Amicus Curiae Brief — Payne v. Tennessee

BEST AVAILABLE COPY

I

QUESTIONS PRESENTED

1. Whether the admission of "victim impact” evi-

dence in the sentencing phase of a capital murder trial

violates the Eighth and Fourteenth Amendments.

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

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

Should be overruled.

OF ARGUMENT

TABLE OF CONTENTS

ARGUMENT:

I.

BOOTH AND GATHERS SHOULD BE

OVERRULED BECAUSE THEY

REPRESENT THE APOTHEOSIS OF A

FLAWED JURISPRUDENCE OF THE

CRUEL AND UNUSUAL PUNISHMENTS

08 Pe

A. The Punishments Clause Was Originally

Understood Solely As a Prohibition of

Torture and Other Barbarous

Punishments ..................

C. Disregarding Justice Harlan’s Warning in

McGautha, the Court Has Erected an

Illegitimate Edifice of Constitutional

Doctrine for Regulating Capital

7" Ss 8s 8& 8&e—(%&—6—U«h}MUrSh(UhSHhllUh SH UA SS Se

7-— fs Ss 8s 8s 8 6&6 ee e086 8 6 6 8 Se Se

D. The Court’s Illegitimate Jurisprudence of

the Punishments Clause Has Culminated

in the Holdings of Booth and Gathers

that Victim Impact Evidence Cannot be

Considered in Capital Sentencing ... .

fl. ALTERNATIVELY, BOOTH AND

GATHERS SHOULD BE OVERRULED

BECAUSE THEY ARE ERRONEOUS

EVEN IN THE CONTEXT OF THE

COURT’S OTHER DECISIONS UNDER

THE PUNISHMENTS CLAUSE .......

A. There is No General Constitutional

Impediment to According a Victim

Standing to Participate in the Criminal

Process, Including Sentencing ......

B. Victim Participation Serves Important

Social Purposes ...............

1. Victim Involvement in the System

Discourages Vigilantism .......

2. A Right of Victim Participation

Encourages Cooperation with Police

and Prosecutors ............

3. Participation in the Criminal Justice

System Helps to Remedy the

Traumatic Effects of Crime on the

Ad Silas 5 5s 6 oe > 0 0

ee

19

23

23

26

26

27

iv

TABLE OF AUTHORITIES

Page

Cases:

Badders v. United States, 240 U.S. 391 (1916) .... 8

Blystone v. Pennsylvania, 110 S. Ct. 1078 (1990) .. 15

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

Browning-Ferris Industries of Vermont, Inc.

v. Kelco Disposal, Inc., 109 S. Ct. 2909 (1989) 12

California v. Brown, 479 U.S. 538 (1987) ...... 25

Eddings v. Oklahoma, 455 U.S. 104 (1982) ... 16, 17

Enmund v. Florida, 458 U.S. 782 (1982) ........ 2

Furman vy. Georgia, 408 U.S. 238 (1972) .... passim

Gregg v. Georgia, 428 U.S. 153 (1976) .. 3, 6, 14, 25

Heckler v. Chaney, 470 U.S. 821 EE ee 13

In re Kemmler, 136 U.S. 436 (1890) ........... 6

Linda R. S. v. Richard D., 410 U.S. 614 (1973) ... 24

Lochner v. New York, 198 U.S. 45 (1905) .... 10. 11

Lockett v. Ohio, 438 U.S. 586 (1978) .... 15, 16, 17

McGautha v. California,

402 U.S. 183 (1971) .......... 3, 12, 13, 14

McKoy v. North Carolina,

110 S. Ct. 1227 (1990) ............... 16

Mills v. Maryland, 486 U.S. 367 (1988) ........ 19

O'Neil v. Vermont, 144 U.S. 323 (1892) ........ )

Powell v. Texas, 392 U.S. 514 (1968) .......... 3

Roberts (Harry) v. Louisiana,

431 U.S. 633 (1977) ................. 15

Roberts (Stanislaus) v. Louisiana,

428 U.S. 325 (1976) ............... 15, 17

Rummel v. Estelle, 445 U.S. 263 (1980) ......._.. 6

Solem v. Helm, 463 U.S. 277 (1983) ......... 6,9

South Carolina vy. Gathers.

490 U.S. 805 (1989) ............. 2, 19, 2

Stanford v. Kentucky,

492 US. 361 (1989) ................. 25

State v. Payne,

791 S.W.2d 10 (Tenn. 1990) ........... 2, 3

Sumner v. Shuman, 483 U.S. 66 ts) 15

Trop v. Dulles, 356 U.S. 86 (1958)... .°.... 3,89

Weems v. United States,

217 U.S. 349 (1910) ............ 7, 8, 9, 12

Wilkerson v. Utah, 99 U.S. 130 | are ve 6

Williams v. New York,

337 US. 241 (1949) ................. 17

Woodson v. North Carolina,

428 U.S. 280 (1976) ............ 15, 16, 17

Young v. U.S. ex rel Vuitton et Fils,

107 S. Ct. 2124 (1987) ............... 25

Zant v. Stephens, 462 U.S. 862 (1983) ......... 20

a 7

Amendment VIT ................... passim

Amendment XIV,§ 1 ................. 7, 14

Statutes:

English Bill of Rights of 1689 .............. 4

Virginia Declaration of Rights 1776 ........... 4

Northwest Ordinance 1787 ................. 4

of 1984, Pub. L. No. 98-473,

98 Stat. 1837(1984) .................. 18

vi

Page

Miscellaneous:

American Bar Association, Guidelines for

Fair Treatment of Victims and Witnesses

in the Criminal Justice System (1983) ........ 26

Benson, The Last Victim and Other Failures

of the Public Law Experiment, 9 Harv.

J.L. & Pub. Pol’y 399 (1986) ............. 24

R. Berger, Death Penalties: The Supreme

Court's Obstacle Course (1982) ........ ~aGane

W. Berns, For Capital Punishment (1979) ...... 21

A. Bickel, The Supreme Court and the Idea

@ Pragreds (UIGFE) 0 ww ccc ccc ee 11

The Bureau of Justice Statistics, U.S.

Dep't of Justice Report to the Nation

on Crime and Justice (2d ed. 1988) ......... 28

J.B. Bury, The Idea of Progress (1932 ed.) ...... 10

Cardenas, The Crime Victim in the

Prosecutorial Process, 9 Harv. J.L. &

Pub. Pol’y 357 (1986) .................., 24

F. Carrington & G. Nicholson, The Victims

Movement: An Idea Whose Time Has Come,

11 Pepperdine L. Rev. 1 (1984) ........... 27

Gardner, The Renaissance of Retribution--

An Examination of Doing Justice, 1976

Wis. L. Rev. 781 (1976) ................ 23

Gibbons, Victim Again: Survivors Suffer

Through Capital Appeals, 74 A.B.A. J.

ee 30

Gittler, Expanding the Role of the Victim

in a Criminal Action: An Overview of

Issues and Problems, 11 Pepperdine L. Rev.

ok Pe a eo eee 24, 28

Goldstein, The Victim and Prosecutorial

Discretion: The Federal Victim and Witness

Protection Act of 1982, 47 Law & Contemp.

I nn ae 24

Granucci, “Nor Cruel and Unusual Punishments

Inflicted:” The Original Meaning, 57 Calif.

