# Amicus Curiae Brief — Booth v. Maryland > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1246%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1987 - **Citation:** 482 U.S. 496 ## Text 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 err: -ii- TABLE OF AUTHORITIES Cases People v. Haskett, 301 Cal.3d 841, 863-64 EE *eeee peecene Statute Mad. Ann. Code of 1957, art 27 EE SEE EOP T TTT Misceleanous American Bar Assn., puisesines for Vict an U.S. Dept. of Justice, Office of Justice Programs, Office for Victims PPP aeeeeeeSeeeecocccccccss President's Task Force on Victims of Crime, Fi R rt (1982.....22 nn. cccccccccccdd . j ‘ ~ ° ; . } ; ’ . : . ‘ . 4 . 6 . o . . ‘ . é . ‘ Bd ' ' - . . ; ° , o . A - -_-. ‘ ‘ - : * ' ‘ ° ’ , . ‘ sil . . ° * 7 ‘ ’ , . . ‘ ® ‘ 7 . ad ’ s . > ‘ : ' . - Pa ’ * Sa re * : — . ‘ ¢ 2 . —_ — ae = SO — : 7 7 e _ ——————— — 7 QUESTION PRESENTED Whether victim impact evidence is appropriate for consideration at sentencing. - . . "_@ ng * ‘ e . . sd . - . + . s a . > fal . . ‘ - * ‘ t Ys ° Z . . * ° : bd , é * bl i — ° : = 4 - ‘ . oa ee ee —o— - 7 ol 2 - a a ——— a a apes a se + — a . a = - a eae en a = 2 Oo T= = 1S _ = 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 ejje . . t ? ’ ’ ‘ . — ‘ * ‘ . ' * . . : “ . . . _ ' . ad ‘ ’ n ee ee eet «** . a «a . bd . 7 . . * we “ ‘ s ° . . ' : +. . .* * . ] * > f ‘ ’ 4 “dl ‘ a 7 ; ab. — 7 : hy _ = —— Oe a ——— IN eta rig ir ee A) <=" _-" — ee oe ae 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 -9- \ as < - ~ a ~~ = 7 “ - : ; 7 : a = 7 7 —_ . - —- re = _ 7 ~ = = 7 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 -12- 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 Mode! Legis ation >» D- = +08} 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 -s- 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 -15- 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 -16- 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 -20- | ‘ | 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 -23- . * * , >. . . ‘ nA ‘ - * * .* : : * » -. . _ : * be . . * . ‘ * ‘ae * e e« *? —— —=-— _ = 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 APPENDIX A. VTL V6) ¢ An we ee ee \ od age te ot Tht A ¢ ALEC ARY wr td emoome te ote WaAbee 1) 1OTC 1h CK er ot Beto Nt eee Im MAI K « HASAN WW rt (emanate | mee st esl) (AOMtS | natn if | meet | dem eterna Slaw. | soe store aoScrht rvans (rt (aed ew a ee ~ os ee ee A te ott STCVIN) COME Cen ee 6 emer: aed beer eens Stee OFFICE OF THE ATTORNEY GENERAL ee ae Munsey Kuskiing Sd Calven and Fayetic Streets SIS AN RA KEE ENE SE Haltsmeore. Maryland 21202-1909 eV STEPHEN H. SACHS by ' ann nes vex Rewwery cand — — (301) $76-6300 TTY tow Ueat Rate Aere Se eet 196 Rete Set ete CMARICS «) SNK 8 DOMES At SILI NT epere Acme, (oan ee eee te ot > “noth weRITHER Sf hmte T PRAT CMe! $76-6422. ... -. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1246%3A09. Public record. Not legal advice.