Amicus Curiae Brief — Payne v. Tennessee

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

PERVIS TYRONE PAYNE, PETITIONER

Vv.

STATE OF TENNESSEE

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF TENNESSEE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, ITI

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the use of victim impact evidence during

the sentencing phase of petitioner’s capital trial violated

petitioner’s rights under the Eighth Amendment.

2. Whether Booth v. Maryland, 482 U.S. 496 (1987),

and South Carolina v. Gathers, 490 U.S. 805 (1989),

should be overruled.

(1)

TABLE OF CONTENTS

Page

Interest of the United States ............00.0. o.oo eee 1

Teen ec casecnaesmuctocessnseverss i 3

Summary of argument .............. SN ators _ ee aces 7

Argument:

I. The Eighth Amendment does not prohibit the

admission of victim impact evidence at the sen-

tencing phase of a capital trial... i)

II. Principles of stare decisis do not require contin-

ued adherence to Booth and Gathers 23

III. The victim impact evidence and argument at

issue in this case did not violate petitioner’s

rights under the Eighth Amendment __. oe 25

i ssnbuuscsieenocennconsoees Att Sa 27

TABLE OF AUTHORITIES

Cases:

Barclay v. Florida, 463 U.S. 939 (1983) __.. ner ee 17

Barefoot v. Estelic, 463 U.S. 880 (1983) 19

Beck v. Alabama, 447 U.S. 625 (1980) ras 21

Booth v. Maryland, 482 U.S. 496 (1987) ....6, 7, 9, 10, 12,

17-18, 20

Burnet vy. Coronado Oil & Gas Co., 285 U.S. 393

(1982) ........ 8 he EE Set aS ee a 23

California Vv. Ramos, 463 U.S. 992 (1988) 12, 14, 15

Coker v. Georgia, 433 U.S. 584 (1977) ...... 13

Darden Vv. Wainwright, 477 U.S. 168 (1986) ___. . 21, 26

Eddings Vv. Oklahoma, 455 U.S. 104 (1982) 17, 22

Enmund V. Florida, 458 U.S. 782 (1982)... 13

Erie R.R. v. Tompkins, 304 U.S. 64 (1988) 23

Garcia Vv. San Antonio Metro. Transit Auth., 469

a 23

Gardner V. Florida, 430 U.S. 349 (1977) ......... 19

Godfrey Vv. Georgia, 446 U.S. 420 (1980) = 17

Gore V. United States, 357 U.S. 386 (1958)... 25

Gregg V. Georgia, 428 U.S. 153 (1976) ............,-— «15, 19

(II)

IV

Cases—Continued : Page

Helvering V. Hallock, 309 U.S. 106 (1940) ............ 23

Lockett v. Ohio, 438 U.S. 586 (1978) ........0000000000.... 22

McCleskey v. Kemp, 481 U.S. 279 (1987) .............. 16, 20

Mills v. Maryland, 486 U.S. 367 (1988) 000... 24

Monell v. Department of Social Services, 436 U.S.

EEE WINE ‘cert seccsiduinsediercennminniteletinaiatimiaminniiaesecassanca 23

Roberts Vv. Louisiana, 431 U.S. 633 (1977) . at a 16, 24

Skipper v. South Carolina, 476 U.S. 1 (1986) ....15, 19, 22

Snyder Vv. Massachusetts, 291 U.S. 97 (1934) _........ 22

Solorio v. United States, 483 U.S. 485 (1987)... 23

South Carolina v. Gathers, 490 U.S. 805 (1989) ....6, 9, 10,

13, 17-18, 24

Spaziano V. Florida, 468 U.S. 447 (1984) ............. 15

Stanford v. Kentucky, 109 S. Ct. 2969 (1989)... 12

Tison V. Arizona, 481 U.S. 187 (1987) ..... = AAS 13

United States v. Grayson, 438 U.S. 41 (1978)... 19

United States v. Murphy, 30 M.J. 1040 (A.C.M.R.

ERSTE SS RST Ss IE oo INE tN Mien he oe 2

United States v. Tucker, 404 U.S. 443 (1972)... 19

Vasquez V. Hillery, 474 U.S. 254 (1986) 0.00000... 23

Williams v. New York, 337 U.S. 241 (1949) 19

Witherspoon V. Illinois, 391 U.S. 510 (1968) 23

Woodson Vv. North Carolina, 428 U.S. 280 (1976) __. 8

Zant V. Stephens, 462 U.S. 862 (1983) .............. 15, 16, 17

Constitution, statutes, regulations, and rules:

U.S. Const. :

BI: EE ctccstnonstnnerenitead 6, 7, 9, 12, 14, 18, 21, 26, 27

Anti-Drug Abuse Amendments Act of 1988, Pub.

L. No. 190-690, 102 Stat. 4312:

21 U.S.C. 848 (h) (1) (B) 200... eT Eee 2

RE ae EE 2

FF RS eee ee 2, 24

Air Piracy Act, 49 U.S.C. App. 1471 a6 seq.:

NS ee 2

Victim and Witness Protection Act of 1982, Pub.

L. No. 97-291, 96 Stat. 1248:

§ 2(b) (1), 96 Stat. 1248-1249 0. 1

SUI: MII scl ciicdeteeettionts Peclaciaidiic mn cbintiagupenocalih 1

18 U.S.C. 351 .................. paevsetass oviciaips ce. aeons meena 16

Vv

Statutes, regulations, and rules—Continued:

REGRETS Re ene ORO eae ORE ame RRC

es caghpiesvoeeananment |

18 U.S.C. 1751 ........... Pan eeoe oe Ma So eel em £

I

Fed. R. Crim. P.:

Rule 32(c) (2) ........ Seat tack 5 Fe ba Teme Sa

LE |) ee nienne

Sentencing Guidelines:

§ 2A2.1(b) (1) .................

§ 2A2.2(b) (3) FRE a Wren Seaton cree

§ 2A3.1(b) (4) ............ PAR Se nt Ribak ee ecaaeil

I clas

SERS SETE 6 MRE Er AA eee SSR see

Miscellaneous:

ABA, Guidelines for the Fair Treatment of Vic-

tims and Witnesses in the Criminal Justice Sys-

I a ceretemnties

137 Cong. Rec. (daily ed. March 13, 1991)

pp. $3195-S3198 ......... ‘ianicaaadigniidiaiayiasen eskisseupceien

pp. $3214-S3219 20000... scibaecaeesianabaensheseasiakenes

Department of Justice, Guidelines for Victim and

Witness Assistance, 48 Fed. Reg. (1983) :

S. Hillenbrand & B. Smith, Victims Rights Satie

tion: An Assessment of its Impact on Criminal

Justice Practitioners and Victims (May 1989)

National Organization for Victims, Victims Rights

and Services: A Legislative Directory (1988)

President’s Task Force on Victims of Crime, Final

he LS OO Le ees

Schulhofer, Harm and Punishment: A Critique of

Emphasis on the Results of Conduct in the

Criminal Law, 122 U. Pa. L. Rev. 1497 (1974) ..