Se: 7) eee 5, 6, 8, 9

Green, Private Challenges to Prosecutorial

Inaction: A Model Declaratory Judgment

Statute, 97 Yale L.J. 488 (1988) ........... 24

J. Herndon & B. Forst, The Criminal Justice

Response to Victim Harm (1984) ........... 29

O.W. Holmes, The Common Law (1923 ed.) .. . 21, 22

Hudson, The Crime Victim and the Criminal

Justice System: Time for a Change, 11

Pepperdine L. Rev. 23 (1984) ............. 28

P. Johnson, Modern Times: The World From the

Twenties to the Eighties (1983) ............ ll

S. Kadish, S. Schulhofer & M. Paulsen,

Criminal Law and Its Processes (4th ed. 1983) ... 18

Kelly, Victims’ Perceptions of Criminal Justice

11 Pepperdine L. Rev. 15 (1984) ........... 28

Kilpatrick & Otto, Constitutionally Guaranteed

Participation in Criminal Proceedings for

Victims: Potential Effects on Psychological

Functioning, 34 Wayne L. Rev. 7 (1987) . 28, 29, 30

W. LaFave & A. Scott, Criminal Law,

GINA UA & ed ou neo Bis)h9. 6&0 6 6 o% < 23

Lowe, Modern Sentencing Reform: A Preliminary

Analysis of the Proposed Federal Sentencing

Guidelines, 25 Am. Crim. L. Rev. 1 (1987) .... 18

McLeod, An Examination of the Victim's Role at

Sentencing: Results of a Survey of Probation

Administrators, 71 JUDICATURE 162 (1987) ... 26

Mikva, Victimless Justice, 71 J. Crim. L. &

Criminology 189 (1981) ................ 28

Page

National Organization for Victim Assistance,

Victims Rights and Services: A Legislative

I aa as 5 6 nebo be qo a o oe L 27

N.Y. Times, Jan. 27, 1985,

ee 27

Note, The Outmoded Concept of Private

Prosecution, 25 Am. U.L. Rev. 754 (1976) .... 24

Note, Private Prosecution: A Remedy for

District Attorneys’ Unwarranted Inaction, 65

Wale LJ. 209 (1959S) .... 2... eee 24

Note, VIS: Reform or Reprisal, 27 Am. Crim. L.

OEM, DOO GUD cb cca cscawwcccacce, 26

Ogletree, The Death of Discretion? Reflections

on the Federal Sentencing Guidelines, 101

Harv. L. Rev. 1938 (1988) .......... 18, 22, 23

Packer, Making the Punishment Fit the Crime,

77 Harv. L. Rev. 1071 (1964)............. 18

Pineda, "Civilization and Cultural Evolution,"

4 Encyclopedia Britannica 657 (15th ed. 1982) .. 10

G. Smith, Capital Punishment 1986: Last Lines

of Defense (1986) .................... 13

Punishment in Modern America (P. McGuigan &

J. Pascale, eds. 1986) .................. 18

of the United States vi (Carolina Academic

WU MNIE ba so Mb ee a ke wou ence nee 12

Violence, Final Report of the APA Task Force

on the Victims of Crime and Violence, 40

Am. Psych. 107 (1985) ............... 29, 30

Wheeler, Toward a Theory of Limited Punishment:

An Examination of the Eighth Amendment.

24 Stan. L. Rev. 838 (1972)............ 21

BRIEF OF THE WASHINGTON LEGAL

FOUNDATION, MARY AND JOSEPH ZVOLANEK,

FAMILIES AND FRIENDS OF MISSING PERSONS

AND VIOLENT CRIME VICTIMS, THE NATIONAL

VICTIM CENTER, PARENTS OF MURDERED

CHILDREN, PEOPLE AGAINST CHILD ABUSE,

INC. AND THE STEPHANIE ROPER COMMITTEE,

INC. AS AMICI CURIAE IN SUPPORT OF

RESPONDENT

INTERESTS OF AMICI CURIAE

The amici are individuals and organizations

concemed with promoting victims’ rights in the criminal

justice system. Included among the amici are Mary and

Joseph Zvolanek, the parents of Charisse Christopher and

the grandparents of Lacie Christopher, the two individuals

whom Petitioner Pervis Payne was convicted of

murdering. The Zvolaneks now have custody of Nicholas

Christopher, Charisse Christopher’s sole surviving child

who was three years old at the time of the murders.

Mary Zvolanek testified at the sentencing phase of

Petitioner’s trial regarding the harm inflicted on Nicholas

due to the deaths of his mother and sister. Petitioner has

asked this Court to hold that the admission into evidence

of Mary Zvolanek’s testimony violated his constitutional

rights. A further description of the organizational amici is

set forth in the Appendix to this brief.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Court has granted certiorari to consider whether

its judicially-imposed prohibition on the use of victim

impact evidence in the sentencing phase of a capital

murder case should be overruled. This question is

presented in a case where the petitioner killed both

Charisse Christopher and her two year old daughter Lacie

2

by repeatedly stabbing them with a butcher knife.

During this attack, petitioner also repeatedly stabbed Ms.

Christopher’s three year old son, Nicholas, who

apparently witnessed the attack on his mother and sister

and survived despite knife wounds that went entirely

through his body. State v. Payne, 791 S.W.2d 10, 12

(Tenn. 1990).

With that as the backdrop, the Supreme Court now

finds itself considering whether it was prejudicial error

of constitutional dimension for the jury sentencing the

perpetrator of this brutal multiple murder to hear the

prosecutor comment on the good character of the young

mother and her children and the extent of their suffering.

Even more alarming, the Court’s prior decisions on the

use of victim impact evidence also compel it to consider

whether it was constitutionally impermissible to allow

Nicholas Christopher’s grandmother to testify briefly

about how her little grandson cries for his dead mother

and sister. See Payne, 791 S.W.2d at 17-18. These

questions are before the Court as constitutional issues

only because of the Court’s flawed jurisprudence of the

Punishments Clause cf the Eighth Amendment,

culminating in Booth v. Maryland, 482 U.S. 496 (1987),

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

Booth and Gathers are capstones to a series of deci-

sions by this Court without foundation in either the

Punishments Clause or any other enduring constitutional

principle, and which constitute an unbridled usurpation of

legislative power. The Supreme Court of Tennessee ex-

pressed its assessment of Booth and Gathers in blunt but

eloquent terms:

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 back-

ground, character and good deeds of Defendant (as

was done in this case), without limitation as to

3

relevancy, but nothing may be said that bears upon

the character of, or the harm imposed, upon the

victims.

State v. Payne, 791 S.W.2d at 19. Yet that is where the

tortuous path of this Court’s Eighth Amendment jurispru-

dence has led it.

Such juridical meandering should have been avoided.

In his opinion for the Court in McGautha v. California,

Justice Harlan warned that it would be impossible to

solve “the intractable . . . problem of ‘standards’ which

the history of capital punishment has from the beginning

reflected." 402 U.S. 183, 207 (1971). In the jurispru-

dence developed in the wake of Furman v. Georgia, 408

U.S. 238 (1972), the Court has attempted this impossible

task, based in large measus¢ on the erroneous assumption

that the Punishments Clause of the Eighth Amendment

incorporates "the evolving standards of decency that mark

the progress of a maturing society." Gregg v. Georgia,

428 U.S. 153, 173 (1976) (plurality opinion), quoting

Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality

opinion).

If the Court persists in its present approach, it

will find itself repeatedly inventing constitutional distinc-

tions, judicially woven into the fabric of the Punishments

Clause, between the minutiae of evidentiary and proce-

dural rules presented on review of capital sentencing

proceedings. instead, the Court should belatedly heed its

own warning that "[cJaution is necessary lest this Court

become, ‘under the aegis of the Cruel and Unusual Pun-

ishments Clause, the ultimate arbiter of the standards of

criminal responsibility ... throughout the country.’"

Gregg, 428 U.S. at 176 (plurality opinion), quoting

Powell v. Texas, 392 U.S. 514, 533 (1968) (plurality

opinion).

Alternatively, Booth and Gathers should be overruled

because they were wrongly decided even in the context

Ce

of the Court’s earlier decisions construing the

Punishments Clause. There is no general constitutional

objection to a victim’s participation in criminal sentencing

proceedings. Furthermore, such Participation would serve

important social purposes emphasized by the Court in its

earlier opinions. The full measure of the murderer’s

responsibility for his crime necessarily includes the real

harm caused to the victim and her family, not merely an

abstract assessment of mens rea. Given the virtually un-

limited range of mitigation evidence that may be offered

by the defendant, the sentencing jury should also be fully

apprised of the human suffering that results from the

criminal’s murderous act.

ARGUMENT

I. BOOTH AND GATHERS SHOULD BE OVER-

RULED BECAUSE THEY REPRESENT THE

APOTHEOSIS OF A FLAWED

JURISPRUDENCE OF THE CRUEL AND

UNUSUAL PUNISHMENTS CLAUSE.

A. The Punishments Clause Was Originally

Understood Solely As a Prohibition of Torture

and Other Barbarous Punishments.

