Amicus Curiae Brief — Payne v. Tennessee

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QUESTION PRESENTED

Should Booth v. Maryland, 482 U. S. 496 (1987) and South

Carolina v. Gathers, 490 U. S. 805 (1989) be overruled?

TABLE OF CONTENTS

i de beet ee ee see eee ees 1

SD eee 2

TS os oo 5 6 oe) sees ee eee 3

RTs. E plalec es cesses se ssevees 3

I

Evenhandedness should be the sole basis of constitutional

restrictions on capital sentencing procedure ......... 3

A. Stare decisis and its limitations ............. 3

TCC So op cce sce ccc ee cees 7

Re BOWE TOES 2 www ww te es 9

II

Booth should be overruled in part ................ 13

A. Emotional impact on the family ........ oe oe

B. Opinions and statements of family members .... . 17

Il]

Gathers should be overruled completely ............. 17

IV

The testimony and argument in the present case

EE ES eee ee ee 19

EE IES OP eee 20

(iii)

iv

TABLE OF AUTHORITIES

Cases

Booth v. Maryland, 482 U. S. 496, 96 L. Ed. 2d 440,

107 S. Ct. 2529 (1987) ............ .3,7, 13, 15, 16, 17

Boyde v. California, 108 L. Ed. 2d 316,

es ee IEE 6G or 64-5 A ered 60 08 ok oe 15

Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837,

ee ee ED ie o's Bb kek BA 8 . 6

Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

Ge Ge PEED: Ks ve sa Sie see le eee

Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859,

Se NED: ‘ao: aaa wee a ee oe ee eo 8 8,9

Helvering v. Hailock, 309 U. S. 106, 84 L.Ed. 604,

oe ere a od 6,7

Helvering v. St. Louis Union Trust Co., 296 U. S. 39,

es © F See || hee eee ee 6

Jurek v. Texas, 428 U. S. 262, 49 L. Ed. 2d 929,

RRR ee 9

Klein v. United States, 283 U.S. 231, 75 L.Ed. 996,

Ge ae EE 6-6 0's os 6 eb 4 8 he eee ees 6

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

eB Pee ee ee ee 16

Marks v. United States, 430 U. S. 188, 51 L. Ed. 2d 260,

OPE SOE. oo 3% Cook bese wes 4,8

McCleskey v. Kemp, 481 U. S. 279, 95 L. Ed. 2d 262,

WE: Oe THO «coc eves bidet estan 18

McGautha v. California, 402 U.S. 183, 28 L. Ed. 2d 711,

a 7,8

Mistretta v. United States, 488 U. S. 361, 102 L. Ed. 2d 714,

RP rear 10, 11

People v. Sirhan, 7 Cal.3d 710, 487 P.2d 1121(1972) ..... 19

Profitt v. Florida, 428 U. S. 242, 49 L. Ed. 2d 913,

a i)

Skipper v. South Carolina, 476 U. S. 1, 90 L. Ed. 2d 1,

ee ee ee ee 15

South Carolina v. Gathers, 490 U. S. 805, 104 L.Ed.2d 876

I gn wk ea wee ba ah 3, 7,18

State v. Payne, 791 S. W. 2d 10 (Tenn. 1990) ........ 2,19

Sumner v. Shuman, 483 U. S. 66, 97 L. Ed. 2d 56,

I ee 1]

United States v. Title Insurance & Trust Co., 265 U. S. 472,

GS Le. 1190, 465. Cr. G30 (1906) ww mr ce ee 4

United States v. Ray, 920 F. 2d 562 (CA9 1990) ........ 11

Vasquez v. Hillery, 474 U. S. 254, 88 L. Ed. 2d 598,

RE ee ae eee 5

Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594,

PR ec acdc eheecanabnaceeves 6

Walton v. Arizona, 111 L. Ed. 2d 511,

oe rere are 12,14

Woodson v. North Carolina, 428 U. S. 280, 49 L. Ed. 2d 944,

See ee EE nb Paes wees see sle ke 9,10, 16

United States Constitution

wy. @ Comet. eupoml. HIV. O8 2. ccc cece cc cccuscen 12

vi

State Statutes

Gee A UIE 6. 6 ws 4-0 bo 0 wn odie oe oe om 14

EE 5 asad es 6a 6 ae a Se 14

a ee re eee ee ee ee 14

A Ser an ere eee ee 14

PP eS eee ee eee 14

tn sce nae pa ee be oe oe ee 14

i 2 at ae wed eles eas eke. 5 oe Ae 14

Rules of Court

Foderal Rules of Evidences 403 . ww ww te ees 15

Treatises

Blackstone, Commentaries 389 (1769) .............. 10

Chamberlain, The Doctrine of Stare Decisis: Its Reasons and

dd SE Se ee Te Te eT eee 4

J. Nowak, R. Rotunda, J. Young, Constitutional Law

ee ee ee ee re eee &

Miscellaneous

Black’s Law Dictionary (Sth ed. 1979) ..............3

Cassou & Taugher, Determinate Sentencing in California:

