Amicus Curiae Brief — Payne v. Tennessee

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RECT AVAILARIE COPY

No. 90-5721

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

PERVIS TYRONE PAYNE,

PETITIONER,

STATE OF TENNESSEE

RESPONDENT

ON WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

BRIEF OF THE APPELLATE COMMITTEE OF THE

CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION

AMICUS CURIAE IN SUPPORT OF THE STATE OF TENNESSEE

IRA REINER

District Attorney

County of Los Angeles

Counsel of Record:

HARRY B. SONDHEIM

Head, Appellate Division

MARTHA E. BELLINGER

Deputy District Atterney

Of Counsel:

GEORGE G. SIZE

Deputy Distnct Attorney

849 South Broadway, 11th Floor

Los Angeles, CA 90014-3570

Telephone: (213) 974-5911

TABLE OF CONTENTS

BRIEF OF AMICUS CURIAE THE APPELLATE

COMMITTEE OF THE CALIFORNIA DISTRICT

ATTORNEYS OFFICE IN SUPPORT OF THE

STATE OF TENNESSEE

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

THE PRINCIPLES OF STARE

DECISIS SHOULD NOT PREVENT

THE COURT FROM OVER-RULING

BOOTH V. MARYLAND

A Stare Decisis Is Least Persuasive In

Consututional Cases, Such As The

Case At Bar

B Booth Has Sown Confusion And

Frustration Among The Lower

Courts

BOOTH V. MARYLAND WAS

IMPROVIDENTLY DECIDED AND

SHOULD BE OVERRULED

A The Common Law Has Always

Considered Actual Harm Rather Than

Basing Punishment Solely Upon The

Defendant's Intent

B Common

Principles Of Morality

Dictate That The Amount Of Harm

Done Does Bear On The Extent Of

One’s Personal Responsibility

CONCLUSION

TABLE OF AUTHORITIES

CASES

Booth v. Maryland,

482 U.S. 496 (1987)

Duncan v. Louisiana,

391 U.S. 145 (1968)

Enmund v. Florida,

458 U.S. 782, 801 (1982)

Furman v. Georgia,

408 U.S. 238, 383 (1972)

Gregg v. Georgia,

428 U.S. 153, 176 (1976)

Mitchell v. W.T. Grant Co.,

416 U.S. 600, 627-628 (1974)

Moragne v. States Marine Lines,

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

Ohio v. Huertas,

111 S.Cr. 805, 112 L.Ed.2d 837 (1991)

Patterson v. McLean Credit Union,

491 U.S. 164 [109 S.Cr.2363, 2371,

105 L.Ed.2d 132] (1989)

People v. Anderson,

52 Cal.3d 453, 474-475 (1990)

til

Pages

4-9, 11-17, 20-23

6, 12

4-6, 12, 13

CASES (Continued)

People v. Burton,

48 Cal.3d 843, 868-869 (1989),

cert. denied, 110 S.Cr. 1502 (1990)

People v. Carrera,

49 Cal.3d 291, 331, 777 P.2d 121 (1989)

People v. Clark,

50 Cal.3d 583, 629, 789 P.2d 127 (1990)

People v. Crews,

112 Ill.2d 266, 522 N.E.2d 1147,

1177-1178 (1988)

People v. Douglas,

50 Cal.3d 468, 536-537 (1990)

People v. Gordon,

50 Cal.3d 1223, 1266-1270, 792 P.2d 251 (1990)

People v. Jackson,

198 Ill.App.3d 831, 556 N.E.2d 619,

633-634 (Ill.App. 1990)

People v. Kelly,

51 Cal.3d 931, 964 (1990)

People v. Lewis,

50 Cal.3d 262, 284-285, 786 P.2d 892 (1990)

People v. Marshall,

50 Cal.3d 907, 928-929, 790 P.2d 676 (1990)

Pages

CASES (Continued) Pages

People v. McDonald,

189 Ill.App.3d 374, 545 N.E.2d 819,

825 (Ili.App. 1989) 15

People v. Ruch,

45 Cal.3d 1036, 1089-1090,

755 P.2d 960 (1988) 13, 22

People v. Siripongs,

45 Cal.3d 548, 580, 754 P.2d 1306 (1988) 13

People v. Stankewirz,

51 Cal.3d 72, 112, 793 P.2d 23 (1990) l4

South Carolina v. Gathers,

490 U.S. 805 (1989) 4, 13, 20

State v. Fain,

Idaho $.Ct. No. 18463, 1991 W.L. 27493

(Idaho March 7, 1991) 14, 15

State v. Huertas,

51 Ohio St.3d, 553 N.E.2d 1058 (Ohio 1990) 15

State v. Paz,

118 Idaho 542, 798 P.2d 1, 15-17 (1990) 14

State v. Pizzuto,

Idaho S.Ct. Nos. 16489, 17534, 1991 W.L. 2553

(Idaho January 15, 1991) 14

Tison v. Arizona,

481 U.S. 137 (1987) 16, 18, 19

CASES (Continued)

United States v. Feoia,

420 U.S. 671, 95 S.Cc. 1255,

43 L.Ed 2d 541 (1975)

Webster v. Reproductive Health Services,

Pages

492 U.S. 490, 106 L.Ed.2d 410, 437-438 (1989) 6,7

Weems v. United States,

217 U.S. 349, 378 (1910)

Witherspoon v. Illinois,

391 U.S. 510, 519 (1968)

Woodson v. North Carolina,

428 U.S. 280, 304 (1976)

STATE CODES AND STATUTES

Section 246.3

Section 1191.1

Section 1203(h) (Supp. 1988)