S. 635, 102d Cong., Ist Sess. (1991) —.........-.....

11

10

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-5721

PERVIS TYRONE PAYNE, PETITIONER

Vv.

STATE OF TENNESSEE

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF TENNESSEE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

In recent years, the United States has joined the

States in seeking to make the criminal justice system

more responsive and accountable to the victims of crime.

As part of the effort to “enhance and protect the neces-

sary role of crime victims * * * in the criminal justice

process,” Victim and Witness Protection Act of 1982,

Pub. L. No. 97-291, § 2(b)‘1), 96 Stat. 1248-1249, Con-

gress has mandated that the presentence report prepared

after conviction for a federal crime contain “informa-

tion concerning any harm, including financial, social,

psychological, and physical harm done to or loss suf-

fered by any victim of the offense.” Jd. § 3, 96 Stat.

1249.' The Attorney General has promulgated guidelines

1In keeping with this direction, Fed. R. Crim. P. 32(c) (2) (D)

now requires a presentence report to include “verified information

(1)

2

to carry out that Act’s policies; those guidelines direct,

inter alia, that “federal prosecutors should advocate the

interests of victims at the time of sentencing.” Depart-

ment of Justice, Guidelines for Victim and Witness As-

sistance, 48 Fed. Reg. 33,777 (1983). The Sentencing

Guidelines developed pursuant to the Sentencing Reform

Act of 1984 also mandate consideration of the harm re-

sulting from the ddgfndant’s conduct. Various Guidelines

provide for increased sentences based on the vulnerability

or status of the victim and the physical or psychological

harm resulting from the crime. See Sentencing Guide-

lines $$ 2A2.1(b) (1), 2A2.2(b) (3), 2A3.1(b) (4), 2A4.1

(b) (2), 2B3.2(b) (3), 2H1.3, 3A1.1, 3A1.2, 5K2.2, 5K2.3;

see also 18 U.S.C. 3553 (b).

The strong federal interest in permitting consideration

of the harm inflicted on victims of crime is also reflected in

provisions applicable to capital sentencing. For example,

Fed. R. Crim. P. 32(c) (2) applies in full to prosecutions

under the capital sentencing provisions of the Air

Piracy Act, 49 U.S.C. App. 1472-1473. The death penalty

provisions of the Anti-Drug Abuse Amendments Act of

1988 permit the sentencer to find an aggravating circum-

stance where “|t|he victim was particularly vulnerable

due to old age, youth, or infirmity,” 21 U.S.C. 848(n) (9),

and also authorize any other factor aggravating the

crime—including its impact on victims—to be presented

to the sentencer upon notice to the defendant, 21 U.S.C.

848(h)(1)(B) and 848(n).? The Court’s resolution of

this case may directly affect the validity of those provi-

sions of federal law, and it will certainly affect the fu-

stated in a nonargumentative style containing an assessment of the

financial, social, psychological, and medical impact upon, and cost to,

any individual against whom the offense has been committed.”

* The use of victim impact evidence has also been at issue in a

capital proceeding under the Uniform Code of Military Justice.

United States v. Murphy, 30 M.J. 1040 (A.C.M.R. 1990).

3

ture development of federal law concerning the use of

victim impact evidence at a capital sentencing hearing.’

STATEMENT

1. Petitioner was found guilty on two counts of first-

degree murder and one count of assault with intent to

commit murder in the first degree. He was sentenced to

death for each of the murders and to 30 years’ imprison-

ment for the assault. J.A. 25.

The victims were Charisse Christopher, her two year

old daughter Lacie, and her three year old son Nicholas.

The three lived together in an apartment in Millington,

Tennessee, across the hall from petitioner’s girlfriend.

The State’s evidence showed that, after injecting cocaine

and drinking beer, petitioner entered the victims’ apart-

ment and made sexual advances toward Charisse. When

he was rebuffed, petitioner repeatedly stabbed Charisse

and both children with a butcher knife.

The police responded to a report by a neighbor who

heard screams from the apartment. When the first offi-

cer arrived at the apartment building, he encountered

petitioner, covered with blood, leaving the building. Pe-

titioner struck the officer with an overnight bag and

fled, but he was apprehended shortly thereafter. Inside

the apartment, the police found blood on the walls and

floor throughout the unit. Charisse and her children

were lying on the floor in the kitchen. Charisse and

% Recent legislative efforts demonstrate a continuing interest in

the use of victim impact evidence in capitai sentencing. For exam-

ple, the President’s crime bill recently introduced in Congress in-

cludes as statutory aggravating factors in capital cases the victim’s

vulnerability “due to old age, youth, or infirmity” and the victim’s

employment in certain official capacities. S. 635, 102d Cong., Ist

Sess. § 101 (1991). The bill would also allow the government, upon

notice to the defendant, to introduce evidence regarding non-

statutory aggravating circumstances, including “the effect of the

offense on the victim and the victim’s family.” hid. See generally

137 Cong. Rec. S3195-S3198, S3214-S3219 (daily ed. Mar. 13, 1991).

4

Lacie were dead from their wounds. Nicholas, although

very seriously injured, was conscious, and he survived.

A number of circumstances--including the state of the

apartment, the screams, and the fact that Charisse was

stabbed 41 times ard sustained 42 defensive wounds on

her arms and hands—indicated that she succumbed only

after an intense and protracted struggle. See J.A. 25-30.

At trial, petitioner testified that he had not harmed

any of the Christophers; that another man had raced by

him as he was walking up the stairs to the floor where

the Christophers lived; and that he had gotten blood on

himself when, after hearing moans from the Christo-

phers’ apartment, he had tried to help the victims. J.A.

27, 30-34.

2. The jury returned guilty verdicts against petitioner

on all counts. During the sentencing phase of the trial,

the State called Charisse’s mother, Mary Zvolanek.

Asked how Nicholas had been affected by the murders

of his mother and sister, Ms. Zvolanek testified (J.A. 3):

He cries for his mom. He doesn’t seem to under-

stand why she doesn’t come home. And he cries for

his sister Lacie. He comes to me many times during

the week and asks me, Grandmama, do you miss my

Lacie. And I tell yes. He says, I’m worried bout my

Lacie.

The State also showed a videotape, taken on the after-

noon of the murders, of the apartment and the bodies

of Charisse and Lacie. J.A. 37-38, 43-44.