The New Number Game, 9 Pac. L.J. 1 (1978)... 2.2... 10

Douglas, Stare Decisis, 49 Colum. L. Rev. 735 (1949) ....5,8

Maguire, The Impact of Burglary Upon Victims,

20 Brit J. of Criminology 261 (1980) ............. 14

Vii

I 344 cc. ibe deeeeeeaeses 14

Scheidegger, Capital Punishment in 1987: The Puzzle Nears

Completion, 15 West. St. L. Rev. 95 (1987) ..... 9, 12, 18

J. Wilson, Thinking About Crime (1975) ............. 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

PURVIS TYRONE PAYNE,

Petitioner,

vs.

STATE OF TENNESSEE,

Respondent.

—_— —

——

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)! is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affecis the

public interest. CJLF seeks to bring the constitutional protec-

tions of the accvsed into balance with the rights of victims and

of society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

The present case involves a rule which has prohibited sen-

tencing juries from considering the full measure of the harm

that murderers cause to the victims of their crimes. That rule

1. Both parties have consented in writing to the filing of this brief.

is contrary to the rights of victims which CJLF was formed to

advance.

SUMMARY OF FACTS AND CASE

Charisse Christopher lived in an apartment with her two

children, three and one-half year old Nicholas and two and

one-half year old Lacie. Neighbors heard bloodcurdling

screams and called the police. State v. Payne, 791 S. W. 2d 10,

11 (Tenn. 1990). A policeman saw defendant leaving the

apartment, covered with blood. /d., at 12.

Police arriving at the apartment found blood all over the

walls and floor. Nicholas was alive, but had stab wounds com-

pletely through his body damaging most of the abdominal

organs. /bid.

Charisse and Lacie were dead. Charisse had 42 stab

wounds and Lacie had nine. /bid.

Defendant was convicted of the murder. /d., at 11. During

the penalty phase, Nicholas’s grandmother gave this testimony:

“Q. Ms. Zvolanek, how has the murder of Nicholas’s

mother and his sister affected him?

“A. 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 come 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.”

Id., at 17-18.

During closing argument, the prosecutor commented on

the impact of the deaths on Nicholas. /d., at 18. In response

to defense argument that defendant had lived an “exemplary

life,” he said that Charisse and Lacie had also “lived exemplary

lives. But they are not here with us anymore.” /d., at 19.

The state supreme court rejected defendant's claims under

Booth v. Maryland, 482 U. S. 496 (1987) and South Carolina v.

Gathers, 490 U. S. 805 (1989). 791 S. W. 2d, at 18-19. This

Court granted certiorari and requested briefing on whether

Booth and Gathers should be overruled. 48 BNA CrL 3147.

The Court later amended the grant of certiorari to limit it to

the Beoth/Gathers issue. 48 BNA CrL 3152.

SUMMARY OF ARGUMENT

On matters of criminal procedure, the doctrine of stare

decisis rests primarily on the need to insure that the law de-

velops in a principled and intelligible fashion. Where a body

of law has developed erratically and where anomalies have

arisen, overruling anomalous precedents furthers the goal that

the doctrine of stare decisis is intended to protect.

Booth v. Maryland, 482 U. S. 496 (1987) and South Caroli-

na v. Gathers, 490 U. S. 805 (1989) are the product of erratic

development of the law of federal restrictions on state capital

punishment. They are contrary to the fundamental principles

of evenhandedness which underlies Furman v. Georgia, 408

U. S. 238 (1972). They should therefore be overruled.

ARGUMENT

I. Evenhandedness should be the

sole basis of constitutional restrictions on

capital sentencing procedure.

A. Stare Decisis and Its Limitations.

Any suggestion that a precedent be overruled must address

the doctrine of stare decisis. The full expression is stare decisis

et non quieta movere, which means to adhere to precedents

and not to unsettle things which are established. Black’s Law

Dictionary 1261 (Sth ed. 1979). The limitations of the doctrine

are shaped by the purposes of the doctrine.

Reliance is one major purpose. People need to rely on a

consistent interpretation of the law in order to shape their

own conduct.