The language of the Punishments Clause originated in

the English Bill of Rights of 1689, which provided: "That

excessive bail ought not to be required, nor excessive

fines imposed, nor cruel and unusual punishments _in-

flicted." This provision was incorporated verbatim into

the Virginia Declaration of Rights by George Mason in

1776, and shortly thereafter found its way into the

constitutions of eight other states and the Northwest

Ordinance of 1787. With a minor change in wording

5

("shall not be" instead of “ought not to be"), it was

adopted in 1791 as the Eighth Amendment.'

There has been debate as to the purpose of the lan-

guage about cruel and unusual punishments in the English

Bill of Rights. This language was traditionally thought to

have been adopted in response to the harsh punishments

meted out by Lord Justice Jeffreys in the "Bloody

Assize." Modem scholarship indicates that the language

more likely refers to punishments inflicted upon Titus

Oates for giving perjured testimony leading to the erron-

cous execution of a number of supposed participants in

the infamous "Popish Plot" of 1678-79.? "In the context

of the Oates case, ‘cruel and unusual’ seems to have

meant a severe punishment unauthorized by statute and

not within the jurisdiction of the court to impose."

The debate over the meaning of this language in the

English Bill of Rights has become significant because all

available evidence indicates that the American framers of

the Punishments Clause intended it solely as a prohibition

of torture and other barbarous punishments.‘ Throughout

the Nineteenth Century this Court and commentators have

treated the Punishments Clause as applying to methods of

punishment involving “torture or a lingering death," such

as buming at the stake, crucifixion or breaking on the

‘Furman v. Georgia, 408 U.S. 238, 319 (Marshall, J., concurring);

Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Origi-

nal Meaning, 57 Calif. L. Rev. 839, 839-40 (1969).

*Furman v. Georgia, 408 U.S. at 317-18 (Marshall, J., concurring);

Granucci, supra note 1, at 852-59; see R. Berger, Death Penalties:

The Supreme Court's Obstacle Course 35-40 (1982).

*Granucci, supra note |, at 859.

“Furman v. Georgia, 408 U.S. at 319-21 (Marshall, J.. concurming ):

Granucci, supra note 1, at 840-44. Granucci attributes this American

understanding to a misreading of English legal history. /d. at 860-65.

6

wheel.” The clause was not thought to authorize judicial

review of the proportionality of a punishment to the

offense.

In recent years, the circumstances giving rise to this

provision in the English Bill of Rights have been invoked

to justify a broader conception of the Punishments Clause

than the understanding of the American framers.’ This

approach is unwarranted for two reasons.

First, the only relevant original meaning is that given

the clause by the people who framed and ratified it in

1791. If the English used the words in a different sense

in 1689, and that meaning was unknown in America in

1791, then it can hardly bear on the original meaning of

the Eighth Amendment. And the authorities are generally

in agreement that the American framers understood the

clause to prohibit inherently cruel methods of punishment

and not those that were disproportionate to the offense.’

Second, it exaggerates the history of the English

clause to say that it reflects an understanding that a

punishment must be proportioned to the severity of the

crime. The concern in Titus Oates’ case seems to have

been that the punishments were unauthorized by statute or

custom. At a time when petty theft was a capital

offense, it strains credibility to believe that the English

thought Oates’ punishments disproportionately severe for

a perjurer whose testimony had caused fifteen innocent

men to be executed. And, in fact, Oates’ sentence --

*In re Kemmler, 136 U.S. 436, 446-47 (1890); see Wilkerson y.

Utah, 99 U.S. 130, 135-36 (1879), and commentators cited therein.

“Solem v. Helm, 463 U.S. 277, 284-86 (1983); Rummel vy. Estelle.

445 U.S. 263, 288 (1980); Gregg v. Georgia, 428 U.S. 153. 169

(1976) (plurality opinion); Furman y. Georgia, 408 U.S. 238, 318

(1972) (Marshall, J., concurring).

‘Granucci, supra note |. at 843-44: R. Berger. supra note 2, at 43-

45; see Solem v. Helm, 463 U.S. at 313 n.6 (Burger. CJ. dissenting).

”y

/

while criticized in some quarters -- was upheld by the

House of Lords a few months after the promulgation of

the Declaration of Rights.’

In any event, America’s Bill of Rights, as adopted,

clearly contemplated the lawful imposition of capital

punishment in the language of the Fifth Amendment,’ and

the death penalty has been part of federal and state

criminal law since the beginning of the Republic. Like-

wise, the Fourteenth Amendment, ratified in 1868, expli-

citly refers to the death penalty."° Whatever original

meaning is attributed to the Punishments Clause, it

certainly cannot prohibit the lawful imposition of capital

punishment.

B. In this Century, the Court Has Improperly

Substituted Ideology for History in_ its

Interpretation of the Punishments Clause.

The historical approach to the Punishments Clause

was abandoned when the Court began to apply a theory

of progressive societal enlightenment as the basis of its

jurisprudence.

In Weems v. United States,’ the Court expanded the

meaning of the Punishments Clause beyond a limitation

on the methods of punishment to include a review of the

"R. Berger, supra note 2, at 37-40.

No person shall be held to answer for a capital . . . crime, unless

on a presentment or indictment of a Grand Jury . . .; nor shall any

person be subject for the same offence to be twice put in jeopardy of

life or limb . . . nor be deprived of life . . . without due process of

law ...." U.S. Const. amend. V (emphasis added).

‘". . . nor shall any State deprive any person of life . . . without

due process of law... ." U.S. Const. amend. XIV. § 1.

"217 U.S. 349 (1910)

8

proportionality of the punishment to the crime. Weems

received a sentence of cadena temporal for the offense of

making a false entry in a government account book.”

Although the Court indicated that aspects of the sentence

were inherently cruel, it also held that the sentence was

invalid because it was disproportionately severe."

Justice McKenna’s opinion in Weems contains a well-

known discussion of the doctrine of a living

constitution.'* He concluded that the Punishments Clause

is “progressive, and is not fastened to the obsolete but

may acquire meaning as public opinion becomes

enlightened by a humane justice." Jd. at 378 (citations

omitted). The Harvard Law Review praised the decision

in Weems as "a triumph of enlightenment over history."

This theory of progressive enlightenment was again

invoked in Trop v. Dulles,'* which invalidated denationali-

zation as a statutory sanction for desertion from the

"This punishment, imposed in the Territory of the Philippines,

included twelve years of “hard and painful labor" in chains, as well

as accessory penalties including lifetime surveillance by government

authorities. 217 U.S. at 364-66.

"217 U.S. at 377. Justice White's dissenting opinion in Weems,

joined by Justice Holmes, vigorously disputes the notion that the

Punishments Clause authorizes courts to review the proportionality of

criminal sentences. 217 U.S. at 382. The practical effect of the

holding in Weems was limited by Badders v. United States, 240 U.S.

391 (1916) (Holmes, J.), in which the Court eschewed a role in the

case-by-case review of the proportionality of sentences to crimes.

‘Time works changes, [and] brings into existence new conditions

and purposes. Therefore a principle to be vital must be capable of

wider application than the mischief which gave it birth.” 217 U.S. at

373. See also id. at 373-75.

"Note, What is Cruel and Unusual Punishment, 24 Harv. L. Rev.

54 (1910), cited in Granucci, supra note 1, at 843.

"356 U.S. 86 (1958).

9

armed forces in wartime. Chief Justice Warren’s

plurality opinion cited Weems for the proposition that the

Eighth Amendment was not "static" in scope, id. at 101,

and concluded that "[t]he Amendment must draw its

meaning from the evolving standards of decency that

mark the progress of a maturing society." /d. The

decision in Trop did not involve the issue of

proportionality review, but rather whether

denationalization is an inherently unconstitutional method

of punishment.'’ The plurality opinion concluded that

it was, because it resulted in "the total destruction of the

individual’s status in organized society." /d.

The doctrine that the Punishments Clause encom-

passes proportionality review, although weak in historical

support, has some textual logic. It appears as part of an

amendment that bars “excessive bail" and “excessive

fines.""* However, the rationale stated in Weems and Trop

-- that the Punishments Clause must be interpreted to

reflect the evolving decency of human society -- is

extraconstitutional in origin. It derives from doctrines of

"The opinion acknowledged that "[sJince wartime desertion is

punishable by death, there can be no argument that the penalty of

denationalization is excessive in relation to the gravity of the crime."

356 U.S. at 99. The opinion also stated that the death penalty

“cannot be said to violate the constitutional concept of cruelty.” /d.

