Subject:  PAYNE v. TENNESSEE, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


PAYNE v. TENNESSEE


certiorari to the supreme court of tennessee

No. 90-5721.  Argued April 24, 1991 -- Decided June 27, 1991

Petitioner Payne was convicted by a Tennessee jury of the first-degree
murders of Charisse Christopher and her 2-year-old daughter, and of
first-degree assault upon, with intent to murder, Charisse's 3-year-old son
Nicholas.  The brutal crimes were committed in the victims' apartment after
Charisse resisted Payne's sexual advances.  During the sentencing phase of
the trial, Payne called his parents, his girlfriend, and a clinical
psychologist, each of whom testified as to various mitigating aspects of
his background and character.  The State called Nicholas' grandmother, who
testified that the child missed his mother and baby sister.  In arguing for
the death penalty, the prosecutor commented on the continuing effects on
Nicholas of his experience and on the effects of the crimes upon the
victims' family.  The jury sentenced Payne to death on each of the murder
counts.  The State Supreme Court affirmed, rejecting his contention that
the admission of the grandmother's testimony and the State's closing
argument violated his Eighth Amendment rights under Booth v. Maryland, 482
U. S. 496, and South Carolina v. Gathers, 490 U. S. 805, which held that
evidence and argument relating to the victim and the impact of the victim's
death on the victim's family are per se inadmissible at a capital
sentencing hearing.

Held: The Eighth Amendment erects no per se bar prohibiting a capital
sentencing jury from considering "victim impact" evidence relating to the
victim's personal characteristics and the emotional impact of the murder on
the victim's family, or precluding a prosecutor from arguing such evidence
at a capital sentencing hearing.  To the extent that they held to the
contrary, Booth and Gathers are overruled.  Pp. 7-20.

    (a) There are numerous infirmities in the rule created by Booth and
Gathers.  Those cases were based on two premises: that evidence relating to
a particular victim or to the harm caused a victim's family does not in
general reflect on the defendant's "blameworthiness," and that only
evidence of "blameworthiness" is relevant to the capital sentencing
decision.  See Booth, supra, at 504-505.  However, assessment of the harm
caused by the defendant has long been an important factor in determining
the appropriate punishment, and victim impact evidence is simply another
method of informing the sentencing authority about such harm.  In excluding
such evidence, Booth, supra, at 504, misread the statement in Woodson v.
North Carolina, 428 U. S. 280, 304, that the capital defendant must be
treated as a "uniquely individual human bein[g]."  As Gregg v. Georgia, 428
U. S. 153, 203-204, demonstrates, the Woodson language was not intended to
describe a class of evidence that could not be received, but a class of
evidence which must be received, i.e., any relevant, nonprejudicial
material, see Barefoot v. Estelle, 463 U. S. 880, 898.  Booth's misreading
of precedent has unfairly weighted the scales in a capital trial.
Virtually no limits are placed on the relevant mitigating evidence a
capital defendant may introduce concerning his own circumstances.  See, e.
g., Eddings v. Oklahoma, 455 U. S. 104, 114.  The State has a legitimate
interest in counteracting such evidence, but the Booth rule prevents it
from doing so.  Similarly, fairness to the prosecution requires rejection
of Gathers' extension of the Booth rule to the prosecutor's argument,
since, under the Eighth Amendment, this Court has given the capital
defendant's attorney broad latitude to argue relevant mitigating evidence
reflecting on his client's individual personality.  Booth, supra, at
506-507, also erred in reasoning that it would be difficult, if not
impossible, for a capital defendant to rebut victim impact evidence without
shifting the focus of the sentencing hearing away from the defendant to the
victim.  The mere fact that for tactical reasons it might not be prudent
for the defense to rebut such evidence makes the case no different from
others in which a party is faced with this sort of dilemma.  Nor is there
merit to the concern voiced in Booth, supra, at 506, that admission of such
evidence permits a jury to find that defendants whose victims were assets
to their communities are more deserving of punishment than those whose
victims are perceived to be less worthy.  Such evidence is not generally
offered to encourage comparative judgments of this kind, but is designed to
show instead each victim's uniqueness as an individual human being.  In the
event that victim impact evidence is introduced that is so unduly
prejudicial that it renders the trial fundamentally unfair, the Fourteenth
Amendment's Due Process Clause provides a mechanism for relief.  See Darden
v. Wainwright, 477 U. S. 168, 179-183.  Thus, a State may properly conclude
that for the jury to assess meaningfully the defendant's moral culpability
and blameworthiness, it should have before it at the sentencing phase
victim impact evidence.  Pp. 7-17.

    (b) Although adherence to the doctrine of stare decisis is usually the
best policy, the doctrine is not an inexorable command.  This Court has
never felt constrained to follow precedent when governing decisions are
unworkable or badly reasoned, Smith v. Allwright, 321 U. S. 649, 655,
particularly in constitutional cases, where correction through legislative
action is practically impossible, Burnet v. Coronado Oil & Gas Co., 285 U.
S. 393, 407 (Brandeis, J., dissenting), and in cases involving procedural
and evidentiary rules.  Booth and Gathers were decided by the narrowest of
margins, over spirited dissents challenging their basic un derpinnings;
have been questioned by members of this Court in later decisions; have
defied consistent application by the lower courts, see, e. g., State v.
Huertas, 51 Ohio St. 3d 22, 33, 553 N. E. 2d 1058, 1070; and, for the
reasons heretofore stated, were wrongly decided.  Pp. 17-20.

791 S. W. 2d 10, affirmed.

Rehnquist, C. J., delivered the opinion of the Court, in which White,
O'Connor, Scalia, Kennedy, and Souter, JJ., joined.  O'Connor, J., filed a
concurring opinion, in which White and Kennedy, JJ., joined.  Scalia, J.,
filed a concurring opinion, in Part II of which O'Connor and Kennedy, JJ.,
joined.  Souter, J., filed a concurring opinion, in which Kennedy, J.,
joined.  Marshall, J., filed a dissenting opinion, in which Blackmun, J.,
joined.  Stevens, J., filed a dissenting opinion, in which Blackmun, J.,
joined.

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Subject: 90-5721 -- OPINION, PAYNE v. TENNESSEE

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-5721


PERVIS TYRONE PAYNE, PETITIONER v.
TENNESSEE
on writ of certiorari to the supreme court of tennessee, western division
[June 27, 1991]