UNITE e)

71 Pa. Stat.-$180-9.3 (Supp. 1987)

Alaska Stat. § 12.55.022 (Supp. 1988)

7, 8, 12

IN S$ CODE (Continued)

Anz. Rev. Stat. Ann. §$§ 12-253(4),

13-702(D)(9) (Supp. 1987)

Col. Rev. Stat. § 16-11-102 (1986)

Conn. Gen. Stat. Ann. § 54-91 (1985)

Del. Code Ann. Title 11 $$ 4331(d) & (e¢) (1987)

Fla. Stat. Ann. § 921.143 (1985)

Id. Code § 19-5306 (1985)

Il. Stat. Ann. $§ 38-1406, 1005-4-1(/6)

(Supp. 1988)

Ind. Code Ann. §§ 35-38-2-8 & 9

(1985 & Supp. 1988)

Iowa Code Ann. § 901.3 (Supp. 1988)

Kan. Stat. Ann. § 21-4604(2) (Supp. 1987)

Ky. Rev. Stat. §§ 421.500(5)(b), 421.520 (1985)

La. Rev. Stat. § 46:1844(9) (Supp. 1986)

Mass. Ann. Laws ch. 279 § 4B (Supp. 1988)

Md. Code Ann. art. 41 § 4-609 (1987)

Me. Rev. Stat. Ann. Title 17-A § 1257 (Supp. 1988)

Mich. Seat. Ann. § 28.1287 (763) (764) (765)

Vil

UNITED STATES CODE (Continued)

Minn. Stat. Ann. $$ 609.115, 611A.037 (Supp. 1988)

Mo. Rev. Stat. § 595.203 (1986)

Mont. Code Ann. § 46-18-112 (1987)

Ms. Code §§ 99-19-151 to 161 (Supp. 1988)

N.C. Gen. Stat. §§ 15A-825, 15A-1340.4 (1987)

N.D. Cent. Code ch. 12.1-34-02.14 (Supp. 1987)

NJ. Stat. Ann. § 2C:44-6.b (Supp. 1988)

N.M. Stat. Ann. § 31-24-5 (1987)

N.Y. Crim. Proc. Law § 390.30(3b) (Supp. 1988)

Neb. Rev. Stat. § 29-2261 (1985)

Nev. Rev. Stat. § 176.145 (1987)

O.C.G.A. §§ 17-10-1.1, 1.2 (1985)

Ohio Rev. Code Ann. § 2947.051 (Supp. 1985)

Okla. Stat. Ann. Title 22 § 982 (1986)

Or. Rev. Stat. § 144.790(2), (4) (1983)

R.I. Gen. Laws §§ .2-28-4 to 4.3 (Supp. 1986)

S.C. Code Ann. § 16-3-1550 (1985)

vill

UN ATES CODE (Continued) Pages

Tenn. Code Ann. §§ 40-35-207(8), 40-35-209

(Supp. 1987) 10

Tx. Stat. Ann. $$ 56.02, 56.03 (Supp. 1988) 10

Va. Code Ann. § 19.2-299.1 (Supp. 1988) 10

Vt. Stat. Ann. Title 13 § 7006 (Supp. 1988) 10

W. Va. Code $§ 61-11A-2 & 3 (1984) . 10

Wash. Rev. Code § 7.69.030 (Supp. 1989) 10

Wis. Stat. Ann. § 950.04(2m) (Supp. 1988) 10

Wy. Sta. §§ 7-13-303(a)(iv), 7-13-402 (e)(v) (1987) 10

S§ M U S

Rule 37.3 l

MISCELLANEOUS

Vicum and Witness Protection Act of 1982,

Pub. L. No. 97-291, 96 Stat. 1242 10

W.R. LaFave & A. Scott, Criminal Law

§§ 7.1, 7.3-7.5 (2d ed. 1986) 18

No. 90-5721

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

PERVIS TYRONE PAYNE,

PETITIONER,

STATE OF TENNESSEE,

RESPONDENT.

BRIEF OF AMICUS CURIAE THE APPELLATE COMMITTEE OF

THE CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION

IN SUPPORT OF THE STATE OF TENNESSEE

BRIEF OF AMICUS CURIAE THE APPELLATE COM.-

MITTEE OF THE CALIFORNIA DISTRICT ATTORNEYS

OFFICE IN SUPPORT OF THE STATE OF TENNESSEE

Amicus curiae, the Appellate Committee of the California

Distnct Attorneys Association, and Ira Reiner, District Artor-

ney of Los Angeles County, are filing this brief accompanied

by the written consent of all parties pursuant to Rule 37.3 of

the Rules of the Supreme Court of the United States.