“Law, to be obeyed, must be known; to be known, it

must be fixed; to be fixed, what is decided to-day must

be followed to-morrow; and stare decisis et non quieta

movere is simply a sententious expression of these

truths.” Chamberlain, The Doctrine of Stare Decisis:

Its Reasons and Its Extent 26 (1885).

The reliance interest is most common in the substantive law

of property and contracts, where people must order their

transactions on a settled body of law. It is often said that stare

decisis has the greatest strength in this area. See, e.g., United

States v. Title Insurance & Trust Co., 265 U. S. 472, 486-487

(1924). In the substantive criminal law there is also reliance,

however. A person who does an act previously deemed legal

should not be punished if the interpretation of the law is

changed after the act. However, this protection is provided

through limitations on retroactivity even without relying on

stare decisis. See, e.g., Marks v. United States, 430 U. S. 188,

196-197 (1977).

In criminal procedure, the reliance interest lies almost en-

tirely on the side of the prosecution, because only the prosecu-

tion needs to defend its judgments on appeal and on habeas

corpus. A defendant who successfully relies on an existing

procedure at trial is acquitted, and the Double Jeopardy

Clause protects him from reversal on appeal. Only in exceed-

ingly rare situations would reliance be a factor in resisting a

change in an existing procedural rule which presently favors

the defense.”

2. Restriction on the use of immunized testimony is one example that

comes to mind.

The importance of procedural precedent favoring criminal

defendants therefore rests on considerations other than reli-

ance. One summary can be found in Vasquez v. Hillery, 474

U.S. 254, 265-266 (1986) (citation omitted):

“|T]he important doctrine of stare decisis [is] the

means by which we ensure that the law will not merely

change erratically, but will develop in a principled and

intelligible fashion. That doctrine permits society to

presume that bedrock principles are founded in the

law rather than in the proclivities of individuals, and

thereby contributes to the integrity of our constitu-

tional system of government, both in appearance and

in fact. While stare decisis is not an inexorable com-

mand, the careful observer will discern that any de-

tours from the straight path of stare decisis in our past

have occurred for articulable reasons, and only when

the Court has felt obliged ‘to bring its opinions into

agreement with experience and with facts newly ascer-

tained.’ ”

Notwithstanding the last clause, however, “experience and

facts newly ascertained” are not the only reasons for overrul-

ing precedent. Some bodies of law have not “develop[ed] in a

principled and intelligible fashion.” Sometimes it is painfully

obvious to society that principles announced as “bedrock” are

in fact founded in the proclivities of individuals and not in the

law.

Where this is true, the fundamental reason for adherence

to precedent set forth so eloquently in Hillery does not exist.

When a body of law has followed a zigzag course through a

long series of narrowly-divided votes (or, even worse, frac-

tured decisions with no majority) problems are certain to arise.

Opinions strain to distinguish cases which are not really distin-

guishable, and anomalies are created. Overruling the anoma-

lies promotes, rather than hinders, the principled and intelligi-

ble development of the law. Leaving the anomalies in place

leaves lower court judges and lawyers shaking their heads in

bewilderment. See Douglas, Stare Decisis, 49 Colum. L. Rev.

735, 749 (1949).

6

Reluctance to squarely overrule a precedent can defeat the

very stability interests that stare decisis is supposed to protect.

For example, 13 years after Wainwright v. Sykes, 433 U.S. 72

(1977) this Court granted certiorari to consider, among other

questions, whether Sykes really overruled Fay v. Noia, 372

U. S. 391 (1963). See Petition for Certiorari in Coleman v.

Thompson, No. 89-7662, question 4. That question should

have been answered long ago.

The classic example of overruling a case to remove an

anomaly is Helvering v. Hallock, 309 U. S. 106 (1940). The

case dealt with estate tax on property transferred to a trust by

the decedent during his lifetime. /d., at 109. Klein v. United

States, 283 U.S. 231 (1931) had held that property was includ-

ed in the estate for tax purposes when the grantor had con-

veyed a life estate to his wife during his lifetime with the re-

mainder to follow if the grantor died first. Klein rejected reli-

ance On the fine points of the law of future interests and

looked instead to the practical effect of the transmission of

property from the dead to the living, which is the taxable event

under the estate tax law. /d., at 234.

In Helvering v. St. Louis Union Trust Co., 296 U.S. 39

(1935), the grantor conveyed his legal title to a trust for the

benefit of his daughter with the provision that if the daughter

died first the trustee was to convey the property back to the

grantor. The majority distinguished Klein and held that the

property was not part of the estate. “Unlike the Klein Case,

where the death was the gencrating source of the title,

here ... the trust instrument and not the death was the gener-

ating source.” /d., at 45-46.