Petitioner called four witnesses during the sentencing

phase of the trial: a psychologist, his girlfriend, and his

mother and father. The psychologist testified about the

results of tests he administered—in particular, that peti-

tioner had scored 78 on an I.Q. test, a result the psy-

chologist described as “significant.” J.A. 38-39. The

latter three witnesses all testified that petitioner at-

tended church, that they had not known him to use

drugs or abuse alcohol, and that the offenses of which

he had been convicted were inconsistent with what they

5

knew of him. 18 Tr. 1509-1510, 1558, 1559, 1565. Peti-

tioner’s girlfriend also testified that she had met peti-

tioner during a period when she was being abused by her

husband. She stated that petitioner was “very caring

for” her three children, who were being affected by her

marital difficulties, and that he had “got them back to

their old self.”” Id. at 1508-1509. The children, the girl-

friend also testified, had come to “love [petitioner] very

much,” and he behaved “[j]ust like a father that loved

his kids.” Jd. at 1511. She described the children as

“shocked” by the charges against petitioner, and she re-

ported that they “believe he’s innocent and * * * ask

about him all the time.” Jbid. Petitioner’s mother and

father described petitioner’s background, and they testi-

fied that he had been a good son and that they loved him.

Id. at 1565, 1570.

In arguing for the death penalty during closing argu-

ment, the State urged the jury to consider the continuing

effects of Nicholas’s experience and the other harm flow-

ing from the murders. For instance, during rebuttal ar-

gument, the prosecutor stated (J.A. 13, 14, 15-16):

You saw the videotape this morning. You saw

what Nicholas Christovher will carry in his mind

forever. When you talk about cruel, when you talk

about atrocious, and when you talk about heinous,

that picture will always come into your mind, prob-

ably throughout the rest of your lives. * * *

|Petitioner’s counsel] talks about Pervis Payne

and how well thought of he was in high school and

how many people like him and love him. No one will

ever know about Lacie Jo because she never had the

chance to grow up. Her life was taken from her at

the age of two years old. So, no, there won’t be a

high school principal to taik about Lacie Jo Christ-

opher, and there won’t be anybody to take her to her

high school prom. And there won’t be anybody there

—there won’t be her mother there or Nicholas’

mother there to kiss him at night. His mother will

never kiss him goodnight or pat him as he goes off to

bed, or hold him and sing him a lullaby. * * *

6

[Petitioner’s attorney] wants you to think about

a good reputation, people who love the defendant and

things about him. He doesn’t want you to think

about the people who loved Charisse Christopher, her

mother and daddy who loved her. The people who

loved little Lacie Jo, the grandparents who are still

here. The brother who mourns for her every single

day and wants to know where his best little play-

mate is. He doesn’t have anybody to watch cartoons

with him, a little one. These are the things that go

into why is it especially cruel, heinous, and atrocious,

the burden that that child will carry forever.

The jury sentenced petitioner to death on each of the

murder counts.

3. The Supreme Court of Tennessee affirmed petition-

er’s conviction and sentence. J.A. 25-47. The court re-

jected petitioner’s contention that the admission of Ms.

Zvoianek’s testimony and the State’s closing argument

constituted prejudicial violations of his rights under the

Eighth Amendment as applied in Booth v. Maryland, 482

U.S. 496 (1987), and South Carolina v. Gathers, 490

U.S. 805 (1989). The court characterized the grand-

mother’s testimony as “technically irrelevant,” but con-

cluded that it “did not create a constitutionally unaccept-

able risk of an arbitrary imposition of the death penalty,

and was harmless beyond a reasonable doubt.” J.A. 40.

The court determined that the State’s argument was

“relevant to [petitioner’s] personal responsibility and

moral guilt.” J.A. 42. “When a person deliberately picks

a butcher knife out of a kitchen drawer and proceeds to

stab a twenty-eight year old mother, her two and one-

half year old daughter and her three and one-half year

old son, in the same room,” the court explained, “the

physical and mental condition of the boy he left for dead

is surely relevant in determining his ‘blameworthiness.’ ”

J.A. 42. The court added that “/i]t is an affront to the

civilized members of the human race to say that at sen-

tencing in a capital case, a parade of witnesses may

praise the background, character and good deeds of De-

7

fendant (as was done in this case), without limitation

as to relevancy, but nothing may be said that bears upon

the character of, or the harm imposed, upon the victims.”

J.A. 42. Even if the argument violated Booth and

Gathers, the court continued, the error was harmless

beyond a reasonable doubt. J.A. 43.

SUMMARY OF ARGUMENT

1. This Court’s decisions in Booth and Gathers are

grounded in the preposition that evidence of the full ex-

tent of the harm caused by a murderer “is irrelevant to

a capital sentencing decision” and “creates a constitu-

tionally unacceptable risk that the jury may impose the

death penalty in an arbitrary and capricious manner.”

482 U.S. at 503. Neither of these grounds justifies a

constitutional rule excluding all evidence of the harm

caused by a murder, including the characteristics of the

person whose life was taken and the impact of the crime

on family members.

a. Booth’s ruling that a sentencer may not take ac-

count of the harm resulting from an offense contradicts

both longstanding principles of criminal responsibility

and the judgment reflected in legislation enacted by Con-

gress and virtually all of the States. The Constitution

does not prohibit the implementation of that judgment

in the context of capital sentencing. This Court has

made clear that an offender may be subjected to the

death penalty even in the absence of proof that he in-

tended to cause the victim’s death. The Eighth Amend-

ment cannot fairly be construed, therefore, to forbid

consideration of the unintended consequences of criminal

activity. The extent of the harm resulting from an of-

fense is relevant to a constitutionally permissible sen-

tencing consideration—the degree of retribution war-

ranted by the offense. Consideration of a particular mur-

der’s effects does not undercut the procedural require-

ments that this Court has prescribed for capital sen-

tencing.

8

b. The fact that victim impact evidence may have dif-

ferent degrees of probative value in different cases or

may on occasion be unduly inflammatory does not jus-

tify a constitutional rule excluding all victim impact evi-

dence from capital sentencing proceedings. If evidence

in a particular case is lacking in probative value, in-

flammatory, or otherwise unfairly prejudicial, the trial

court can and should exclude it. A jury can be in-

structed as to those considerations that may not enter

its decision to impose the death penalty. If victim im-

pact evidence is improperly admitted, its admission can

be fully and carefully reviewed on appeal. These are

familiar tasks that trial and appellate courts are well-

equipped to perform. The possibility that some evidence

offered to show the effects of a murder should be excluded

is searcely a reason for erecting a constitutional rule

barring all such evidence.

ce. Finally, Booth’s rigid rule is in severe tension with

the principle that a sentencer cannot be precluded from

considering any aspect of the defendant’s character or

record that may provide a basis for imposing a sentence

other than death. If the jury must consider the defend-

ant as a “uniquely individual human being! |,” Woodson

v. North Carolina, 428 U.S. 280, 304 (1976) (plurality

opinion), then there is no convincing reason—and espe-

cially none grounded in the Constitution—to prevent the

jury from also considering the unique characteristics or

circumstances of the victim.

2. Principles of stare decisis do not preclude reexam-

ination of Booth and Gathers. The Court’s willingness to

reconsider its prior decisions is, quite appropriately,

greater in constitutional than in statutory cases, for in

that setting there is no method of correcting errors short

of constitutional amendment. Moreover, the Court has

expressly stated that a prior decision is more likely to be

overruled if it has bred confusion or anomalous results,

or if it disserves principles of democratic self-governance.