INTEREST OF AAUICUS CURIAE

The Appellate Jommittee of the California District

Attorneys Association is a committce created by an association

consisting of the District Attorneys of the State of California

and their deputies. It has been established in order to utilize

and coordinate the resources of District Attorneys throughout

the State, for the purpose of presenting their views on behalf

of the People of the State of California in cases which may

have major statewide impact upon the prosecuuon of criminal

cases. One member of the Association is the District Attorney

of Los Angeles County. Upon review of the instant matter -

which raises the issue of the admissibility of victim impact

statements at capital proceedings - the Committee, including a

representative ot the District Attorney of Los Angeles County,

has concluded that the outcome of this case shall likely have

substantial impact upon the administration of

criminal justice throughout California. It ts for this reason that

the Committee seeks leave to file the attached amicus cunae

brief herein.

Respectfully submitted

on behalf of the

California District Attorneys

Association, and the District Attorney

of Los Angeles County

IRA REINER

District Attorney

County of Los Angeles

Counsel of Record

HARRY B. SONDHEIM

Head Deputy District Attorney

MARTHA E. BELLINGER

Deputy District Attorney

Appellate Division

Of Counsel

GEORGE G. SIZE

Deputy Distnct Attorney

Attorneys for Amicus Curiae

SUMMARY OF ARGUMENT

Amicus files the instant brief in order to urge this Court

to overrule its prior decisions in Booth v. Maryland, 482 U.S.

496 (1987) and, as a secondary matter, in South Carolina v.

Gathers, 490 U.S. 805 (1989). Since the split votes on those

cases suggest that a majority of the Court may believe that

Booth was incorrectly decided, Section I of the brief focusses

upon the reasons that stare decisis should not prevent the Court

from overturning that case. Section II is concerned with the

substantive reasons that Booth was incorrectly decided, but is

also intended to show that Booth "poses a direct obstacle to the

realization of important objectives embodied in other laws” and

should therefore be overruled. Patterson v. McLean Credit

Union, 491 U.S. 164 [109 S.Cr.2363, 2371, 105 L.Ed.2d

132] (1989).

Although the actual meaning of Booth has been the subject

of considerable debate and disagreement, it is clear that the

case seriously limits the admission of victim impact evidence at

the penalty phase of capital cases. It is also clear that the basis

of the majority’s opinion is its conviction that the harm caused

by a murderer may be considered in a death penalty case only

insofar as the murderer directly intended to inflict that harm.

But even a relatively elementary overview of the common law

of homucide shows that defendants have long been held legally

accountable for results well beyond their original intent. In

fact, common law doctrines of felony murder, depraved heart

murder, and murder committed while intent upon inflicting

serious bodily injury, all presuppose such extended respon-

sibility.

Furthermore, contrary to implications by the majority in

Booth, as a society we hold each other responsible for results

far beyond our direct intent in ordinary moral relations. In

other words, the principle at stake here is not some arcane

notion of death-penalty jurisprudence. We are speaking here

of concepts of responsibility which inform our common moral

discourse. Booth ignores -- or, at least, sells short -- those

concepts. Perhaps just for this reason, Booth has provoked

both confusion and a sort of passive resistance among the

lower courts.

As such, Booth is an aberration in the law, running against

the grain of both the common law and the common moral

wisdom. Its conunued vitality (questionable since the decision

was announced) only serves to undermine confidence in the

reasonableness of the law, by raising doubts abour the

consistency and imparuality of this Court’s jurisprudence in the

highly charged and much-watched area of death penalty linga-

uon. Therefore, both the consistency of the law and its moral

suasion would best be served by overruling Booth ». Marviand.

THE PRINCIPLES OF STARE DECISIS SHOULD

NOT PREVENT THE COURT FROM OVER-

RULING BOOTH V. MARYLAND

There can be no question of the important place of the

principle of stare decisis in jurisprudence. It not only has

predictive value, but also assures that reasoned principle, rather

than personal sympathy, shall guide the law:

[S]tare decisis is a basic self-governing principle

within the Judicial Branch, which is entrusted with the

sensitive and difficult task of fashioning and preserving

a jurisprudential system that is not based upon "an

arbitrary discretion.”

Patterson v. McLean Credit Union, 491 U.S. 164 [109 S.Cr.

2363, 2370, 105 L.Ed.2d 132], quoting from The Federalist,

No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton).

But “stare decisis is a principle of policy and not a

mechanical formula... ." Za. at 109 S.Ct. 2370. To the

extent that stare decisis acts to protect a coherent legal tradition

or to harmonize the law with moral reasoning, it serves as a

sort of guardian of consistency and predictability. But, to the

extent that it acts to protect cases which are themselves at odds

with that legal tradition, or which undermine sound moral

reasoning, enforcement of stare decisis only erodes the values

it is intended to foster.

As set forth in Section II, below, Booth is an anomaly in

the legal tradition, departing from both common law

jurisprudence and our ordinary notions of moral responsibility.

Overruling it therefore will only support consistency and

predictability in this area of law. It is a rare instance in which

rejecting stare decisis will foster the values which adherence to

precedent ordinarily protects: “public faith in the judiciary as

a source of impersonal and reasoned judgments.” Moragne ».

States Marine Lines, Inc., 398 U.S. 375, 403 (1970). This case

presents one of those instances.

Stare Decisis Is ast Persuasive In nstimutiona

Cas uc Case At Ba

Stare decisis is least powerful in constitutional cases, where,

barring a constitutional amendment, this Court has final

responsibility. When this Court rules a practice unconsti-

tutional, the effect of such a ruling is to declare that “the

Constitution puts [the issue] beyond the reach of the

democratic process." Webster v. Reproductive Health Services,

492 U.S. 490, 106 L.Ed.2d 410, 437-438 (1989). In light of

this great consequence, the Court "ha(s] not refrained from

reconsideration of a prior construcuon of the Consurution that

has proved ‘unsound in principle and unworkable in practice.”