The Hallock Court rejected the call to harmonize these

decisions. While Klein and St. Louis Union Trust were factual-

ly distinguishable, the underlying rationale of the Klein deci-

sion was in conflict with the later case. Hallock, supra, 309

U. S., at 118-119. With that possibility rejected, the remaining

question was not whether to follow precedent but which

precedent to follow. Hallock also rejected the notion that the

later case was necessarily the one to follow.

Ty

“We recognize that stare decisis embodies an impor-

tant social policy. It represents an element of continui-

ty in law, and is rooted in the psychologic need to satis-

fy reasonable expectations. But stare decisis is a prin-

ciple of policy and not a mechanical formula of adher-

ence to the latest decision, however recent and ques-

tionable, when such adherence involves collision with a

prior doctrine more embracing in its scope, intrinsically

sounder, and verified by experience.” /d., at 119.

Do the rules of Booth v. Maryland, 482 U. S. 496 (1987)

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

with a doctrine more embracing in scope and intrinsically

sounder? Would overruling them help straighten the path of

the law and contribute to its principled and intelligible devel-

opment? Would overruling promote rather than inhibit public

confidence that constitutional doctrine is based upon law rath-

er than the proclivities of individuals? These are questions

which should inform and guide the decision to overrule or not

overrule. To answer them, we first return to square one.

B. Furman v. Georgia.

Does the Eighth Amendment regulate the procedure by

which the punishment is determined? That is, can a given

sentence for a given defendant for a given crime be “cruel and

unusual” or not depending on the procedure by which that

punishment is imposed? On its face, the idea of “procedurally

crucl and unusual punishment” seems absurd. Yet the exist-

ence of such a concept is uniformly considered to be the law of

the land. This tortured misconstruction of the Eighth

Amendment is a case study in the misuse of precedent.

The trail begins with McGautha v. California, 402 U. S. 183

(1971). McGautha challenged the procedures by which capital

punishment was imposed under the Due Process Clause. Jus-

tice Harlan, writing for the majority, rejected the argument in

a long and careful opinion. Justice Black concurred with a

brief but profound statement. “Although some people have

urged that this Court should amend the Constitution by inter-

pretation to keep it abreast of modern ideas, I have never

8

believed that lifetime judges in our system have any such legis-

lative power.” /d., at 226.

The next assault was made on the grounds of the Eighth

Amendment. How can the purely substantive prohibition

against crucl and unusual punishment be relevant to a proce-

dural objection? Two answers are suggested in the various

opinions in Furman v. Georgia, 408 U. S. 238 (1972): (1) it is

not relevant, see id., at 397 (Burger, C. J., dissenting); or (2) it

is relevant if a state’s procedure contains such systemic defects

as to render all of the state’s death sentences unconstitutional,

see id., at 256-257 (Douglas, J., concurring); id., at 310 (Stew-

art, J., concurring); id., at 313 (White, J., concurring). The

three opinions which accepted the second answer have been

deemed the opinion of the Court. Gregg v. Georgia, 428 U. S.

153, 169, n. 15 (1976).°

Justice Douglas’s opinion relies on the Eighth Amendment

in name only. Beneath the transparent membrane is a pure

equal protection argument, and Justice Douglas relies explicit-

ly on the Equal Protection Clause in his conclusion. 408 U. S.,

at 257. Yet Justice Douglas felt “imprisoned in the McGautha

holding.” J/d., at 248. This is a strange and uncharacteristic

statement. Cf. Douglas, Stare Decisis, 49 Colum. L. Rev. 735,

736 (1949). Perhaps it was out of respect for a recently de-

ceased colleague.

Justice White’s opinion was clearly addressed to the state-

wide effect of the purely discretionary imposition of the pun-

ishment in a large class of cases theoretically eligible for the

punishment. “[T]here is no meaningful basis for distinguishing

the few cases in which it is imposed from the many cases in

which it is not.” 408 U.S., at 313. Is this not also an equal

protection argument? Different treatment of similarly situat-

ed people without a “meaningful” (or “rational”) basis is the

very heart of equal protection analysis. See J. Nowak, R.

3. The Gregg opinion is itself a plurality, but the point was accepted by a

majority in Marks, supra, 430 U.S., at 143.

9

Rotunda, J. Young, Constitutional Law § 14.2, at 525 (3rd ed.

1986).

Justice Stewart’s reasoning is essentially the same. “These

death sentences are cruel and unusual in the same way that

being struck by lightning is cruel and unusual .... [T]he peti-

tioners are among a capriciously selected handful upon whom

the sentence of death has in fact been imposed.” 408 U. S., at

309-310. Inequality, not cruelty, is the heart of the problem.