‘See Furman v. Georgia, 408 U.S. at 403 (Marshall, J., con-

curring); O'Neil v. Vermont, 144 U.S. 323, 340 (Field, J., dissenting)

("The whole inhibition [of the Eighth Amendment] is against that

which is excessive either in the bail required, or fine imposed, or

punishment inflicted.") There is also some historical support for a

concept of proportionality in the common law of England, although

this concept is not clearly tied to the adoption of the Punishments

Clause as part of the Eighth Aimendment. See Granucci, supra, note

1, at 844-47. But see R. Berger, supra, note 2, at 30-35. The

opinion of this Court in Solem v. Helm justifies proportionality review

solely on the basis of historical and textual analysis. 463 U.S. at

284-90.

e

10

cultural evolution that were particularly fashionable in the

Nineteenth and early Twentieth Centuries.

In an influential book first published in 1920, The

Idea of Progress, Professor J.B. Bury surveyed the intel-

lectual history of this concept. He defined the idea of

Progress as “based on an interpretation of history which

regards men as slowly advancing -- pedetemtim progre-

dientes -- in a definite and desirable direction, and infers

that this progress will continue indefinitely." Through

doctrines such as Positivism,” Marxism and Social

Darwinism,” the idea of Progress permeated the political

philosophy of the time.

It is not surprising for a Court that embraced

Spencer’s economic doctrines in such decisions as

Lochner v. New York also to embrace in Weems his doc-

mm... Bury, The Idea of Progress 5 (1932 ed.). See also Pineda.

ivilization and Cultural Evolution,” 4 Encyclopedia Britannica 657-

60 (15th ed. 1982), —— me

“Comte, for example, believed that mankind had progressed

through theological and metaphysical periods to a third or Positive

period, which will feature “the organization of society by means of

scientific sociology." This period will be controlled by "savants who

will direct social life not by theological fictions but by the Positive

truths of science." J.B. Bury, supra note 19, at 299-300. Comte is

regarded as the “father” of sociology.

concludes that “perfectibility is possible." Next, he argues that "evil

is not a permanent necessity. For all evil results from the non-

adaptation of the organism to its conditions: this is true of everything

that lives. And it is equally true that evil perpetually tends to

disappear." J.B. Bury, supra note 19. at 337

ll

trine of moral evolution.” What is surprising, however,

is that a modern Court, having seen the wars and holo-

causts of our century, could continue to base constitu-

tional doctrine on the supposition that a maturing society

will necessarily enjoy “evolving standards of decency."”

We do not ask the Court to decide whether the doc-

trines of Comte, Marx and Spencer are right or wrong;

our point is that the Framers did not embody such ideo-

logical considerations in the Punishments Clause. It is

certainly appropriate for legislators to be influenced by

ideological considerations. For judges, reliance on

extraconstitutional ideologies should be anathema.”

Justice Story expressed his disdain for such judicial

manipulation of the Constitution over one hundred and

fifty years ago:

“Justice Holmes, who joined the dissenting opinion in Weems,

made the well-known remark in his Lochner dissent that the

Constitution "does not enact Mr. Herbert Spencer’s Social Statics.”

198 U.S. 45, 75 (1905).

See P. Johnson, Modern Times: The World From the Twenties

to the Eighties 731 (1983):

Darwin himself always stressed the limits of his

discoveries. He discouraged those who sought to

build ambitious projections on them. That was

why he gave no license to the theories of the

"Social Darwinists,’ which terminated in Hitler's

holocaust, and why he likewise bmished off

Marx's attempts to appropriate Darwinism for his

own theories of social determinism, which

eventually produced the mass murders of Stalin,

Mao Tse-tung and Pol Pot.

“This was the general point of Alexander Bickel’s 1969 Oliver

Wendell Holmes lectures, published as A. Bickel, The Supreme Court

and the Idea of Progress (1970).

12

I have not the ambition . . . of enlarging or

narrowing its powers by ingenious subtleties and

learned doubts. . . . Upon subjects of government it

has always appeared to me, that metaphysical

refinements are out of place. A constitution of

government is addressed to the common sense of the

people; and never was designed for trials of logical

skill, or visionary speculation.”

Nonetheless, our opposition to the visionary "evolving

standards of decency" jurisprudence does not mean that

the Court should ignore changing circumstances. Al-

though some authorities have advocated a strictly histori-

cal approach to this clause,” technological changes may

render methods of punishment "cruel and unusual" today

*J. Story, Commentaries on the Constitution of the United States

vi (Carolina Academic Press ed. 1987).

The Court’s carefully crafted historical jurisprudence of the

Excessive Fines Clause of the Eighth Amendment set forth in

Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.,

109 S. Ct. 2909 (1989), stands in ironic juxtaposition to its ideological

jurisprudence of the Punishments Clause. In holding that the

Excessive Fines Clause does not apply to punitive damage awards in

civil cases, the Court emphasized that "[t]o hold otherwise, we

believe, would be to ignore the purposes and concerns of the

Amendment, as illuminated by its history." 109 S. Ct. at 2914

(emphasis added).

“See McGautha vy. California, 402 U.S. 183, 225 (1971) (Black, J..

concurring) ("As an original proposition, it is by no means clear that

the prohibition against cruel and unusual punishments embodied in the

Eighth Amendment . . . was not limited to those punishments deemed

cruel and unusual at the time of the adoption of the Bill of Rights.").

Justice Holmes also supported that view, joining Justice White's

dissent in Weems vy. United States, 217 U.S. 349, 409-11, 413 (1910).

13

that were not so in 1791.” However, this would not be

because the old values in the Constitution have evolved

into new and better values, but because the same un-

changing values are applied in a different factual

Situation.

C. Disregarding Justice Harlan’s Warning in

McGautha, the Court Has Used the Clause to

Erect an Illegitimate Edifice of Constitutional

Doctrine for Regulating Capital Punishment.

Just over a year before its Furman decision, the

Court decided whether a jury could constitutionally

impose the death penalty in a murder case without gov-

eming standards to guide its exercise of discretion.

McGautha v. California, 402 U.S. 183 (1971). Justice

Harlan, writing for the Court, emphasized the constitu-

tional principles that should guide the exercise of judicial

power in review of such cases:

Our function is not to impose on the States, ex

cathedra, what might seem to us a better system for

dealing with capital cases. ... [T]he Federal

Constitution, which marks the limits of our authority

in these cases, does not guarantee trial procedures

that are best of all worlds, or that accord with the

most enlightened ideas of students of the infant

science of criminology, or even those that measure

up to the individual predilections of members of this

“For exampie, the availability of lethal injections might make

execution by hanging a cruel and unusual method of punishment in

today’s society. Opponents of capital punishment have taken varying

positions regarding lethal injection. See G. Smith, Capital Punishment

1986: Last Lines of Defense 28-33 (1986). Cf. Heckler v. Chaney,

470 U.S. 821 (1985) (rejecting argument that Food & Drug

Administration should be compelled to ensure that drugs used for

execution by lethal injection are “safe and effective’).

14

Court. The Constitution requires no more than that

trials be fairly conducted and that guaranteed rights

of defendants be scrupulously respected.

Id. at 195, 221 (citations omitted).

Thirteen months later this sound constitutional

approach to capital sentencing procedure was cast aside

for an Eighth Amendment analysis that confused courts

and legislatures and led to continued misapplication of

the Eighth Amendment in subsequent cases.

The majority’s per curiam decision in Furman held

that the imposition of the death penalty constituted cruel

and unusual punishment in violation of the Eighth

Amendment, as applied to the states through the Four-

teenth Amendment. 408 U.S. at 239. Each of the five

separate concurring opinions arrived at the same result by

different routes.

Within four years of the Furman decision, at least

thirty-five states had reacted by enacting new death

penalty statutes. In upholding a new Georgia statute in

Gregg v. Georgia, 428 U.S. 153 (1976), the Court ac-

knowledged that the "standards of decency" argument

asserted in Furman had been substantially undercut by

this flurry of legislative activity. Jd. at 179 (plurality

opinion). But, having concluded that the death penalty

was not unconstitutional per se, id. at 187 (plurality

opinion), the Court persisted in using the Eighth Amend-

ment te prescribe in great detail the procedures to be

followed in capital punishment cases.