Both of these factors weigh heavily in favor of abundon-

ing Booth and Gathers.

9

3. The evidence and argument at issue in this case did

not violate any of petitioner’s rights under the Eighth

Amendment. Nicholas’s grandmother’s testimony was a

simple, factual description of the continuing effects of

petitioner’s offenses on Nicholas. The State’s argument

concerning the effects of petitioner’s offenses did not sug-

gest that the death penalty should be imposed on the

basis of any impermissible consideration, and in light of

the evidence and argument presented on petitioner’s be-

half, the State’s argument did not create an unaccept-

able risk of an unreliable sentencing determination.

ARGUMENT

I. THE EIGHTH AMENDMENT DOES NOT PRO-

HIBIT THE ADMISSION OF VICTIM IMPACT

EVIDENCE AT THE SENTENCING PHASE OF A

CAPITAL TRIAL

In Booth v. Maryland, 482 U.S. 496 (1987), this Court

held that the Eighth Amendment prohibits a jury from

considering a victim impact statement at the sentencing

phase of a capital murder trial. Two years later, in

South Carolina v. Gathers, 490 U.S. 805 (1989), the

Court applied that rule and held that it was error for

the prosecutor to comment to the sentencing jury on the

personal qualities of the victim. In both cases, the Court

made it clear that the admissibility of victim impact evi-

dence was not to be determined on a case-by-case basis,

but that such evidence was per se inadmissible in the

sentencing phase of a capital case except to the extent

that it “relate|d| directly to the circumstances of the

crime.” Booth, 482 U.S. at 507 n.10; Gathers, 490 U.S.

at 81i.

Two complementary justifications were offered to sup-

port the rule announced in Booth and applied in Gathers.

The first is that evidence of a murder victim’s charac-

teristics and the impact of the murder on others are, as

a matter of constitutional law, “irrelevant to a capital

10

sentencing decision.” Booth, 482 U.S. at 503. Evidence

offered to support a death sentence must have “some

bearing on the defendant’s ‘personal responsibility and

moral guilt,’”’ Booth stated, and victim impact evidence

fails that test to the extent it presents “factors about

which the defendant was unaware, and that were irrele-

vant to the decision to kill.” Jd. at 502, 505; see Gathers,

490 U.S. at 810-811. Second, the Court held that even

victim impact information of which a murderer was

aware when he committed his offense may not be ad-

mitted because “it creates an impermissible risk that the

capital sentencing decision will be made in an arbitrary

manner.” 482 U.S. at 505. In our view, neither justifi-

cation is valid.

A. The criminal law has long embraced the principle

that a defendant may be held personally responsible for

the harm caused by his criminal activity, and that he

may be punished even for the unintended consequences

of that conduct. Booth, 482 U.S. at 516 (opinion of

White, J.); id. at 519 (opinion of Sealia, J.) ; Gathers,

490 U.S. at 818-819 (opinion of O’Connor, J.); id. at

823-824 (opinion of Scalia, J.).‘ The extent of the harm

caused by an offense has historically influenced the choice

of a particular sentence from within the range author-

ized by statute. The Sentencing Guidelines codify that

practice in severai respects. For various offenses (in-

cluding assault, sexual abuse, kidnapping, extortion, and

civil rights violations), the offense level is increased

“li]f the victim sustained bodily injury,” and the ex-

tent of the increase is tied to the severity of the in-

jury. Sentencing Guidelines §§ 2A2.1(b) (1), 2A2.2(b)

(3), 2A3.1(b) (4), 2A4.1(b) (2), 2B3.2(b) (3), 2H1.3.

‘See generally Schulhofer, Harm and Punishment: A Cr tique of

Emphasis on the Results of Conduct in the Criminal Law, 122 U.

Pa. L. Rev. 1497, 1498 (1974) (“The criminal law attributes major

significance to the harm actually caused by a defendant’s conduct, as

distinguished from the harm intended or risked.’’).

11

In addition, the Guidelines authorize upward departures

for physica! or extreme psychological injury resulting from

other offenses. Jd. at §§ 5K2.2, 5K2.3. Nothing in any

of these Guidelines requires that the injury have been

intended or foreseen.

In recent years, the federal government and virtually

all the States have enacted legislation designed to place

information about the harm caused by crimes before

their sentencing authorities. As required by the Victim

and Witness Protection Act of 1982, presentence reports

prepared in accordance with Fed. R. Crim. P. 32(¢) (2)

(D) now include “verified information stated in a non-

argumentative style containing an assessment of the fi-

nancial, social, psychological, and medical impact upon,

and cost to, any individual against whom the offense has

been committed.” Many state statutes provide for com-

parable victim impact statements or confer a right of

allocution on the victims of crimes.° The goal of these

provisions is to ensure that sentencing authorities are

provided with information enabling them to design a sen-

tence that takes account of the harm a defendant has

caused."

5 See National Organization for Victims, Victims Rights and

Services: A Legislative Directory 35, 39, 43 (1988). Victim impact

legislation is consistent with recommendations of the ABA and the

) resident’s Task Force on Victims of Crime. ABA, Guidelines for

the Fair Treatment of Victims and Witnesses in the Criminal Jus-

tice System (1983) (“[p|rior to the sentencing of an offender in a

serious case, victims or their representatives should have the oppor-

tunity to inform the sentencing body of the crime’s ,hysical, psycho-

logical, and financial repercussions on the victim’s family”); Presi-

dent’s Task Force on Victims of Crime, Final Report, 33, 72, 76, 78

(1982).

® The results of one survey reflected that large majorities of both

prosecutors and judges view the financial, physical, and psychologi-

cal information provided in victim impact statements to be impor-

tant and useful in sentencing. S. Hillenbrand & B. Smith, Victims

Rights Legislation: An Assessment of its Impact on Criminal Jus-

tice Practitioners and Victims 44, 71 (May 1989) (unpublished

12

The Court in Booth took note of those statutes, observ-

ing that they “reflect|ed| a legislative judgment that the

effect of crime on victims should have a place in the

criminal justice system.” 482 U.S. at 509 n.12.7 Booth

found that judgment impermissible in a capital case,

however, on the ground that “death is a ‘punishment dif-

ferent from all other sanctions,’ * * * and that therefore

the considerations that inform the sentencing decision

may be different from those that might be relevant to

other liability or punishment determinations.” Jbid.

While it is undoubtedly true that the death penalty is

unique in its irrevocability and severity, see, e.g., Cali-

fornia v. Ramos, 463 U.S. 992, 999 & n.9 (1983), those

qualities do not justify placing a widely accepted and

legitimate sentencing concern beyond the power of the

States and Congress.

1. By its terms, the Eighth Amendment prohibits

“eruel and unusual punishments.” Nothing in that lan-

guage or the amendment’s history suggests that evidence

of the harm caused by the defendant is irrelevant to the

sentencing decision, whether in capital cases or other-

wise. In upholding the death penalty’s application to

certain categories of felony murder, the Court has held

that a defendant who acts with reckless disregard for

human life may be subject to the death penalty if he

participates in a robbery that results in death. But, in

the Court’s view, the Constitution would not permit im-

position of the death penalty on the same defendant, act-

ing in exactly the same way, with equal recklessness as

to human life, if the robbery in which he participated

study conducted by the ABA Criminal Justice Section Victim Wit-

ness Project).