C. The Woodson Departure.

The next set of cases also dealt with systemic challenges to

the entire capital sentencing scheme of states. Georgia's sys-

tem of “guided discretion” was approved. Gregg v. Georgia,

428 U. S. 153 (1976). So was Florida’s substantially similar

system. Profitt v. Florida, 428 U.S. 242 (1976). The Texas

system of basing the sentence primarily on future dangerous-

ness was approved, but the plurality conditioned its approval

on a strained construction of the statute. Jurek v. Texas, 428

U. S. 262, 272 (1976).

North Carolina’s statute imposing a mandatory death sen-

tence for a sweeping variety of murders was struck down in

Woodson v. North Carolina, 428 U. S. 280 (1976). The plurali-

ty gave three reasons. One of the three was fully consistent

with the underlying equal protection rationale of Furman;

another set off on a collision course with it.

The plurality’s first reason was a finding that the North

Carolina law “departs markedly from contemporary

standards.” /d., at 301. This reason is entirely unrelated to

Furman and need not be considered further here. The second

reason was a disbelief that this sweeping statute would ever be

enforced as written. Widespread jury nullification and prosec-

utorial decisions not to charge were inevitable. Woodson v.

North Carolina, 428 U. S. 280, 302-303 (1976). The point is

well taken. These inevitable nullifications would have oc-

curred on an arbitrary and possibly racist basis, just as the old

standardless jury discretion system had granted arbitrary leni-

ency. See Scheidegger, Capital Punishment in 1987: The Puz-

10

zle Nears Completion, 15 West. St. L. Rev. 95, 109 (1987).

The last ground for the plurality’s decision was a bolt from

the blue. Despite an acknowledged lack of precedent for any

constitutional requirement for individualized sentencing, see

428 U. S., at 296, 304, the plurality created one. The Eighth

Amendment now required individualized consideration not

only of the crime but also “the character and record of the

individual offender.” Jd., at 304. The sovereign power of the

people of the states to decide through the democratic process

to prescribe a given punishment for a given crime and to uni-

formly enforce that punishment thus vanished in a cloud of

blue smoke. The power to grant mercy for capital offenses,

vested in the chief executive for centuries, see 4 W. Black-

stone, Commentaries 389 (1769), was now constitutionally

required to be shared with a single judge or with 12 private citi-

zens. Justice Black’s admonition from McGautha was for-

gotten.

The Woodson plurality raised discretionary sentencing to a

constitutional mandate on the basis of what it perceived to be

a long established and universally accepted consensus, 428

U. S., at 296-297, and “prevailing practice,” id., at 304. In fact,

belief in discretionary sentencing had peaked before Woodson

and was already on the decline. Professor James Q. Wilson

had published his influential book Thinking About Crime the

previous year, asserting, among other cogent arguments, that

discretionary sentencing had gone much too far. He proposed

that criminal penalties “be primarily designed to fit the crime,

with some (but not much) range for judicial discretion... .”

J. Wilson, Thinking About Crime 180 (1975). California enact-

ed its pioneering Determinate Sentencing Law the same year

as Woodson, eliminating administrative term-fixing for most

crimes and limiting judicial sentencing discretion to a few

structured choices. See Cassou & Taugher, Determinate Sen-

tencing in California: The New Number Game, 9 Pac. L.J. 1,

24-25 (1978). Also in the same year, Congress recognized a

need “to moderate the disparities in the sentencing practices

of individual judges.” See Mistretta v. United States, 488 UV. S.

361, 365 (1989). Only eight years later, Congress adopted a

sweeping reform to implement a mandatory guideline system.

11

See id., at 362-368.

The reason for this widespread disenchantment with discre-

tionary sentencing is precisely in accord with the principle of

Furman. Too much discretion creates arbitrary results. The

punishment should fit the crime, not the chancellor’s foot.*

Yet Woodson caught the falling star of discretionary sentenc-

ing and placed it at the zenith of the law. This portion of

Woodson announced a “bedrock principle” which was not

founded on the law but rather on the proclivities of indivi-

duals.

The collision between Furman and the last portion of

Woodson became most apparent in Sumner v. Shuman, 483

U. S. 66 (1987). That case involved a leftover statute from

pre-Woodson mandatory sentencing. The Nevada statute

provided a mandatory death sentence for murder by inmates

already sentenced to life in prison without possibility of parole.

Id., at 67.

Unlike the very broad statute in Woodson, this very narrow

statute was eminently capable of being enforced as written.