    Chief Justice Rehnquist delivered the opinion of the court.
    In this case we reconsider our holdings in Booth v. Maryland, 482 U. S.
496 (1987), and South Carolina v. Gathers, 490 U. S. 805 (1989), that the
Eighth Amendment bars the admission of victim impact evidence during the
penalty phase of a capital trial.
    The petitioner, Pervis Tyrone Payne, was convicted by a jury on two
counts of first-degree murder and one count of assault with intent to
commit murder in the first degree.  He was sentenced to death for each of
the murders, and to 30 years in prison for the assault.
    The victims of Payne's offenses were 28-year-old Charisse Christopher,
her 2-year-old daughter Lacie, and her 3-yearold son Nicholas.  The three
lived together in an apartment in Millington, Tennessee, across the hall
from Payne's girl friend, Bobbie Thomas.  On Saturday, June 27, 1987, Payne
visited Thomas' apartment several times in expectation of her return from
her mother's house in Arkansas, but found no one at home.  On one visit, he
left his overnight bag, containing clothes and other items for his weekend
stay, in the hallway outside Thomas' apartment.  With the bag were three
cans of malt liquor.
    Payne passed the morning and early afternoon injecting cocaine and
drinking beer.  Later, he drove around the town with a friend in the
friend's car, each of them taking turns reading a pornographic magazine.
Sometime around 3 p.m., Payne returned to the apartment complex, entered
the Christophers' apartment, and began making sexual advances towards
Charisse.  Charisse resisted and Payne became violent.  A neighbor who
resided in the apartment directly beneath the Christophers, heard Charisse
screaming, " `Get out, get out,' as if she were telling the children to
leave."  The noise briefly subsided and then began, " `horribly loud.' "
The neighbor called the police after she heard a "blood curdling scream"
from the Christopher apartment.  Brief for Respondent.
    When the first police officer arrived at the scene, he immediately
encountered Payne who was leaving the apartment building, so covered with
blood that he appeared to be " `sweating blood.' "  The officer confronted
Payne, who responded, " `I'm the complainant.' "  Id., at 3-4.  When the
officer asked, " `What's going on up there?' "  Payne struck the officer
with the overnight bag, dropped his tennis shoes, and fled.
    Inside the apartment, the police encountered a horrifying scene.  Blood
covered the walls and floor throughout the unit.  Charisse and her children
were lying on the floor in the kitchen.  Nicholas, despite several wounds
inflicted by a butcher knife that completely penetrated through his body
from front to back, was still breathing.  Miraculously, he survived, but
not until after undergoing seven hours of surgery and a transfusion of 1700
cc's of blood -- 400 to 500 cc's more than his estimated normal blood
volume.  Charisse and Lacie were dead.
    Charisse's body was found on the kitchen floor on her back, her legs
fully extended.  She had sustained 42 direct knife wounds and 42 defensive
wounds on her arms and hands.  The wounds were caused by 41 separate
thrusts of a butcher knife.  None of the 84 wounds inflicted by Payne were
individually fatal; rather, the cause of death was most likely bleeding
from all of the wounds.
    Lacie's body was on the kitchen floor near her mother.  She had
suffered stab wounds to the chest, abdomen, back, and head.  The murder
weapon, a butcher knife, was found at her feet.  Payne's baseball cap was
snapped on her arm near her elbow.  Three cans of malt liquor bearing
Payne's fingerprints were found on a table near her body, and a fourth
empty one was on the landing outside the apartment door.
    Payne was apprehended later that day hiding in the attic of the home of
a former girlfriend.  As he descended the stairs of the attic, he stated to
the arresting officers, "Man, I aint killed no woman."  According to one of
the officers, Payne had "a wild look about him.  His pupils were
contracted.  He was foaming at the mouth, saliva.  He appeared to be very
nervous.  He was breathing real rapid."  He had blood on his body and
clothes and several scratches across his chest.  It was later determined
that the blood stains matched the victims' blood types.  A search of his
pockets revealed a packet containing cocaine residue, a hypodermic syringe
wrapper, and a cap from a hypodermic syringe.  His overnight bag,
containing a bloody white shirt, was found in a nearby dumpster.
    At trial, Payne took the stand and, despite the overwhelming and
relatively uncontroverted evidence against him, testified that he had not
harmed any of the Christophers.  Rather, he asserted that another man had
raced by him as he was walking up the stairs to the floor where the
Christophers lived.  He stated that he had gotten blood on himself when,
after hearing moans from the Christophers' apartment, he had tried to help
the victims.  According to his testimony, he panicked and fled when he
heard police sirens and noticed the blood on his clothes.  The jury
returned guilty verdicts against Payne on all counts.
    During the sentencing phase of the trial, Payne presented the testimony
of four witnesses: his mother and father, Bobbie Thomas, and Dr. John T.
Huston, a clinical psychologist specializing in criminal court evaluation
work.  Bobbie Thomas testified that she met Payne at church, during a time
when she was being abused by her husband.  She stated that Payne was a very
caring person, and that he devoted much time and attention to her three
children, who were being affected by her marital difficulties.  She said
that the children had come to love him very much and would miss him, and
that he "behaved just like a father that loved his kids."  She asserted
that he did not drink, nor did he use drugs, and that it was generally
inconsistent with Payne's character to have committed these crimes.
    Dr. Huston testified that based on Payne's low score on an IQ test,
Payne was "mentally handicapped."  Huston also said that that Payne was
neither psychotic nor schizophrenic, and that Payne was the most polite
prisoner he had ever met.  Payne's parents testified that their son had no
prior criminal record and had never been arrested.  They also stated that
Payne had no history of alcohol or drug abuse, he worked with his father as
a painter, he was good with children, and that he was a good son.
    The State presented the testimony of Charisse's mother, Mary Zvolanek.
When asked how Nicholas had been affected by the murders of his mother and
sister, she responded:
"He cries for his mom.  He doesn't seem to understand why she doesn't come
home.  And he cries for his sister Lacie.  He comes to me many times during
the week and asks me, Grandmama, do you miss my Lacie.  And I tell him yes.
He says, I'm worried about my Lacie."  App. 30.
    In arguing for the death penalty during closing argument, the
prosecutor commented on the continuing effects of Nicholas' experience,
stating:
    "But we do know that Nicholas was alive.  And Nicholas was in the same
room.  Nicholas was still conscious.  His eyes were open.  He responded to
the paramedics.  He was able to follow their directions.  He was able to
hold his intestines in as he was carried to the ambulance.  So he knew what
happened to his mother and baby sister."  Id., at 9.
    "There is nothing you can do to ease the pain of any of the families
involved in this case.  There is nothing you can do to ease the pain of
Bernice or Carl Payne, and that's a tragedy.  There is nothing you can do
basically to ease the pain of Mr. and Mrs. Zvolanek, and that's a tragedy.
They will have to live with it the rest of their lives.  There is obviously
nothing you can do for Charisse and Lacie Jo.  But there is something that
you can do for Nicholas.
    "Somewhere down the road Nicholas is going to grow up, hopefully.  He's
going to want to know what happened.  And he is going to know what happened
to his baby sister and his mother.  He is going to want to know what type
of justice was done.  He is going to want to know what happened.  With your
verdict, you will provide the answer."  Id., at 12.
    In the rebuttal to Payne's closing argument, the prosecutor stated:
    "You saw the videotape this morning.  You saw what Nicholas Christopher
will carry in his mind forever.  When you talk about cruel, when you talk
about atrocious, and when you talk about heinous, that picture will always
come into your mind, probably throughout the rest of your lives.
    ". . . No one will ever know about Lacie Jo because she never had the
chance to grow up.  Her life was taken from her at the age of two years
old.  So, no there won't be a high school principal to talk about Lacie Jo
Christopher, and there won't be anybody to take her to her high school
prom.  And there won't be anybody there -- there won't be her mother there
or Nicholas' mother there to kiss him at night.  His mother will never kiss
him good night or pat him as he goes off to bed, or hold him and sing him a
lullaby.
    "[Petitioner's attorney] wants you to think about a good reputation,
people who love the defendant and things about him.  He doesn't want you to
think about the people who love Charisse Christopher, her mother and daddy
who loved her.  The people who loved little Lacie Jo, the grandparents who
are still here.  The brother who mourns for her every single day and wants
to know where his best little playmate is.  He doesn't have anybody to
watch cartoons with him, a little one.  These are the things that go into
why it is especially cruel, heinous, and atrocious, the burden that that
child will carry forever."  Id., at 13-15.
    The jury sentenced Payne to death on each of the murder counts.
    The Supreme Court of Tennessee affirmed the conviction and sentence.
791 S. W. 2d 10 (1990).  The court rejected Payne's contention that the
admission of the grandmother's testimony and the State's closing argument
constituted prejudicial violations of his rights under the Eighth Amendment
as applied in Booth v. Maryland, 482 U. S. 496 (1987), and South Carolina
v. Gathers, 490 U. S. 805 (1989).  The court characterized the
grandmother's testimony as "technically irrelevant," but concluded that it
"did not create a constitutionally unacceptable risk of an arbitrary
imposition of the death penalty and was harmless beyond a reasonable
doubt."  791 S. W. 2d, at 18.
    The court determined that the prosecutor's comments during closing
argument were "relevant to [Payne's] personal responsibility and moral
guilt."  Id., at 19.  The court explained that "[w]hen a person
deliberately picks a butcher knife out of a kitchen drawer and proceeds to
stab to death a twenty-eight-year-old mother, her two and one-half year old
daughter and her three and one-half year old son, in the same room, the
physical and mental condition of the boy he left for dead is surely
relevant in determining his `blameworthiness.' "  The court concluded that
any violation of Payne's rights under Booth and Gathers "was harmless
beyond a reasonable doubt."  Ibid.
    We granted certiorari, 498 U. S. --- (1991), to reconsider our holdings
in Booth and Gathers that the Eighth Amendment prohibits a capital
sentencing jury from considering "victim impact" evidence relating to the
personal characteristics of the victim and the emotional impact of the
crimes on the victim's family.
    In Booth, the defendant robbed and murdered an elderly couple.  As
required by a state statute, a victim impact statement was prepared based
on interviews with the victims' son, daughter, son-in-law, and
granddaughter.  The statement, which described the personal characteristics
of the victims, the emotional impact of the crimes on the family, and set
forth the family members' opinions and characterizations of the crimes and
the defendant, was submitted to the jury at sentencing.  The jury imposed
the death penalty.  The conviction and sentence were affirmed on appeal by
the State's highest court.
    This Court held by a 5-to-4 vote that the Eighth Amendment prohibits a
jury from considering a victim impact statement at the sentencing phase of
a capital trial.  The Court made clear that the admissibility of victim
impact evidence was not to be determined on a case-by-case basis, but that
such evidence was per se inadmissible in the sentencing phase of a capital
case except to the extent that it "relate[d] directly to the circumstances
of the crime."  482 U. S., at 507, n. 10.  In Gathers, decided two years
later, the Court extended the rule announced in Booth to statements made by
a prosecutor to the sentencing jury regarding the personal qualities of the
victim.
    The Booth Court began its analysis with the observation that the
capital defendant must be treated as a " `uniquely individual human
bein[g],' " 482 U. S., at 504 (quoting Woodson v. North Carolina, 428 U. S.
280, 304 (1976)), and therefore the Constitution requires the jury to make
an individualized determination as to whether the defendant should be
executed based on the " `character of the individual and the circumstances
of the crime.' "  482 U. S., at 502 (quoting Zant v. Stephens, 462 U. S.
862, 879 (1983).  The Court concluded that while no prior decision of this
Court had mandated that only the defendant's character and immediate
characteristics of the crime may constitutionally be considered, other
factors are irrelevant to the capital sentencing decision unless they have
"some bearing on the defendant's `personal responsibility and moral guilt.'
"  482 U. S., at 502 (quoting Enmund v. Florida, 458 U. S. 782, 801 (1982).
To the extent that victim impact evidence presents "factors about which the
defendant was unaware, and that were irrelevant to the decision to kill,"
the Court concluded, it has nothing to do with the "blameworthiness of a
particular defendant."  482 U. S., at 504, 505.  Evidence of the victim's
character, the Court observed, "could well distract the sentencing jury
from its constitutionally required task [of] determining whether the death
penalty is appropriate in light of the background and record of the accused
and the particular circumstances of the crime."  The Court concluded that,
except to the extent that victim impact evidence relates "directly to the
circumstances of the crime," id., at 507, and n. 10, the prosecution may
not introduce such evidence at a capital sentencing hearing because "it
creates an impermissible risk that the capital sentencing decision will be
made in an arbitrary manner."  Id., at 505.
    Booth and Gathers were based on two premises: that evidence relating to
a particular victim or to the harm that a capital defendant causes a
victim's family do not in general reflect on the defendant's
"blameworthiness," and that only evidence relating to "blameworthiness" is
relevant to the capital sentencing decision.  However, the assessment of
harm caused by the defendant as a result of the crime charged has
understandably been an important concern of the criminal law, both in
determining the elements of the offense and in determining the appropriate
punishment.  Thus, two equally blameworthy criminal defendants may be
guilty of different offenses solely because their acts cause differing
amounts of harm.  "If a bank robber aims his gun at a guard, pulls the
trigger, 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, 482 U.
S., at 519 (Scalia, J., dissenting).  The same is true with respect to two
defendants, each of whom participates in a robbery, and each of whom acts
with reckless disregard for human life; if the robbery in which the first
defendant participated results in the death of a victim, he may be
subjected to the death penalty, but if the robbery in which the second
defendant participates does not result in the death of a victim, the death
penalty may not be imposed.  Tison v. Arizona, 481 U. S. 137, 148 (1987).
    The principles which have guided criminal sentencing -- as opposed to
criminal liability -- have varied with the times.  The book of Exodus
prescribes the Lex talionis, "An eye for an eye, a tooth for a tooth."
Exodus 21: 22-23.  In England and on the continent of Europe, as recently
as the 18th century crimes which would be regarded as quite minor today
were capital offenses.  Writing in the 18th century, the Italian
criminologist Cesare Beccaria advocated the idea that "the punishment
should fit the crime."  He said that "[w]e have seen that the true measure
of crimes is the injury done to society."  J. Farrer, Crimes and
Punishments, 199 (London, 1880).
    Gradually the list of crimes punishable by death diminished, and
legislatures began grading the severity of crimes in accordance with the
harm done by the criminal.  The sentence for a given offense, rather than
being precisely fixed by the legislature, was prescribed in terms of a
minimum and a maximum, with the actual sentence to be decided by the judge.
With the increasing importance of probation, as opposed to imprisonment, as
a part of the penological process, some States such as California developed
the "indeterminate sentence," where the time of incarceration was left
almost entirely to the penological authorities rather than to the courts.
But more recently the pendulum has swung back.  The Federal Sentencing
Guidelines, which went into effect in 1987, provided for very precise
calibration of sentences, depending upon a number of factors.  These
factors relate both to the subjective guilt of the defendant and to the
harm caused by his acts.
    Wherever judges in recent years have had discretion to impose sentence,
the consideration of the harm caused by the crime has been an important
factor in the exercise of that discretion:
    "The first significance of harm in Anglo-American jurisprudence is,
then, as a prerequisite to the criminal sanction.  The second significance
of harm -- one no less important to judges -- is as a measure of the
seriousness of the offense and therefore as a standard for determining the
severity of the sentence that will be meted out."  S. Wheeler, K. Mann, and
A. Sarat, Sitting in judgment: The Sentencing of White-Collar Criminals 56
(1988).
Whatever the prevailing sentencing philosophy, the sentencing authority has
always been free to consider a wide range of relevant material.  Williams
v. New York, 337 U. S. 241 (1949).  In the federal system, we observed that
"a judge may appropriately conduct an inquiry broad in scope, largely
unlimited as to the kind of information he may consider, or the source from
which it may come."  United States v. Tucker, 404 U. S. 443, 446 (1972).
Even in the context of capital sentencing, prior to Booth the joint opinion
of Justices Stewart, Powell, and Stevens in Gregg v. Georgia, 428 U. S.
153, 203-204 (1976), had rejected petitioner's attack on the Georgia
statute because of the "wide scope of evidence and argument allowed at
presentence hearings."  The joint opinion stated:
"We think that the Georgia court wisely has chosen not to impose
unnecessary restrictions on the evidence that can be offered at such a
hearing and to approve open and far-ranging argument. . . .  So long as the
evidence introduced and the arguments made at the presentence hearing do
not prejudice a defendant, it is preferable not to impose restrictions.  We
think it desirable for the jury to have as much information before it as
possible when it makes the sentencing decision."
    The Maryland statute involved in Booth required that the presentence
report in all felony cases include a "victim impact statement" which would
describe the effect of the crime on the victim and his family.  Booth,
supra, at 498.  Congress and most of the States have, in recent years,
enacted similar legislation to enable the sentencing authority to consider
information about the harm caused by the crime committed by the defendant.
The evidence involved in the present case was not admitted pursuant to any
such enactment, but its purpose and effect was much the same as if it had
been.  While the admission of this particular kind of evidence -- designed
to portray for the sentencing authority the actual harm caused by a
particular crime -- is of recent origin, this fact hardly renders it
unconstitutional.  Williams v. Florida, 399 U. S. 78 (1970) (upholding the
constitutionality of a notice-of-alibi statute, of a kind enacted by at
least 15 states dating from 1927); United States v. DiFrancesco, 449 U. S.
117, 142 (1980) (upholding against a double jeopardy challenge an Act of
Congress representing "a considered legislative attempt to attack a
specific problem in our criminal justice system, that is, the tendency on
the part of some trial judges `to mete out light sentences in cases
involving organized crime management personnel' ").
    "We have held that a State cannot preclude the sentencer from
considering `any relevant mitigating evidence' that the defendant proffers
in support of a sentence less than death."  Eddings v. Oklahoma, 455 U. S.
104, 114 (1982).  See also Skipper v. South Carolina, 476 U. S. 1 (1986).
Thus we have, as the Court observed in Booth, required that the capital
defendant be treated as a " `uniquely individual human bein[g],' " 482 U.
S., at 504 (quoting Woodson v. North Carolina, 428 U. S., at 304).  But it
was never held or even suggested in any of our cases preceding Booth that
the defendant, entitled as he was to individualized consideration, was to
receive that consideration wholly apart from the crime which he had
committed.  The language quoted from Woodson in the Booth opinion was not
intended to describe a class of evidence that could not be received, but a
class of evidence which must be received.  Any doubt on the matter is
dispelled by comparing the language in Woodson with the language from Gregg
v. Georgia, quoted above, which was handed down the same day as Woodson.
This misreading of precedent in Booth has, we think, unfairly weighted the
scales in a capital trial; while virtually no limits are placed on the
relevant mitigating evidence a capital defendant may introduce concerning
his own circumstances, the State is barred from either offering "a glimpse
of the life" which a defendant "chose to extinguish," Mills, 486 U. S., at
397, (Rehnquist, C. J., dissenting), or demonstrating the loss to the
victim's family and to society which have resulted from the defendant's
homicide.
    Booth reasoned that victim impact evidence must be excluded because it
would be difficult, if not impossible, for the defendant to rebut such
evidence without shifting the focus of the sentencing hearing away from the
defendant, thus creating a " `mini-trial' on the victim's character."
Booth, supra, at 506-507.  In many cases the evidence relating to the
victim is already before the jury at least in part because of its relevance
at the guilt phase of the trial.  But even as to additional evidence
admitted at the sentencing phase, the mere fact that for tactical reasons
it might not be prudent for the defense to rebut victim impact evidence
makes the case no different than others in which a party is faced with this
sort of a dilemma.  As we explained in rejecting the contention that expert
testimony on future dangerousness should be excluded from capital trials,
"the rules of evidence generally extant at the federal and state levels
anticipate that relevant, unprivileged evidence should be admitted and its
weight left to the factfinder, who would have the benefit of cross
examination and contrary evidence by the opposing party."  Barefoot v.
Estelle, 463 U. S. 880, 898 (1983).
    Payne echoes the concern voiced in Booth's case that the admission of
victim impact evidence permits a jury to find that defendants whose victims
were assets to their community are more deserving of punishment that those
whose victims are perceived to be less worthy.  Booth, supra, at 506, n. 8.
As a general matter, however, victim impact evidence is not offered to
encourage comparative judgments of this kind -- for instance, that the
killer of a hardworking, devoted parent deserves the death penalty, but
that the murderer of a reprobate does not.  It is designed to show instead
each victim's "uniqueness as an individual human being," whatever the jury
might think the loss to the community resulting from his death might be.
The facts of Gathers are an excellent illustration of this: the evidence
showed that the victim was an out of work, mentally handicapped individual,
perhaps not, in the eyes of most, a significant contributor to society, but
nonetheless a murdered human being.
    Under our constitutional system, the primary responsibility for
defining crimes against state law, fixing punishments for the commission of
these crimes, and establishing procedures for criminal trials rests with
the States.  The state laws respecting crimes, punishments, and criminal
procedure are of course subject to the overriding provisions of the United
States Constitution.  Where the State imposes the death penalty for a
particular crime, we have held that the Eighth Amendment imposes special
limitations upon that process.
"First, there is a required threshold below which the death penalty cannot
be imposed.  In this context, the State must establish rational criteria
that narrow the decisionmaker's judgment as to whether the circumstances of
a particular defendant's case meet the threshold.  Moreover, a societal
consensus that the death penalty is disproportionate to a particular
offense prevents a State from imposing the death penalty for that offense.
Second, States cannot limit the sentencer's consideration of any relevant
circumstance that could cause it to decline to impose the penalty.  In this
respect, the State cannot challenge the sentencer's discretion, but must
allow it to consider any relevant information offered by the defendant."
McCleskey v. Kemp, 481 U. S. 279, 305-306 (1987).
But, as we noted in California v. Ramos, 463 U. S. 992, 1001 (1983),
"[b]eyond these limitations . . . the Court has deferred to the State's
choice of substantive factors relevant to the penalty determination."
    "Within the constitutional limitations defined by our cases, the States
enjoy their traditional latitude to prescribe the method by which those who
commit murder should be punished."  Blystone v. Pennsylvania, 494 U. S.
299, 309 (1990).  The States remain free, in capital cases, as well as
others, to devise new procedures and new remedies to meet felt needs.
Victim impact evidence is simply another form or method of informing the
sentencing authority about the specific harm caused by the crime in
question, evidence of a general type long considered by sentencing
authorities.  We think the Booth Court was wrong in stating that this kind
of evidence leads to the arbitrary imposition of the death penalty.  In the
majority of cases, and in this case, victim impact evidence serves entirely
legitimate purposes.  In the event that evidence is introduced that is so
unduly prejudicial that it renders the trial fundamentally unfair, the Due
Process Clause of the Fourteenth Amendment provides a mechanism for relief.
See Darden v. Wainwright, 477 U. S. 168, 179183 (1986).  Courts have always
taken into consideration the harm done by the defendant in imposing
sentence, and the evidence adduced in this case was illustrative of the
harm caused by Payne's double murder.
    We are now of the view that a State may properly conclude that for the
jury to assess meaningfully the defendant's moral culpability and
blameworthiness, it should have before it at the sentencing phase evidence
of the specific harm caused by the defendant.  "[T]he State has a
legitimate interest in counteracting the mitigating evidence which the
defendant is entitled to put in, by reminding the sentencer that just as
the murderer should be considered as an individual, so too the victim is an
individual whose death represents a unique loss to society and in
particular to his family."  Booth, 482 U. S., at 517 (White, J.,
dissenting) (citation omitted).  By turning the victim into a "faceless
stranger at the penalty phase of a capital trial," Gathers, 490 U. S., at
821 (O'Connor, J., dissenting), Booth deprives the State of the full moral
force of its evidence and may prevent the jury from having before it all
the information necessary to determine the proper punishment for a
first-degree murder.
    The present case is an example of the potential for such unfairness.
The capital sentencing jury heard testimony from Payne's girlfriend that
they met at church, that he was affectionate, caring, kind to her children,
that he was not an abuser of drugs or alcohol, and that it was inconsistent
with his character to have committed the murders.  Payne's parents
testified that he was a good son, and a clinical psychologist testified
that Payne was an extremely polite prisoner and suffered from a low IQ.
None of this testimony was related to the circumstances of Payne's brutal
crimes.  In contrast, the only evidence of the impact of Payne's offenses
during the sentencing phase was Nicholas' grandmother's des cription -- in
response to a single question -- that the child misses his mother and baby
sister.  Payne argues that the Eighth Amendment commands that the jury's
death sentence must be set aside because the jury heard this testimony.
But the testimony illustrated quite poignantly some of the harm that
Payne's killing had caused; there is nothing unfair about allowing the jury
to bear in mind that harm at the same time as it considers the mitigating
evidence introduced by the defendant.  The Supreme Court of Tennessee in
this case obviously felt the unfairness of the rule pronounced by Booth
when it said "[i]t is an affront to the civilized members of the human race
to say that at sentencing in a capital case, a parade of witnesses may
praise the background, character and good deeds of Defendant (as was done
in this case), without limitation as to relevancy, but nothing may be said
that bears upon the character of, or the harm imposed, upon the victims."
791 S. W. 2d, at 19.
    In Gathers, as indicated above, we extended the holding of Booth
barring victim impact evidence to the prosecutor's argument to the jury.
Human nature being what it is, capable lawyers trying cases to juries try
to convey to the jurors that the people involved in the underlying events
are, or were, living human beings, with something to be gained or lost from
the jury's verdict.  Under the aegis of the Eighth Amendment, we have given
the broadest latitude to the defendant to introduce relevant mitigating
evidence reflecting on his individual personality, and the defendant's
attorney may argue that evidence to the jury.  Petitioner's attorney in
this case did just that.  For the reasons discussed above, we now reject
the view -- expressed in Gathers -- that a State may not permit the
prosecutor to similarly argue to the jury the human cost of the crime of
which the defendant stands convicted.  We reaffirm the view expressed by
Justice Cardozo in Snyder v. Massachusetts, 291 U. S. 97, 122 (1934):
"justice, though due to the accused, is due to the accuser also.  The
concept of fairness must not be strained till it is narrowed to a filament.
We are to keep the balance true."
    We thus hold that if the State chooses to permit the admission of
victim impact evidence and prosecutorial argument on that subject, the
Eighth Amendment erects no per se bar.  A State may legitimately conclude
that evidence about the victim and about the impact of the murder on the
victim's family is relevant to the jury's decision as to whether or not the
death penalty should be imposed.  There is no reason to treat such evidence
differently than other relevant evidence is treated.
    Payne and his amicus argue that despite these numerous infirmities in
the rule created by Booth and Gathers, we should adhere to the doctrine of
stare decisis and stop short of overruling those cases.  Stare decisis is
the preferred course because it promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on judicial
decisions, and contributes to the actual and perceived integrity of the
judicial process.  See Vasquez v. Hillery, 474 U. S. 254, 265-266 (1986).
Adhering to precedent "is usually the wise policy, because in most matters
it is more important that the applicable rule of law be settled than it be
settled right."  Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406
(1932) (Brandeis, J., dissenting).  Nevertheless, when governing decisions
are unworkable or are badly reasoned, "this Court has never felt
constrained to follow precedent."  Smith v. Allwright, 321 U. S. 649, 665
(1944).  Stare decisis is not an inexorable command; rather, it "is a
principle of policy and not a mechanical formula of adherence to the latest
decision."  Helvering v. Hallock, 309 U. S. 106, 119 (1940).  This is
particularly true in constitutional cases, because in such cases
"correction through legislative action is practically impossible."  Burnet
v. Coronado Oil & Gas Co., supra, at 407 (Brandeis, J., dissenting).
Considerations in favor of stare decisis are at their acme in cases
involving property and contract rights, where reliance interests are
involved, see Swift & Co. v. Wickham, 382 U. S. 111, 116 (1965); Oregon ex
rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363 (1977);
Burnet v. Coronado Oil & Gas Co., supra, at 405-411 (Brandeis, J.,
dissenting); United States v. Title Ins. Co., 265 U. S. 472 (1924); The
Genesee Chief v. Fitzhugh, 12 How. 443, 458 (1852), the opposite is true in
cases such as the present one involving procedural and evidentiary rules.
    Applying these general principles, the Court has during the past 20
Terms overruled in whole or in part 33 of its previous constitutional
decisions. {1}  Booth and Gathers were decided by the narrowest of margins,
over spirited dissents challenging the basic underpinnings of those
decisions.  They have been questioned by members of the Court in later
decisions, and have defied consistent application by the lower courts.  See
Gathers, 490 U. S., at 813 (O'Connor, J., dissenting); Mills v. Maryland,
486 U. S. 367, 395-396 (1988) (Rehnquist, C. J., dissenting).  See also
State v. Huertas, 51 Ohio St. 3d 22, 33, 553 N. E. 2d 1058, 1070 (1990)
("The fact that the majority and two dissenters in this case all interpret
the opinions and footnotes in Booth and Gathers differently demonstrates
the uncertainty of the law in this area") (Moyer, C. J., concurring).
Reconsidering these decisions now, we conclude for the reasons heretofore
stated, that they were wrongly decided and should be, and now are,
overruled. {2}  We accordingly affirm the judgment of the Supreme Court of
Tennessee.
Affirmed.


