# Payne v. Tennessee/Concurrence Souter

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* Concurring Opinions O'Connor Scalia Souter
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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, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989): information revealing the individuality of the victim and the impact of the crime on the victim's survivors. 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 819-821, and dissents in Booth, supra, 482 U.S., at 519-520, 107 S.Ct., at 2541-2542 (SCALIA, J., dissenting) and Gathers, supra, 490 U.S., at 817-820, 109 S.Ct., at 2214-2216 (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, 482 U.S., at 502-503, 107 S.Ct., at 2532-2533, 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 deliberation. Cf. Penry v. Lynaugh, 492 U.S. 302, 319-328, 109 S.Ct. 2934, 2947-2952, 106 L.Ed.2d 256 (1989) (capital sentence should be imposed as a " 'reasoned moral response' ") (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (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, 106 S.Ct. 2464, 2470-2472, 91 L.Ed.2d 144 (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. ----, 111 S.Ct. 22, 111 L.Ed.2d 834 (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, 107 S.Ct. 3114, 3121, 97 L.Ed.2d 638 (1987).
Booth, supra, 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., 482 U.S., at 502, 107 S.Ct., at 2532, and probably then only when the facts in question were known to the defendant and relevant to his decision to kill, id., at 505, 107 S.Ct., at 2534. 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, 107 S.Ct., at 2534 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (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, 107 S.Ct., at 2533. 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, 492 U.S., at 328, 109 S.Ct., at 2952 (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, 102 S.Ct. 869, 876-877, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-2965, 57 L.Ed.2d 973 (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, 108 S.Ct. 1860, 1876, 100 L.Ed.2d 384 (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 827 ("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, 482 U.S., at 515-516, 107 S.Ct., at 2539-2540 (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, 109 S.Ct., at 2213-2216 (O'CONNOR, J., dissenting); id., at 823-825, 109 S.Ct., at 2217-2218 (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, 107 S.Ct., at 2532-2533. 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 defendant 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, 107 S.Ct. 2941, 2957, 97 L.Ed.2d 389 (1987). To be sure, stare decisis is not an "inexorable command," Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405, 52 S.Ct. 443, 446-447, 76 L.Ed. 815 (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, 82 S.Ct. 1459, 1469, 8 L.Ed.2d 671 (1962). See Burnet, supra, 285 U.S., at 405-407, 52 S.Ct., at 446-447; Patterson v. McLean Credit Union, 491 U.S. 164, 172-173, 109 S.Ct. 2363, 2370-2371, 105 L.Ed.2d 132 (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. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2310-2311, 81 L.Ed.2d 164 (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, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); see also Patterson v. McLean Credit Union, supra, 491 U.S., at 173, 109 S.Ct., at 2370-2371. 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.
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, 107 S.Ct. 2529, 96 L.Ed.2d 440 (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, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989). Nevertheless, having expressly invited respondent to renew the attack, 498 U.S. ----, 111 S.Ct. 1031, 112 L.Ed.2d 1032 (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, 90 S.Ct. 1772, 1789, 26 L.Ed.2d 339 (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.
* 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, 482 U.S., at 504-509, 107 S.Ct., at 2533-2536; South Carolina v. Gathers, supra, 490 U.S., at 810-811, 109 S.Ct., at 2210-2211. 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, 482 U.S., at 502, 107 S.Ct., at 2532, quoting Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1983); Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932-2933, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.); accord, South Carolina v. Gathers, supra, 490 U.S., at 810, 109 S.Ct., at 2210. 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, 482 U.S., at 504, 107 S.Ct., at 2534; South Carolina v. Gathers, supra, 490 U.S., 810, 109 S.Ct., at 2210. And even where the defendant was in a position to foresee the likely impact of his conduct, admission of victim-impact 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, 482 U.S., at 505-507, and n. 8, 107 S.Ct., at 2534-2535, and n. 8; South Carolina v. Gathers, supra, 490 U.S., at 810-811, 109 S.Ct., at 2210-2211. 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.
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.
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, 52 S.Ct. 443, 446-447, 76 L.Ed. 815 (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, 103 S.Ct. 2481, 2487, 76 L.Ed.2d 687 (1983). See generally Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989) ("[I]t is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon 'an arbitrary discretion.' 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 Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 786-787, 106 S.Ct. 2169, 2192-2193, 90 L.Ed.2d 779 (1986) (WHITE, J., dissenting)).
Consequently, this Court has never departed from precedent without "special justification." Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2310-2311, 81 L.Ed.2d 164 (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, 491 U.S., at 173, 109 S.Ct., at 2370-2371; the need "to bring [a decision] into agreement with experience and with facts newly ascertained," Burnet v. Coronado Oil & Gas Co., supra, 285 U.S., at 412, 52 S.Ct., at 450 (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, 491 U.S., at 173, 109 S.Ct., at 2371.