With its specific and objective criteria for application, the

chance of arbitrary and capricious imposition was as close to

zero as the criminal law can come. Yet the statute was struck

down for violating the foundationless rule of Woodson requir-

ing discretionary sentencing regardless of whether there would

be arbitrary nullification. /d., at 85. Only two kinds of pun-

ishment are available for life-without-parole prisoners: (1)

death and (2) administrative sanctions such as more restrictive

confinement or denial of clemency. The latter are punish-

ments that are typically imposed without trial and for far lesser

offenses than premeditated murder. Shuman thus holds that a

jury must be permitted to let some two-time murderers go

4. “For the benefit of members of the bar who might try and guess how I

will exercise this discretion, let the record reflect that I wear a9 1/2

wide.” United States v. Ray, 920 F. 2d 562, 569 (CA9 1990) (Kozinski, J.,

dissenting).

12

essentially unpunished for the second murder, while others are

put to death for the same crime. To punish them all the same

would be “cruel and unusual,” we are told.

It is time, amicus submits, to take the same step the Court

took in Helvering v. Hallock. It is time to recognize that two

lines of precedent are in irreconcilable conflict. One of them

must be jettisoned to maintain the “principled and intelligible”

development of the law.

The evenhandedness doctrine of Furman v. Georgia is more

embracing in scope and intrinsically sounder. Equal protec-

tion is expressly mandated by the Constitution. U.S. Const.

amend. XIV, § 1. The Woodson-Shuman rule that the sen-

tencer must make a discretionary judgment, regardless of

whether evenhandedness requires such discretion, was created

out of whole cloth. The presence in the law of two contradic-

tory grounds for reversing capital sentences is due in substan-

tial part to “the proclivities of individuals” who, despite prece-

dent, have provided two automatic votes to reverse every

sentence regardless of the defendant’s theory. To invoke the

doctrine of stare decisis to preserve an anomaly created

through defiance of precedent is directly contrary to the pur-

pose of that doctrine as set forth in Hillery.

To eliminate the conflict, the rule should be that even-

handedness is the only source of federal constitutional limita-

tions on capital sentencing procedure. Rules which directly

and substantially promote that goal should remain in effect,

and those which do not should no longer be considered federal

questions. “Thus, the procedural elements of a sentencing

scheme come within the prohibition [of the Eighth Amend-

ment], if at all, only when they are of such a nature as systemi-

cally to render the infliction of a cruel punishment ‘unusual.’ ”

Walton v. Arizona, 111 L. Ed. 2d 511, 539, 110 S. Ct. 3047,

3066 (1990) (Scalia, J., concurring).

5. Shuman is discussed in somewhat more detail in Scheidegger, supra p. 9,

15 West. St. L. Rev., at 118-120.

13

With this in mind, we turn to the issues at hand.

II. Booth should be overruled in part.

In Booth v. Maryland, 482 U. S. 496 (1987), the defendant

robbed and murdered an elderly couple, Irvin and Rose Bron-

stein. /d., at 497. A victim impact statement (VIS) was pre-

pared based on interviews with the Bronstein’s son, daughter,

son-in-law, and granddaughter. /d., at 499. The majority

summarized the contents this way:

“The VIS in this case provided the jury with two types

of information. First, it described the personal charac-

teristics of the victims and the emotional impact of the

crimes on the family. Second, it set forth the family

members’ opinions and characterizations of the crimes

and the defendant.” /d., at 502.

Actually, the VIS provided three types of information, not

two. The emotional impact on the family is different from the

personal characteristics of the victims and needs to be ana-

lyzed separately. In the remainder of this part, we will discuss

emotional impact and family opinions, reserving personal

characteristics for the discussion of Gathers in part III.

A. Emotional Impact on the Family.

The blameworthiness of a criminal’s conduct is not and

never has been dependent solely on the extent of physical

injury and property damage. Since the early days of the

common law, many crimes have been recognized as more seri-

ous because of the emotional damage inflicted.

The most obvious example is rape. The physical injury is

often no greater than that in a misdemeanor battery; it may

14

even be less. Yet in California, for example,° simple battery is

a misdemeanor punishable by only six months in jail, Cal. Pen.

Code § 243(a), while rape is a felony punishable by three, six,

or eight years in state prison, id., § 264(a). The difference is

“the outrage to the person and feelings of the victim.” /d.,

§ 263.

If a person takes a small amount of money from another by

stealth, that is petty theft, a misdemeanor. See, e.g., id., $§

486, 490. If he takes the same property by force, even without

inflicting any physical harm, that is robbery, a felony. /d.,

§§ 211-213. The robber is punished more severely because of

the psychological harm he causes, not only to his immediate

victim but also to society at large. See Model Penal Code

§ 222.1 Comment at 98 (1980).

The property damage caused by burglary of a warehouse is

the same as that caused by burglary of a home, yet the latter is

generally recognized as a greater offense. See, e.g., Cal. Pen.

Code § 460; Model Penal Code § 221.1. One major difference

is the psychological harm caused by invasion of the home. See

generally Maguire, The Impact of Burglary Upon ‘/ictims, 20

Brit. J. of Criminology 261 (1980).

The Booth majority called the collateral injury to the family

members “wholly unrelated to the blameworthiness of a par-

ticular defendant.” 482 U.S., at 504. If capital sentencing is

to be discretionary, the entire purpose of the penalty phase

must be to separate some murders as being more deserving of

punishment than others, even though every homicide results in

death. Additional harm beyond the death would seem to be a

highly relevant factor in making such a separation.

As Justice Scalia has pointed out, the sentencing decision is

a unitary one. The decision to grant leniency cannot be sepa-

rated from the decision to deny it. Walton v. Arizona, 111

6. California law is used here as a convenient example. Most states have

similar distinctions among crimes.

i5

L. Ed. 2d 511, 537, 110 S. Ct. 3047, 3064 (1990) (concurring

opinion). The presence of a factor and the absence of the

same factor are equally relevant. The relevance of the evi-

dence sought to be excluded can be judged only in relation to

other evidence which is permitted or even required to be

admitted.

What evidence is more relevant than the degree of addi-

tional harm the defendant has caused? In Boyde v. California,

108 L. Ed. 2d 316, 330, n. 5, 110 S. Ct. 1190, 1199 (1990), the

defendant introduced evidence that he had won a dance

choreography award while in prison. The state was constitu-

tionally required to admit this evidence. Skipper v. South Caro-

lina, 476 U. S. 1 (1986). Is artistic abil*ty or lack of it more

relevant than the harm or lack of harm caused to third persons

by the crime? Most people would believe that additional harm

is more relevant than artistic ability and more relevant than

the bulk of similar character evidence introduced in capital

sentencing proceedings.

The Booth majority considered the additional harm irrele-

vant because it is, in most cases, unintended by the killer. 482

U. S., at 504-505. An example illustrates the fallacy of this

reasoning. Suppose that a gunman shot his target on a crowd-

ed subway, and the bullet passed through the victim, killing

him and injuring another person. That additional physical

injury would certainly be relevant. While the defendant may

not have intended it, he reckiessly created the danger that it

would happen. Why should other kinds of loss be different?

Loss to others is the natural and probable consequence of a

death. If the killer acts with disregard of that possibility, it is

not unfair to charge him with the consequences.

7. Some of the damage in Booth was quite attenuated, such as the pall cast

over a relative’s wedding. 482 U.S., at 500. Such evidence should

generally be excluded under state equivalents of Rule 4035 of the Federal

Rules of Evidence, but it need not be a constitutional question.

16

The portion of Booth excluding this evidence is a twisted

offshoot from the illegitimate branch of Woodson v. North

Carolina, supra. As expanded in Lockett v. Ohio, 438 U. S. 586

(1978), that doctrine requires the sentencer to consider “as a

mitigating factor, any aspect of a defendant's character or re-

cord and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.”

Id., at 604 (emphasis in original). Booth builds another layer

on the top of this foundationless tower, citing Woodson’s out-

of-the-blue “uniquely individual human being” requirement.

482 U.S., at 504. Booth holds in effect that a statute permit-

ting consideration of any other factors will result in a form of

strict scrutiny nearly certain to be fatal. See id., at 502. Fur-

ther, while any limitation on “circumstances of the offense”

that the defendant may put forward risks a reversal for “Skip-

per error,” circumstances offered by the prosecution must,

apparently, be limited to those immediately obvious at the

scene.

However this debate might be resolved in a state legislature

or a State court, the sole federal question should be whether

the consideration of the harm to third persons renders the

imposition of the death penalty arbitrary and capricious.

Returning to the original language of the controlling opinions

in Furman v. Georgia, 408 U. S. 238 (1972), is there any danger

that allowing such evidence will cause the death penalty to be

applied “selectively to minorities”? See id., at 245 (Douglas,

J.). Would it render those sentenced to death a “capriciously

selected random handfui”? See id., at 309-310 (Stewart, J.).

Would it render the penalty “so seldom invoked that it ceases

to be the credible threat essential to influence the conduct of

others”? See id., at 312 (White, J.). These are the questions

that should be asked if the law is to remain true to Furman.

The answers are clearly no.

Additional psychological harm to third persons is relatively

objective compared to most penalty phase evidence. Its re-

ceipt into evidence and consideration by the jury will make

sentencing less random, less arbitrary, and more closely related

to what the defendant has actually done. That should end the

federal inquiry.