 
 
 
 
 


------------------------------------------------------------------------------
1
    Perez v. Campbell, 402 U. S. 637 (1971) (overruling Kesler v. Dept. of
Public Safety, 369 U. S. 153 (1962)); Dunn v. Blumstein, 405 U. S. 330
(1972) (overruling Pope v. Williams, 193 U. S. 621 (1904)); Lehnhausen v.
Lake Shore Auto Parts Co., 410 U. S. 356 (1973) (overruling Quaker City Cab
Co. v. Pennsylvania, 277 U. S. 389 (1928)); Miller v. California, 413 U. S.
15 (1973) (overruling A book Named "John Cleland's Memoirs of a Woman of
Pleasure" v. Attorney General, 383 U. S. 413 (1966)); North Dakota Pharmacy
Board v. Snyder's Drug Stores, 414 U. S. 156 (1973) (overruling Liggett Co.
v. Baldridge, 278 U. S. 105 (1929)); Edelman v. Jordan, 415 U. S. 651
(1974) (overruling in part Shapiro v. Thompson, 394 U. S. 618 (1969));
State Dept. of Health & Rehabilitation Services v. Zarate, 407 U. S. 918
(1972); and Sterrett v. Mothers' & Children's Rights Organization, 409 U.
S. 809 (1972)); Taylor v. Louisiana, 419 U. S. 522 (1975) (overruling in
effect Hoyt v. Florida, 368 U. S. 57 (1961)); Michelin Tire Corp. v. Wages,
423 U. S. 276 (1976) (overruling Low v. Austin, 13 Wall. 29 (1872));
Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U. S. 748 (1976) (overruling Valentine v. Chrestensen, 316 U. S. 52
(1942)); National League of Cities v. Usery, 426 U. S. 833 (1976)
(overruling Maryland v. Wirtz, 392 U. S. 183 (1968)); New Orleans v. Dukes,
427 U. S. 297 (1976) (overruling Morey v. Doud, 354 U. S. 457 (1957));
Craig v. Boren, 429 U. S. 190 (1976) (overruling Goesaert v. Cleary, 335 U.
S. 464 (1948)); Complete Auto Transit v. Brady, 430 U. S. 274 (1977)
(overruling Spector Motor Service, Inc. v. O'Connor, 340 U. S. 602 (1951));
Shaffer v. Heitner, 433 U. S. 186 (1977) (overruling Pennoyer v. Neff, 95
U. S. 714 (1878)); Dept. of Revenue of Washington v. Washington Stevedoring
Cos., 435 U. S. 734 (1978) (overruling Puget Sound Stevedoring Co. v. State
Tax Commn. 302 U. S. 90 (1937)); United States v. Scott, 437 U. S. 82
(1978) (overruling United States v. Jenkins, 420 U. S. 358 (1975)); Hughes
v. Oklahoma, 441 U. S. 322 (1979) (overruling Geer v. Connecticut, 161 U.
S. 519 (1896)); United States v. Salvucci, 448 U. S. 83 (1980) (overruling
Jones v. United States, 362 U. S. 257 (1960)); Commonwealth Edison Co. v.
Montana, 453 U. S. 609 (1981) (overruling Heisler v. Thomas Colliery Co.,
260 U. S. 245 (1922)); Illinois v. Gates, 462 U. S. 213 (1983) (overruling
Aguilar v. Texas, 378 U. S. 108 (1964)); Pennhurst State School and
Hospital v. Halderman, 465 U. S. 89 (1984) (overruling in part Rolston v.
Missouri Fund Comm'rs., 120 U. S. 390 (1887)); United States v. One
Assortment of 89 Firearms, 465 U. S. 354 (1984) (overruling Coffey v.
United States, 116 U. S. 436 (1886)); Garcia v. San Antonio Metro. Transit
Auth., 469 U. S. 528 (1985) (overruling National League of Cities v. Usery,
426 U. S. 833 (1976)); United States v. Miller, 471 U. S. 130 (1985)
(overruling in part Ex parte Bain, 121 U. S. 1 (1887)); Daniels v.
Williams, 474 U. S. 327 (1986) (overruling in part Parratt v. Taylor, 451
U. S. 527 (1981)); Batson v. Kentucky, 476 U. S. 79 (1986) (overruling in
part Swain v. Alabama, 380 U. S. 202 (1965)); Solorio v. United States, 483
U. S. 435 (1987) (overruling O'Callahan v. Parker, 395 U. S. 258 (1969));
Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468 (1987)
(overruling in part Parden v. Terminal Railway of Alabama Docks Dept., 377
U. S. 184 (1964)); South Carolina v. Baker, 485 U. S. 505 (1988)
(overruling Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429 (1895));
Thornburgh v. Abbott, 490 U. S. 401 (1989) (overruling in part Procunier v.
Martinez, 416 U. S. 396 (1974)); Alabama v. Smith, 490 U. S. 794 (1989)
(overruling Simpson v. Rice (decided with North Carolina v. Pearce), 395 U.
S. 711 (1969)); Healy v. Beer Institute, 491 U. S. 324 (1989) (overruling
Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35 (1966)); Collins
v. Youngblood, 110 S. Ct. 2715 (1990) (overruling Kring v. Missouri, 107 U.
S. 221 (1883); Thompson v. Utah, 170 U. S. 343 (1898); California v.
Acevedo, 500 U. S. --- (1991) (overruling Arkansas v. Sanders, 442 U. S.
753 (1979)).

2
    Our holding today is limited to the holdings of Booth v. Maryland, 482
U. S. 496 (1987), and South Carolina v. Gathers, 490 U. S. 805 (1989), that
evidence and argument relating to the victim and the impact of the victim's
death on the victim's family are inadmissible at a capital sentencing
hearing.  Booth also held that the admission of a victim's family members'
characterizations and opinions about the crime, the defendant, and the
appropriate sentence violates the Eighth Amendment.  No evidence of the
latter sort was presented at the trial in this case.





