William H. Rehnquist: We'll hear argument first this morning in Number 90-5721, Pervis Tyrone Payne v. Tennessee. Mr. Lathram.
J. Brooke Lathram: Mr. Chief Justice, and may it please the Court: The most prejudicial conduct in which the prosecution engaged in this case involved what I believe to be the least controversial part of Booth v. Maryland. I refer to Booth's condemnation of survivor opinion about the sentence that a capital defendant should receive. And I refer, in the context of this case, to the prosecutor's concluding remarks in his closing argument during the sentencing trial. In the course of that, the prosecutor, in effect, demanded that the jury impose the death sentence in order to satisfy the anticipated desire of young Nicholas Christopher for Payne's execution. It is true, of course, that in this case no witness actually took the stand and testified that they wanted Payne executed. But what happened here was much worse than that, I respectfully submit. And along that line, I think it would be a terrible mistake if we were to allow the State to avoid the consequences of calling a witness who would express such opinion by simply allowing the prosecutor to take the stand and testify for the witness. In this particular case, the prosecutor, serving as the surrogate for young Nicholas Christopher, a young... youngster for whom this jury undoubtedly had the most heartfelt and deepest sympathy, serving as the representative of the State, did three improper things. He, first of all, demanded Payne's execution because... for young Nicholas' sake. Secondly, he suggested to the jury that this was a permissible basis for executing an offender. And thirdly, he engaged in a form of psychological intimidation of the worst kind. He strongly--
William H. Rehnquist: Are you suggesting, Mr. Lathram, that the jury's feeling of sympathy or perhaps outrage at the crime and what it's left the victims with is not a permissible factor at all?
J. Brooke Lathram: --Oh, not at all, Your Honor. Certainly the jury is going to have the most heartfelt sympathy for this youngster and should.
William H. Rehnquist: And outrage, presumably, if the facts are proven against the defendant.
J. Brooke Lathram: Certainly, Your Honor, I think they would definitely have outrage. And at this point, they had already convicted him. So certainly--
Byron R. White: They have outrage, but do you say they may not take that into account in deciding the penalty?
J. Brooke Lathram: --No, Your Honor, I'm not saying that at all. I think that they certainly would take that into account, and are entitled to. What we say is the error here... it would have been wrong, for example, Your Honor, for the grandmother to take the stand and actually testify to the opinion, I would like to see Pervis Payne executed. By the same token, we think that the prosecutor cannot get up and start off his argument to the jury and say at the very conclusion, there is one thing, however, you can do for young Nicholas Christopher, and then go on to say that the little boy when he grows up is going to demand a particular type of justice. He's going to want to know what type of justice was done in this case. Just as it would be wrong to call a witness to the stand and say I think that the defendant should be executed, by the same token, I respectfully submit, that it's even worse, under the particular circumstances of this case, to have the prosecutor testify for the little boy.
Anthony M. Kennedy: So suppose a juror said in the jury room, you know, some day I might meet this young man 5... young infant... 5, 10 years down the road, and I am very concerned about what kind of justice is done. And I think we should impose a death penalty. Would that be grounds for a mistrial, if the juror said that in the jury room?
J. Brooke Lathram: Your Honor, I don't think so because I don't think we can impeach the verdict. I don't think we'd be able to--
Anthony M. Kennedy: Well, let's take the hypothetical. Let's assume that we have this testimony in a State where you can impeach the verdict. Is that improper conduct for the juror?
J. Brooke Lathram: --I don't think the jury should consider it, but I don't think it would raise a problem for this reason. The juror is thinking on his own. In this case, we have the representative of the State telling the jury that they may take this into account and actually execute this man for this impermissible reason.
Anthony M. Kennedy: Well, if jurors can and will and do, take certain matters of elementary justice into account, it seems to me proper that prosecutors be able to argue about it under the supervision of the court, subject to the rebuttal by the defense counsel, and that it is just only realistic to allow this sort of argument.
J. Brooke Lathram: Your Honor, I think that we must presume that the jury is going to follow its instructions. And there is nothing... and the jury is told that it is supposed to apply the collective conscience of the 12 of them, and they're to base that collective judgment on the basis of the evidence and on the basis of the law. And--
Anthony M. Kennedy: Well, and I submit that a juror could say I'm concerned about what would happen if I would meet this young man or members of his family 5, 10 years down the line. I think that's an appropriate measure of the kind of justice that we hand out because we have to look at things in the long term. It seems to me that's perfectly appropriate.
J. Brooke Lathram: --Your Honor, it... I would respectfully disagree, Your Honor. And perhaps I can get my point across by asking ourselves this rhetorical question. What if a survivor in a particular case did not want the defendant executed for religious reasons or whatever? In that particular case, Your Honor, I don't think that an otherwise heinous murderer would be considered to be less blameworthy or less deserving of the death penalty just because the victim's survivor felt contrary to the way most survivors would feel.
Antonin Scalia: It's funny you should mention that. I was about to ask you what if the defense in a trial wants to put on the mother of the victim to testify, you know, I've suffered more loss than anyone in this case, and I hope you won't put this poor person to death. I have forgiven him and I hope you will do the same. Must that be excluded?
J. Brooke Lathram: Yes, Your Honor, I think it must be excluded.
Antonin Scalia: Is that right?
