Amicus Curiae Brief — Booth v. Maryland

No. 86-5020

In The

Supreme Court of the United States

October Term, 1986

JOHN BOOTH,

vs.

STATE OF MARYLAND,

Respondent.

On Writ of Certiorari to the Court of Appeals of Maryland

BRIEF OF AMICUS CURIAE STEPHANIE ROPER

FOUNDATION, INC., IN SUPPORT OF RESPONDENT

RUSSELL P. BUTLER

RECEIVED LOUIS J. DiTRANI*

5210 Auth Road

JAN 3 1 1987 Suitland, Maryland 20746

OFFICE OF THE CLERK 4 (301) 423-8100

“. > EME Court, U.S. Counsel of Record

KURT W. WOLFGANG

Of Counsel

*M 20) 257) 6850-9 | APPEAL eH Y (21D 660 4e4eMA 17) Sal Lila

OC (202) H) T28NePA 21S) "25 ch HUSA GER 5 APPEAL

TABLE OF CONTENTS

QUESTION PRESENTED... cccccccccecel

TABLE OF CONTENTS ......«csccceceeceesell

TABLE OF AUTHORITIES......«««««ee+-Ill

STATEMENT OF INTEREST OF

AMICUS a

SUMMARY or ARGUMENT... .cccccccccceesf

ARGUMENT :

Victim impact idence is

relevant, appr iate evidence

for consideration at sentencing..?7

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TABLE OF AUTHORITIES

Cases

People v. Haskett, 301 Cal.3d 841,

863-64 EE *eeee peecene

Statute

Mad. Ann. Code of 1957, art 27

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Misceleanous

American Bar Assn., puisesines for

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U.S. Dept. of Justice, Office of

Justice Programs, Office for Victims

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President's Task Force on Victims of

Crime, Fi R rt (1982.....22

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QUESTION PRESENTED

Whether victim impact evidence

is appropriate for consideration at sentencing.

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STATEMENT OF INTEREST OF

AMICUS CURIAE

The Stephanie Roper Foundation,

Inc.,(the Foundation) is a private, non-

profit volunteer-based organization in-

corporated under the laws of the State of

Maryland. The Foundation and its sister

organization, The Stephanie Roper Commit-

tee, Inc.) provides assistance free of

charge to crime victims. Services avail-

able include:

. legal services

. transportation to court

. counseling and assistance

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regarding the trial process.

- court-watch programs

- @ public speaking network

- legislative and

intergovernmental services

The Foundation requires no dues for

membership, and subsists upon donations

from members, charitable organizations,

and the general public.

The membership of the Committee is

composed of concerned citizens from all

50 states, several U.S. territories and

foreign countries, although the vast ma-

jority of members reside in Maryland.

-2-

Currently, membership exceeds 11,000 in

number.

In the spring of 1982, Stephanie

Roper, a 22 year old honor student, and

the Foundation's namesake, was brutally

raped and murdered. When her two murder-

ers were sentenced in the fall of that

year, no victim impact statements were

prepared or considered, in apparent con-

travention to Chapter 495 of the Laws of

Meryland, 1982. To rectify this situa-

tion, the Foundation drafted remedial

legislation which was introduced, amend-

ed, and passed as Chapter 345 of the Laws

of Maryland, 1983. Of Counsel on this

-3-

brief is Kurt W. Wolfgang, who was in

1983 the registered lobbyist for the

Poundation, and who, along with members

of the legislature, participated in

drafting the 1983 legislation.

The outcome of the present case, is

the first victins rights legislation ever

scrutinized by our nation's Supreme

Court, will affect victims rights legis-

lation across the country, and will pro-

vide the most powerful measure to date

with which crime victims and their survi-

vors can assess the gravity assigned by

the courts to their anguish and suffe-

ring. Both petitioner and respondent

-4-

have consented to the filing of this

amicus curiae brief, and their letters of

consent are attached hereto «as Appendix

Summary of the Argument

The State of Maryland has a legitimate

interest in providing the sentencing au-

thority in criminal cases with evidence

related to the social, personal, and so-

cietal consequences, or costs, of the

convicted criminal's intentional vio-

lence. Because of the relevance of vic-

tim impact evidence upon sentencing,

admission of such evidence is congruous

with the constitutional principals appli-

cable to sentencing, including capital

sentencing.

ARGUMENT

VICTIM IMPACT EVIDENCE IS RELEVANT,

APPROPRIATE EVIDENCE FOR CONSIDERATION AT

SENTENCING.