Subject: 90-5721 -- CONCUR, PAYNE v. TENNESSEE

 


    SUPREME COURT OF THE UNITED STATES


No. 90-5721



PERVIS TYRONE PAYNE, PETITIONER v.
TENNESSEE


on writ of certiorari to the supreme court of tennessee, western division


[June 27, 1991]



    Justice O'Connor, with whom Justice White and Justice Kennedy join,
concurring.

    In my view, a State may legitimately determine that victim impact
evidence is relevant to a capital sentencing proceeding.  A State may
decide that the jury, before determining whether a convicted murderer
should receive the death penalty, should know the full extent of the harm
caused by the crime, including its impact on the victim's family and
community.  A State may decide also that the jury should see "a quick
glimpse of the life petitioner chose to extinguish," Mills v. Maryland, 486
U. S. 367, 397 (1988) (Rehnquist, C. J., dissenting), to remind the jury
that the person whose life was taken was a unique human being.
    Given that victim impact evidence is potentially relevant, nothing in
the Eighth Amendment commands that States treat it differently than other
kinds of relevant evidence.  "The Eighth Amendment stands as a shield
against those practices and punishments which are either inherently cruel
or which so offend the moral consensus of this society as to be deemed
`cruel and unusual.' "  South Carolina v. Gathers, 490 U. S. 805, 821
(1989) (O'Connor, J., dissenting).  Certainly there is no strong societal
consensus that a jury may not take into account the loss suffered by a
victim's family or that a murder victim must remain a faceless stranger at
the penalty phase of a capital trial.  Just the opposite is true.  Most
States have enacted legislation enabling judges and juries to consider
victim impact evidence.  Ante, at 11.  The possibility that this evidence
may in some cases be unduly inflammatory does not justify a prophylactic,
constitutionally based rule that this evidence may never be admitted.
Trial courts routinely exclude evidence that is unduly inflammatory; where
inflammatory evidence is improperly admitted, appellate courts carefully
review the record to determine whether the error was prejudicial.
    We do not hold today that victim impact evidence must be admitted, or
even that it should be admitted.  We hold merely that if a State decides to
permit consideration of this evidence, "the Eighth Amendment erects no per
se bar."  Ante, at 17.  If, in a particular case, a witness' testimony or a
prosecutor's remark so infects the sentencing proceeding as to render it
fundamentally unfair, the defendant may seek appropriate relief under the
Due Process Clause of the Fourteenth Amendment.
    That line was not crossed in this case.  The State called as a witness
Mary Zvolanek, Nicholas' grandmother.  Her testimony was brief.  She
explained that Nicholas cried for his mother and baby sister and could not
understand why they didn't come home.  I do not doubt that the jurors were
moved by this testimony -- who would not have been?  But surely this brief
statement did not inflame their passions more than did the facts of the
crime: Charisse Christopher was stabbed 41 times with a butcher knife and
bled to death; her 2-year old daughter Lacie was killed by repeated thrusts
of that same knife; and 3-year old Nicholas, despite stab wounds that
penetrated completely through his body from front to back, survived -- only
to witness the brutal murders of his mother and baby sister.  In light of
the jury's unavoidable familiarity with the facts of Payne's vicious
attack, I cannot conclude that the additional information provided by Mary
Zvolanek's testimony deprived petitioner of due process.
    Nor did the prosecutor's comments about Charisse and Lacie in the
closing argument violate the Constitution.  The jury had earlier seen a
videotape of the murder scene that included the slashed and bloody corpses
of Charisse and Lacie.  In arguing that Payne deserved the death penalty,
the prosecutor sought to remind the jury that Charisse and Lacie were more
than just lifeless bodies on a videotape, that they were unique human
beings.  The prosecutor remarked that Charisse would never again sing a
lullaby to her son and that Lacie would never attend a high school prom.
In my view, these statements were permissible.  "Murder is the ultimate act
of depersonalization."  Brief for Justice For All Political Committee et
al. as Amici Curiae 3.  It transforms a living person with hopes, dreams,
and fears into a corpse, thereby taking away all that is special and unique
about the person.  The Constitution does not preclude a State from deciding
to give some of that back.
    I agree with the Court that Booth v. Maryland, 482 U. S. 496 (1987),
and Gathers, supra, were wrongly decided.  The Eighth Amendment does not
prohibit a State from choosing to admit evidence concerning a murder
victim's personal characteristics or the impact of the crime on the
victim's family and community.  Booth also addressed another kind of victim
impact evidence -- opinions of the victim's family about the crime, the
defendant, and the appropriate sentence.  As the Court notes in today's
decision, we do not reach this issue as no evidence of this kind was
introduced at petitioner's trial.  Ante, at 20, n. 2.  Nor do we express an
opinion as to other aspects of the prosecutor's conduct.  As to the victim
impact evidence that was introduced, its admission did not violate the
Constitution.  Accordingly, I join the Court's opinion.
------------------------------------------------------------------------------




Subject: 90-5721 -- CONCUR, PAYNE v. TENNESSEE

 


    SUPREME COURT OF THE UNITED STATES


No. 90-5721



PERVIS TYRONE PAYNE, PETITIONER v.
TENNESSEE


on writ of certiorari to the supreme court of tennessee, western division


[June 27, 1991]



    Justice Scalia, with whom Justice O'Connor and Justice Kennedy join as
to Part II, concurring.

I
    The Court correctly observes the injustice of requiring the exclusion
of relevant aggravating evidence during capital sentencing, while requiring
the admission of all relevant mitigating evidence, see, e. g., Eddings v.
Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978)
(plurality opinion).  I have previously expressed my belief that the latter
requirement is both wrong and, when combined with the remainder of our
capital sentencing jurisprudence, unworkable.  See Walton v. Arizona, 497
U. S. ---, --- (1990) (Scalia, J., concurring in part and concurring in
judgment).  Even if it were abandoned, however, I would still affirm the
judgment here.  True enough, the Eighth Amendment permits parity between
mitigating and aggravating factors.  But more broadly and fundamentally
still, it permits the People to decide (within the limits of other
constitutional guarantees) what is a crime and what constitutes aggravation
and mitigation of a crime.

II


    The response to Justice Marshall's strenuous defense of the virtues of
stare decisis can be found in the writings of Justice Marshall himself.
That doctrine, he has reminded us, "is not `an imprisonment of reason.' "
Guardians Assn. v. Civil Service Comm'n of New York City, 463 U. S. 582,
618 (1983) (Marshall, J., dissenting) (quoting United States v.
International Boxing Club of New York, Inc., 348 U. S. 236, 249 (1955)
(Frankfurter, J., dissenting)).  If there was ever a case that defied
reason, it was Booth v. Maryland, 482 U. S. 496 (1987), imposing a
constitutional rule that had absolutely no basis in constitutional text, in
historical practice, or in logic.  Justice Marshall has also explained that
" `[t]he jurist concerned with public confidence in, and acceptance of the
judicial system might well consider that, however admirable its resolute
adherence to the law as it was, a decision contrary to the public sense of
justice as it is, operates, so far as it is known, to diminish respect for
the courts and for law itself.' "  Flood v. Kuhn, 407 U. S. 258, 293, n. 4
(1972) (dissenting opinion) (quoting Szanton, Stare Decisis; A Dissenting
View, 10 Hastings L. J. 394, 397 (1959)) (internal quotations omitted).
Booth's stunning ipse dixit, that a crime's unanticipated consequences must
be deemed "irrelevant" to the sentence, 482 U. S., at 503, conflicts with a
public sense of justice keen enough that it has found voice in a nationwide
"victim's rights" movement.

    Today, however, Justice Marshall demands of us some "special
justification" -- beyond the mere conviction that the rule of Booth
significantly harms our criminal justice system and is egregiously wrong --
before we can be absolved of exercising "[p]ower, not reason," post, at ---
(slip op., at 1).  I do not think that is fair.  In fact, quite to the
contrary, what would enshrine power as the governing principle of this
Court is the notion that an important constitutional decision with plainly
inadequate rational support must be left in place for the sole reason that
it once attracted five votes.

    It seems to me difficult for those who were in the majority in Booth to
hold themselves forth as ardent apostles of stare decisis.  That doctrine,
to the extent it rests upon anything more than administrative convenience,
is merely the application to judicial precedents of a more general
principle that the settled practices and expectations of a democratic
society should generally not be disturbed by the courts.  It is hard to
have a genuine regard for stare decisis without honoring that more general
principle as well.  A decision of this Court which, while not overruling a
prior holding, nonetheless announces a novel rule, contrary to long and
unchallenged practice, and pronounces it to be the Law of the Land -- such
a decision, no less than an explicit overruling, should be approached with
great caution.  It was, I suggest, Booth, and not today's decision, that
compromised the fundamental values underlying the doctrine of stare
decisis.
------------------------------------------------------------------------------




Subject: 90-5721 -- CONCUR, PAYNE v. TENNESSEE

 


    SUPREME COURT OF THE UNITED STATES


No. 90-5721



PERVIS TYRONE PAYNE, PETITIONER v.
TENNESSEE


on writ of certiorari to the supreme court of tennessee, western division


[June 27, 1991]