7 In defining the scope of the Eighth Amendment’s prohibition on

cruel and unusual punishments, the Court has examined the histori-

cal treatment of the matter in question and comparable legislative

judgments. See, e.g., Stanford v. Kentucky, 109 S. Ct. 2969 (1989).

No attempt has been made to justify Booth and Gathers on that

basis.

13

did not result in the death of one of the victims. Tison

v. Arizona, 481 U.S. 137, 148 (1987).*

In many other settings as well, it is clear that the

impact on the victim determines whether the act may

lead to a sentence of death. For example, even though

the death penalty may not be imposed for the rape of an

adult woman, see Coker v. Georgia, 433 U.S. 584 (1977),

the case is dramatically changed if the victim dies as a

result of injuries suffered during the rape. In that event,

even if the defendant did not specifically intend to kill

the victim, the defendant would be subject in most juris-

dictions to prosecution for felony murder and, in light

of Tison’s analysis, could constitutionally be sentenced to

death. “[{P]roportionality—at least as regards capital

punishment— * * * involves the notion that the magni-

tude of the punishment must be related to the degree of

the harm inflicted on the victim, as well as to the degree

of the defendant’s blameworthiness.” Enmund v. Florida,

458 U.S. 782, 815 (1982) (O’Connor, J., dissenting).

Since that is so, it is difficult to understand why the

Constitution should be construed to prohibit a jury or

SIn Enmund Vv. Florida, 458 U.S. 782, 801 (1982), the Court held

that the death penalty could not constitutionally be imposed upon a

defendant who, although a participant in a robbery in which two

persons were killed, did not himself kill or attempt to kill and did

not have any intention of participating in or facilitating the mur-

ders. The Court stated that a defendant’s “criminal culpability must

be limited to his participation in the robbery, and his punishment

must be tailored to his personal responsibility and moral guilt.” In

our view, Gathers erred in its suggestion that the Court thereby

recognized a limit on the factors that may be considered in deter-

mining whether to impose a death sentence on an offender who is

constitutionally eligible for that penalty. See 490 U.S. at 810.

Based upon a review of state statutes, jury verdicts, and other fac-

tors, Enmund defined a level of attributed responsibility for a

homicide as to which the death penalty was held to be constitution-

ally disproportionate. Erymund did not, however, purport to address

what factors may be made relevant to the imposition of a death

sentence on an offender who was directly and personally responsible

for taking a life.

14

a judge in a capital case from considering the nature of

the life that a murder has cut short or the effects of the

crime on the survivors. Legislative bodies can reasonably

conclude—with the most powerful moral justification—

that the lives ended by murder are more than just ab-

stractions and that survivors and loved ones are them-

selves very much “victims” of the crime of murder.’ The

reality of this point is underscored in case after case

coming before this Court. Indeed, the present case dem-

onstrates the profound anguish visited on a three-year-

old child—the victim himself of a vicious assault—by

the brutal murder of his mother and his two-year-old sis-

ter before his own eyes.

2. The Court has generally refused to constitutionalize

the factors that a sentencer may consider in capital

cases. “In ensuring that the death penalty is not meted

out arbitrarily or capriciously, the Court’s principal con-

cern has been more with the procedure by which the

State imposes the death sentence than with the substan-

tive factors the State lays before the jury as a basis for

imposing death, once it has been determined that the

defendant falls within the category of persons eligible

for the death penalty.” California v. Ramos, 463 U.S.

at 999. As a matter of constitutional law, “‘|o]nce the

jury finds that the defendant falis within the legisla-

tively defined category of persons eligible for the death

penalty, * * * the jury then is free to consider a myriad

of factors to determine whether death is the appropriate

punishment.” Jd. at 1008.

This Court’s consistent unwillingness—apart from

Booth and Gathers—to constitutionalize the factors that

the States or Congress may make relevant to the imposi-

tion of the death penalty is well founded. By its terms,

15

criteria that States or the federal government may em-

ploy to determine an appropriate punishment. Moreover,

“(t]he deference [owed] to the decisions of the state leg-

islatures under our federal system * * * is enhanced

where the specification of punishments is concerned, for

‘these are peculiarly questions of legislative policy.’ ”

Gregg V. Georgia, 428 U.S. 153, 176 (1976) (plurality

opinion); California v. Ramos, 463 U.S. at 1000."

Criminal sentences have traditionally rested on a wide

variety of factors. Unlike determinations of guilt, in

which “the jury must satisfy itself that the necessary

elements of the particular crime have been proved beyond

a reasonable doubt” (id. at 1008), “sentencing decisions

rest on a far-reaching inquiry into countless facts and

circumstances,” Zant v. Stephens, 462 U.S. 862, 902

(1983) (Rehnquist. J., concurring in the judgment).

Victim impact evidence may bear directly on the ques-

tion whether, in a particular case, the death penalty is

appropriate for purposes of retribution. Retribution is

a recognized and legitimate purpose served by capital

punishment. “(T]he decision that capital punishment

may be the appropriate sanction in extreme cases is an

expression of the community’s belief that certain crimes

are themselves so grievous an affront to humanity that

the only adequate response may be the penalty of death.”

Gregg V. Georgia, 428 U.S. at 184. See Spaziano v.

Florida, 468 U.S. 447, 461 (1984). In assessing the ex-

tent to which a capital offense is an affront to humanity

deserving of the death penalty, 7.e., the extent to which

the retributive purpose is served, the sentencer may rea-

sonably take into account the full extent of the harm

flowing from that particular offense.

10 See also Skipper v. South Carolina, 476 U.S. 1, 11 (1986 foul,

(“[ T]he States, and not this Court, retain ‘the traditional authority’ 3 - J

to determine what particular evidence within the broad categories conCurA

by the Department of Justice provide that “[t]he term ‘victim’ also described in Lockett and Eddings is relevant in the first instance.” ). 1D | We.

includes the immediate family of a minor or a homicide victim.” The same principle applies to evidence admitted to show the aggra- Tode ed

48 Fed. Reg. 33,775 (1983). vated nature of an offense. ju 7 ie

the Eighth Amendment does not speak tc the substantive

® The Guidelines for Victim and Witness Assistance promulgated

16

The characteristics of the victim and the harm to sur-

vivors are not—like race or religion—considerations that

the Constitution declares irrelevant to sentencing. In our

view, for instance, nothing in the Constitution would

prohibit a State from authorizing enhanced punishment

for the murder of a parent of minor childrer—whether

or not the offender was aware of the victim’s status—

because of the profound harm to children occasioned by

that offense.'' The harm resulting from a particular

murder of that type is not, therefore, “constitutionally

impermissible or totally irrelevant to the sentencing

process,” Zant v. Stephens, 462 U.S. at 885. If the State

may constitutionally prescribe enhanced punishment, in-

cluding capital punishment, based on a status such as

parenthood, the State should be equally free to admit

evidence of the viciim’s family status and the impact of

the murder on family members as factors bearing on the

propriety of the death penalty.