Historically, only the state and the

defendant have been considered parties to

criminal proceedings. The legal fiction

that a crime is committed only against

the state has led to some absurd, and

avoidable inequities in the past.

Recently, legislatures and courts

have expanded the role of crime victims

in criminal proceedings, in order to cor-

rect some of those inequities of the

past. One of the areas in which legisla-

tures and courts have sought to increase

De

the participation of crime victims is

during sentencing through the provision

of evidence relating to the consequences

of the criminal upon the victim and his

or her family. Maryland enacted such a

law allowing, in cases of violent crime,

for the submission of a written victim

impact statement.

In 1983, two changes were affected

to this law which constitute the subject

of the present controversy. Chapter 345

of the Laws of Maryland, 1983, allows

that a victim's family can provide the

necessary information to be presented

during sentencing, if the victim is un-

-

able. More importantly, the legislature

clarified its original law to reflect

that victim impact statements should be

applied in capital sentencing as well as

the sentencing of other violent offenses.

The Maryland General Assembly had deter-

mined the oropriety and relevance of vic-

tim impact statements for all sentencing,

including death penalty sentencing. Re-

cently, the Maryland General Assembly has

again affirmed its policy of requiring

convicted violent criminals to account

for the conseguences of their actions.

The legislature passed a law allowing

victims to present an oral address at

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time of sentencing, much like the defen-

Gant's right to allocate at sentencing in

Maryland. 1

The petitioner considers victim is-

pact evidence to be irrelevant. The more

progressive view, however, is quite the

opposite view. The American Bar Associa-

tion's Guidelines for the Fair Treatment

2 (ABA Guide-

of Victims and Witnesses

lines) were the culmination of a compre-

hensive effort to formulate guidelines

that respected the rights of both defen-

Gants and victims. In August, 1983, the

ABA Guidelines were adopted by the Asso-

1. MD. Ann Code 6f 1957, art, 26 % 6430

-10-

éiation's policy-governing body, the

House of Delegates.

The ABA Guideline 11 provides:

GUIDELINE 11

Prior to the sentencing of

an offender in a serious

case, victims or their

representatives should

have the opportunity to

inform the sentencing body

of the crime's physical,

psychological, and finan-

cial repercussions on the

victim's family. Juris-

dictions may do this in

one or several ways,

including:

(a) written statement

prepared by the victim's fami-

ly. Jurisdictions may do this

in one or several ways,

including:

(b) written statement

prepared by the probation de-

partment after consvritation

with the victia or che vic-

tim's representative; and/or

(c) oral statement by

uidelines for the Fair ireatment o'

_ Witnesses in the Lrimina

ustice System (1 3).

sac |

the victia or the victia's

representative before the sen-

tencing body.

The rationale for this

guideline is set out in the

commentary accompanying sodel

victia impect legislation

promulgated by the ABA and the

National Association of Attor-

ney’'s General: 3

Commentary

The December 1982 Final

Report of the President's Task

a eB on Victias of Crime has

pene ey By be

soaneeet and to require

victim impact statements at se-

ntencing. The American Bar As-

3. U.S. Department of Justice, Office of

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sociation and the National

Organization for Victims Assis-

tance are among the national

organizations which have en-

dorsed such statements.

Most states" common law

allows the sentencing court to

solicit information from crime

victims and whomever else may

have relevant information. How-

ever, legislation instituting

formal procedures giving victims

the opportunity to initiate

“victim impact statements” in-

forming and sentencing court of

the crime's impact on them and

their families is a phenomenon

which began only a few years

ago. nevertheless, today the

federal government and thirty-

four states have enacted legis-

lation authorizing written

victim impact statements. In

addition, nineteen states have

explicitly authorized the victim

or the victim's representative

to appear personally or by coun-

sel at the sentencing hearing.

Justice Programs Office for Victims of

Crime, Victims of Cri

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Just decisions require

reliable--and complete--

information. The victim impact

statement provides a means

whereby information about the

crime‘s impact can be provided

to the sentencing court from

those most directly affected

financially, socially, psycho-

logically, and physically.

The ABA Guidelines reach a simi-

lar conclusion: ‘

Prior to the sentencing an

offender in a serious case, vic~-

tims or the representatives

should have the opportunity to

inform the senténcing body of

the crime's physical. psycho-

logical, and financial repercus-

sion on the victim or on the

victim's family...

In addition, the comments to the

ABA guideline are relevant to

the defendant's assertions.

Victim impact evidence is rele-

vant to a sentencing court.