    Justice Souter, with whom Justice Kennedy joins, concurring.
    I join the Court's opinion addressing two categories of facts excluded
from consideration at capital sentencing proceedings by Booth v. Maryland,
482 U. S. 496 (1987), and South Carolina v. Gathers, 490 U. S. 805 (1989):
information revealing the individuality of the victim and the impact of the
crime on the victim's survivors. {1}  As to these two categories, I believe
Booth and Gathers were wrongly decided.
    To my knowledge, our legal tradition has never included a general rule
that evidence of a crime's effects on the victim and others is, standing
alone, irrelevant to a sentencing determination of the defendant's
culpability.  Indeed, as the Court's opinion today, see ante, at 9-11, and
dissents in Booth, supra, at 519-520 (Scalia, J., dissenting) and Gathers,
supra, at 817-820 (O'Connor, J., dissenting), make clear, criminal conduct
has traditionally been categorized and penalized differently according to
consequenses not specifically intended, but determined in part by
conditions unknown to a defendant when he acted.  The majority opinion in
Booth, supra, at 502-503, nonetheless characterized the consideration in a
capital sentencing proceeding of a victim's individuality and the
consequences of his death on his survivors as "irrelevant" and productive
of "arbitrary and capricious" results, insofar as that would allow the
sentencing authority to take account of information not specifically
contemplated by the defendant prior to his ultimate criminal decision.
This condemnation comprehends two quite separate elements.  As to one such
element the condemnation is merited but insufficient to justify the rule in
Booth, and as to the other it is mistaken.
    Evidence about the victim and survivors, and any jury argument
predicated on it, can of course be so inflammatory as to risk a verdict
impermissibly based on passion, not de liberation.  Cf. Penry v. Lynaugh,
492 U. S. 302, 319-328 (1989) (capital sentence should be imposed as a "
`reasoned moral response' ") (quoting California v. Brown, 479 U. S. 538,
545 (1987) (O'Connor, J., concurring)); Gholson v. Estelle, 675 F. 2d 734,
738 (CA5 1982) ("If person is to be executed, it should be as a result of a
decision based on reason and reliable evidence").  But this is just as true
when the defendant knew of the specific facts as when he was ignorant of
their details, and in each case there is a traditional guard against the
inflammatory risk, in the trial judge's authority and responsibility to
control the proceedings consistently with due process, on which ground
defendants may object and, if necessary, appeal.  See Darden v. Wainwright,
477 U. S. 168, 178-183 (1986) (due process standard of fundamental fairness
governs argument of prosecutor at sentencing); United States v. Serhant,
740 F. 2d 548, 551-552 (CA7 1984) (applying due process to purportedly
"inflammatory" victim-impact statements); see also Lesko v. Lehman, 925 F.
2d 1527, 1545-1547 (CA3 1991); Coleman v. Saffle, 869 F. 2d 1377, 1394-1396
(CA10 1989), cert. denied, 494 U. S. --- (1990); Rushing v. Butler, 868 F.
2d 800, 806-807 (CA5 1989).  With the command of due process before us,
this Court and the other courts of the state and federal systems will
perform the "duty to search for constitutional error with painstaking
care," an obligation "never more exacting than it is in a capital case."
Burger v. Kemp, 483 U. S. 776, 785 (1987).
    Booth, supra, {2} nonetheless goes further and imposes a blanket
prohibition on consideration of evidence of the victim's individuality and
the consequential harm to survivors as irrelevant to the choice between
imprisonment and execution, except when such evidence goes to the
"circumstances of the crime," id., at 502, and probably then only when the
facts in question were known to the defendant and relevant to his decision
to kill, id., at 505.  This prohibition rests on the belief that
consideration of such details about the victim and survivors as may have
been outside the defendant's knowledge is inconsistent with the sentencing
jury's Eighth Amendment duty "in the unique circumstance of a capital
sentencing hearing . . . to focus on the defendant as a `uniquely
individual human bein[g].' "  Id., at 504 (quoting Woodson v. North
Carolina, 428 U. S. 280, 304 (1976) (plurality opinion of Stewart, Powell
and Stevens, JJ.)).  The assumption made is that the obligation to consider
the defendant's uniqueness limits the data about a crime's impact, on which
a defendant's moral guilt may be calculated, to the facts he specifically
knew and presumably considered.  His uniqueness, in other words, is defined
by the specifics of his knowledge and the reasoning that is thought to
follow from it.
    To hold, however, that in setting the appropriate sentence a defendant
must be considered in his uniqueness is not to require that only unique
qualities be considered.  While a defendant's anticipation of specific
consequences to the victims of his intended act is relevant to sentencing,
such detailed foreknowledge does not exhaust the category of morally
relevant fact.  One such fact that is known to all murderers and relevant
to the blameworthiness of each one was identified by the Booth majority
itself when it barred the sentencing authority in capital cases from
considering "the full range of foreseeable consequences of a defendant's
actions."  482 U. S., at 504.  Murder has foreseeable consequences.  When
it happens, it is always to distinct individuals, and after it happens
other victims are left behind.  Every defendant knows, if endowed with the
mental competence for criminal responsibility, that the life he will take
by his homicidal behavior is that of a unique person, like himself, and
that the person to be killed probably has close associates, "survivors,"
who will suffer harms and deprivations from the victim's death.  Just as
defendants know that they are not faceless human ciphers, they know that
their victims are not valueless fungibles, and just as defendants
appreciate the web of relationships and dependencies in which they live,
they know that their victims are not human islands, but individuals with
parents or children, spouses or friends or dependents.  Thus, when a
defendant chooses to kill, or to raise the risk of a victim's death, this
choice necessarily relates to a whole human being and threatens an
association of others, who may be distinctly hurt.  The fact that the
defendant may not know the details of a victim's life and characteristics,
or the exact identities and needs of those who may survive, should not in
any way obscure the further facts that death is always to a "unique"
individual, and harm to some group of survivors is a consequence of a
successful homicidal act so foreseeable as to be virtually inevitable.
    That foreseeability of the killing's consequences imbues them with
direct moral relevance, cf. Penry v. Lynaugh, supra, at 328 (death penalty
should be " `reasoned moral response' "), and evidence of the specific harm
caused when a homicidal risk is realized is nothing more than evidence of
the risk that the defendant originally chose to run despite the kinds of
consequences that were obviously foreseeable.  It is morally both
defensible and appropriate to consider such evidence when penalizing a
murderer, like other criminals, in light of common knowledge and the moral
responsibility that such knowledge entails.  Any failure to take account of
a victim's individuality and the effects of his death upon close survivors
would thus more appropriately be called an act of lenity than their
consideration an invitation to arbitrary sentencing.  Indeed, given a
defendant's option to introduce relevant evidence in mitigation, see, e.
g., Eddings v. Oklahoma, 455 U. S. 104, 113-114 (1982); Lockett v. Ohio,
438 U. S. 586, 604 (1978), sentencing without such evidence of victim
impact may be seen as a significantly imbalanced process.  See Mills v.
Maryland, 486 U. S. 367, 397 (1988) (Rehnquist, C. J., dissenting).
    I so view the relevance of the two categories of victim impact evidence
at issue here, and I fully agree with the majority's conclusion, and the
opinions expressed by the dissenters in Booth and Gathers, that nothing in
the Eighth Amendment's condemnation of cruel and unusual punishment would
require that evidence to be excluded.  See ante, at 17 ("if the State
chooses to permit the admission of victim impact evidence and prosecutorial
argument on that subject, the Eighth Amendment erects no per se bar");
Booth, supra, at 515-516 (White, J., dissenting) (nothing " `cruel or
unusual' or otherwise unconstitutional about the legislature's decision to
use victim impact statements in capital sentencing hearings"); Gathers, 490
U. S., at 816-821 (O'Connor, J., dissenting); id., at 823-825 (Scalia, J.,
dissenting).
    I do not, however, rest my decision to overrule wholly on the
constitutional error that I see in the cases in question. I must rely as
well on my further view that Booth sets an unworkable standard of
constitutional relevance that threatens, on its own terms, to produce such
arbitrary consequences and uncertainty of application as virtually to
guarantee a result far diminished from the case's promise of appropriately
individualized sentencing for capital defendants.  482 U. S., at 502.
These conclusions will be seen to result from the interaction of three
facts.  First, although Booth was prompted by the introduction of a
systematically prepared "victim impact statement" at the sentencing phase
of the trial, Booth's restriction of relevant facts to what the de fendant
knew and considered in deciding to kill applies to any evidence, however
derived or presented.  Second, details of which the defendant was unaware,
about the victim and survivors, will customarily be disclosed by the
evidence introduced at the guilt phase of the trial.  Third, the jury that
determines guilt will usually determine, or make recommendations about, the
imposition of capital punishment.
    A hypothetical case will illustrate these facts and raise what I view
as the serious practical problems with application of the Booth standard.
Assume that a minister, unidentified as such and wearing no clerical
collar, walks down a street to his church office on a brief errand, while
his wife and adolescent daughter wait for him in a parked car.  He is
robbed and killed by a stranger, and his survivors witness his death.  What
are the circumstances of the crime that can be considered at the sentencing
phase under Booth?  The defendant did not know his victim was a minister,
or that he had a wife and child, let alone that they were watching.  Under
Booth, these facts were irrelevant to his decision to kill, and they should
be barred from consideration at sentencing.  Yet evidence of them will
surely be admitted at the guilt phase of the trial.  The widow will testify
to what she saw, and in so doing she will not be asked to pretend that she
was a mere bystander.  She could not succeed at that if she tried.  The
daughter may well testify too.  The jury will not be kept from knowing that
the victim was a minister, with a wife and child, on an errand to his
church.  This is so not only because the widow will not try to deceive the
jury about her relationship, but also because the usual standards of trial
relevance afford factfinders enough information about surrounding
circumstances to let them make sense of the narrowly material facts of the
crime itself.  No one claims that jurors in a capital case should be
deprived of such common contextual evidence, even though the defendant knew
nothing about the errand, the victim's occupation or his family.  And yet,
if these facts are not kept from the jury at the guilt stage, they will be
in the jurors' minds at the sentencing stage.
    Booth thus raises a dilemma with very practical consequences.  If we
were to require the rules of guilt-phase evidence to be changed to
guarantee the full effect of Booth's promise to exclude consideration of
specific facts unknown to the defendant and thus supposedly without
significance in morally evaluating his decision to kill, we would seriously
reduce the comprehensibility of most trials by depriving jurors of those
details of context that allow them to understand what is being described.
If, on the other hand, we are to leave the rules of trial evidence alone,
Booth's objective will not be attained without requiring a separate
sentencing jury to be empaneled.  This would be a major imposition on the
States, however, and I suppose that no one would seriously consider adding
such a further requirement.
    But, even if Booth were extended one way or the other to exclude
completely from the sentencing proceeding all facts about the crime's
victims not known by the defendant, the case would be vulnerable to the
further charge that it would lead to arbitrary sentencing results.  In the
preceding hypothetical, Booth would require that all evidence about the
victim's family, including its very existence, be excluded from sentencing
consideration because the defendant did not know of it when he killed the
victim.  Yet, if the victim's daughter had screamed "Daddy, look out," as
the defendant approached the victim with drawn gun, then the evidence of at
least the daughter's survivorship would be admissible even under a strict
reading of Booth, because the defendant, prior to killing, had been made
aware of the daughter's existence, which therefore became relevant in
evaluating the defendant's decision to kill.  Resting a decision about the
admission of impact evidence on such a fortuity is arbitrary.
    Thus, the status quo is unsatisfactory and the question is whether the
case that has produced it should be overruled.  In this instance, as in any
other, overruling a precedent of this Court is a matter of no small import,
for "the doctrine of stare decisis is of fundamental importance to the rule
of law."  Welch v. Texas Dept. of Highways and Public Transportation, 483
U. S. 468, 494 (1987).  To be sure, stare decisis is not an "inexorable
command," Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405 (1932)
(Brandeis, J., dissenting); and our "considered practice [has] not [been]
to apply stare decisis as rigidly in constitutional [cases] as in
nonconstitutional cases," Glidden Co. v. Zdanok, 370 U. S. 530, 543 (1962).
See Burnet, supra, at 405-407; Patterson v. McLean Credit  Union, 491 U. S.
164, 172-173 (1989).  But, even in constitutional cases, the doctrine
carries such persuasive force that we have always required a departure from
precedent to be supported by some "special justification."  Arizona v. Rum
sey, 467 U. S. 203, 212 (1984).
    The Court has a special justification in this case.  Booth promises
more than it can deliver, given the unresolved tension between common
evidentiary standards at the guilt phase and Booth's promise of a
sentencing determination free from the consideration of facts unknown to
the defendant and irrelevant to his decision to kill.  An extension of the
case to guarantee a sentencing authority free from the influence of
information extraneous under Booth would be either an unworkable or a
costly extension of an erroneous principle and would itself create a risk
of arbitrary results.  There is only one other course open to us.  We can
recede from the erroneous holding that created the tension and extended the
false promise, and there is precedent in our stare decisis jurisprudence
for doing just this.  In prior cases, when this Court has confronted a
wrongly decided, unworkable precedent calling for some further action by
the Court, we have chosen not to compound the original error, but to
overrule the precedent.  See Swift & Co. v. Wickham, 382 U. S. 111 (1965);
{3} Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36 (1977);  {4}
see also Patterson v. McLean Credit Union, supra, at 173.  Following this
course here not only has itself the support of precedent but of practical
sense as well.  Therefore, I join the Court in its partial overruling of
Booth and Gathers.

 
 
 
 
 

------------------------------------------------------------------------------
1
    This case presents no challenge to the Court's holding in Booth v.
Maryland that a sentencing authority should not receive a third category of
information concerning a victim's family members' characterization of and
opinions about the crime, the defendant, and the appropriate sentence.  See
ante, at 20, n. 2.

2
    Because this discussion goes only to the underlying substantive rule in
question, for brevity I will confine most references to Booth alone.

3
    In Swift & Co. v. Wickham, the Court overruled Kesler v. Department of
Public Safety of Utah, 369 U. S. 153 (1962).  The issue presented in both
Swift and Kesler concerned the application of the three-judge district
court statute, 28 U. S. C. MDRV 2281 (1970 ed.), in cases of alleged state
statutory pre-emption by federal law.  The Court had held in Kesler that
"MDRV 2281 comes into play only when the Supremacy Clause of the Federal
Constitution is immediately drawn into question, but not when issues of
federal or state statutory construction must first be decided even though
the Supremacy Clause may ultimately be implicated."  382 U. S., at 115.
    Three years later in Swift & Co. v. Wickham, a majority of the Court
disagreed with the Kesler analysis of the question, finding it inconsistent
with the statute and earlier precedents of this Court.  382 U. S., at 122
("The upshot of these decisions seems abundantly clear: Supremacy Clause
cases are not within the purview of MDRV 2281").  The Court concluded that
there were

"[t]wo possible interpretations of MDRV 2281 [that] would provide a more
practical rule for three-judge court jurisdiction.  The first is that
Kesler might be extended to hold, as some of its language might be thought
to indicate, that all suits to enjoin the enforcement of a state statute,
whatever the federal ground, must be channeled through three-judge courts.
The second is that no such suits resting solely on `supremacy' grounds fall
within the statute."  Id., at 125 (footnote omitted).
    Rather than extend the incorrectly decided opinion in Kesler, the Court
decided to overrule it.  382 U. S., at 126-127.

4
    In Continental T. V., Inc. v. GTE Sylvania Inc., the Court overruled
United States v. Arnold, Schwinn & Co., 388 U. S. 365 (1967), which had
held that "[u]nder the Sherman Act, it is [per se] unreasonable . . . for a
manufacturer to seek to restrict and confine areas or persons with whom an
article may be traded after the manufacturer has parted with dominion over
it."  Id., at 379.  The decision distinguished between restrictions on
retailers based on whether the underlying transaction was a sale, in which
case the Court applied a per se ban, or not a sale, in which case the
arrangement would be subject to a "rule of reason" analysis.  In
Continental T. V., Inc., the Court reconsidered this per se rule in light
of our tra ditional reliance on a "rule of reason" analysis for MDRV 1
claims under the Sherman Act and the "continuing controversy and confusion,
both in the scholarly journals and in the federal courts" caused by the
sale/nonsale distinction drawn by the Court in Schwinn.  433 U. S., at
47-56.  The Court proceeded to reexamination and concluded "that the
distinction drawn in Schwinn between sale and nonsale transactions is not
sufficient to justify the application of a per se rule in one situation and
a rule of reason in the other.  The question remains whether the per se
rule stated in Schwinn should be expanded to include nonsale transactions
or abandoned in favor of a return to the rule of reason."  Id., at 57.  The
Court found "no persuasive support for expanding the per se rule" and
Schwinn was overruled.  433 U. S., at 57.





Subject: 90-5721 -- DISSENT, PAYNE v. TENNESSEE

 


    SUPREME COURT OF THE UNITED STATES


No. 90-5721



PERVIS TYRONE PAYNE, PETITIONER v.
TENNESSEE


on writ of certiorari to the supreme court of tennessee, western division


[June 27, 1991]



    Justice Marshall, with whom Justice Blackmun joins, dissenting.
    Power, not reason, is the new currency of this Court's decisionmaking.
Four Terms ago, a five-Justice majority of this Court held that "victim
impact" evidence of the type at issue in this case could not
constitutionally be introduced during the penalty phase of a capital trial.
Booth v. Maryland, 482 U. S. 496 (1987).  By another 5-4 vote, a majority
of this Court rebuffed an attack upon this ruling just two Terms ago.
South Carolina v. Gathers, 490 U. S. 805 (1989).  Nevertheless, having
expressly invited respondent to renew the attack, 498 U. S. --- (1991),
today's majority overrules Booth and Gathers and credits the dissenting
views expressed in those cases.  Neither the law nor the facts supporting
Booth and Gathers underwent any change in the last four years.  Only the
personnel of this Court did.
    In dispatching Booth and Gathers to their graves, today's majority
ominously suggests that an even more extensive upheaval of this Court's
precedents may be in store.  Renouncing this Court's historical commitment
to a conception of "the judiciary as a source of impersonal and reasoned
judgments," Moragne v. States Marine Lines, 398 U. S. 375, 403 (1970), the
majority declares itself free to discard any principle of constitutional
liberty which was recognized or reaffirmed over the dissenting votes of
four Justices and with which five or more Justices now disagree.  The
implications of this radical new exception to the doctrine of stare decisis
are staggering.  The majority today sends a clear signal that scores of
established constitutional liberties are now ripe for reconsideration,
thereby inviting the very type of open defiance of our precedents that the
majority rewards in this case.  Because I believe that this Court owes more
to its constitutional precedents in general and to Booth and Gathers in
particular, I dissent.