In two lines of cases decided after Furman, the Court

has undermined the concem expressed in some of the

concurring opinions about the excessive discretion that

characterized the death penalty statutes that were declared

unconstitutional. The effect of these cases is to give a

15

jury the unbridled discretion to withhold imposition of the

death penalty in any case.”

One of these lines of cases precludes the states from

defining any category of crime, no matter how serious,

for which the death penalty is mandatory. The Court

began by holding that a mandatory death penalty for

first-degree murder was a cruel and unusual punishment

because it violated “contemporary standards regarding the

infliction of punishment." Woodson v. North Carolina,

428 U.S. 280, 288 (1976) (plurality opinion); accord,

Roberts (Stanislaus) v. Louisiana, 428 U.S. 325 (1976).

The Court continued by holding unconstitutional a statute

imposing a mandatory death penalty for the first-degree

murder of a police officer engaged in the performance of

his duty. Roberts (Harry) v. Louisiana, 431 U.S. 633

(1977) (per curiam). Finally, the Court held that a

mandatory death penalty could not be imposed for first-

degree murder committed by an inmate serving a life

term sentence. Sumner v. Shuman, 483 U.S. 66 (1987).”

The other line of cases requires state courts to permit

jurors unlimited discretion to consider mitigating circum-

“This approach has been aptly characterized as constituting an

“about-face since Furman," which has the Court going "from pillar to

post" in search of theories to invalidate the imposition of capital

punishment. Lockett v. Ohio, 438 U.S. 586, 622 (White, J.,

concurring and dissenting in part, and concurring in the juigment);

id. at 629 (Rehnquist, J., dissenting).

*More recently, in Blystone v. Pennsylvania, 110 S. Ct. 1078

(1990), the Court upheld a capital sentencing procedure that required

imposition of the death sentence if the jury found at least one

aggravating circumstance and no mitigating circumstances, or if the

jury unanimously found one or more aggravating circumstances which

outweighed any mitigating circumstances. This was not

“impermissibly ‘mandatory’ as that term was understood in Woodson

or Roberts,” since "[djeath is not automatically imposed upon

conviction for certain types of murder.” 110 S. Ct. at 1082. The

Court noted that petitioner Blystone’s reliance on Sumner v. Shwnan

was “misplaced.” /d. at 1083 n.5

16

stances at the sentencing phase. In Lockett v. Ohio, 438

U.S. 586 (1978), the plurality opinion condemned any

limitations on the defendant’s proffer of matters in

extenuation or mitigation. The Court indicated that its

ruling did not limit “the traditional authority of a court to

exclude, as irrelevant, evidence not bearing on the

defendant’s character, prior record, or the circumstances

of his offense." Jd. at 604 n.12. However, in Eddings vy.

Oklahoma, 455 U.S. 104 (1982), the Court retreated from

this indication that mitigating evidence could be scrut-

inized for relevance.” In like manner, the Court also

condemned a capital sentencing procedure that allowed

the jury to consider only those mitigating factors it found

unanimously when weighing them against the aggravating

factors justifying the death penalty. McKoy v. North

Carolina, 110 S. Ct. 1227 (1990). The Court concluded

that this unanimity requirement impermissibly limited

jurors’ consideration of mitigating circumstances, irre-

spective of the fact that the jury was not required to

impose a death sentence even if it unanimously found

aggravating factors and no mitigating factors. Id.

These two related lines of cases are squarely based

upon the “evolving standards of decency" approach to the

Punishments Clause.’ Under this approach, the Court

has held that the penological theory of discretionary

sentencing represents the enlightened view of society and

thus is constitutionally mandated in capital cases.

*There, the Court vacated a death sentence because the trial court,

apparently on grounds of relevance, refused to consider certain

evidence presented by the defendant. This included testimony that he

had been raised without proper guidance, that his mother had been an

alcoholic and possibly a prostitute, that he had been subject to

physical punishment as a child, and that he was emotionally disturbed.

455 U.S. at 107.

“In Woodson, for example. the plurality opinion repeatedly cites

to the plurality opinion in Trop v. Dulles. 428 U.S. at 288. 301, 304.

17

In Woodson, the plurality opinion explained this

rationale as follows:

Consideration of both the offender and the offense in

order to arrive at a just and appropriate sentence has

been viewed as a progressive and humanizing

development. While the prevailing practice of

individualizing sentencing determinations generally

reflects simply enlightened policy rather than a con-

stitutional imperative, we believe that in capital cases

the fundamental respect for humanity underlying the

Eighth Amendment [requires this approach].

428 U.S. at 304 (citations omitted).”

The same rationale is also found in the Lockett

plurality opinion, which observes at one point: “Most

would agree that ’the 19th century movement away from

mandatory death sentences marked an enlightened intro-

duction of flexibility into the sentencing process.’" 438

U.S. at 603, quoting Furman v. Georgia, 408 U.S. at 402

(Burger, C.J., dissenting). The opinion recognizes that

the prevalent "public policy" of sentencing discretion is

the product of legislative choice rather than constitutional

mandate. However, the opinion concludes that the same

"considerations that account for the wide acceptance of

individualization of sentences in noncapital cases" justify

requiring it as a matter of constitutional \aw in capital

cases. 438 U.S. at 605. This is yet another transparent

attempt to cloak the usurpation of legislative prerogatives

in the garb of constitutional principle. “Description, even

approval, of the prevailing mood of penal philosophy .. .

"In Roberts (Stanislaus), the plurality opinion elaborated on this

rationale by adverting to “our society’s rejection of the belief that

‘every offense in a like legal category calls for an identical

punishment without regard to the past life and habits of a particular

offender.’" 428 U.S. at 333, quoting Williams v. New York, 337 U.S.

241, 247 (1949).

18

is one thing; its elevation to constitutional dogma is quite

another."”

The opinions of the Court in later cases such as

Roberts (Harry), Sumner v. Shuman, Eddings, and McKoy

simply adopt without much elaboration the rationale of

the plurality opinions in Woodson and Lockett.

We have already explained why the progressive en-

lightenment theory of Weems and Trop is an illegitimate

basis for interpreting the Punishments Clause. It is

important to recognize that in Woodson, Lockett and their

progeny the Court went well beyond-the holding of

Weems regarding proportional punishment. Today, we

are told that enlightened social theory requires

punishment to be proportional, not to the crime, but to

the criminal.

Moreover, if the meaning of the Eighth Amendment

reflects changes in social theory, then the rationale of

Woodson and Lockett is simply out of date. The evolu-

tion of sentencing theory and practice now strongly

supports mandatory sentencing as the more enlightened

policy.“ Thus, even if one applies this evolutionary

approach to the Eighth Amendment, it provides no

*Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev.

1071, 1078 n.21 (1964).

“See S. Kadish & S. Schulhofer, Criminal Law and its Processes

131-36 (Sth ed. 1989) (materials on the determinate sentence reform

movement); K. Starr, "The Impetus for Sentencing Reform in the

Criminal Justice System," in Crime and Punishment in Modern

America 299-312 (P. McGuigan & J. Pascale, eds., 1986); Ogletree,

The Death of Discretion? Reflections on the Federal Sentencing

Guidelines, 101 Harv. L. Rev. 1938, 1940-44 (1988); Lowe, Modern

Sentencing Reform: A Preliminary Analysis of the Proposed Federal

Sentencing Guidelines, 25 Am. Crim. L. Rev. | (1987). Congress

adopted the policy of mandatory sentencing guidelines for all federal

courts in the Sentencing Reform Act, part of the Comprehensive

Crime Control Act of 1984, Pub. L. No. 98-473. 98 Stat. 1837

(1984). ,

19

support for invalidating a mandatory death penalty for

first-degree murder.

In reality, the Court’s invocatior of social theory

in support of constitutional adjudication is jurisprudential

sophistry. A slender majority of the Court has laid a

procedural minefield to cripple federal and state efforts in

Carrying out the mandate of the electorate that certain

heinous crimes, like the premeditated murder of a police

officer engaged in the performance of duty, should be

punished by death.

D. The Court’s Illegitimate Jurisprudence of the

Punishments Clause Has Culminated in the

Holdings of Booth and Gathers that Victim Im-

pact Evidence Cannot Be Considered In Capi-

tal Sentencing.