3. Contrary to Booth’s suggestion, the procedural re-

quirements the Court has imposed on capital sentencing

systems provide no support whatever for a rule barring

victim impact evidence. Under the Court’s decisions,

“la] State must ‘narrow the class of murderers subject

to capital punishment,’ * * * by providing ‘specific and

detailed guidance’ to the sentencer.” McCleskey v. Kemp,

481 U.S. 279, 303 (1987). Allowing a sentencer to con-

sider victim impact evidence, however, in no way dilutes

the specificity of the criteria that a State has selected to

11 Indeed, this Court has already recognized that the victim’s

status can properly be considered in some settings as a factor weigh-

ing in favor of imposing the death penalty. See Roberts v. Louisi-

ana, 431 U.S. 633, 636 (1977) (victim’s status as a law enforcement

officer may be considered as an aggravating factor). Federal stat-

utes authorize the death penalty for the assassination of the Presi-

dent or Vice President, 18 U.S.C. 1751, 1111, a Member of Congress,

a Cabinet officer, a Supreme Court Justice, or the head of an Execu-

tive Department, 18 U.S.C. 351, and a grand jury witness, 18 U.S.C.

1512.

17

distinguish offenders who are eligible for the death pen-

alty from those who are not."

Likewise, victim impact evidence is not at all incon-

sistent with the Court’s requirement of individualized

capital sentencing. See, e.g., Zant v. Stephens, 462 U.S.

at 879; Eddings v. Oklahoma, 455 U.S. 104, 110-112

(1982). To the contrary, admitting victim impact evi-

dence potentially enhances the individualized nature of

the sentencing decision by adding to the information,

particular to the defendant’s crime, that the jury may

consider in determining whether to impose a death sen-

tence.

If victim impact information is, as Booth and Gathers

concluded, “irrelevant to a capital sentencing decision”

and ‘wholly unrelated to the blameworthiness of a par-

1” Booth erred in suggesting that a State may not allow a sen-

tencer even to consider facts that would not, standing alone, qualify

as statutory aggravating circumstances. See 482 U.S. at 506 (rely-

ing on Godfrey Vv. Georgia, 446 U.S. 420, 433 (1980) (Stewart, J.),

for the proposition that victim impact information does not provide

“a principled way to distinguish |cases| in which the death penalty

was imposed, from the many cases in which it was not”). In

Godfrey, the plurality determined that a statutory aggravating cir-

cumstance, which authorized the death penalty for certain vile or

inhuman murders, was unconstitutionally overbroad and vague.

That conclusion does not suggest that, if the jury had found another

statutory aggravating circumstance making the defendant eligible

for the death penalty, it would have been constitutionally required

to ignore aspects of the murder that, although not themselves suffi-

cient to justify the death penalty, weighed in favor of such a

sentence. As the Court explained in Zant v. Stephens, 462 U.S.

at 878:

[S]tatutory aggravating circumstances play a constitutionally

necessary function at the stage of legislative definition: they

circumscribe the class of persons eligible for the death penalty.

But the Constitution does not require the jury to ignore other

possible aggravating factors in the process of selecting, from

among that class, those defendants who will actually be sen-

tenced to death.

See also Barclay v. Florida, 463 U.S. 939, 950 (1983) (plurality

opinion).

18

ticular defendant” (482 U.S. at 503, 504; 490 U.S. at

810), logic would suggest that each capital defendant is

constitutionally entitled to a jury instruction admonish-

ing the jury not to consider any information of that type

that has come to its attention during the guilt stage of a

trial and not to refer to its own understanding of the

harm that has resulted from a murder. Yet it is un-

thinkable, we believe, that the Eighth Amendment could

be construed to prohibit the jury that sentenced peti-

tioner from even considering his crimes’ traumatic im-

pact on the three-year-old survivor of petitioner’s assault,

the opportunities that were taken from the young sur-

vivor’s mother and sister, and the loss imposed on others

affected by petitioner’s crimes. See Pet. Br. 13 (conced-

ing that argument on this point was permissible, but

maintaining that evidence was not). The flaw is not in

the logic, but in the premise. It is simply wrong, we

submit, to say that victim impact information is neces-

sarily irrelevant to a constitutional sentencing determi-

nation.

B. Booth’s second justification is that victim impact

evidence, even if potentially relevant to the imposition of

the death penalty, “creates a constitutionally unaccept-

able risk that the jury may impose the death penalty in

an arbitrary and capricious manner.” 482 U.S. at 503;

see id. at 505. This rationale suggests that even if the

Constitution does not forbid the sentencer from consid-

ering harm to victims, evidence or prosecutorial comment

on that issue is impermissible because it is too prejudi-

cial to be allowed.

1. This reasoning is inconsistent with the fundamenta!

principles that trial courts can determine the admissibility

of evidence and that a properly instructed jury can he

trusted to employ it for an appropriate purpose. As this

Court explained in rejecting a contention that expert

testimony on future dangerousness should be excluded

from capital trials, “the rules of evidence generally ex-

tant at the federal and state levels anticipate that rele-

19

vant, unprivileged evidence should be admitted and its

weight left to the factfinder, who would have the bene-

fit of cross-examination and contrary evidence by the

opposing party.” Barefoot v. Estelle, 463 U.S. 880, 898

(1983).'" The task of identifying what information will

be placed before a jury is, within very broad limits, a

matter for the States. Cf. Skipper v. South Carolina,

476 U.S. 1, 15 (1986) (Powell, J., concurring in the

judgment) (since “|t|his Court has no special expertise

in deciding whether particular categories of evidence are

too speculative or insubstantial to merit consideration

by the sentencer,” “|i|t makes little sense * * * to sub-

stitute our judgment of relevance for that of state courts

and legislatures”’).

These considerations have particular force with re-

spect to sentencing.'* In fact, in the area of capital sen-

tencing, the plurality opinion in Gregg rejected an ob-

jection to “the wide scope of evidence and argument al-

lowed at presentence hearings,” saying (428 U.S. at

203-204) :

We think that the Georgia court wisely has chosen

not to impose unnecessary restrictions on the evi-

dence that can be offered at such a hearing and to

approve open and far-ranging argument. * * * So

long as the evidence introduced and the arguments

made at the presentence hearing do not prejudice a

defendant, it is preferable not to impose restrictions.

We think it desirable for the jury to have as much

1’ We do not suggest that information material to sentencing must

comply with the rules of evidence, see Williams v. New York, 337

U.S. 241 (1949), as long as a capital defendant has a sufficient

opportunity to deny or explain that information, see Gardner Vv.

Florida, 430 U.S. 349 (1977).