I
    Speaking for the Court as then constituted, Justice Powell and Justice
Brennan set out the rationale for excluding victim-impact evidence from the
sentencing proceedings in a capital case.  See Booth v. Maryland, supra, at
504-509; South Carolina v. Gathers, supra, at 810-811.  As the majorities
in Booth and Gathers recognized, the core principle of this Court's capital
jurisprudence is that the sentence of death must reflect an "
`individualized determination' " of the defendant's " `personal
responsibility and moral guilt' " and must be based upon factors that
channel the jury's discretion " `so as to minimize the risk of wholly
arbitrary and capricious action.' "  Booth v. Maryland, supra, at 502,
quoting Zant v. Stephens, 462 U. S. 862, 879 (1983); Enmund v. Florida, 458
U. S. 782, 801 (1982), and Gregg v. Georgia, 428 U. S. 153, 189 (1976)
(joint opinion of Stewart, Powell, and Stevens, JJ.); accord, South
Carolina v. Gathers, supra, at 810.  The State's introduction of
victim-impact evidence, Justice Powell and Justice Brennan explained,
violates this fundamental principle.  Where, as is ordinarily the case, the
defendant was unaware of the personal circumstances of his victim,
admitting evidence of the victim's character and the impact of the murder
upon the victim's family predicates the sentencing determination on
"factors . . . wholly unrelated to the blameworthiness of [the] particular
defendant."  Booth v. Maryland, supra, at 504; South Carolina v. Gathers,
supra, 810.  And even where the defendant was in a position to foresee the
likely impact of his conduct, admission of victimimpact evidence creates an
unacceptable risk of sentencing arbitrariness.  As Justice Powell explained
in Booth, the probative value of such evidence is always outweighed by its
prejudicial effect because of its inherent capacity to draw the jury's
attention away from the character of the defendant and the circumstances of
the crime to such illicit considerations as the eloquence with which family
members express their grief and the status of the victim in the community.
See Booth v. Maryland, supra, at 505-507, and n. 8; South Carolina v.
Gathers, supra, 810-811.  I continue to find these considerations wholly
persuasive, and I see no purpose in trying to improve upon Justice Powell's
and Justice Brennan's exposition of them.
    There is nothing new in the majority's discussion of the supposed
deficiencies in Booth and Gathers.  Every one of the arguments made by the
majority can be found in the dissenting opinions filed in those two cases,
and, as I show in the margin,  each argument was convincingly answered by
Justice Powell and Justice Brennan. {1}
    But contrary to the impression that one might receive from reading the
majority's lengthy rehearsing of the issues addressed in Booth and Gathers,
the outcome of this case does not turn simply on who -- the Booth and
Gathers majorities or the Booth and Gathers dissenters -- had the better of
the argument.  Justice Powell and Justice Brennan's position carried the
day in those cases and became the law of the land.  The real question,
then, is whether today's majority has come forward with the type of
extraordinary showing that this Court has historically demanded before
overruling one of its precedents.  In my view, the majority clearly has not
made any such showing.  Indeed, the striking feature of the majority's
opinion is its radical assertion that it need not even try.

II
    The overruling of one of this Court's precedents ought to be a matter
of great moment and consequence.  Although the doctrine of stare decisis is
not an "inexorable command," Burnet v. Coronado Oil & Gas Co., 285 U. S.
393, 405 (1932) (Brandeis, J., dissenting), this Court has repeatedly
stressed that fidelity to precedent is fundamental to "a society governed
by the rule of law," Akron v. Akron Center for Reproductive Health, Inc.,
462 U. S. 416, 420 (1983).  See generally Patterson v. McLean Credit Union,
491 U. S. 164, 172 (1989) ("[I]t is indisputable that stare decisis is a
basic selfgoverning 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.'  The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A.
Hamilton)"); Appeal of Concerned Corporators of Portsmouth Savings Bank,
129 N. H. 183, 227, 525 A. 2d 671, 701 (1987) (Souter, J., dissenting)
("[S]tare decisis . . . `is essential if case-by-case judicial
decision-making is to be reconciled with the principle of the rule of law,
for when governing legal standards are open to revision in every case,
deciding cases becomes a mere exercise of judicial will, with arbitrary and
unpredictable results,' " quoting Thorn burgh v. American College of
Obstetricians and Gynecologists, 476 U. S. 747, 786-787 (1986) (White, J.,
dissenting)).   Consequently, this Court has never departed from pre cedent
without "special justification."  Arizona v. Rumsey, 467 U. S. 203, 212
(1984).  Such justifications include the advent of "subsequent changes or
development in the law" that undermine a decision's rationale, Patterson v.
McLean Credit Union, supra, at 173; the need "to bring [a decision] into
agreement with experience and with facts newly ascertained," Burnet v.
Coronado Oil & Gas Co., supra, at 412 (Brandeis, J., dissenting); and a
showing that a particular precedent has become a "detriment to coherence
and consistency in the law," Patterson v. McLean Credit Union, supra, at
173.
    The majority cannot seriously claim that any of these traditional bases
for overruling a precedent applies to Booth or Gathers.  The majority does
not suggest that the legal rationale of these decisions has been undercut
by changes or developments in doctrine during the last two years.  Nor does
the majority claim that experience over that period of time has discredited
the principle that "any decision to impose the death sentence be, and
appear to be, based on reason rather than caprice or emotion," Gardner v.
Florida, 430 U. S. 349, 358 (1977) (plurality opinion), the larger
postulate of political morality on which Booth and Gathers rest.
    The majority does assert that Booth and Gathers "have defied consistent
application by the lower courts," ante, at 19, but the evidence that the
majority proffers is so feeble that the majority cannot sincerely expect
anyone to believe this claim.  To support its contention, the majority
points to Justice O'Connor's dissent in Gathers, which noted a division
among lower courts over whether Booth prohibited prosecutorial arguments
relating to the victim's personal characteristics.  See 490 U. S., at 813.
That, of course, was the issue expressly considered and resolved in
Gathers.  The majority also cites The Chief Justice's dissent in Mills v.
Maryland, 486 U. S. 367, 395-398 (1988).  That opinion does not contain a
single word about any supposed "[in]consistent application" of Booth in the
lower courts.  Finally, the majority refers to a divided Ohio Supreme Court
decision disposing of an issue concerning victim-impact evidence.  See
State v. Huertas, 51 Ohio St. 3d 22, 553 N. E. 2d 1058 (1990), cert. dism'd
as improvidently granted, 498 U. S. --- (1991).  Obviously, if a division
among the members of a single lower court in a single case were sufficient
to demonstrate that a particular precedent was a "detriment to coherence
and consistency in the law," Patterson v. McLean Credit Union, supra, at
173, there would hardly be a decision in United States Reports that we
would not be obliged to reconsider.   It takes little real detective work
to discern just what has changed since this Court decided Booth and
Gathers: this Court's own personnel.  Indeed, the majority candidly
explains why this particular contingency, which until now has been almost
universally understood not to be sufficient to warrant overruling a
precedent, see, e. g., Florida Dept. of Health and Rehabilitative Services
v. Florida Nursing Home Assn., 450 U. S. 147, 153 (1981) (Stevens, J.,
concurring); Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974)
(Stewart, J., dissenting); Mapp v. Ohio, 367 U. S. 643, 677 (1961) (Harlan,
J., dissenting); but see South Carolina v. Gathers, supra, at 824 (Scalia,
J., dissenting), is sufficient to justify overruling Booth and Gathers.
"Considerations in favor of stare decisis are at their acme," the majority
explains, "in cases involving property and contract rights, where reliance
interests are involved[;] the opposite is true in cases such as the present
one involving procedural and evidentiary rules."  Ante, at 18 (citations
omitted).  In addition, the majority points out, "Booth and Gathers were
decided by the narrowest of margins, over spirited dissents" and thereafter
were "questioned by members of the Court."  Ante, at 18-19.  Taken
together, these considerations make it legitimate, in the majority's view,
to elevate the position of the Booth and Gathers dissenters into the law of
the land.
    This truncation of the Court's duty to stand by its own precedents is
astonishing.  By limiting full protection of the doctrine of stare decisis
to "cases involving property and contract rights," ante, at 18, the
majority sends a clear signal that essentially all decisions implementing
the personal liberties protected by the Bill of Rights and the Fourteenth
Amendment are open to reexamination.  Taking into account the majority's
additional criterion for overruling -- that a case either was decided or
reaffirmed by a 5-4 margin "over spirited dissen[t]," ante, at 19 -- the
continued vitality of literally scores of decisions must be understood to
depend on nothing more than the proclivities of the individuals who now
comprise a majority of this Court.  See, e. g., Metro Broadcasting v. FCC,
497 U. S. --- (1990) (authority of Federal government to set aside
broadcast licenses for minority applicants);  Grady v. Corbin, 495 U. S.
--- (1990) (right under Double Jeopardy Clause not to be subjected twice to
prosecution for same criminal conduct); Mills v. Maryland, supra (Eighth
Amendment right to jury instructions that do not preclude consideration of
nonunanimous mitigating factors in capital sentencing); United States v.
Paradise, 480 U. S. 149 (1987) (right to promotions as remedy for racial
discrimination in government hiring); Ford v. Wainwright, 477 U. S. 399
(1986) (Eighth Amendment right not to be executed if insane); Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986)
(reaffirming right to abortion recognized in Roe v. Wade, 410 U. S. 113
(1973)); Aguilar v. Felton, 473 U. S. 402 (1985) (Establishment Clause bar
on governmental financial assistance to parochial schools). {2}
    In my view, this impoverished conception of stare decisis cannot
possibly be reconciled with the values that inform the proper judicial
function.  Contrary to what the majority suggests, stare decisis is
important not merely because individuals rely on precedent to structure
their commercial activity but because fidelity to precedent is part and
parcel of a conception of "the judiciary as a source of impersonal and
reasoned judgments."  Moragne v. States Marine Lines, 398 U. S., at 403.
Indeed, this function of stare decisis is in many respects even more
critical in adjudication involving constitutional liberties than in
adjudication involving commercial entitlements.  Because enforcement of the
Bill of Rights and the Fourteenth Amendment frequently requires this Court
to rein in the forces of democratic politics, this Court can legitimately
lay claim to compliance with its directives only if the public understands
the Court to be implementing "principles . . . founded in the law rather
than in the proclivities of individuals."  Vasquez v. Hillery, 474 U. S.
254, 265 (1986). {3}  Thus, as Justice Stevens has explained, the "stron[g]
presumption of validity" to which "recently decided cases" are entitled "is
an essential thread in the mantle of protection that the law affords the
individual. . . .  It is the unpopular or beleaguered individual -- not the
man in power -- who has the greatest stake in the integrity of the law."
Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home
Assn., 450 U. S., at 153154 (concurring opinion).
    Carried to its logical conclusion, the majority's debilitated
conception of stare decisis would destroy the Court's very capacity to
resolve authoritatively the abiding conflicts between those with power and
those without.  If this Court shows so little respect for its own
precedents, it can hardly expect them to be treated more respectfully by
the state actors whom these decisions are supposed to bind.  See Mitchell
v. W. T. Grant Co., 416 U. S., at 634 (Stewart, J., dissenting).  By
signaling its willingness to give fresh consideration to any constitutional
liberty recognized by a 5-4 vote "over spirited dissen[t]," ante, at 19,
the majority invites state actors to renew the very policies deemed
unconstitutional in the hope that this Court may now reverse course, even
if it has only recently reaffirmed the constitutional liberty in question.
    Indeed, the majority's disposition of this case nicely illustrates the
rewards of such a strategy of defiance.  The Tennessee Supreme Court did
nothing in this case to disguise its contempt for this Court's decisions in
Booth and Gathers.  Summing up its reaction to those cases, it concluded:
    "It is an affront to the civilized members of the human race to say
that at sentencing in a capital case, a parade of witnesses may praise the
background, character and good deeds of Defendant (as was done in this
case), without limitation as to relevancy, but nothing may be said that
bears upon the character of, or harm imposed, upon the victims."  791 S. W.
2d 10, 19 (1990).


Offering no explanation for how this case could possibly be distinguished
from Booth and Gathers -- for obviously, there is none to offer -- the
court perfunctorily declared that the victim-impact evidence and the
prosecutor's argument based on this evidence "did not violate either [of
those decisions]."  Ibid.  It cannot be clearer that the court simply
declined to be bound by this Court's precedents. {4}
    Far from condemning this blatant disregard for the rule of law, the
majority applauds it.  In the Tennessee Supreme Court's denigration of
Booth and Gathers as "an affront to the civilized members of the human
race," the majority finds only confirmation of "the unfairness of the rule
pronounced by" the majorities in those cases.  Ante, at 16.  It is hard to
imagine a more complete abdication of this Court's historic commitment to
defending the supremacy of its own pronouncements on issues of
constitutional liberty.  See Cooper v. Aaron, 358 U. S. 1 (1958); see also
Hutto v. Davis, 454 U. S. 370, 375 (1982) (per curiam) ("[U]nless we wish
anarchy to prevail within the federal judicial system, a precedent of this
Court must be followed by the lower federal courts no matter how misguided
the judges of those courts may think it to be").  In light of the cost that
such abdication exacts on the authoritativeness of all of this Court's
pronouncements, it is also hard to imagine a more short-sighted strategy
for effecting change in our constitutional order.

III
    Today's decision charts an unmistakable course.  If the majority's
radical reconstruction of the rules for overturning this Court's decisions
is to be taken at face value -- and the majority offers us no reason why it
should not -- then the overruling of Booth and Gathers is but a preview of
an even broader and more far-reaching assault upon this Court's precedents.
Cast aside today are those condemned to face society's ultimate penalty.
Tomorrow's victims may be minorities, women, or the indigent.  Inevitably,
this campaign to resurrect yesterday's "spirited dissents" will squander
the authority and the legitimacy of this Court as a protector of the
powerless.
    I dissent.