Id., at 106 L.Ed.2d 435.

As Jusuce Powell stated,

[Stare decisis] has never been thought to stand as

an absolute bar to reconsideration of a prior decision,

especially with respect to matters of consurutonal

interpretauon. ... It is thus not only our prerogative

but also our duty to re-examine a precedent where its

reasoning or understanding of the Constituton is

fairly called into quesuon. And if the precedent or its

rationale is of doubrful validity, then it should not

stand. . . . [A] constitutional decision of this Court

should be "always open to discussion when it is

supposed to have been founded in error, [so] that

[our] judicial authority should hereafter depend

altogether on the force of the reasoning by which it

is supported.”

Mitchell ». W.T. Grant Co., 416 U.S. 600, 627-628 (1974)

(Powell, J., concurring) [footnote omitted], quoting from

Passenger Cases, 7 How 283, 470, 12 L.Ed 702 (1849)

(Taney, C.J.)

Booth v. Maryland should be subject to special scruuny

because it intrudes into two areas with which the courts, on

Consutuuional grounds, have long been hesitant to interfere.

First, the effect of Booth is to remove a whole class of evidence

from consideration by the jury. At the same ume that Booth

prescribes that the “jury is required to focus on the defendant

as a ‘uniquely individual human bein[g],” Booth, at 504,

quoung Woodson ». North Carolina, 428 U.S. 280, 304 (1976),

it prevents the jury from hearing evidence of the harm done to

the victim and the victim’s family, as “uniquely individual

human beings."' As such, it skews the evidence presented to

the jury by reducing the victim to an abstraction. If the right

to a jury trial is truly “fundamental to our system of justice,”

Duncan v. Louisiana, 391 U.S. 145 (1968), surely that presup-

poses a fundamental trust in the jury to weigh both sides, fairly

presented. While there are certainly appropriate circumstances

for limitations on prejudicial or irrelevant evidence, the Court

should be particularly reluctant to censor the evidence so that

"one side [is] muted.” Buoth, at 519 (Scalia, J., dissenting).

Likewise, the Court should be particularly open to reconsi-

dering a decision which has erroneously limited such a fun-

damental right of both sides.

Second, decisions regarding the appropriate considerations

to be taken into account in sentencing are "peculiarly questions

of legislative policy." Gregg v. Georgia, 428 U.S. 153, 176

(1976). As Justice White urged in his dissent in Booth, "the

Court should recognize that “[i]n a democratic society

legislatures, not courts, are constituted to respond to the will

and consequently the moral values of the people."” Booth ».

Maryland, 482 U.S. at 515, quoting Gregg ». Georgia, 428 U.S.

at 175 [quoting Furman v. Georgia, 408 U.S. 238, 383 (1972)

(Burger, C.J., dissenting)].

Finally, Booth’s foundation in the Eighth Amendment is

questionable at best. That the admission of evidence such as

Booth forbids finds no prohibition in the historical bases of the

"Cruel and Unusual Punishments” clause need not be belabored.

2h FE.

jit

510, 519 (1968), nor Woedsn ». North Carolina —

proposition.

Nor is that fact alone offered, in any sense, as a reason that

Booth is incorrectly decided. As the Court correctly observed

in Furman v. Georgia, 408 U.S. 238, 265:

Had this “historical” interpretation of the Cruel and

Unusual Punishments Clause prevailed, the Clause

would have been effectively read out of the Bill of

Rights.

It does not follow from this, however, that the members

of this Court are therefore free to discover in that Clause their

own personal moral convictions, no matter how profoundly

held. Such an approach would just as effectively "read into the

Bill of Rights” the sort of “arbitrary discretion” which works to

undermine judicial authority. As the Court also emphasized in

Furman v. Georgia:

We disclaim the night to assert a judgment against

that of the legislature of the expediency of the laws or

the mght to oppose the judicial power to the

legislative power to define crimes and fix their

punishment, unless that power encounters in its

exercise a consututiona! prohibition. In such case not

Semten | legal d sate Aafia ond

imperative in its direction, is invoked.

Id. at 267-268, quoting Weems v. United States, 217 U.S. 349,

378 (1910); emphasis added.

But if legal duty rather than personal conscience is at issue

in discovering the contemporary meaning of the Constitutional

prohibition against “cruel and unusual punishments” then the

place to look for that duty ought to be in contemporary moral

and legal values, as established and tested in the common law

tradition. Yet, it is precisely upon these grounds that Booth

most obviously founders. Certainly, Booth can find little

support in contemporary concerns in this area of law. The vast

majority of states, as well as the federal government, have

adopted victim’s rights legislation, providing for the

consideration of the impact of crime upon victims at the time

of sentencing.? As a recent law review comment noted:

2. See, Victim and Wimess Protection Act of 1982, Pub. L. No. 97-

291, 96 Seat. 1242; Alaska Seat. § 12.55.022 (Supp. 1983); ints ee Ooms

Ann. $$ 12-253(4), 13-702(D)(9) (Supp. 1987); Cal Penal Code §§

1191.1 & 1203(h) (Supp. 1988); Col Rev. Seat § 16-11-102 (1986):

Conn. Gen. Seat. Ann. § 5491 (1985); Del Code Ann. Tide 11 $§

4331 (d) & (e) (1987); Fla. Seat. Ann. § 921.143 (1985); O.C.GA $6 17.