In Booth v. Maryland, the Court applied its Punish-

ments Clause jurisprudence to the use of a victim impact

statement in the sentencing phase of a capital trial. The

Court held it was unconstitutional for the jury to consider

information about the character of the victim, the impact

of the crime on the victim’s family, and their sentiments

about the crime. 482 U.S. at 503-09. The Court went

further in South Carolina v. Gathers, condemning prose-

cutorial comment on evidence relating solely to the

character of the victim even though that evidence had

already been admitted in tue guilt phase of the trial

without defense objection. 490 U.S. at 811-12. The

majority opinion in Gathers would prevent the jury from

catching even a "glimpse of the life" the murderer “chose

to extinguish.” /d. at 816 (O’Connor, J., dissenting,

quoting Mills v. Maryland, 486 U.S. 367, 397 (1988)

(Rehnquist, C.J., dissenting)).

We will argue in part II infra that Booth and Gathers

are incorrect for reasons unrelated to our criticisms of the

Court’s recent jurisprudence of the Punishments Clause.

20

First, however, we examine how Booth and Gathers are

the products of that flawed jurisprudence.

Of course, both decisions continue the Court’s effort

to build a set of procedural requirements for the death

penalty under the Punishments Clause that is entirely

separate from any analysis under the Due Process Clause

as in McGautha. Indeed, the Court in Booth carefully

stated that its opinion carried no implication concerning

the use of victim impact evidence in non-capital cases.

482 U.S. at 509 n.12.

Booth and Gathers are also rooted in the view that

evolving standards of decency require capital punishment

to reflect an “individualized determination" based upon

each defendant’s unique situation. Booth at 502, quoting

Zant v. Stephens, 462 U.S. at 879; accord Gathers at

810: “For purposes of imposing the death penalty .. .

[the defendant’s] punishment must be tailored to his

personal responsibility and moral guilt," quoting Enmund

v. Florida, 458 U.S. 782, 801 (1982). This, of course,

reflects the once-fashionable theory that rejected manda-

tory sentencing for a discretionary and individualized

approach.

At bottom, however, Booth and Gathers reflect a

view that evolving standards of decency require a utili-

tarian approach to punishment. This is not expressly

stated in the opinions, but becomes clear upon examining

their antecedents and effects.

A basic value of victim impact evidence is to satisfy

the need of the victim (including in a murder case the

victim’s family) to seek retribution for a grievous loss.

A sentencing procedure that permits victims to have input

into the sentencing process obviously satisfies this

purpose more effectively than one in which their voices

are excluded. Booth and Gathers treat such input from

or about victims as irrelevant to any proper sentencing

considerations. Gathers, 490 U.S. at 811-12; Booth, 482

U.S. at 504.

21

Why is the victim’s desire for retribution irrelevant?

Some members of the Court have indicated that evolving

standaids of decency have brought us to a point where

retribution is no longer a proper goal of criminal

punishment. Justice Marshall’s concurring opinion in

Furman states in part:

Punishment as retribution has been condemned

by scholars for centuries, and the Eighth Amendment

itself was adopted to prevent punishment from

becoming synonymous with vengeance.

408 U.S. at 343 (citations and footnote omitted). See

also id. at 387 (Brennan, J., concurring).

Here, again, one wonders what constitutional source

justifies the rejection of a retributionist theory of

punishment for a utilitarian approach. In fact, both

retributionist and utilitarian theories of punishment were

known at the time the Eighth Amendment was adopted.”

Since then, the relative popularity of the theories has

varied from time to time.” In his lecture on the criminal

law first published in 1881, Oliver Wendell Holmes ob-

served:

It certainly may be argued, with some force, that is

has never ceased to be one object of punishment to

satisfy the desire for vengeance... .

The statement may be made stronger still, and it

may be said, not only that the law does, but that it

ought to, make the gratification of revenge an object.

This is the opinion, at any rate, of two authorities so

great, and so opposed in their other views, as Bishop

*See Wheeler, Toward a Theory of Limited Punishment: An

Examination of the Eighth Amendment, 24 Stan. L. Rev. 838, 845-53

(1972).

*See W. Bers, For Capital Punishment 41-82, 128-52 (1979)

(discussing the mse and fall of rehabilitanve. deterrent and

retnibutionist theones of punishment since the Eighteenth Century).

22

Butler and Jeremy Bentham. Sir James Stephen says,

‘The criminal law stands to the passion of revenge in

much the same relation as marriage to the sexual

appetite."”

Holmes went on to indicate that the criminal justice

System could appropriately reflect in various ways all of

the theories of punishment. Our point in presenting this

discussion is that we have no reason to assume that the

Framers meant to incorporate one theory rather than the

other into the Punishments Clause. It follows that

nothing in the Constitution legitimizes the Court’s

imposition of one theory or the other on the American

electorate.

However, if a “living Constitution" embodies the

latest trend in evolving social theory, then the Court’s

current insistence upon a utilitarian approach to punish-

ment is already out of date. In recent years, there has

been a great change in penological thought. The utili-

tarian theories have been at least partially discredited, and

the retributionist theory is now quite popular. One com-

mentator has summarized this trend as follows:

In the modern era, judicial sentencin iloso

changed radically, rather than i ag Qe

punishment fit the crime, judges adopted the view

that the punishment should fit the offender. During

the 1950's, the predominant judicial philosophy of

punishment, as well as the prevailing view of penolo-

gists favored the concepts of deterrence and

rehabilitation over the concepts of retribution and

incapacitation. More recently, however, the emphasis

has shifted again; both judges and penologists have

expressed considerable skepticism about the value of

rehabilitation. Support is growing in the courts and

"O.W. Holmes, The Common Law 40. 41 (1923 ed).

23

Congress for a crime control model of punishment

based primarily upon retribution and incapacitation.”

A court whose jurisprudence of the Punishments Clause

requires it to reflect “evolving standards of decency"

cannot today claim that considerations of retribution must

be excluded from the capital sentencing process. Conse-

quently, the Court’s vision of a protean Eighth Amend-

ment has already rendered its judgments in Booth and

Gathers obsolete.

ll. ALTERNATIVELY, BOOTH AND GATHERS

SHOULD BE OVERRULED BECAUSE THEY

ARE ERRONEOUS EVEN IN THE CONTEXT

OF THE COURT’S OTHER DECISIONS UNDER

THE PUNISHMENTS CLAUSE.

A. There is No General Constitutional Impedi-

ment to According a Victim Standing to

Participate in the Criminal Process, Including

Sentencing.

It is a legal fiction of comparatively recent origin

that only the state has an interest in the prosecution of

crimes. In England prior to the Nineteenth Century,

criminal prosecution was primarily the responsibility of

the victim. Public prosecutors were actually more com-

mon in the colonies at the time of the American Revolu-

tion. Still, private prosecution was accepted in the

United States at the time the Eighth Amendment was

“Ogletree, supra note 34, at 1940-41 (footnotes omitted). See also

W. LaFave & A. Scott, Criminal Law 26-29 (2d ed. 1986). Gardner.

The Renaissance of Retribution -- An Examination of Doing Justice.

1976 Wis. L. Rev. 781 (1976)

24

adopted and for some years thereafter.” In light of this

history, it would be hard to say that the Framers thought

that victim participation in criminal prosecution raised a

constitutional doubt. Nor can it be said that the move to

public prosecution reflected a desire to eliminate any role

for the victim.“

Even today, private prosecution of crimes is

permitted in a number of states. Although the propriety

of allowing a victim to control the prosecution of a crime

has been called into question, the point is a debatable

one.“' The existence of a close debate on victim control

of prosecution suggests that more limited victim

participation in the nature of an impact statement should

not be constitutionally questionable.”

*See Gittler, Expanding the Role of the Victim in a Criminal

Action: An Overview of Issues and Problems, 11 Pepperdine L. Rev.

117, 125-32 (1984); Cardenas, The Crime Victim in the Prosecutorial

Process, 9 Harv. J.L. & Pub. Pol’y 357, 359-72 (1986); Benson, The

Last Victim and Other Failures of-the Public Law Experiment, 9 Harv.

J.L. & Pub. Pol’y 399, 400-12 (1986).

“Goldstein, The Victim and Prosecutorial Discretion: The Federal

Victim and Witness Protection Act of 1982, 47 Law & Contemp.

Probs. 225, 245 (1984).