 
 
 
 
 


------------------------------------------------------------------------------
1
    The majority's primary argument is that punishment in criminal law is
frequently based on an "assessment of [the] harm caused by the defendant as
a result of the crime charged."  Ante, at 9.  See also Booth v. Maryland,
482 U. S. 496, 516 (1987) (White, J., dissenting); id., at 519-520 (Scalia,
J., dissenting); South Carolina v. Gathers, 490 U. S. 805, 818819 (1989)
(O'Connor, J., dissenting).  Nothing in Booth or Gathers, however,
conflicts with this unremarkable observation.  These cases stand merely for
the proposition that the State may not put on evidence of one particular
species of harm -- namely, that associated with the victim's personal
characteristics independent of the circumstances of the offense -- in the
course of a capital murder proceeding.  See Booth v. Maryland, supra, at
507, n. 10 (emphasizing that decision does not bar reliance on
victim-impact evidence in capital sentencing so long as such evidence
"relate[s] directly to the circumstances of the crime"); id., at 509, n. 12
(emphasizing that decision does not bar reliance on victim-impact evidence
in sentencing for noncapital crimes).  It may be the case that such a rule
departs from the latitude of sentencers in criminal law generally "[to]
tak[e] into consideration the harm done by the defendant."  Ante, at 15.
But as the Booth Court pointed out, because this Court's capital-sentencing
jurisprudence is founded on the premise that "death is a `punishment
different from all other sanctions,' " it is completely unavailing to
attempt to infer from sentencing considerations in noncapital settings the
proper treatment of any particular sentencing issue in a capital case.  482
U. S., at 509, n. 12, quoting Woodson v. North Carolina, 428 U. S. 280,
303-304, 305 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).
    The majority also discounts Justice Powell's concern with the
inherently prejudicial quality of victim-impact evidence.  "[T]he mere fact
that for tactical reasons it might not be prudent for the defense to rebut
victim impact evidence," the majority protests, "makes the case no
different than others in which a party is faced with this sort of a
dilemma."  Ante, 13.  See also Booth v. Maryland, supra, at 518 (White, J.,
dissenting).  Unsurprisingly, this tautology is completely unresponsive to
Justice Powell's argument.  The Booth Court established a rule excluding
introduction of victim-impact evidence not merely because it is difficult
to rebut -- a feature of victim-impact evidence that may be "no different"
from that of many varieties of relevant, legitimate evidence -- but because
the effect of this evidence in the sentencing proceeding is unfairly
prejudicial: "The prospect of a `mini-trial' on the victim's character is
more than simply unappealing; it could well distract the sentencing jury
from its constitutionally required task -- determining whether the death
penalty is appropriate in light of the background and record of the accused
and the particular circumstances of the crime."  482 U. S., at 507.  The
law is replete with per se prohibitions of types of evidence the probative
effect of which is generally outweighed by its unfair prejudice.  See, e.
g., Fed. Rules Evid. 404, 407-412.  There is nothing anomalous in the
notion that the Eighth Amendment would similarly exclude evidence that has
an undue capacity to undermine the regime of individualized sentencing that
our capital jurisprudence demands.
    Finally, the majority contends that the exclusion of victim-impact
evidence "deprives the State of the full moral force of its evidence and
may prevent the jury from having before it all the information necessary to
determine the proper punishment for a first-degree murder."  Ante, at 15.
The majority's recycled contention, see Booth, supra, at 517 (White, J.,
dissenting); id., at 520 (Scalia, J., dissenting); Gathers, supra, at
817-818 (O'Connor, J., dissenting), begs the question.  Before it is
possible to conclude that the exclusion of victim-impact evidence prevents
the State from making its case or the jury from considering relevant
evidence, it is necessary to determine whether victim-impact evidence is
consistent with the substantive standards that define the scope of
permissible sentencing determinations under the Eighth Amendment.  The
majority offers no persuasive answer to Justice Powell and Justice
Brennan's conclusion that victim-impact evidence is frequently irrelevant
to any permissible sentencing consideration and that such evidence risks
exerting illegitimate "moral force" by directing the jury's attention on
illicit considerations such as the victim's standing in the community.

2
    Based on the majority's new criteria for overruling, these decisions,
too, must be included on the "endangered precedents" list: Rutan v.
Republican Party of Illinois, 497 U. S. --- (1990) (First Amendment right
not to be denied public employment on the basis of party affiliation); Peel
v. Attorney Registration and Disciplinary Comm'n, 496 U. S. --- (1990)
(First Amendment right to advertise legal specialization); Zinermon v.
Burch, 494 U. S. 113 (1990) (due process right to procedural safeguards
aimed at assuring voluntariness of decision to commit oneself to mental
hospital); James v. Illinois, 493 U. S. 307 (1990) (Fourth Amendment right
to exclusion of illegally obtained evidence introduced for impeachment of
defense witness); Rankin v. McPherson, 483 U. S. 378 (1987) (First
Amendment right of public employee to express views on matter of public
importance); Rock v. Arkansas, 483 U. S. 44 (1987) (Fifth Amendment and
Sixth Amendment right of criminal defendant to provide hypnotically
refreshed testimony on his own behalf); Gray v. Mississippi, 481 U. S. 648
(1987) (rejecting applicability of harmless error analysis to Eighth
Amendment right not to be sentenced to death by "death qualified" jury);
Maine v. Moulton, 474 U. S. 159 (1985) (Sixth Amendment right to counsel
violated by introduction of statements made to government
informantcodefendant in course of preparing defense strategy); Garcia v.
San Antonio Metropolitan Transit Auth., 469 U. S. 528 (1985) (rejecting
theory that Tenth Amendment provides immunity to states from federal
regulation); Pulliam v. Allen, 466 U. S. 522 (1984) (right to obtain
injunctive relief from constitutional violations committed by judicial
officials).

3
    It does not answer this concern to suggest that Justices owe fidelity
to the text of the Constitution rather than to the case law of this Court
interpreting the Constitution.  See, e. g., South Carolina v. Gathers, 490
U. S., at 825.  (Scalia, J., dissenting).  The text of the Constitution is
rarely so plain as to be self-executing; invariably, this Court must
develop mediating principles and doctrines in order to bring the text of
constitutional provisions to bear on particular facts.  Thus, to rebut the
charge of personal lawmaking, Justices who would discard the mediating
principles embodied in precedent must do more than state that they are
following the "text" of the Constitution; they must explain why they are
entitled to substitute their mediating principles for those that are
already settled in the law.  And such an explanation will be sufficient to
legitimize the departure from precedent only if it measures up to the
extraordinary standard necessary to justify overruling one of this Court's
precedents.  See generally Note, 103 Harv. L. Rev. 1344, 1351-1354 (1990).

4
    Equally unsatisfactory is the Tennessee Supreme Court's purported
finding that any error associated with the victim-impact evidence in this
case was harmless.  See 791 S. W. 2d, at 19.  This finding was based on the
court's conclusion that "the death penalty was the only rational punishment
available" in light of the "inhuman brutality" evident in the circumstances
of the murder.  Ibid.  It is well established that a State cannot make the
death penalty mandatory for any class of aggravated murder; no matter how
"brutal" the circumstances of the offense, the State must permit the
sentencer discretion to impose a sentence of less than death.  See Roberts
v. Louisiana 428 U. S. 325 (1976); Woodson v. North Carolina 428 U. S. 280
(1976).  It follows that an appellate court cannot deem error to be
automatically harmless based solely on the aggravated character of a murder
without assessing the impact of the error on the sentencer's discretion.
Cf. Clemons v. Mississippi, 494 U. S. ---, --- (1990).
    To sentence petitioner to death, the jury was required to find that the
mitigating circumstances shown by petitioner did not outweigh the
aggravating circumstances.  See App. 21-22.  In what it tried to pass off
as harmless error analysis, the Tennessee Supreme Court failed to address
how the victim-impact evidence introduced during the sentencing proceedings
in this case likely affected the jury's determination that the balance of
aggravating and mitigating circumstances dictated a death sentence.
Outside of a videotape of the crime scene, the State introduced no
additional substantive evidence in the penalty phase other than the
testimony of Mary Zvolanek, mother and grandmother of the murder victims.
See 791 S. W. 2d, at 17.  Under these circumstances, it is simply
impossible to conclude that this victim-impact testimony, combined with the
prosecutor's extrapolation from it in his closing argument, was harmless
beyond a reasonable doubt.





Subject: 90-5721 -- DISSENT, PAYNE v. TENNESSEE

 


    SUPREME COURT OF THE UNITED STATES


No. 90-5721



PERVIS TYRONE PAYNE, PETITIONER v.
TENNESSEE


on writ of certiorari to the supreme court of tennessee, western division


[June 27, 1991]



    Justice Stevens, with whom Justice Blackmun joins, dissenting.

    The novel rule that the Court announces today represents a dramatic
departure from the principles that have governed our capital sentencing
jurisprudence for decades.  Justice Marshall is properly concerned about
the majority's trivialization of the doctrine of stare decisis.  But even
if Booth and Gathers had not been decided, today's decision would represent
a sharp break with past decisions.  Our cases provide no support whatsoever
for the majority's conclusion that the prosecutor may introduce evidence
that sheds no light on the defendant's guilt or moral culpability, and thus
serves no purpose other than to encourage jurors to decide in favor of
death rather than life on the basis of their emotions rather than their
reason.

    Until today our capital punishment jurisprudence has required that any
decision to impose the death penalty be based solely on evidence that tends
to inform the jury about the character of the offense and the character of
the defendant.  Evidence that serves no purpose other than to appeal to the
sympathies or emotions of the jurors has never been considered admissible.
Thus, if a defendant, who had murdered a convenience store clerk in cold
blood in the course of an armed robbery, offered evidence unknown to him at
the time of the crime about the immoral character of his victim, all would
recognize immediately that the evidence was irrelevant and inadmissible.
Evenhanded justice requires that the same constraint be imposed on the
advocate of the death penalty.

I
    In Williams v. New York, 337 U. S. 241 (1949), this Court considered
the scope of the inquiry that should precede the imposition of a death
sentence.  Relying on practices that had developed "both before and since
the American colonies became a nation," id., at 246, Justice Black
described the wide latitude that had been accorded judges in considering
the source and type of evidence that is relevant to the sentencing
determination.  Notably, that opinion refers not only to the relevance of
evidence establishing the defendant's guilt, but also to the relevance of
"the fullest information possible concerning the defendant's life and
characteristics."  Id., at 247.  "Victim impact" evidence, however, was
unheard of when Williams was decided.  The relevant evidence of harm to
society consisted of proof that the defendant was guilty of the offense
charged in the indictment.

    Almost 30 years after our decision in Williams, the Court reviewed the
scope of evidence relevant in capital sentencing.  See Lockett v. Ohio, 438
U. S. 586 (1978).  In his plurality opinion, Chief Justice Burger concluded
that in a capital case, the sentencer must not be prevented "from
considering, as a mitigating factor, any aspect of a defendant's character
or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death."  Id., at 604 (emphasis
deleted).  As in Williams, the character of the offense and the character
of the offender constituted the entire category of relevant evidence.
"Victim impact" evidence was still unheard of when Lockett was decided.

    As the Court acknowledges today, the use of victim impact evidence "is
of recent origin," ante, at 11.  Insofar as the Court's jurisprudence is
concerned, this type of evidence made its first appearance in 1987 in Booth
v. Maryland, 482 U. S. 496.  In his opinion for the Court, Justice Powell
noted that our prior cases had stated that the question whether an
individual defendant should be executed is to be determined on the basis of
" `the character of the individual and the circumstances of the crime,' "
id., at 502 (quoting Zant v. Stephens, 462 U. S. 862, 879 (1983); Eddings
v. Oklahoma, 455 U. S. 104, 112 (1982)).  Relying on those cases and on
Enmund v. Florida, 458 U. S. 782, 801 (1982), the Court concluded that
unless evidence has some bearing on the defendant's personal responsibility
and moral guilt, its admission would create a risk that a death sentence
might be based on considerations that are constitutionally impermissible or
totally irrelevant to the sentencing process.  482 U. S., at 502.  Evidence
that served no purpose except to describe the personal characteristics of
the victim and the emotional impact of the crime on the victim's family was
therefore constitutionally irrelevant.

    Our decision in Booth was entirely consistent with the practices that
had been followed "both before and since the American colonies became a
nation," Williams, 337 U. S., at 246.  Our holding was mandated by our
capital punishment jurisprudence, which requires any decision to impose the
death penalty to be based on reason rather than caprice or emotion.  See
Gardner v. Florida, 430 U. S. 349, 362 (1977) (opinion of Stevens, J.).
The dissenting opinions in Booth and in Gathers can be searched in vain for
any judicial precedent sanctioning the use of evidence unrelated to the
character of the offense or the character of the offender in the sentencing
process.  Today, however, relying on nothing more than those dissenting
opinions, the Court abandons rules of relevance that are older than the
Nation itself, and ventures into uncharted seas of irrelevance.

II
    Today's majority has obviously been moved by an argument that has
strong political appeal but no proper place in a reasoned judicial opinion.
Because our decision in Lockett, 438 U. S., at 604 (opinion of Burger, C.
J.), recognizes the defendant's right to introduce all mitigating evidence
that may inform the jury about his character, the Court suggests that
fairness requires that the State be allowed to respond with similar
evidence about the victim.  See ante, at 15-16. {1}  This argument is a
classic non sequitur: The victim is not on trial; her character, whether
good or bad, cannot therefore constitute either an aggravating or
mitigating circumstance.

    Even if introduction of evidence about the victim could be equated with
introduction of evidence about the defendant, the argument would remain
flawed in both its premise and its conclusion.  The conclusion that
exclusion of victim impact evidence results in a significantly imbalanced
sentencing procedure is simply inaccurate.  Just as the defendant is
entitled to introduce any relevant mitigating evidence, so the State may
rebut that evidence and may designate any relevant conduct to be an
aggravating factor provided that the factor is sufficiently well defined
and consistently applied to cabin the sentencer's discretion.