10-1.1, 1.2 (1985); Id. Code § 19-5306 (1985); IL Seat. Ann. §§ 38-1406,

1005-4-1(6) (Supp. 1988); Ind. Code Ann. $§ 35-38-2-8 & 9 (1985 &

Supp. 1988); Iowa Code Ann. § 901.3 (Supp. 1988); Kan. Seat Ann. §

21-4604{2) (Supp. 1987); Ky. Rev. Seac $$ 421.500(5)(b), 421.520

(1985); La. Rev. Seat. § 46:1844(9) (upp. 1986); Me. Rev. Seat. Ann.

Tite 17-A § 1257 (Supp. 1988); Md. Code Ann. art. 41 § 4609 (1987):

Mass. Ann. Laws ch. 279 § 4B (Supp. 1988); Mich. Seat. Ann. § 28.1287

(763) (764) (765); Minn. Seat. Ann. $§ 609.115, 611A.037 (Supp. 1988);

Ms. Code $§ 99-19-151 to 161 (Supp. 1988); Mo. Rev. Seat. § 595.203

(1986); Moot. Code Ann. § 46-18-112 (1987); Neb. Rev. Stat. § 29-2261

(1985); Nev. Rev. Stat. § 176.145 (1987); N.J. Stat. Ann. § 2C:

(Supp. 1988); NM. Seat. Ann. § 31-245 (1987); N.Y. Crim. Proc. Law

§ 390.30(3b) (Supp. 1988); N.C. Gen. Seat. §§ 15A-825, 15A-1340.

(1987); N.D. Cent. Code ch. 12.1-34-02 14 (Supp. 1987); Ohio Rev. Code

Ann. § 2947.051 (Supp. 1985); Okla. Seat. Ann. Title 22 § 982 (1986):

Or. Rev. Seat. § 144.790(2), (4) (1983); 71 Pa. Seat. § 180-9.3 (Supp.

1987); RI. Gen. Laws $$ 12-28-4 to 4.3 (Supp. 1986); S.C. Code Ann.

§ 16-3-1550 (1985); Tenn. Code Ann. $§ 40-35-207(8), 40-35-209 (Supp.

1987); Tx. Seat. Ann. $§ 56.02, 56.03 (Supp. 1988); Ve. Seat. Ann. Tule

13 § 7006 (Supp. 1988); Va. Code Ann. § 19.2-299.1 (Supp. 1988);

wets Son Cute § 7.69:090 (Supp 1989); W. Va. Code $§ 61-11A-2 &

; Wis. ; . . 1988); Wy. -

303(a)(iv), 7-13-402 (e)(v) (1987). ist titties

The prevalence of vicum impact statements reveals

several assumptions about the purposes of

punishment. Punishing the defendant according to

the degree of tsarm caused the victim achieves two

utilitarian goals: it permits the victim and society to

express their outrage at the evil the defendant has

cause, and it incrementally deters the underlying

criminal conduct. In addition, it is widely believed

that achieving the retributive goal of inflicung a “fair”

or “deserved” punishment necessitates some

considerations of post-crime vicum suffering.

Comment, The Significance of Victim Harm: Booth vp.

Maryland and the Philosophy of Punishment in the Supreme

Court, 55 CHI. L.REV. 1303, 1304 (1988).

More generally, consideration of the harm done by the

crime, both to the victim and to society, is common in

sentencing. Nor is this some archaic survival from past ages.

For example, in setting the standards for the United States

Sentencing Commission in its drafting of the new Federal

Sentencing Guidelines, Congress prescmbed that the

Commission shall consider, among other factors:

The nature and degree of the harm caused by the

offense, including whether it involved property, ir-

replaceable property, a person, a number of persons,

or a breach of public trust. ...

28 U.S.C. 994(c)(3).

Neither (as set forth in Section II, below) does Booth find

support in the common law tradition generally, or the law of

murder, in particular. The majonty in Booth seems to

acknowledge that its view does not reflect common pracuce in

non-capital cases:

While the full range of foreseeable consequences of

a defendant's actions may be relevant in other criminal

and civil contexts, we cannot agree that it is relevant

in the umique circumstance of a capital sentencirg

hearing.

Booth, at 504.

| It is certainly true that the death penalty is "a punishment

different from all other sanctions.” Booth, at 509 fn. 12,

quoting Woodson v. North Carolina, 428 U.S. at 303-304. But

that does not explain why consideration of victim impact

evidence is appropriate in other cases, but not in the cases

involving the death penalty. The problem is that the majority

does not explain from legal principles or moral reason, nor set

forth convincing authority, such as to justify its departure from

ah —— Surely, Lb! generalized “ambivalence” about the

cath penalty is not sufficient to

: , a render whole categories of

| In the absenc= of a reasoned explanation firmly grounded

in legal or moral principle, Booth only serves to undermine that

public faith in the judiciary as a source of impersonal and

4 oo which underlies the principle of stare

ccisis. Moragne v. States Marine Lines, Inc.. 39

a aim me., 398 U.S. 375,

Booth Has Sown Confusion And Frustration

Among The Lower Courts

| Pee Me Observed in Patterson, a "traditional

jusuticauon for overruling a prior case is that a precedent ma

be a positive detriment to coherence and consistency in the law,

either because of inherent confusion created by an unworkable

decision, . . . or because the decision poses a direct obstacle to

the realization of important objectives embodied in other laws.”