“Compare Note, The Outmoded Concept of Private Prosecution,

25 Am. ULL. Rev. 754 (1976), with Note, Private Prosecution: A

Remedy for District Attorneys’ Unwarranted Inaction, 65 Yale LJ.

209 (1955). See also Gittler, supra note 48, at 150-63; Cardenas,

supra note 39, at 372-84.

“Decisions denying interested parties a role in criminal proceedings

reflect descriptive, rather than normative, conclusions. For example,

private parties, including victims, have beer denied standing to compel

enforcement of criminal statutes, but the lack of standing is generally

related to the absence of any statute conferring « right to sue. Green,

Private Challenges to Prosecutorial inaction: A Model Declaratory

Judgment Statute, 97 Yale L.J. 488 (1988). See Also Linda R. S. \

Richard D., 410 US. 614. 617 n.3 1973) (although standing to

(continued...)

25

Recent years have seen a dramatic trend toward

greater formal involvement of victims in the criminal

process. The Court’s approach to victim participation in

capital sentencing has, in the past, ignored society’s

desire to consider the suffering caused by the act of

murder when determining an appropriate punishment. This

is true even though the Court repeatedly has held that the

decision of the capital sentencer is a moral one, reflecting

the moral judgment of the community. California v.

Brown, 479 U.S. 538, 545 (1987).

The moral judgment of the public is manifested in

the laws enacted by its elected officials. Statutes are

"first among the objective indicia” of public attitude.

Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969,

2975 (1989). Imposing the death penalty, after taking

into account the impact of the killer’s act on the victim

and the victim’s family, is prohibited under the Eighth

Amendment as cruel and unusual only if society has "set

its face against" consideration of the victim at sentencing.

Id, at 2979. In fact, the reverse is true, the national

consensus, as reflected in the operative acts of the public,

supports the sentencer’s consideration of the injury to the

victim. There is no rational or constitutional basis to

eliminate the moral judgment of the community from the

sentencing phase of a capital offender’s trial.

The Court owes deference to the decisions of the

state legislatures under our federal system. Gregg, 428

U.S., at 176. "Determinations of appropriate sentencing

considerations are peculiarly questions of legislative

policy.” Booth, 482 U.S., at 515 (White, J., dissenting).

Currently, forty-seven states legislatively authorize input

“(...continued)

challenge nonprosecution was denied for lack of actual or threatened

injury, “Congress may enact statutes creating legal nghts, the invasion

of which creates standing ....") But see Young v. U.S. ex rel

Vuitton et Fils, 107 S. Ct. 2124, 2141 (1987) (Blackmun. J.,

concurring).

26

by the victim at sentencing.” In a survey of states, 63

percent were found to require victim impact information

on the seriousness of the physical injury. Fifty-three

percent require information on emotional or psychological

injury. In 25 percent of the states, the victim is asked to

tell the court his or her opinion about the offender, while

72 percent permit such an opinion but do not require it.

Finally, in 26 percent of the states, the victim is asked to

specify a sentence recommendation.“ Under Booth, all of

this legislation is invalid in capital cases.

B. Victim Participation Serves Important Social

Purposes.

We have previously presented our view that the Con-

stitution does not require all criminal punishments to be

justified on utilitarian grounds. See supra part I.D.

However, from a purely utilitarian perspective, victim

participation in the criminal process serves a number of

important purposes. This analysis supports our view that

Booth and Gathers were wrong in excluding victim

impact evidence in capital cases.

I. Victim Involvement in the System

Discourages Vigilantism.

Justice Stewart’s concurring opinion in Furman

contains the following observation: "When people begin

to believe that organized society is unwilling or unable to

“A listing of these statutes is included in the Appendix to this

brief.

“McLeod, An Examination of the Victim's Role at Sentencing:

Results of a Survey of Probation Administrators, 71 JUDICATURE

162 (1987); ABA Guidelines to Fair Treatment of Victims and

Witnesses in the in Criminal Justice System 18 (1983): Note. V/S:

Reform or Reprisal, 27 Am. Crm. L. Rev. 391 (1989).

27

impose upon criminal offenders the punishment they

‘deserve,’ then there are sown the seeds of anarchy -- of

self-help, vigilante justice, and lynch law." 408 U'S., at

308. These concems are not fanciful.

The victim’s rights movement has gained strength in

recent years, indicating widespread unrest among victims

with the current criminal justice process.“ The public

often allies itself with citizens who "take the law into

their own hands" in response to the inability of the

criminal justice system to recognize society’s rights and

needs. All of these facts indicate that society is perhaps

reaching the point at which the concept of justice held by

the individual, and by the general public, is no longer

satisfied by the law.

2. A Right of Victim Participation Encourages

Cooperation with Police and Prosecutors.

When victims of crime perceive that the criminal

justice system is not vindicating their interests, support

for the criminal justice system, which is crucial to the

apprehension and conviction of criminals, declines.

"Indeed, the conclusion has become nearly inescapable: a

criminal justice system that ignores the interests of or ill

“Both on the national and local levels, organizations have sprung

up across the country to address issues of concern to crime victims

and to promote the rights of victims. See Carrington and Nicholson,

The Victims’ Movement: An Idea Whose Time Has Come, 11

Pepperdine L. Rev. 1 (1984); National Organization for Victims’

Assistance, Victims’ Rights and Service: A Legislative Directory

(1987).

“The case of Bernard Goetz is instructive. Goetz initially received

much public support for his actions. See N.Y. Times. Jan. 27. 1985,

Sec. 4, at 20, col. | (discussing reasons for public support of Goetz).

28

treats the victim runs the risk of alienating the person

upon whom its success as an institution depends."

Crime victims are the major initiators of the criminal

process. Approximately eighty percent of crimes are

made known to the police through reports of citizens,

usually victims.“* Yet, various statistics indicate that

many crimes go unreported.” Among the reasons why

victims opt not to report crimes is the fear that the

system is powerless to help them and might further

victimize them.” Similarly, crime victims often choose

not to cooperate with prosecution of the offender, leading

to dismissal of many cases." Non-cooperation is caused

by both the administrative problem of lack of

information, and by the systemic flaw of failing to take

victims’ views and interests into account.”

“Hudson, The Crime Victim and The Criminal Justice System:

Time for a Change, 11 Pepperdine L. Rev. 23, 28 (1984).

“Gittler, supra note 39, at i47.

“Judge Mikva has noted that for every ten crimes committed, an

estimated three or four are reported. This figure indicates a

“pervading cynicism about the system’s capacity to insure justice."

Mikva, Victimless Justice, 71 J. Crim. L. & Criminology 189, 190

(1981). The Bureau of Justice Statistics, U.S. Dep't of Justice Report

to the Nation on Crime and Justice (2d. ed., 1988), suggests that less

than 50% of all violent crimes are ever reported.

*Kidd & Cajet, Why Victims Fail to Report? The Psychology of

Criminal Victimization, 40 J. Soc. Issues 34-50 (1984), cited in

Kilpatrick & Otto, Constitutionally Guaranteed Participation in

Criminal Proceedings for Victims: Potential Effects on Psychological

Functioning, 34 Wayne L. Rev. 7, 21 (1987).

“Gittler, supra note 39, at 148. See also Hudson, supra note 47,

at 30.

“See Kelly Victims’ Perceptions of Criminal Justice. 11 Pepperdine

L. Rev. 15 (1984).

29

Since victims of crime have already suffered, physi-

cally and psychologically, it is not surprising that they

choose to avoid involvement in the criminal process.

Studies addressing victim involvement in the criminal

process suggest that there is a high correlation between

victims’ satisfaction and their perceptions that they

influenced the outcome or that the sentencing authority

was sensitive to victim issues.” These studies confirm

that a greater role for victims in the sentencing process

may positively impact on the reporting and investigation

of crime.

3. Participation in the Criminal Justice System

Helps to Remedy the Traumatic Effects of

Crime on the Vict’.

Victimization carries with it profound psychological

consequences, both immediate and long term, and it is

often this psychological injury that has the greatest

impact on the victim.” In addition to crime-related stress

caused by feelings of inequity, loss of security, perceived

greater vulnerability, and perception of being deviant,

crime victims are psychologically affected by the lack of

any role in the criminal process. The victim quickly

learns that the system’s resources “are almost entirely

devoted to the criminal, and little remains for those who

have sustained harm at the criminal’s hands."” This

realization, combined with the long duration of the capital

criminal process, results in a feeling of loss of identity

"Kilpatrick & Otto, supra note 50, at 23-24 (citing J. Herndon &

B. Forst, The Criminal Justice Response to Victim Harm (1984)).

“Task Force on the Victims of Crime and Violence, Final Report

of the APA Task Force on the Victims of Crime and Violence, 40 Am.