4. ABA Guidelines, pp.19-21

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BEST AVAILABLE COPY

"Good [sentencing] deci-

sions require good -- and com-

plete -- information allowing

the victim to provide factual

information to the sentencing

court about issues of relevance

to the sentencing is no more a

play on the sympathy of the sen-

tencing court than allowing the

defendant to provide facts about

his or her personal circumstanc-

es which may affect a just

sentence.

..-Allowing victims direct or

indirect access to the sentenc-

ing body a this final stage is

of course the most effective

means of guaranteeing that such

relevant personal information is

brought to its attention.

A convicted criminal is respon-

sible, and should be held respons-

ible, for the consequences of his

violence. When a bank robber enters

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a bank, he has no idea how much mon-

ey, if any, he will retrieve. Under

the analysis of the petitioner, the

amount stolen should not only be ir-

relevant, but the Supreme Court

should dictate its irrelevance to the

states, because the convicted crimi- ,

nal could not have forseen nor con-

trolled the amount of money he could

liberate. Perhaps more to the point,

the petitioners analysis would hold

that since the criminal could neither

control nor forsee the abject terror

resulting from his brandishing a

firearm within the bank, that it

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would not only be unjust, but uncon

stitutional for the states to allow

such spurious events to be accounted

for at time of sentencing.

What of the terrorist hijacker

who holds a hostage for weeks, of

even years? The poor, misguided soul

had no way of knowing that constitu-

tion of his victim's family was such

that his crime would cause emotional,

or perhaps even physical scars which

could last, and ruin, a lifetime.

These “fortuitous circumstances,”

under the petitioners analysis, must

be charged to the account of God, or

-1?-

the Fates, or perhaps decadent

American Society...anyone but the

pitiable criminal.

The people of the State of

Maryland, through their legislature

have decided otherwise. While there

are many policy reasons supporting

Maryland's position thag the true

effects of the crime upon the victia

and the victim's family are relevant

to sentencing in all violent offens-

es, this court should be mindful

that the soundness of the policy is

not the ultimate question for the

court to decide. Rather, the court

-18-

must decide whether Maryland Legisiae-

ture has the euthority to set such

policy.

The arguments raised by the pe~

titioner and the Amicus NAACP on this

score appear to be twofold. s

First by, the information contained

in the victim impact statement in

this case, impact on the Bronste.o

family placed, in one fashion or an-

other, improper pressure on the sen~

tencing authority. This argument was

raised several years ago to the Pres-

ident's Task Force on Victias of

Crime. Their response: .

a

5S. We discount entirely the NAACP contention

that al) victim impact evidence would

require to heer stwetler evidence

-1>

The argument is that par-

ticipation by victims at sen-~

tencing will place improper

pressure on judges. The duty of

a judge is to dispense justice,

and the passing of judgment is a

difficult task. The difficulty

of the task should not be re~-

lieved, however, by discharging

it unfairly. Hearing from the

defendant and his family and

looking into the faces of his

children while passing sentence

is not easy, but no one could

responsibly suggest that the

defendant be denied his right to

be heard or suffer a sentence

imposed in secret in order to

spare the judge. The victim, no

less than the defendant, has a4

real and personal interest in

seeing the imposition of a just

penalty. The goal of victim

participation is not to pressure

justice, but to aid in its at-

tainment. The judge cannot take

a balanced view if his informa-

tion is acquired from only one

side. The prosecutor can begin

to present the other side, but

he was not personnal affected by

from the defendant as mitigation.

Courts are already required to hear such

information from the defendant, and in

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the crime or its aftermath, and

may not be fully aware of the

price the victim has paid. It

is as unfair to require that the

victim depend solely on the in-

tercession of the prosecutor as

it would be to require that the

defendant rely solely on his

counsel.

Victim impact evidence, then,

increases the justness of sentences,

rather than rendering them unfair.

Victim impact evidence would diminish

the possibility of an arbitrary or

freakish imposition of the death pen-

alty by providing high quality, reli-

able and relevant information upon

which to base a rational judgment.

fact, hear volumes of character and family

testimony in capital ee proceedings.

See Lockett v. Ohio, 438U.S. (1978).

-21-

Secondly the NAACP asserts,

without evidence, that the victim

impact statements invite juries to

impose sentences of death for

impermissible reasons. A cursory

look at statistics indicates that 69%

of violent crime victims are non-

white. Assuming a similar distribu-

tion of victims reach the sentencing

phase of trial, victim impact evi-

dence would allow those traditionally

ignored by government to participate

in a fashion heretofore not possible.