Patterson v. McLean Credit Union, 491 U.S. 164 [109 S.Ct.-

2363, 2371, 105 L.Ed.2d 132).

The confusion engendered by Boothand its progeny is well

illustrated in amicus’ home state of California, where the state

supreme court has interpreted Booth one way, then another,

until finally seeming to settle on a course which obviates the

obstacle of ‘Booth error by finding it consistently harmiess.

In its initial attempts at understanding Booth, the California

Supreme Court concluded that it restricted only evidence, not

argument:

We note{] that the United States Supreme Court

has held formal evidenceon the impact of a crime on

the victim’s family to be inadmissible and improper,

but that mere argument, without instructions on that

subject, may not be prohibited by Booth.

Peoplev. Siripongs,45 Cal.3d 548, 580, 754 P.2d 1306 (1988),

cert. denied 488 U.S. 1019 (1989) [emphasis in onginal;

citation of Booth omitted]; see also, Peoplev. Rich, 45 Cal.3d

1036, 1089-1090, 755 P.2d 960 (1988).

Then this Court decided South Carolina v. Gathers, which,

of course, focussed precisely upon "mere argument” of vicum

impact by the prosecutor (as in Siripongs)and found such to be

prohibited.

Going back to the drawing-board, the California Supreme

Court next sought to distinguish Booth as little more than a

gloss upon the rule disfavoring prejudicial evidence. In People

v. Carrera, 49 Cal.3d 291, 331, 777 P.2d 121 (1989), the

California court addressed tesumony bv the vic’ n’s mother at

the penalty phase:

Although the United States Supreme Court in

Booth v. Maryland [citation omitted] held evidence of

a murder vicum’s character to be irrelevant to a

capital sentencing decision and its admission error, the

court did not alter the analysis for the admission of

evidence generally or bar the testimony of a victim’s

relauve where that tesumony is more probative than

prejudicial.

Id. at 331, fn.28. :

In subsequent cases, the California Supreme Court has

abandoned this interpretation of Booth. But after finding, in

ase after case, that Booth had been violated, the court has

onsistently proceeded to find that the error- was harmless

beyond a reasonable doubt -- thus honoring Booth more in the

breach than in the observance. See, Peoplev. Anderson, 52

Cal.3d 453, 474-475 (1990); Peoplev. Kelly, 51 Cal.3d 931,

964 (1990); Peoplev. Stankewitz, 51 Cal.3d 72, 112, 793 P.2d

23 (1990); Peoplev. Clark, 50 Cal.3d 583, 629, 789 P.2d 127

(1990); Peoplev. Gordon, 50 Cal.3d 1223, 1266-1270, 792

P.2d 251 (1990); Peoplev. Marshall, 50 Cal.3d 907, 928-929,

790 P.2d 676 (1990); Peoplev. Lewis, 50 Cal.3d 262, 284-285,

786 P.2d 892 (1990); Peoplev. Douglas, 50 Cal.3d 468, 536-

537 (1990); Peopiev. Burton, 48 Cal.3d 843, 868-869 (1989),

cert. denied, 110 S.Ct. 1502 (1990).

Similar tendencies are apparent in other states, as well.

See, e.g., State v. Fain, Idaho S.Ct. No. 18463, 1991 W.L.

27493 (Idaho March 7, 1991) (WESTLAW, Allstates library);

State v. Pizzuto, Idaho S.Ct. Nos. 16489, 17534, 1991 W.L.

2553 (Idaho January 15, 1991); State v. Paz, 118 Idaho $42, -

798 P.2d 1, 15-17 (1990); Peoplev. Crews, 112 Il.2d 266, 522

N.E.2d 1167, 1177-1178 (1988); People v. Jackson, 198

I. App.3d 831, 556 N.E.2d 619, 633-634 (IlLApp. 1990);

Peoplev. McDonald, 189 Ill.App.3d 374, 545 N.E.2d 819, 825

(ILLApp. 1989).

One state court justice, noting the pattern in his own state,

has denounced the "[i]ndiscriminate use of the harmless error

doctrine” as a detour around the obstacle posed by Booth. State

v. Fain, 1991 W.L. 27493, slip op. at p.6 (Idaho March 7,

1991) (Bistline, J., dissenting). On the other hand, the

alternative -- trying to understand and apply Booth -- is one

which has stumped more than one state court, as illustrated,

not only by many of the cases cited above, but also by Stare

v. Huertas, 51 Ohio St.3d, 553 N.E.2d 1058 (Ohio 1990),

recently before this Court. See, Ohio v. Huertas, 111 S.Cr. 805,

112 L.Ed.2d 837 (1991), cert. dismissedas improvidently granted.

Finally, if the lower court concludes that Booth is applicable, its

judges are left in a position they may find the most

objectionable of all: reversing a capital case because the miai

court allowed the victim to become something more than an

abstraction to the jury, in violation of Booth. As set forth

below, neither their legal backgrounds nor their common moral

assumptons incline judges to embrace such a doctnne.

