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Victim Impact Statements and Their Limitations

From 1987 to 1991, U.S. Supreme Court precedents created an atrocious and unjust imbalance in the penalty phase of capital cases.  Under the dubious rule of Lockett v. Ohio (1978), the defendant had (and has to this day) the unlimited right to bring in "any aspect of a defendant's character or record ...  that the defendant proffers as a basis for a sentence less than death."  So the defendant can bring in his family to offer real or fabricated stories of his childhood with little or nothing to do with the crime.  His mother can testify as what a very good boy he is (when he is not raping, torturing, and murdering children).  The Constitution requires this, the Supreme Court solemnly informed us, even though it never did prior to the 1970s and has not been amended in this respect.

Under the rule of Booth v. Maryland (1987), on the other hand, the victim's family was prohibited from testifying about the victim or about the impact of the murder on them.  The result was that they had to sit in silence as the defendant's family humanized him, while the victim remained nothing more than abstraction.

The high court saw the error of this injustice four years later and partially overruled Booth in Payne v. Tennessee (1991).  We at CJLF are proud to have played a rule in that badly needed correction.  However, Booth was not completely overruled.  Victim impact evidence is now admissible, but the opinions of the victim's family as to the appropriate sentence are not.

The Oklahoma Court of Criminal Appeals apparently needed to be reminded of that latter proviso, and the U.S. Supreme Court did so this morning, without dissent, in Bosse v. Oklahoma, No. 15-9173.  Justices Thomas and Alito concurred:
We held in Booth v. Maryland, 482 U. S. 496 (1987),that the Eighth Amendment prohibits a court from admitting the opinions of the victim's family members about the appropriate sentence in a capital case. The Court today correctly observes that our decision in Payne v. Tennessee, 501 U. S. 808 (1991), did not expressly overrule this aspect of Booth. Because "it is this Court's prerogative alone to overrule one of its precedents," State Oil Co. v. Khan, 522 U. S. 3, 20 (1997), the Oklahoma Court of Criminal Appeals erred in holding that Payne invalidated Booth in its entirety. In vacating the decision below, this Court says nothing about whether Booth was correctly decided or whether Payne swept away its analytical foundations. I join the Court's opinion with this understanding.


Booth, of course, is just wrong. (Scalia was right when he said that it had plainly inadequate logical support.) But courts have to follow SCOTUS and that's that. What is interesting now--defense attorneys are making pitches to juries that a death sentence puts the victims' families through the wringer of appeals. Should Booth bar a rebuttal from the prosecutor--of course not, but it does, and, perhaps, just perhaps, the Court should take some of its precious time to deal with obvious problems like this. As Justice Thomas said recently, he doesn't presume to tell Americans how they should think about crime and punishment given that he doesn't lead the lives many do (just for that statement, I love the guy). Well, I think that the possibility of family members having to remain mute in the face of such an argument is something that the august Supreme Court ought to think about even though they are unlikely to be so touched by crime. Booth is an appalling injustice in a case like that, and the idea that the Constitution requires it is beyond silly.

I respected Scalia a great deal--but he did have a bit of a cavalier attitude about the Court's mistakes. He expected that society would simply suck them up. That displays a fair amount of arrogance. Some of the caselaw speaks in terms of constitutionally intolerable events--hmmmm, I wonder why having a legal system following "plainly inadequate" cases (to the detriment of people who didn't ask to be crime victims) is acceptable, given the predilection of so many on the Supreme Court to deem their policy preferences as dictated by the law.

The fact that the victim's family is testifying for the prosecution in the penalty phase implicitly tells the jury that they believe that death is the appropriate sentence. So the Court's prohibiting them from expressly stating their opinion is of no real significance.

In fact, even if the Court were to permit the victim's family to expressly state their opinion that death was appropriate, the prosecution may be better off not eliciting that opinion. If the prosecution were to do so, it probably would open up the door for cross-examination by the defense regarding that opinion. Such cross-exam could include questioning the victim's family (who testified that death was appropriate) concerning their knowledge of how capital punishment is carried out, including questions about so-called botched executions that allegedly subjected the condemned to excruciating pain.

All in all, the prosecution is probably better off with the inference that the victim's family favors death, than any such express opinion to that effect. That way the prosecution lets the jury know that the victim's family wants death, and avoids possible cross-examination by the defense that has the potential to bring into the trial a lot of the arguments that that the anti-DP crusaders advocate.

Fair points, but the logic of Booth definitely does not obtain where the defense attorney makes the "years of appeals" argument. Nothing you say contradicts that. Is that a non-defense defense of Booth?

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