    The premise that a criminal prosecution requires an evenhanded balance
between the State and the defendant is also incorrect.  The Constitution
grants certain rights to the criminal defendant and imposes special
limitations on the State designed to protect the individual from
overreaching by the disproportionately powerful State.  Thus, the State
must prove a defendant's guilt beyond a reasonable doubt.  See In re
Winship, 397 U. S. 358 (1970).  Rules of evidence are also weighted in the
defendant's favor.  For example, the prosecution generally cannot introduce
evidence of the defendant's character to prove his propensity to commit a
crime, but the defendant can introduce such reputation evidence to show his
law-abiding nature.  See, e. g., Fed. Rule Evid. 404(a).  Even if balance
were required or desirable, today's decision, by permitting both the
defendant and the State to introduce irrelevant evidence for the
sentencer's consideration without any guidance, surely does nothing to
enhance parity in the sentencing process.

III


    Victim impact evidence, as used in this case, has two flaws, both
related to the Eighth Amendment's command that the punishment of death may
not be meted out arbitrarily or capriciously.  First, aspects of the
character of the victim unforeseeable to the defendant at the time of his
crime are irrelevant to the defendant's "personal responsibility and moral
guilt" and therefore cannot justify a death sentence.  See Enmund v.
Florida, 458 U. S. 782, 801 (1982); see also id., at 825 (O'Connor, J.,
dissenting) ("[P]roportionality requires a nexus between the punishment
imposed and the defendant's blameworthiness"); Tison v. Arizona, 481 U. S.
137, 149 (1987) ("The heart of the retribution rationale is that a criminal
sentence must be directly related to the personal culpability of the
criminal offender"); California v. Brown, 479 U. S. 538, 545 (1987)
(O'Connor, J., concurring).

    Second, the quantity and quality of victim impact evidence sufficient
to turn a verdict of life in prison into a verdict of death is not defined
until after the crime has been committed and therefore cannot possibly be
applied consistently in different cases.  The sentencer's unguided
consideration of victim impact evidence thus conflicts with the principle
central to our capital punishment jurisprudence that, "where discretion is
afforded a sentencing body on a matter so grave as the determination of
whether a human life should be taken or spared, that discretion must be
suitably directed and limited so as to minimize the risk of wholly
arbitrary and capricious action."  Gregg v. Georgia, 428 U. S. 153, 189
(1976) (opinion of Stewart, Powell, and Stevens, JJ.).  Open-ended reliance
by a capital sentencer on victim impact evidence simply does not provide a
"principled way to distinguish [cases], in which the death penalty [i]s
imposed, from the many cases in which it [i]s not."  Godfrey v. Georgia,
446 U. S. 420, 433 (1980) (opinion of Stewart, J.).

    The majority attempts to justify the admission of victim impact
evidence by arguing that "consideration of the harm caused by the crime has
been an important factor in the exercise of [sentencing] discretion."
Ante, at 10.  This statement is misleading and inaccurate.  It is
misleading because it is not limited to harm that is foreseeable.  It is
inaccurate because it fails to differentiate between legislative
determinations and judicial sentencing.  It is true that an evaluation of
the harm caused by different kinds of wrongful conduct is a critical aspect
in legislative definitions of offenses and determinations concerning
sentencing guidelines.  There is a rational correlation between moral
culpability and the foreseeable harm caused by criminal conduct.  Moreover,
in the capital sentencing area, legislative identification of the special
aggravating factors that may justify the imposition of the death penalty is
entirely appropriate. {2}  But the majority cites no authority for the
suggestion that unforeseeable and indirect harms to a victim's family are
properly considered as aggravating evidence on a case-by-case basis.

    The dissents in Booth and Gathers and the majority today offer only the
recent decision in Tison v. Arizona, 481 U. S. 137 (1987), and two
legislative examples to support their contention that harm to the victim
has traditionally influenced sentencing discretion.  Tison held that the
death penalty may be imposed on a felon who acts with reckless disregard
for human life if a death occurs in the course of the felony, even though
capital punishment cannot be imposed if no one dies as a result of the
crime.  The first legislative example is that attempted murder and murder
are classified as two different offenses subject to different punishments.
Ante, at 9.  The second legislative example is that a person who drives
while intoxicated is guilty of vehicular homicide if his actions result in
a death but is not guilty of this offense if he has the good fortune to
make it home without killing anyone.  See Booth, 482 U. S., at 516 (White,
J., dissenting).

    These three scenarios, however, are fully consistent with the Eighth
Amendment jurisprudence reflected in Booth and Gathers and do not
demonstrate that harm to the victim may be considered by a capital
sentencer in the ad hoc and post hoc manner authorized by today's majority.
The majority's examples demonstrate only that harm to the victim may
justify enhanced punishment if the harm is both foreseeable to the
defendant and clearly identified in advance of the crime by the legislature
as a class of harm that should in every case result in more severe
punishment.

    In each scenario, the defendants could reasonably foresee that their
acts might result in loss of human life.  In addition, in each, the
decision that the defendants should be treated differently was made prior
to the crime by the legislature, the decision of which is subject to
scrutiny for basic rationality.  Finally, in each scenario, every defendant
who causes the well-defined harm of destroying a human life will be subject
to the determination that his conduct should be punished more severely.
The majority's scenarios therefore provide no support for its holding,
which permits a jury to sentence a defendant to death because of harm to
the victim and his family that the defendant could not foresee, which was
not even identified until after the crime had been committed, and which may
be deemed by the jury, without any rational explanation, to justify a death
sentence in one case but not in another.  Unlike the rule elucidated by the
scenarios on which the majority relies, the majority's holding offends the
Eighth Amendment because it permits the sentencer to rely on irrelevant
evidence in an arbitrary and capricious manner.

    The majority's argument that "the sentencing authority has always been
free to consider a wide range of relevant material," ante, at 10 (emphasis
added), thus cannot justify consideration of victim impact evidence that is
irrelevant because it details harms that the defendant could not have
foreseen.  Nor does the majority's citation of Gregg v. Georgia concerning
the "wide scope of evidence and argument allowed at presentence hearings,"
428 U. S., at 203 (plurality opinion), support today's holding.  See ante,
at 11.  The Gregg plurality endorsed the sentencer's consideration of a
wide range of evidence "[s]o long as the evidence introduced and the
arguments made at the presentence hearing do not prejudice a defendant."
428 U. S., at 203-204.  Irrelevant victim impact evidence that distracts
the sentencer from the proper focus of sentencing and encourages reliance
on emotion and other arbitrary factors necessarily prejudices the
defendant.

    The majority's apparent inability to understand this fact is
highlighted by its misunderstanding of Justice Powell's argument in Booth
that admission of victim impact evidence is undesirable because it risks
shifting the focus of the sentencing hearing away from the defendant and
the circumstances of the crime and creating a " `mini-trial' on the
victim's character."  482 U. S., at 507.  Booth found this risk
insupportable not, as today's majority suggests, because it creates a
"tactical" "dilemma" for the defendant, see ante, at 13, but because it
allows the possibility that the jury will be so distracted by prejudicial
and irrelevant considerations that it will base its life-or-death decision
on whim or caprice.  See 482 U. S., at 506-507.

IV
    The majority thus does far more than validate a State's judgment that
"the jury should see `a quick glimpse of the life petitioner chose to
extinguish,' Mills v. Maryland, 486 U. S. 367, 397 (1988) (Rehnquist, C.
J., dissenting)."  Ante, at 1 (O'Connor, J., concurring).  Instead, it
allows a jury to hold a defendant responsible for a whole array of harms
that he could not foresee and for which he is therefore not blameworthy.
Justice Souter argues that these harms are sufficiently foreseeable to hold
the defendant accountable because "[e]very defendant knows, if endowed with
the mental competence for criminal responsibility, that the life he will
take by his homicidal behavior is that of a unique person, like himself,
and that the person who will be killed probably has close associates,
`survivors,' who will suffer harms and deprivations from the victim's
death."  Ante, at 4 (Souter, J., concurring).  But every juror and trial
judge knows this much as well.  Evidence about who those survivors are and
what harms and deprivations they have suffered is therefore not necessary
to apprise the sentencer of any information that was actually foreseeable
to the defendant.  Its only function can be to "divert the jury's attention
away from the defendant's background and record, and the circumstances of
the crime."  See Booth, 482 U. S., at 505.

    Arguing in the alternative, Justice Souter correctly points out that
victim impact evidence will sometimes come to the attention of the jury
during the guilt phase of the trial.  Ante, at 6.  He reasons that the
ideal of basing sentencing determinations entirely on the moral culpability
of the defendant is therefore unattainable unless a different jury is
empaneled for the sentencing hearing.  Ante, at 7.  Thus, to justify
overruling Booth, he assumes that the decision must otherwise be extended
far beyond its actual holding.

    Justice Souter's assumption is entirely unwarranted.  For as long as
the contours of relevance at sentencing hearings have been limited to
evidence concerning the character of the offense and the character of the
offender, the law has also recognized that evidence that is admissible for
a proper purpose may not be excluded because it is inadmissible for other
purposes and may indirectly prejudice the jury.  See 1 J. Wigmore, Evidence
MDRV 13 (P. Tillers rev. 1983).  In the case before us today, much of what
might be characterized as victim impact evidence was properly admitted
during the guilt phase of the trial and, given the horrible character of
this crime, may have been sufficient to justify the Tennessee Supreme
Court's conclusion that the error was harmless because the jury would
necessarily have imposed the death sentence even absent the error.  The
fact that a good deal of such evidence is routinely and properly brought to
the attention of the jury merely indicates that the rule of Booth may not
affect the outcome of many cases.

    In reaching our decision today, however, we should not be concerned
with the cases in which victim impact evidence will not make a difference.
We should be concerned instead with the cases in which it will make a
difference.  In those cases, defendants will be sentenced arbitrarily to
death on the basis of evidence that would not otherwise be admissible
because it is irrelevant to the defendants' moral culpability.  The
Constitution's proscription against the arbitrary imposition of the death
penalty must necessarily proscribe the admission of evidence that serves no
purpose other than to result in such arbitrary sentences.
V


    The notion that the inability to produce an ideal system of justice in
which every punishment is precisely married to the defendant's
blameworthiness somehow justifies a rule that completely divorces some
capital sentencing determinations from moral culpability is
incomprehensible to me.  Also incomprehensible is the argument that such a
rule is required for the jury to take into account that each murder victim
is a "unique" human being.  See ante, at 13; ante, at 1 (O'Connor, J.,
concurring); ante, at 4 (Souter, J., concurring).  The fact that each of us
is unique is a proposition so obvious that it surely requires no
evidentiary support.  What is not obvious, however, is the way in which the
character or reputation in one case may differ from that of other possible
victims.  Evidence offered to prove such differences can only be intended
to identify some victims as more worthy of protection than others.  Such
proof risks decisions based on the same invidious motives as a prosecutor's
decision to seek the death penalty if a victim is white but to accept a
plea bargain if the victim is black.  See McCleskey v. Kemp, 481 U. S. 279,
366 (1987) (Stevens, J., dissenting).

    Given the current popularity of capital punishment in a crime-ridden
society, the political appeal of arguments that assume that increasing the
severity of sentences is the best cure for the cancer of crime, and the
political strength of the "victims' rights" movement, I recognize that
today's decision will be greeted with enthusiasm by a large number of
concerned and thoughtful citizens.  The great tragedy of the decision,
however, is the danger that the "hydraulic pressure" of public opinion that
Justice Holmes once described, {3} -- and that properly influences the
deliberations of democratic legislatures -- has played a role not only in
the Court's decision to hear this case, {4} and in its decision to reach
the constitutional question without pausing to consider affirming on the
basis of the Tennessee Supreme Court's rationale, {5} but even in its
resolution of the constitutional issue involved.  Today is a sad day for a
great institution.

 
 
 
 
 

------------------------------------------------------------------------------
1
    Justice Scalia accurately described the argument in his dissent in
Booth:
    "Recent years have seen an outpouring of popular concern for what has
come to be known as `victims' rights' -- a phrase that describes what its
proponents feel is the failure of courts of justice to take into account in
their sentencing decisions not only the factors mitigating the defendant's
moral guilt, but also the amount of harm he has caused to innocent members
of society.  Many citizens have found one-sided and hence unjust the
criminal trial in which a parade of witnesses comes forth to testify to the
pressures beyond normal human experience that drove the defendant to commit
his crime, with no one to lay before the sentencing authority the full
reality of human suffering the defendant has produced -- which (and not
moral guilt alone) is one of the reasons society deems his act worthy of
the prescribed penalty."  482 U. S., at 520.
    In his concurring opinion today, Justice Scalia again relies on the
popular opinion that has "found voice in a nationwide `victims rights'
movement."  Ante, at 2.  His view that the exclusion of evidence about "a
crime's unanticipated consequences" "significantly harms our criminal
justice system," ibid., rests on the untenable premise that the strength of
that system is to be measured by the number of death sentences that may be
returned on the basis of such evidence.  Because the word "arbitrary" is
not to be found in the constitutional text, he apparently can find no
reason to object to the arbitrary imposition of capital punishment.

2
    Thus, it is entirely consistent with the Eighth Amendment principles
underlying Booth and Gathers to authorize the death sentence for the
assassination of the President or Vice President, see 18 U. S. C. 15 1751,
1111, a Congressman, Cabinet official, Supreme Court Justice, or the head
of an executive department, MDRV 351, or the murder of a policeman on
active duty, see Md. Ann. Code, Art. 27, MDRV 413(d)(1) (1987).  Such
statutory provisions give the potential offender notice of the special
consequences of his crime and ensure that the legislatively determined
punishment will be applied consistently to all defendants.

3
    Northern Securities Co. v. United States, 193 U. S. 197, 400-401 (1904)
(Holmes, J., dissenting).

4
    See Payne v. Tennessee, 498 U. S. --- (1991) [111 S. Ct. 1031]
(Stevens, J., dissenting).

5
    Rust v. Sullivan, 500 U. S. ---, --- (1991) [slip op., at 1] (O'Connor,
J., dissenting).