BOOTH V. MARYLAND WAS IMPROVIDENTLY

DECIDED AND SHOULD BE OVERRULED

| The Court in Booth v. Maryland determined that victim

impact evidence is unconstrutionally inadmissible during the

penalty phase of a capital proceeding because the information

contained therein has nothing to do with the defendant's

culpability. Citing to its decision in Enmund v. Florida, 458

U.S. 782, 801 (1982), the majority in Booth underlined its

posiaon that only that information which bore directly upon

the defendanr's “personal responsibility and moral guilt” would

be admissible at a capital sentencing proceeding. Booth, 482

U.S. at 502. The Booth court concluded that victim impact

statements presented factors which “may be wholly unrelated to

the blameworthiness of a particular defendant.” Id. at. 504.

While the Court in Booth hinted that the criminal law may

well be willing to consider as relevant the actual foreseeable

harm caused by the defendant in “other criminal and civil

— it was not yy to “agree that it is relevant in the

que circumstance of a capital sentencing hearing.” /d. at

504. Although conceding that the Court’s decision in Tison v

Arizona, 481 U.S. 137 (1987), made capital defendants morally

culpable for more than just the harm they specifically intended,

it appears the Booth Court nevertheless was unwilling to

abandon the noton that criminal responsibility should largely

remain uninformed by the harm caused. Booth at 504.

As one law review author has expressed:

[T]he most serious flaw in the Booth Court’s

reasoning is its failure to recognize the eligibility for

the death penalty always depends upon the harm that

results . . . . [T]he criminal law categorizes

punishments according to actual results. Thus, to

reject the degree of harm inflicted as irrelevant. when

divorced from the defendant's intentons, is to reject

a principle that pervades the criminal justice system.

Comment, The Significance of Vicum Harm: Boothv. Maryland

and the Philosophy of Punishment in the Supreme Court, 55

U. CHI. L. REV. 1301, 1325-26 (1988).

As Justice White emphasized in his dissent in Booth, this

Court has in other cases “indicate{d] that the harm caused by

an offense may be the basis for punishment even if the

offender lacked the specific intent to commit the harm. See,

¢.g., United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43

L.Ed 2d 541 (1975) ...." Boothat 517 n.1. Indeed, the

majority in Booth recognized that the harm caused to society

"may be relevant in other criminal contexts” but not in “the

unique circumstance of a capital sentencing hearing.” Booth at

504. The Booth decision appears to make no principled

distinction between capital and non-capital cases in the admuis-

sion of evidence as to the impact of the defendant's acuons

upon society. While every human life is important and we will

punish any one who takes any life unjusufiably, obviously there

is a greater impact upon society when a President is killed than

when the average citizen is killed. See Booth at 517 n.2 (White,

J., dissenung).

The criminal law has always incorporated within its theory

of moral culpability the concept that a defendant may be held

accountable not only for the intenton of his act alone but also

disregard for the strong likelihood that death or great bodily

injury will result from the defendant’s conduct although the

killing of the victim was not specifically intended by the

defendant. Here, again, the defendant is held morally culpable

for the result of his conduct and the harm he has caused the

vicum regardless of the intention of his act. Jd. § 7.4, at pp.

617-621.

The Court in Tison v. Arizona, 481 U.S. 137, recognized

that one who acts with a reckless disregard for human life

represents a highly culpable mental state that may support a

capital sentencing judgment in combination with major par-

ucipation in the felony resulting death. /d. at 157. Although

petitioners in 7Ison argued that since they did not themselves

intend to kill the hapless family which had stopped by the

wayside to assist peutioners, and should not be held accoun-

table for the victims’ deaths, this Court ruled that even though

a murder was not specifically intended by the defendants, a

reckless disregard for human life which resulted in the death of

the vicum could be the basis for the death penalty even though

the “lethal result” was not an “inevitable” result of the conduct.

Id. at 158. Clearly this Court in Tison recognized that defen-

dants should be criminally liable for the harm they caused.

Felony murder at carly common law held a felon morally

culpable for an unintended death which occurred during the

commission or attempted commission of a felony. While the

felony murder doctrine has been refined and limited in many

American jurisdictions, “the felony-murder doctrine is well

entrenched in American law.” W.R. LaFave & A. Scorn,

Criminal Law § 7.5, p. 640 (2d ed. 1986). Under this

doctrine one committed a felony at one’s own msk and with the

understanding that one would be criminally liable for all deaths

caused by one’s commission of the felony. The theory of

punishment underlying the felony murder rule was that it

would serve as a deterrent to the commission of felonies or at

least the commission of felonies in violent wavs. The felon was

acting with the msk that a death might occur which he did not

intend but for which he would be held strictly accountable.

The common law through the crime of attempt has long

recognized that intent alone is not enough to create criminal

liability and that the result of the criminal enterprise is

determinative of proper punishment. The criminal law has

always recognized that one who attempts to commit murder

but fails to accomplish that end will be punished, but never to

the extent of one who succeeds. While both the murderer and

the attempt murderer have the same intent, the criminal law

gives the greatest sanction to the defendant who causes the

greatest harm. “If a bank robber aims his gun at a guard, pulls

the tigger, and kills his target, he may be put to death. If the

gun unexpectedly misfires, he may not. His moral guilt in

both cases is identical, but his responsibility in the former is

greater." Booth v. Maryland, 482 U.S. 496 (Scalia, J.,

cissenung). “The only distinction is the harm to the

community which results from the defendant's actions, and this

distinction is deemed sufficient to support a difference in

punishment between a sentence of years and the ultimate

penalty." South Carolina v. Gathers, 109 S.Ct. 2207, 2215

(1989) (O’Connor, J., dissenting).