17

B. Opinions and Statements of Family Members.

Booth involved a factor not involved in the present trial,

and the Court may not wish to rule on it. If Booth is otherwise

overruled, however, it may be worth a footnote.

The VIS in Booth included statements by the family mem-

bers of their opinions about the case. 482 U. S., at 500. These

statements were read from a text by the prosecutor, but ap-

parently in-person statements were sometimes used. /d., at

499.

Unlike the rule concerning impact on the family, a rule

excluding their opinions and arguments does not collide with

Furman, and the stare decisis argument is stronger here.

While the injury to the family is relevant to culpability, the

family’s eloquence in expressing their ovtrage is not. /d., at

505. It is a random factor, a kind best avoided. While the rule

probably should not be a constitutional one, there is no com-

pelling reason to overrule it.

III. Gathers should be overruled completely.

The Booth majority made an important point about equal

protection for victims, citing Justice Douglas’s Furman opin-

ion. “We are troubled by the implication that defendants

whose victims were assets to their community are more deserv-

ing of punishment than those whose victims are perceived to

be less worthy.” Booth v. Maryland, 482 U. S. 496, 506, n. 8

(1987).

It is a troubling point, and counsel for amicus once defend-

ed the Booth ruling on this ground.

“Suppose A murders a prominent attorney from a

large and wealthy family and B murders a bum on skid

row under otherwise identical conditions. Can we

morally punish A more harshly than B? If we do, are

we not denying the bum equal protection of the laws in

18

the deepest and most fundamental sense?” Scheideg-

ger, Capital Punishment in 1987: The Puzzle Nears

Completion, 15 West. St. L. Rev. 95, 117 (1987).

This position is theoretically sound but erroneous in prac-

tice. The error was dramatically demonstreted in South

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

“Reverend Minister” Richard Haynes was a man some

people might consider a “bum.” He was unable to hold a job.

He rotated in and out of mental hospitals. He believed him-

self to be a minister and walked around carrying several bags

of religious articles and talking to people about God. /d., at

807, 809.

Victims depend for their vindication on the zeal of prosecu-

tors. There is always an underlying concern that the zeal may

be less intense when the victim is from the lower strata of soci-

ety or a disfavored racial group. See, e.g., McCleskey v. Kemp,

481 U. S. 279, 346-347 (1987) (Blackmun, J., dissenting). The

prosecutor in Gathers rose to the challenge.

If there is ever a prosecutors’ hall of fame, the Gathers

prosecutor deserves a place there. Faced with the very real

possibility that the jury might brush off the late Mr. Haynes as

a crazy, no-account bum, he made a stirring argument on the

basis of Mr. Haynes’s religious tract and voter registration

card. He demonstrated to the jury that Mr. Haynes, despite

his problems, had a life worth living. /d., at 808-810.

Looking across the landscape of American law, would al-

lowing this kind of argument make the administration of the

death penalty more or less evenhanded? The problem is a

mirror image of the evenhandedness portion of Woodson.* A

statute directing that all mitigating circumstances be ignored

was evenhanded on its face, but it would never be enforced

that way in practice. It is better to give the jury guidance on

8. See supra p. 9.

19

factors we know they will consider anyway. The same is true

of the personal characteristics of the victim.

Notwithstanding our prior position, amicus submits that

Gathers-type argument should be allowed. Where the victim is

a pillar of the community the jury will either know that fact

going in or they will learn it from incidental information

picked up in the course of the trial. Where the victim’s quali-

ties lie beneath the surface, argument like the one in Gathers

is needed to provide those victims with equal protection.

The jury in Gathers needed to be told what kind of life had

been snuffed out. The jury in People v. Sirhan, 7 Cal. 3d 710,

497 P. 2d 1121 (1972) already knew.

IV. The argument in the present case was proper.

If Gathers is overruled and if the portion of Booth regard-

ing psychological impact on the family is overruled, then the

result in this case is beyond question. The grandmother’s tes-

timony about the impact on Nicholas and the prosecutor’s

argument were clearly proper. Justice Fones said it best in his

opinion for the Tennessee Supreme Court, State v. Payne, 791

S. W. 2d 10, 19 (1990):

“It is an affront to the civilized members of the human

race to say that at sentencing in a capital case, a parade

of witnesses may praise the background, character and

good deeds of Defendant (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.”

20

CONCLUSION

The judgment of the Tennessee Supreme Court should be

affirmed.

Dated: April, 1991

Respectfully submitted,

KENT S. SCHEIDEGGER

Attomey for Amicus Curiae

Criminal Justice Legal Foundation