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, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (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 830, 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, 109 S.Ct., at 2212. 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, 108 S.Ct. 1860, 1875-1876, 100 L.Ed.2d 384 (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. ----, 111 S.Ct. 1031, 112 L.Ed.2d 1032 (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, 491 U.S., at 173, 109 S.Ct., at 2370-2371, 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, 101 S.Ct. 1032, 1036, 67 L.Ed.2d 132 (1981) (STEVENS, J., concurring); Mitchell v. W.T. Grant Co., 416 U.S. 600, 636, 94 S.Ct. 1895, 1914, 40 L.Ed.2d 406 (1974) (Stewart, J., dissenting); Mapp v. Ohio, 367 U.S. 643, 677, 81 S.Ct. 1684, 1703-1704, 6 L.Ed.2d 1081 (1961) (Harlan, J., dissenting); but see South Carolina v. Gathers, supra, 490 U.S., at 824, 109 S.Ct., at 2217-2218 (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 828 (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 828-829. 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 828, 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 829-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. ----, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (authority of Federal government to set aside broadcast licenses for minority applicants); Grady v. Corbin, 495 U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548 (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, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987) (right to promotions as remedy for racial discrimination in government hiring); Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (Eighth Amendment right not to be executed if insane); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986) (reaffirming right to abortion recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)); Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985) (Establishment Clause bar on governmental financial assistance to parochial schools).
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, 90 S.Ct., at 1789. 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, 106 S.Ct. 617, 624, 88 L.Ed.2d 598 (1986). 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 153-154, 101 S.Ct., at 1036-1037 (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, 94 S.Ct., at 1913 (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 829, 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.
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 826. 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, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); see also Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556 (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.
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.
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.
* In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (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, 69 S.Ct., at 1083. "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, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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, 98 S.Ct., at 2965 (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 821. 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, 107 S.Ct. 2529. 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, 107 S.Ct., at 2532-2533 (quoting Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1983); Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875-876, 71 L.Ed.2d 1 (1982)). Relying on those cases and on Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378-3379, 73 L.Ed.2d 1140 (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, 107 S.Ct., at 2532-2533. 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, 69 S.Ct., at 1082. 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, 97 S.Ct. 1197, 1206-1207, 51 L.Ed.2d 393 (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.
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, 98 S.Ct., at 2964-2965 (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 825-826. 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 even-handed 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, 90 S.Ct. 1068, 25 L.Ed.2d 368 (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.
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, 102 S.Ct. 3368, 3378-3379, 73 L.Ed.2d 1140 (1982); see also id., at 825, 102 S.Ct., at 3391 (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, 107 S.Ct. 1676, 1683-1684, 95 L.Ed.2d 127 (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, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (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, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (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, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (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 820. 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. 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, 107 S.Ct. 1676, 95 L.Ed.2d 127 (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 819. 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, 107 S.Ct., at 2539-2540 (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 820-821 (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. Geor- gia concerning the "wide scope of evidence and argument allowed at presentence hearings," 428 U.S., at 203, 96 S.Ct., at 2939 (plurality opinion), support today's holding. See ante, at 821. 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, 96 S.Ct., at 2939-2940. 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, 107 S.Ct., at 2535. 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, 107 S.Ct., at 2534-2535.
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 [108 S.Ct. 1860, 1876, 100 L.Ed.2d 384] (1988) (REHNQUIST, C.J., dissenting)." Ante, at 830-831 (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 838 (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, 107 S.Ct., at 2534.
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 840. 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 841. 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 § 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.
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 823; ante, at 830-831 (O'CONNOR, J., concurring); ante, at 838 (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, 107 S.Ct. 1756, 1805-1806, 95 L.Ed.2d 262 (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,-and that properly influences the deliberations of democratic legislatures-has played a role not only in the Court's decision to hear this case, and in its decision to reach the constitutional question without pausing to consider affirming on the basis of the Tennessee Supreme Court's rationale, but even in its resolution of the constitutional issue involved. Today is a sad day for a great institution.

## Notes

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* ↑ Rust v. Sullivan, 500 U.S. ----, ----, 111 S.Ct. 1759, ----, 114 L.Ed.2d 233 (1991) (O'CONNOR, J., dissenting).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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