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: