;

id. at 459 (Scalia, J.). his

eJe

After Mills, it thus appeared that

five Justices on the Court disagreed with

the holding in Booth: Justice White, on

the basis of his dissent in Booth; Chief

Justice Rehnquist, Justice O’Connor, and

Justice Scalia, on the basis of their

dissents in Booth and Mills; and Justice

Kennedy, on the basis of his dissent in

Mills. With the retirement of Justice

Powell, who authored the majority opinion

in Booth, and the appointment of Justice

Kennedy as his successor, Booth no longer

appears to have the support of a majority

of the Court.

The grant of certiorari in Mr.

Gathers’ case has included the question

whether Booth misconstrued the require-

ments of the Eighth Amendment and was

“wrongly decided.” The decision to take

up this question, apparently based on

nothing more than the change in the

= @=«

Court’s composition between the time of

its decision in Booth and the present, is

profoundly troubling. It feeds directly

into “the existing cynicism that

constitutional law is nothing more than

politics carried on in a different

Monaghan, Stare Decisis and

Constitutional Adjudication, 88 Columbia

L. Rev. 723, 753 (May, 1988).

forum.”

For this reason, we urge the Court

to give serious consideration to the

larger consequences of any decision to

overrule Booth. These consequences reach

beyond the parameters of constitutionally

permissible evidence and argument in a

capital sentencing trial and touch upon

the very reason the Court’s

pronouncements carry moral authority:

“public faith in the judiciary as a

source of (impartial) ana reasoned

|

- 9 =

judgments.” Moragne v. States Marine

Lines, Inc., 398 U.S. 375, 403 (1970).

Based on our analysis cf the

principles underlying stare decisis, the

Booth decision, and the context in which

the Court has taken up the question of

whether to overrule Booth, we urge the

Court not to overrule Booth, even though

a majority of its members may support

such a decision doctrinally. The

conditions which permit the Court to

overrule precedent without undermining

its moral authority are not so clearly

present that the Court can overrule Booth

without creating a substantial risk of

such erosion. 2

3 In arguing against ahe

verruling of Booth, we do not mean to

ptr that the facts of the Gathers

case call upon the Court to reach this

issue. In fact, it appears that Gathers

involves only a relatively minor aspect

of the Booth decision. In Gathers, the

issue was not whether to admit a Victim

Impact Statement, but whether’ the

A. a ublic

ait t u | ; r s A

Sou sona nd

Reasoned Judgments

"“"Very weighty considerations

underlie the principle that courts should

not lightly overrule past decisions’”

Miller _v. Fenton, 474 U.S. 104, 115

(1985), quoting Moragne v. States Marine

Lines, Inc., 398 U.S. at 403. Stare

decisis, “while perhaps never entirely

persuasive on a constitutional question,

is a doctrine that demands respect in a

society governed by the rule of law.”

prosecutor could argue that certain

aspects of the victim’s character, his

alleged religiosity and good citizenship,

could serve as appropriate reasons for

sentencing Mr. Gathers to death. While

it is true that the majority opinion in

Booth stated that it rejected the

contention that the “victim’s personal

Characteristics are proper sentencing

considerations in a capital case,” 96

L.Ed.2d at 451, we do not think that the

Booth decision is properly read to

exclude consideration of such

characteristics when they were “known to

the defendant before he committed the

offense.” Id. at 450.

- 11-

Akron v. Akron Center for Reproductive

Health, 462 U.S. 416, 420 (1982). The

doctrine of stare decisis “permits

society to presume that bedrock prin-

ciples are founded in the law rather than

in the proclivities of individuals...”

Vasque v. Hillery, 474 U.S. 254, 265

(1986). See also Cardozo, The Nature of

the Judicial Process 112 (1921) (ad-

herence to precedent ensures impar-

tiality).

While precedent is not a strait-

jacket, respect for precedent establishes

the Court as the guardian of the laws,

while disrespect for precedent undermines

regard for the Court itself. As Justice

Powell has put it: "The stability of

judicial decision, and with it respect

for the authority of this Court, are not

served by the precipitous overruling of

... precedents.” Garcia v. San Antonio

eo 19 «

Transit Authority, 469 U.S. 528, 559

(1985) (dissenting opinion). Thus, one

commentator has noted that even when

there has been a change in the composi-

tion of the Court, a dissenter in an

earlier case may well hesitate to

overrule the decision, fearing that "the

Court’s reputation will suffer if the

doctrinal shift is perceived to be the

result of nothing except altered

membership.” Kelman, The Forked Path of

Dissent, 1985 Sup. Ct. Rev. 227, 264

(1985).

In general, stare decisis will

permit the Court to overrule prior

decisions which have come to be geen as

erroneous only if there have been

Significant intervening changes in

society, in legal institutions, or in

legal doctrine. A precedent that has not

stood the test of time may be overruled,

- 13 <

but it should first be given a fair

chance to do so. Compare United States

v. Miller, 471 U.S. 130, 144 (1985) (des-

cribing Ex_parte Bain, 121 U.S. 1 (1887),

as a case that “has simply not sur-

vived”), and United States v. One

Assortment of Eighty-Nine Firearms, 456

U.S. 354 (1984) (recognizing that Coffey

v. United States, 116 U.S. 436 (1886),

had survived only as a source of

doctrinal confusion), and Puerto Rico v.

Branstad, 97 L.Ed.2d 187, 197 (1987) (not-

ing that Kentucky v Dennison, 24 How. 66

(1861), was the “product of another

time”), with Braswell _v. United States,

101 L.Ed.2d 98 (1988) (reconciling Hale v.

Henkel, 201 U.S. 43 (1906), and its

progeny with Fisher _v. United States,

425 U.S. 391 (1976)), and United States

Vv well, 469 U.S. 57, 63 (1984) (re-

fusing to overrule Dunn v. United States,

» 14 «

284 U.S. 390 (1932), despite the demise

of a part of Dunn’s premises and noting

that “this is not a case where a once-

established principle has gradually been

eroded by subsequent opinions of this

Court”). As the Court explained in

While Stare decisis is not an

inexorable command, the careful

observer will discern that any

detours from the straight path

of stare decisis in our past

have occurred for articulable

reasons, and only when the

Court has felt obliged ‘to

bring its opinions into

agreement with experience and

with facts newly ascertained. ’

Vv i s

Co., 285 U.S. 393, 412

(1932).... [E)very successful

Proponent of overruling

precedent has borne the heavy

burden of persuading the Court

that changes in society or in

the law dictate that the values

served by stare decisis yield

in favor of a greater objec-

tive.

474 U.S. at 266.

Thus, in Ord v. Wainwright, 477

U.S. 399 (1986), the Court put aside its

- 15 -

1950 decision in Solesbee v. Balkcon,

339 U.S. 9, in part because the Eighth

Amendment had not been applied to the

States at the time of Solesbee:

Id. at 405. And in Ake v. Oklahoma, 470

U.S. 68 (1985), the Court overruled U.S.

ex rel Smith v. Baldi, 344 U.S. 561

Now that the Eighth Amendment

has been recognized to affect

significantly both the

procedural and the substantive

aspects of the death penalty,

the question of executing the

insane takes on a wholly

different complexion. The

adequacy of the procedures

chosen by a State to determine

sanity, therefore, will depend

upon an issue that this Court

[in Solesbee} .-.- never

addressed ....

(1953), explaining that

[Baldi] was decided at a time

when indigent defendants in

state courts had no constitu-

tional right to even the

presence of counsel. Our

recognition since then of

elemental constitutional

rights, each of which has

enhanced the ability of an

indigent defendant to attain a

fair hearing, has signaled our

- 16 =

increased commitment to

assuring meaningful access to

the judicial process. Also,

neither trial practice nor

legislative treatment of the

role of insanity in the

Criminal process sits paralyzed

Simply because this Court has

once addressed them, and we

would surely be remiss to

ignore the extraordinarily

enhanced role of psychiatry in

criminal law today.

id. at 85.

To be sure, while the Court has the

inherent power to overrule its prior

decisions -- and will ado so “when

convinced of former error,” Smith v.

Allwright, 321 U.S. 649, 665 (1944) --

that power is generally not exercised,

because of the respect for law engendered

by stare decisis, unless there has been

an intervening change in law or legal

Practices such as those recognized in

Ford and Ake.‘ For this reason, Justice

* __ S@@ also Brown y. Board of

Education, 347 U.S. 483, 489205 (1954),

overruling Plessy _v. Ferguson, 163 U.s’

’

e i9 «

Stevens has written, “I am _ firmly

convinced that we have ae profound

obligation to give recently decided cases

the strongest presumption of validity.”

Florida Dept. of Health v. Florida

Nursing Home Ass’n., 450 U.S. 147, 153

(1981) (Stevens, J., concurring). To do

otherwise, except to correct the most

egregious of errors, is to create the

sepeuvenes that a “sudden reversal[]} of

direction ... haf{s]} been occasioned by

nothing more significant than a change in

the identity of this Court’s personnel.”

Id. at 153.°

Because stare decisis requires more

of the Court than simply “exploring the

537 (1896).

5 See J. Nowak, J. Young, and R.

Rotunda, Constitutional Law Pe

(1978) (criticizing the Court’s decis

in National League of Cities v. Usery,

853-55 (1976), to overrule

allt se ea » 392 U.S. 183 (1968),

on this basis).

° 18 «

precedents as possible models for current

decision making,” and because “(ijn some

sense, the second court must feel bound

by the precedent,” Professor Monaghan

has concluded that even if a precedent

is clearly wrong, that factor should not

be given much independent weight in

deciding whether to overrule it.

Monaghan, op. cit., Supra, 80 Columbia L

Rev. at 755, 762. “{A)ny departure from

the doctrine of Stare decisis demands

Special justification.” Arizona _v.

Rumsey, 467 U.S. 203, 212 (1984). The

mere conviction that a prior case was

erroneously decided is usually not enough

to justify overruling it. See Stevens,

The Life Span of a Judge-Made Rule, 58

N.Y.U. L. Rev. 19 (1983). For as the

Cissenting Justices explained in Vasquez

Vv. Hillery, “Adhering to precedent ‘is

usually the wise policy, because in most

- 19 -

matters it is more important that the

applicable rule of law be settled than

that it be settled right.’” 474 U.S. at

269 (Powell, J., joined by Burger, C.J.,

and Rehnquist, J., dissenting).

In short, the rule of law requires

adherence to precedents unless some

stronger reason exists to overrule them

than the belief -- however powerful--

that they were wrongly decided in the

first place. This must be so in any

system that prizes stability and self-

restraint in judicial decision-making.

For otherwise, the obvious desirability

ef reaching “correct” decisions on the

merits and the natural tendency of any

judge to identify “correctness” with his

or her own views on the merits would

deprive the law of the basic discipline

that legitimates it. A question surely

more important than “correctness” in

@ 20 «

this sense is how much of the Court’s

rightful authority would survive if every

5-to-4 decision were overruled as soon as

a majority Justice retired and was

replaced by one who would have voted with

the minority in the first instance.

B. There Is No Sufficient Basis

For Overruling Booth v.

Maryland

In the brief time since Booth was

decided nothing has occurred that can

justify a decision overturning it. Even

those Justices who have disagreed with

Booth have pointed to nothing in the

result or the majority opinion that is

worse than an incorrect judgment call on

a narrow issue upon which reasonable

views can differ. To the extent that the

decisions of the lower courts since Booth

shed light on the wisdom and practicality

of Booth’s resolution of the issue, there

appears to be no reason for concern, much

- 21-

less alarm. Under these circumstances,

the case. cannot be overruJed without

giving the appearance that the identity

of the Court’s personnel is the key

factor driving the decision to do so.

Quite simply: the substantive issue

in Booth is not important enough to

warrant reversing the Court’s position on

it -- whichever position may be “right”

-- at the cost of the harm which such a

reversal will do to the values of stare

decisis. Consider:

The analysis articulated by the dis-

senters was entirely reasonable, perhaps

correct, and certainly entitled to

prevail had that analysis commanded a

- 22 «

majority of the Court at the time Booth

was decided. However, the dissenters’

analysis cannot lay claim to a basis in

precedent which allows it to be said that

the majority analysis is out of touch

with major doctrinal developments or

established currents in the law. Cf. Ex

parte Bain, supra; Coffey vy. __United

States, supra.

the majority and minority positions in

The difference between

Booth is no more than a disagreement over

the way in which the particular question

presented in that case should have been

decided. The dissenters Simply cannot

call to their support any large constitu-

tional principle with which the major-

ity’s position is in conflict. Accord-

ingly, there are no “changes in society

Or in the law (that) dictate that the

values served by stare decisis {should}

yield in favor of a greater objective,”

———-

-* 23 °-

Vasquez _v. Hillery, 474 U.S. at 266, in

this case.

(2) That Booth does not

sue of governmental

implicate any large iss

power or direction. Despite Booth, the

states can still punish the crime of

murder with the penalty of death, utilize

procedures for capital sentencing which

permit individualized consideration of a

defendant’s moral culpability, and permit

consideration in most cases of virtually

all the evidence that any Justice might

deem relevant on the issue of cul-

pability. Booth excludes from the

capital sentencer’s consideration only a

very marrow class of evidence whose

relevance is at least reasonably

debatable. In short, most’ capital

prosecutions would be the same whether or

not Booth had been decided. Accordingly,

Booth has not in any substantial way

- 24 =

intruded upon the state’s exercise of

their legitimate powers under the

Constitution.

dissent in Booth. Booth involved a

particularized application of two settled

constitutional principles. While there

were reasonable differences between the

majority and the dissent over the

particular application of these prin-

Ciples in Booth, these differences in no

Way involved any Significant change in

the articulation of the principles

themselves.

The first principle called forward

in Booth is one that was by then well-

settled: the individualized selection of

- 25 -

those to be sentenced to death must turn

upon an assessment of moral culpability.

See Enmund v. Florida, 458 U.S. 782, 798

(1982); Tison v. Arizona, 95 L.Ed.2d 127,

143-45 (1987). While there have been

disputes within the Court as to how moral

culpability should be measured in

particular cases, compare Tison v.

Arizona, 95 L.Ed.2d at 143-45, with id.,

95 L.Ed.2da at 151-54 (Brennan, J., joined

by Marshall, Blackmun, and Stevens, J.J.,

dissenting), there has been no dispute

that the inquiry into moral culpability

is the heart of the quest. Indeed, there

was no dispute in Booth; rather there was

disagreement, as there can be in any

particular case, over the application of

the principle in that case.

The second principle called forward

in Booth was also well-settled: to be

reliable the capital sentencing process

- 26 -

must be protected against the influence

of arbitrary and capricious factors.

See, @€.g., Zant v. Stephens, 462 U.S.

862, 884-85, 887 & n.27 (1983); Turner v.

Murray, 476 U.S. 28, 36 (1986); Johnson v

Mississippi, 100 L.Ed.2d 575, 584-85

(1988). All that was involved in Booth

waS a very narrow judgment call as to

whether a particular kind of evidence

fell on one side of this line or the

other -- whether victim impact evidence

was a relevant or an arbitrary and

Capricious factor in the assessment of

moral culpability.

Accordingly, Booth Simply did not

involve the articulation of any large

constitutional principle having the

potential to shape or deform constitu-

tional doctrine. It neither broke new

constitutional ground nor declared a

well-tilled field infertile. It does not

- 29 <-

involve, therefore, the kind of shaping

or mis-shaping of constitutional doctrine

that may, im some cases, be worthy of

intrusion upon the values protected by

stare decisis.

(ay That Booth has not been

Booth has’ been

sentencing schemes.

cited in a number of reported decisions,

but there has been no indication that it

has caused any difficulty for the

administration of the states’ criminal

justice systems, nor has it led to

wholesale reversals of sentences. Our

research has revealed no case other than

Gathers in which there was a reversal

based on a finding of a Booth violation.

In all other cases that we have examined,

no Booth violation was found, it was held

» 26 «

that any Booth error was harmless, or

there were procedural grounds to reject

the Booth-based challenge. See, e.g.,

State v. Bell, 293 S.C. 391, 360 S.E.2d

706 (1987), cert. denied, 108 S.Ct. 734

(1988); State v. Howard, 293 S.C. 462,

369 S.E.2d 132 (1988).

The plain truth is that the states

have accommodated their practices to the

mandate of Booth. No state has argued to

the Court that Booth has created an

imbalance in favor of the defendant in

capital sentencing proceedings by its

preclusion of victim impact evidence as

evidence “counteracting the mitigating

evidence which the defendant is entitled

to put in....” 96 L.Ed.2d at 457

(White, J., dissenting). No state has

filed an amicus brief in support of the

petitioner in Gathers, for in truth, the

states do not need to use victim impact

- 29 -

evidence to “even the score.” The proper

and sufficient counter to the defendant’s

mitigating evidence is for the prosecu-

tion to adduce evidence that the

defendant’s mitigating evidence and

arguments are unworthy of belief or that

they are exaggerated or defective in some

other respect.

For all these reasons, there is no

sufficient basis -- in the reasoning of

Booth, in any disruption Booth has

caused, or in any intervening change in

law or society -- for the Court to

overrule Booth.

CONCLUSION

Under these circumstances, if the

Court ooverrules Booth it will do

considerable damage to the moral fiber of

the law. It will appear to be a decision

occasioned by nothing more than a change

in the cCourt’s personnel. And while

e 30 «

capital cases may be thought to affect

only a tiny group of citizens, the

process of overruling Booth will signal a

threat to all. As Justice Stevens so

perceptively counseled,

Citizens must have confidence -

that the rules on which they

rely in ordering their affairs

-- particularly when they are

prepared to take issue with

those in power in doing so--

are rules of law and not merely

the opinion of a small group of

men who temporarily occupy high

office.

Nursing Home Association, 450 U.S. at

154. We urge the Court to honor the rule

of law by refusing to overrule Booth v.

Maryland.

Respectfully submitted,

DEAN HILL RIVKIN

University of Tennessee

College of Law

1505 W. Cumberland

Knoxville, TN 37996-1800

(615) 974-2331