Psych. 107 (1985).

Id. at 109.

30

and additional emotional and psychological stress for the

victim.** Permitting crime victims to participate in the

proceedings can eliminate or reduce the potential for

further psychological harm by reducing their perception

of inequity or helplessness.” In particular, participation

at the sentencing phase can be a cathartic experience for

the victim, which helps bring an end to the psychological

suffering that follows victimization.

CONCLUSION

For the foregoing reasons, the decision of the

Supreme Court of Tennessee should be affirmed, and this

Court’s decisions in Booth and Gathers should be

overruled.

Respectfully submitted,

Daniel J. Popeo Richard K. Willard*

Paul D. Kamenar George A.B. Peirce

Richard A. Samp John M. Shoreman

Washington Legal Steptoe & Johnson

Foundation 1330 Connecticut Ave., N.W.

1705 N. Street, N.W. Washington, D.C. 20036

Washington, D.C. (202) 429-3000

20036

(202)857-0240

*Counsel of Record

*Id., Gibbons, Victim Again: Survivors Suffer Through Capital

Appeals, 74 A.B.A.J. 64 (Sept. 1988)

"Kilpatrick and Otto, supra note 50. at 19

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APPENDIX

Os ime) gee Ss

SS eee ee bye & i al ae ee $y — >

la

INTERESTS OF AMICI CURIAE

The Washington Legal Foundation (WLF) is a

national nonprofit public interest law and policy center

with more than 125,000 members and _ supporters

nationwide. While WLF engages in litigation and the

administrative process in a variety of areas, WLF devotes

a substantial amount of its resources to promoting

victims’ rights and criminal justice reform. In 1981,

WLF published a "Crime Victims Impact Statement"

manual to serve as a model guide for implementation at

the state level of the use of victim impact information.

WLF works with other victim rights groups, including the

amici in this case. WLF has appeared before this court

as amicus curiae in a number of cases dealing with

victim rights issues, including South Carolina v. Gathers,

490 U.S. 805 (1989), and Ohio v. Huertas, cert.

dismissed as improvidently granted, 111 S. Ct. 805

(1991). WLF argued in Gathers and Huertas, as it does

in this brief, that the Court should overrule Booth v.

Maryland, 483 U.S. 496 (1987).

Families & Friends of Missing Persons & Violent

Crime Victims is a nonprofit organization providing

assistance, support, and information to the thousands of

victims each year throughout the State of Washington.

The organization was formed in 1975 following the tragic

disappearances and deaths of several Seattle area girls.

Families & Friends works with victims, the community,

law enforcement officials, correction and criminal justice

personnel, and the media to promote understanding of the

physical and emotional trauma of victimization.

The National Victim Center (formerly The Sunny von

Bulow National Victim Advocacy Center) is a national,

nonprofit organization based in Forth Worth, Texas. The

Center’s purposes are to promote responsiveness of the

criminal justice system to the rights and needs of the

victims of violent crime, as well as to increase public

2a

awareness conceming the plight of crime victims through

educational programs, conferences, and publications.

Parents of Murdered Children (POMC), founded by

the parents of Lisa Hullinger, who was murdered in 1978,

is a national nonprofit, self-help support organization

based in Cincinnati, Ohio with chapters nationwide.

Besides providing support for grieving parents and family

members, POMC provides information about the criminal

justice system, and seeks to make that system responsive

to the needs of the victim’s family. POMC has

appeared, along with WLF, as an amicus in several cases,

including South Carolina v. Gathers, supra, and Ohio v.

Huertas, supra.

People Against Child Abuse, Inc. (PACA) is the

Maryland chapter of the National Committee for the

Prevention of Child Abuse. Founded in 1984, PACA has

40,000 members and supporters statewide. PACA con-

ducts educational programs for both adults and children

and provides legal and material help to victims of child

abuse. PACA recently appeared before this Court as an

amicus in Maryland v. Craig, 110 S. Ct. 3157 (1990).

The Stephanie Roper Committee, Inc. is a nonprofit

organization based in Upper Marlboro, Maryland, which

was founded in 1982 by Roberta Roper, the mother of

Stephanie, who was brutally kidnapped, raped, tortured,

and murdered. The Committee is a victim rights

advocacy organization which has proposed legislation

responsive to the needs of victims. One such proposal

enacted into law was the Victim Impact Statement Law,

which was the subject of the challenge in Booth y.

Maryland, supra, in which the Committee also appeared

as an amicus.

3a

VICTIM IMPACT LEGISLATION

Alaska-Alaska Stat. 12.55.022 (1990)

Arizona-A.R.S. 13-702F (1989)

Arkansas-Ark. Stat. Ann. 5-65-109 (1987)

Colorado-C.R.S. 16-11-102 (1991)

Delaware-11 Del. C. 4331 (1990 Supp.)

Florida-Flo. Stat. 921.143 (1985)

California-Penal Code § 1191.1 (1991 Supp.)

Georgia-O.C.G.A. 17-10-1.1 (1990)

Idaho-Id. Code 19-5306 (Supp. 1990)

Illinois-Ill. Rev. Stat. 38-1406 (1990 Supp.)

Indiana-Ind. Code Ann. 35-38-1-8.5 (1990)

lowa-lowa Code 910A.5 (1989)

Kansas-K.S.A. 8-1019 (1990 Supp.)

Kentucky-Rev. Stat. Am. Title XX XVIII 421.520

(Supp. 1990)

Massachusetts-Mass. Ann. Laws ch. 279, 4B (Supp. 1988)

Louisiana-R.S. 46:1844(a) (Supp. 1990)

Maryland-Md. Ann. Code. 27, 761 (Supp. 1990)

Michigan-Mich. C.L. 780.763 (Supp. 1990)

Mississippi-Miss. Code Ann. 99-19-151 to 161 (1990)

Missouri-R.S. Mo. 595.203 (1989)

Montana-Mont. Code Anno. 46-18-112 (1989)

Minnesota-Minn. Stat. 611A.037 (Supp. 1991)

Maine-Me. Rev. Stat. 17A-1257(2) (Supp. 1990)

Nebraska-Rev. Stat. of Neb. 29-2261 (1989)

Nevada-Nev. Rev. Stat. Ann. 176.015 (Supp. 1989)

New Jersey-N.J.S.A. § 2(c):44-6.B (Supp. 1990)

New Mexico-N.M. Stat. Ann. 31-24-5 (1990)

New York-N.Y.C.L.S. Crim. Pro. Law 390.30(3B)

(Supp. 1991)

New Hampshire-N.H. Rev. Stat. Ann. 651:4-A

(Supp. 1989)

North Carolina-N.C. Gen. Stat. 1SA-825 (1990)

North Dakota-N.D. Cent. Code ch. 12.1-34-02.14

(Supp. 1989)

4a

Ohio-O.R.C. Ann. 2947.051 (1991)

Oklahoma-Ok. Stat. Ann. Tit. 22 § 982 (1986)

Oregon-O.R.S. 144.790(3) (1989)

Pennsylvania-Penn. Cons. Stat. Ann. Title 71 § 180-9.3

(1990)

Rhode Island-R.I. Gen. Laws 12-28-3, 12-28-4-4.3 (1989)

South Carolina-S.C. Code Ann. 16-3-1550 (Supp. 1990)

South Dakota-S.D. Cod. Laws 23A-27-1.1 (1990)

Tennessee-Tenn. Code Ann. 40-38-103(2)(1990)

Texas-Code Crim. Pro. 56.03 (Supp. 1991)

Utah-Utah Code Ann. 64-13-20(e) (1990)

Virginia-Va. Code Ann. 19.2-299.1 (1990)

Vermont-Stat. Ann. title 13 § 7006(a) (Supp. 1990)

Washington-Rev. Code 7.69.030(12) (Supp. 1991)

West Virginia-Code 61-11A-3 (1989)

Wisconsin-Stat. Ann. § 950.04(2M) (Supp. 1990)

Wyoming-Wyo. Stat. 7-21-103 (1990)