™ See United States v. Tucker, 404 U.S. 443, 446 (1972) (in the

federal system, “a judge may appropriately conduct an_ inquiry

broad in scope, largely unlimited as to the kind of information he

may consider, or the source from which it may come”); United

States Vv. Grayson, 438 U.S. 41, 50 (1978); Williams v. New York,

337 U.S. 241, 246 (1949).

20

information before it as possible when it makes the

sentencing decision.

2. Booth suggested that the special characteristics of

victim impact evidence warrant a departure from these

principles. In particular, Booth expressed concern that,

if such evidence is admissible, the imposition of capital

punishment might turn on the willingness and ability of

the victim’s relatives to sway the jury, and difficult-to-

rebut overstatement regarding the deceased’s character

or the grief of survivors. 482 U.S. at 505-507. In our

view, none of those concerns justifies a constitutionally

based per se rule excluding victim impact evidence in

capital sentencing proceedings.

It cannot be denied, as the Court noted in Booth, 482

U.S. at 505, that some family members are more articu-

late than others, and that some are more willing than

others to express their grief to a jury. But such differ-

ences among witnesses are an inescapable feature of a

criminal justice system in which the participants are in-

dividuals of widely differing backgrounds, abilities, and

experiences. All witnesses, including witnesses for the

defense, differ in their ability to present their testimony

in an effective and persuasive manner, just as defense

lawyers and prosecutors differ in their ability to present

evidence and argument to the jury. There is nothing so

distinctive about victim impact testimony as to raise these

ordinary and unavoidable variations to the level of a con-

stitutional infirmity, so as to require exclusion of an en-

tire category of evidence that States or Congress have de-

termined to be proper and appropriate.

Of course, a capital sentence decision may not be based

on constitutionally impermissible factors such as the race

of the victim. See McCleskey v. Kemp, 481 U.S. 279

(1987). But the risk that juries may base their decisions

on such impermissible factors is present regardless of

whether victim impact evidence is admitted, and it is by

no means clear that introduction of victim impact evi-

21

dence will have the effect of increasing that risk; indeed,

it may have the opposite effect. The evidence may per-

sonalize the victim for the jurors and make it more likely

that they will empathize with the family members of a

victim with whom the jurors might otherwise feel that

they have very little in common.

In any event, the trial court can control the presenta-

tion of the evidence to minimize the risk of its misuse.

The court can instruct the jury not to allow impermissible

considerations such as race to influence the exercise of its

discretion. And if the risk of misuse in a particular case

is too great, the court can simply exclude the evidence on

that ground. But the risk that the jury might occa-

sionally misuse particular evidence does not justify a cate-

gorical rule, grounded in the Constitution, that victim

impact evidence may never be admitted at a capital sen-

tencing hearing.

It is true, of course, that testimony by members of the

victim’s family can be highly charged; as a result, such

evidence may, if presented in an improper manner or for

improper purposes, create an unacceptable risk that a

death sentence was imposed for arbitrary and capricious

reasons. But that possibility does not justify what Booth

created—a prophylactic, constitutionally based rule ex-

cluding all such evidence. Trial courts routinely exclude

unduly inflammatory evidence. And—in an extreme case

—if the admission of prejudicial matter has deprived the

sentencing determination of the reliability that the Eighth

Amendment requires, the defendant may be constitu-

tionally entitled to vacation of his sentence on that

ground. See Darden v. Wainwright, 477 U.S. 168, 178-

179, 183-184 n.15 (1986); Beck vy. Alabama, 447 U.S.

625, 637-638 (1980) (procedures in sentence hearings

must be designed to ensure that “death penalty is * * *

imposed on the basis of ‘reason rather than caprice or

emotion’’’). Nor is the promise of reliability in sentenc-

ing proceedings an empty one; this Court “has gone to

extraordinary measures to ensure that the prisoner sen-

22

tenced to be executed is afforded prccess that will guar-

antee, as much as humanly possible, that the sentence was

not imposed out of whim, passion, prejudice, or mistake.”

Eddings Vv. Oklahoma, 455 U.S. 104, 118 (1982)

(O’Connor, J., concurring). In view of those significant

protections, claims that victim impact evidence is im-

proper and unfairly prejudicial can appropriately be re-

solved in each individual case.

C. An outright prohibition on victim impact evidence

is especially unwarranted in view of this Court’s insist-

ence on a rule of broad admissibility for defense evidence

in capital sentencing proceedings. The Court has held

that “the sentencer * * * [cannot] be precluded from con-

sidering, as a mitigating factor, any aspect of a defend-

ant’s character or record and any of the circumstances

of the offense that the defendant proffers as a basis for

a sentence less than death.” Lockett v. Ohio, 438 U.S.

586, 604 (1978) ‘plurality opinion). See also Skipper

Vv. South Carolina, 476 U.S. 1 (1986); Eddings v. Okla-

homa, supra. When combined with the rule of Booth and

Gathers, that principle creates an anomaly. The sen-

tencer is required to consider the full range of facts

about the defendant’s character and circumstances, but

may not be told anything of the character of the victim

or the extent of the harm the defendant has inflicted upon

others. In this case, for instance, petitioner relied upon

testimony from his parents and his girlfriend that he had

heen a good son, was a caring person, and was loved and

missed by the girlfriend’s children, see pp. 4-5, supra.

Yet, he maintains, it was error for the State to offer any

evidence regarding the extent to which Nicholas suffered

as a result of the loss of his mother and sister.

We can discern nothing in the Constitution that re-

quires such a one-sided presentation. As Justice Cardozo

wrote for the Court, “[J]ustice, though due to the ac-

cused, is due to the accuser also. * * * We are to keep

the balance true.” Snyder v. Massachusetts, 291 U.S. 97,

122 (1934). If a sentencing jury is to “express the con-

23

science of the community on the ultimate question of life

or death,” Witherspoon v. Illinois, 391 U.S. 510, 519

(1968), there should be no constitutional prohibition

against permitting the jury to have a complete picture of

the act the defendant has committed and the lives it has

profoundly affected.

II. PRINCIPLES OF STARE DECISIS DO NOT RE-

QUIRE CONTINUED ADHERENCE TO BOOTH

AND GATHERS

The doctrine of stare decisis serves important purposes

in our legal system. The doctrine promotes the even-

handed, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and con-

tributes to the actual and perceived integrity of the judi-

cial process. See Vasquez v. Hillery, 474 U.S. 254, 265-

266 (1986). But the Court has recognized that “stare

decisis is a principle of policy and not a mechanical for-

mula of adherence to the latest decision.” Helvering v.

Hallock, 309 U.S. 106, 119 (1940). And it is well set-

tled that stare decisis is less inflexible in constitutional

cases than in statutory cases, because in the former cases

“correction through legislative action is practically im-

possible.” Burnet v. Coronado Oil & Gas Co., 285 U.S.

393, 407 (1932) ‘Brandeis, J., dissenting). See also

Monell v. Department of Social Services, 436 U.S. 658,

696 (1978).

Although the Court has not adopted a “rigid formula”

for deciding when a prior construction of the Constitution

should be overruled, Vasquez, 474 U.S. at 266, it has

identified several factors that bear on that determination.

One factor is whether the prior rule has bred confusion

or led to anomalous results. Solorio v. United States, 483

U.S. 435, 448-450 (1987); Erie R.R. v. Tompkins, 304

U.S. 64, 74-78 (1938). Another is whether a prior deci-

sion, even one of fairly recent vintage, “disserves prin-

ciples of democratic self-governance.” Garcia v. San

Antonio Metro. Transit Auth., 469 U.S. 528, 547 (1985).

24

Both of these factors, in our view, point strongly toward

reconsideration of Booth and Gathers.

Without question, Booth has spawned confusion and un-

certainty in the lower courts. See Gathers, 490 U.S. at 813

(O’Connor, J., dissenting) (citing cases); Mills v. Mary-

land, 486 U.S. 367, 395-398 (1988) (Rehnquist, C.J., dis-

senting). Aithough the Booth Court painted with a broad

brush, questiens linger as to whether Booth outlaws ad-

mission of eny statements or evidence relating to the

character of the victim or the impact of the crime, or

whether Booth’s prohibition applies only to detailed vic-

tim impact statements of the type at issue in that case.

Booth and Gathers also leave open the difficult issue

whether and, if so, what victim characteristics remain

legitimate subjects for consideration in sentencing. Al-

though the Court has stated that certain victim char-

acteristics, such as the victim’s status as a police officer,

may appropriately be made an aggravating circum-

stance, see Roberts v. Louisiana, supra, it remains un-

clear whether the victim’s youth, age, or infirmity may

be taken into account, see 21 U.S.C. 848(n) (9); whether

the defendant must have been aware of those factors in

order for them to be considered; or even whether the de-

fendant must have acted with intent to exploit those

characteristics.

We recognize the possibility that, over time, this Court

could reduce the level of Booth-spawned uncertainty by

deciding a series of cases limiting and defining Booth’s

reach. But the hard fact remains that the principles in-

forming Booth’s exclusionary approach have no natural

limits; as a result, the process of fixing its reach will

necessarily have an ipse dixit quality to it, rather than

constituting a logical extrapolation from principles that

the Booth majority laid down. For practical reasons,

moreover, even a broad prohibition on victim impact evi-

dence would be unlikely to lay this issue to rest. A jury

necessarily becomes aware of some of the victim’s char-

acteristics during the guilt phase of the trial; the jury

25

is also cognizant, at least in a general sense, of the im-

pact of a murder on family members of the victim. Un-

less juries are to be instructed not to take account of

those factors in determining whether to impose that pen-

alty, Booth and Gathers will result in an anomalous and,

we submit, inherently uncertain situation. Although the

prosecution will be prohibited from adding to the infor-

mation before a jury or commenting on it, the jury will

be left, unguided by argument or instructions from the

court, to place whatever weight it chooses on victim

impact information that reaches it during trial.

More fundamentally, Booth and Gathers substantially

interfere with the traditional responsibility of legislatures

to determine which factors shall be relevant in imposing

criminal sentences. See Gore v. United States, 357 US.

386, 393 (1958). As we have noted, both Congress and

many state legislatures have in recent years enacted leg-

islation recognizing and protecting the rights of victims of

crime. Booth is not only inconsistent with the significant

body of victim rights legislation that has emerged in

recent years, but it forecloses the opportunity for further

development of community values through additional leg-

islation on that subject. In view of its doctrinal weak-

ness and its interference with the considered judgment

of democratic institutions with respect to sentencing,

Booth and Gathers should not stand.

lil. THE VICTIM IMPACT EVIDENCE AND ARGU-

MENT AT ISSUE IN THIS CASE DID NOT VIO-

LATE PETITIONER’S RIGHTS UNDER THE

EIGHTH AMENDMENT

The only evidence of the impact of petitioner’s offenses

introduced during the sentencing phase of petitioner’s

trial was Nicholas’s grandmother’s description—in re-

sponse to a single question—of the child’s reaction to

the murder. That testimony was an objective descrip-

tion of Nicholas’s conduct, justifying an inference that

the murder had had a severe impact on him. The testi-

26

mony was moving, because it conveyed Nicholas’s diffi-

culty in coming to terms with the irrevocable loss of his

mother and sister, but it was not inflammatory in tone

or content. Accordingly, absent a strict prohibition

against victim evidence, the admission of evidence of

Nicholas’s emotional reaction to the murders would not

violate any of petitioner’s Eighth Amendment rights.

The State’s closing argument during the sentencing

phase could be said to violate Booth and Gathers in three

respects. First, the State highlighted the future effect

of the murders on Nicholas, calling the jury’s attention

to “what Nicholas Christopher will carry in his mind

forever” (J.A. 13; see J.A. 15) and the implications of

his having to grow up without his mother and sister

(J.A. 15-16). Second, the State reminded the jury of

the lost opportunities resulting from the murder, saying

that Lacie “never had a chance to grow up” and that

“there won’t be a high school principal to talk about

Lacie Jo Christopher, and there won’t be anyone to take

her to her high school prom” (J.A. 14). Finally, the

State observed, in response to defense evidence suggesting

that petitioner had led an exemplary life, that Nich-

olas’s mother and sister, had also led “exemplary lives”

(J.A. 17)."

15 Two aspects of the prosecution’s argument that petitioner chal-

lenges do not, in our view, present any issue under Booth or Gathers.

The prosecutor’s suggestion that the jury would “provide the

answer” to questions Nicholas would later have about “what type

of justice was done” and “what happened” (J.A. 12) did not entail

any argument for the death penalty based upon the harm to victims

or the characteristics of the deceased. Further, it was not the

equivalent, as petitioner suggests, of relying on comments by sur-

viving family members as to the punishment appropriate for a given

offense. Similarly, the prosecution’s use of the murder weapon dur-

ing rebuttal argument does not raise any issue of victim impact

evidence or argument, and in fact presents no substantial issue of

federal constitutional law. See, e.g., Darden v. Wainwright, 477

U.S. 168, 178-184 (1986).

27

Those comments could not have rendered petitioner’s

sentencing hearing unfair or unreliable. The comments

contained no suggestion that the jury should impose the

death penalty on the basis of an arbitrary or uncon-

stitutional consideration, such as race, political affiliation

or religious belief. In large measure, the comments were

responsive to a theme petitioner had advanced in his evi-

dentiary presentation and argument, and neither the

evidence itself nor the prosecutor’s comments on it were

unduly inflammatory. There is therefore nothing in the

record of this case and the principles of the Eighth

Amendment that would justify requiring the State to pro-

vide petitioner a new sentencing hearing.

CONCLUSION

The judgment of the Supreme Court of Tennessee should

be affirmed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

STEPHEN L. NIGHTINGALE

Assistant to the Solicitor General

APRIL 1991

wv U. S. GOVERNMENT PRIKTING OFFice, 1991 262051 20470