# Amicus Curiae Brief — Payne v. Tennessee

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0124%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 808

## Text

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

I

II

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

ur

12

15

15

B Common

Principles Of Morality

Dictate That The Amount Of Harm

Done Does Bear On The Extent Of

One’s Personal Responsibility

CONCLUSION

ll

23

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

16

6, 12

15

4-6, 12, 13

14

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)

iv

Pages

14

13

14

14

14

14

14

14

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

17

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)

9

7, 8, 12

21
10

10

10

10

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

10

10

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

10

10

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.

//
//
//
//

2
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

3

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

By

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

5

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.

I

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.”

6

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.

A

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,

7

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),

8

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
i

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

9

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

10

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

Ll

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:

12

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,

B

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

13

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

14

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

-

15

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.

16

II

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.

17
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

ti

19

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

20

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

21

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

23

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.

By

24
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

By

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0124%3A14. Public record. Not legal advice.