It is simply a callous speculative

misperception that the statements of

6. President's Task Force on Victims of Crime,

Final Report, p.78 (1982)

poor or minorities will be any less

eloquent or any less well received

than any other victims statement.

Consider one of the greatest leaders

and law-givers of all time: meses,

the stutterer.’

NAACP accuses juries of deter-

mining social worth by factors such

as education, class, wealth, race,

and religion. This remark is nothing

less than a cruel, unsubstantiated

insult. Certainly such an argument

fails to carry the petitioners burden

of establishing the

unconstitutionality of the statute.

7. Exodus, 4:10

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Applying these principles to the

present case, we find some informa-

tion (such as the Bronstein's son's

statement that his parents were

“butchered like animals") that invoke

emotion, but not one iota of informa-

tion contained within the statement

should be held impermissible.

The reasoning of the Supreme

Court of California supplies us with

a cold bucket of common sense with

which to drown the notion that sen-

tences must be based on the mere

facts of the crime itself. °

Although appeals to the

sympathy of passions of the jury

are inappropriate at the guilt

8. People v. Haskett, 30 Cal.3d 841, 863-64

(1982).

-24-

phase (citation omitted), at the

penalty phase, the jury decides

a question the resolution of

which turns not only on the

facts, but on the jury's moral

assessment of those facts as

they reflect on whether defen-

dant should be put to death. It

is not only appropriate, but

necessary, that the jury weigh

the sympathetic elements of de-

fendant's background against

those that may offend the con-

science. {The trial court)

should allow evidence and argu-

ment on emotional though rele-

vant subjects that could provide

legitimate reasons to sway the

jury to show mercy or to impose

*the ultimate sanction.

It is important to point out

that states have their own bodies of

evidentiary law. While the issue of

relevance must be explored in the

present case, it would be most re-

-25-

grettable if the court set the prece-

dent of substituting its judgment for

that of the state courts on a matter

which is evidentiary in nature. This

problem could easily be avoided by

ruling generally that the use of vic-

tim impact evidence fails to violate

the Constitutional rights of the de-

fendant, and that the state courts

are free to judge the relevance of

particular information.

Conclusion

"A society that loses its

capacity for moral outrage is

doomed.“ The unknown author of

this statement unwittingly para-

phrased this Court in its recog-

nition that moral outrage is one

of the legitimate functions if

Capital punishment. Victim

impact evidence aids sentencing

authorities immeasurably in de-

termining What sentence is ap-

propriate to reflect society's

moral outrage over such vile

acts as the petitioners murder

of Mr. and Mrs. Bronstein ‘for

these reasons, and the reasons

stated above, the court should

affirm the decision of the

Maryland Court of Appeals.

Respectfully Submitted,

Russell P. Butler

OF COUNSEL

KURT W. WOLFGANG

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December 2, 1986

Russell P. Butier, Esquire

Stephanie Roper Foundation

$210 Auth Road

Suitland, Maryland 20746-4325

Dear Mr.

Re: Booth v. Maryland

No. 86-5020, October Term, 1986

United States Supreme Court

Butler:

I hereby consent on behalf of the State of Maryland to your

filing of an amicus curiee brief in the above-captioned case.

CC: George E.

-Very truly yours,

lithorak a lf aS tt

Deborah K. Chesanow,

Assistant Attorney General

Chief, Criminal Appeals Division ”

Burns, Jr.,

Assistent Public Defender

BEST AVAILABLE COPY

OFFICE OF THE PUBLIC DEFENDER

— «-

APPELLATE Orvision Otunrs = “enocason

oe2 %. CUTAW STREET . iL, @

SAL TIMORE, MARYLAHO 21201 = «=

December 2, 19%

Russell P. Gutiler, Esquire

5210 Auth Road

Suitiand, Maryland 20746-4325

RF: Booth v. Maryland

No. Ro- 20 .

. Supreme Court of the Unite! Gcates

Dear Mr. Butler:

We agree that you may file a brief amicus curiae in

.

the above case.

Very truly yours.

s e .<

: — —

George E. Burns, Jr.

Assistant: Public Defender

Appellate Division

333-4842

GEB/iv

CERTIFICATE OF SERVICE

I hereby certify that on this

29th Day of January, 1987, that cop-

ies of this Amicus Curiae brief were

sent by regular mail to the parties

at their respective place of

business.

Russell P. Butler

Of Counsel

Kurt W. Wolfgang