The doctrine of legal impossibility also demonstrates

how the intent of the actor alone it not enough to create

criminal liability. This doctrine holds that one is not guilty of

an attempt to a cmme if the actual result intended is not

proscribed by the criminal law. “[A]n immoral motive to inflict

some injury on one’s fellows coupled with a misapprehension

about the content of the criminal law are not good reasons for

convicuon.” W.R. LaFave & A. Scott, Criminal Law, § 6.3,

p. 514 (2d ed. 1986). Again, through the doctrine of legal

impossibility, the criminal law affirms the premise that it is the

harm of the criminal endeavor that matters, not just the intent

to cause the harm.

The criminal law as enforced throughout the United States

is replete with examples where the punishment assessed the

criminal is directly dependent upon the harm caused and not

the morai culpability of the defendant. As a member of this

court has observed, a motorist who runs a stoplight and kills

someone will receive far greater punishment than a motorist

who merely runs a red light without injury. The two motorists

share the same moral culpability but not the same punishment

merely because the harm caused by the former far exceeds the

harm caused society by the actions of the latter. Booth v.

Maryland, 482 U.S. at 517 (White, J., dissenting). Likewise,

in California, one man may shoot a gun into the air to

celebrate New Year’s Eve and be in violation of a statute which

punishes such dangerous conduct, bur if the bullet he has

discharged into the air returns to earth and kills a young child,

he may be held accountable for criminally negligent homicide

although his intent was but to celebrate New Year's Eve, albeit

in a dangerous mode. The gun shooter is such a circumstance

is being directly punished for the harm he has caused and not

the intent of his actions. California Penal Code section 246.3.

Thus, Booth divorces capital offenses from the consistent

notion running through the common law that a defendant's

criminal liability is measured to a large extent by the result of

his conduct. Indeed, “[t]he goal of truly ‘individualized’

punishment . . . should allow the Srate to include as a capital

sentencing consideration the partuculanzed harm caused by an

individual murder." Note, Booth v. Maryland -- Death Knell

For the Victim Impact Statement, 47 MD.L.REV. 701, 713

(1988).

To argue that one’s responsibility for one’s acts should be

limited only to the intention of the act alone and remain

uninformed by the harm caused is to divorce the criminal law

from the common principles of morality operative in our

society. It is to disregard the inesumable circumstances of

every day life where one is held liable for the harm caused by

one’s actions. For example, if two boys go to play catch on a

neighbor’s property, where they know they are forbidden to

play because of nearby windows, they may be concerned about

being caught. But the concern of both the boys and their

elders will be suddenly transformed if a negligendy thrown ball

smashes one of those windows, The fact of the ball going

through the window, although quite unintenuonal, transforms

the situation. [Even relauvely young children in such a

circumstance would recognize in a flash that they bear respon-

sibility for that broken window, although they did not intend

to break it. The situation becomes that much more a cause for

concern if the ball not only breaks the window but beans the

neighbor inside the house. And if the neighbor happens to be

a little old lady with brittle bones, the situation has the

potenual for tragedy -- for the boys, as well as for the old lady.

Yet, in all four scenarios, the youngsters intent was the

same -- intentionally to play catch in a place they were not

supposed to. But their degree of responsibility is very much

dependent upon the degree of harm done, though not because

that harm was intended. Indeed, one of the greatest principles

we attempt to impart to our children is that they must accept

the consequences of their behavior, and this often includes

“Sher oe Ane Oe, Ree Se oe retin adiedas -se~ 8

ent AN ein ee tt oe nciline at are emT ~ inct y t Me m

aon

suffering sanctions for the unintended results of both negligent

and miscreant acts.

The point of this rather homey example is not to minimuze

the weighty issues presented by Booth. Still less is it to suggest

that intention is ‘rrelevant to personal responsibility. It is not.

The point is rather to emphasize how singularly inadequate ts

the moral world, as it is conceived of in Booth, compared to

flesh-and-blood reality. We are concerned in the case at bar

with basic notions of legal and moral responsibility -- notions

which Buoth simply fails to capture. By contrast, the richness

of our settled traditions of the common !aw and our ordinary

moral discourse partake of profound and incisive wisdom. We

cut ourselves off from their lessons at our peril.

CONCLUSION

Booth v. Maryland was incorrectly decided. It is unsup-

ported by prior consttutional jurisprudence. It is consistent

neither with common law tradition nor with the moral

underpinnings of our society. Its continued viability serves

only to confuse and undermine the legitimate goals of the law.

For the reasons set forth above, Bouth should be overruled.

Respectfully submitted on behalf of the

California District Attornevs

Association, and the District Attorney

of Los Angeles County

Counsel of Record

HARRY B. SONDHEIM

Head Deputy District Attorney

Appellate Division

MARTHA E. BELLINGER

Deputy District Attorney

Associate Counsel

Of Counsel

GEORGE G. SIZE

Deputy District Attorney

Associate Counsel

Artorneys for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.