J. Brooke Lathram: I do believe that, Your Honor. I think the trial court would have to exclude that evidence. I think that--
Anthony M. Kennedy: I thought any mitigating evidence... this is mitigating evidence offered by the defense.
J. Brooke Lathram: --Your Honor, to me... I would respectfully submit that this is an arbitrary variable that... I can't imagine anything more arbitrary than to allow an offender's fate to depend upon the opinion of the survivor. I think that the mere fortuity that a survivor wants, for religious or whatever reasons, wants the victim... excuse me, the defendant to be spared, injects a completely arbitrary factor into the sentencing determination.
William H. Rehnquist: Well, how about his fate depending on the fact that he had an unhappy childhood?
J. Brooke Lathram: Your Honor, I think that certainly, as this Court has held, I certainly think that that constitutes mitigating evidence, because that is something that the jury can take into account when it assesses his character. His character is one of the things that the jury can assess in determining whether or not he should live or die. But the mere fortuity that a victim's survivor feels one way or the other about whether the defendant should be executed, I respectfully submit... first, let's look at it in terms of retribution because retribution is a valid penological objective. Let's ask ourselves this question. Let's assume that we have a situation where the victim's survivor does not want the defendant executed. Would society's interest in retribution, which after all, is a punishment for an injury to society as a whole, be any less diminished? I would think not. I would think that society's interest in retribution is just as strong, even if one of the survivors comes in and says, I'm a very religious person and I don't believe in the death penalty and I don't want this man being executed.
Antonin Scalia: Well, I don't know. You know one of the purposes of retribution was to prevent people from taking law into their own hands. You go all the way back an the State's punishment simply substitutes for what used to be called "weregild", where the person doing the injury would pay money to the family of the person harmed, and things of that sort. What the family of the person harmed thinks about the matter on that theory would be very important. Certainly one of the purposes is to prevent people from taking justice into their own hands, saying the State will avenge you; you need not avenge yourselves. And if the person comes forward and says, I don't want to be avenged, is that totally irrelevant?
J. Brooke Lathram: I think it is, Your Honor, because again, I think retribution is a punishment for an injury to society as a whole. And I think that once society determines that particular conduct is so heinous that it makes someone death eligible, that the defendant should not be allowed escape execution simply because of the mere fortuity that there is a relative out there that some defense lawyer can find who will come in and say, well, maybe I don't really want him dead after all. To me, that injects an arbitrary factor into the whole sentencing process that I think--
Byron R. White: What was the third thing the prosecutor did that you object to?
J. Brooke Lathram: --Your Honor, I characterized it as the worst form of psychological intimidation.
Byron R. White: Yes.
J. Brooke Lathram: What he did is he painted a... of course he didn't need to paint a sympathetic picture of this... little boy because one cannot imagine a more sympathetic victim--
Byron R. White: This hasn't got anything to do with Booth, has it?
J. Brooke Lathram: --Yes, Your Honor, I think it does for this reason. Booth condemns survivor opinions about whether or not a defendant should be executed. And while Booth dealt with a case where the survivors actually came in and testified, or testified through the VIS statement, here, I would respectfully submit, that we have something that is the equivalent of, and indeed much worse than, such testimony.
Byron R. White: No. I don't know that the prosecutor didn't say, I know that this son wants him executed. He didn't say that.
J. Brooke Lathram: Your Honor, I think that that's--
Byron R. White: All he suggested to the jury is take into consideration the impact that this... that the father's death has had and will have on the son.
J. Brooke Lathram: --Your Honor, I would... if I may respond by--
Byron R. White: Go ahead.
J. Brooke Lathram: --referring to what he said. He said, this is the very end of his concluding remarks. And that's significant here because it must be recalled that the other prosecutor, at the very end of her rebuttal, picked up the butcher knife and went over and stabbed the diagram of the little boy, which shows, I respectfully submit, that the intent here, was to inject as much prejudice into this sentencing trial as possible. But what he did here is at the very close, he said, "But there is something you can do for Nicholas. " "Somewhere down the road, Nicholas is going to grow up, hopefully. " and then he goes on to say, "He is going to want to know what type of justice was done. " And he certainly, I respectfully submit, was not suggesting to the jury that they go back to the jury room and think seriously about imposing a life sentence.
Anthony M. Kennedy: Well, I agree with you that opinion testimony is a troubling issue. I just think that here you can interpret this as Nicholas being a surrogate for the whole community. I have problems with your interpretation if it. In fact, when you began and said that this was the worst... that there was a critical item of testimony here, I had two or three other candidates that I would have picked out of this record. I have some difficulty with this argument.
J. Brooke Lathram: Well, Your Honor, I... there are some other things I certainly want to talk about, but--
Sandra Day O'Connor: Mr. Lathram, I'm just wondering if that statement that Nicholas is going to want to know what type of justice was done, isn't the most natural response in the world. Do you think that any juror would not know that a survivor some day is going to wonder what happened to the perpetrator of the crime? I mean, this isn't telling the jurors something they don't know. I find it hard to see how that could... if that is the most prejudicial thing that happened, then I'm wondering if there was, indeed, any prejudice.
J. Brooke Lathram: --Your Honor, I would like to think that when a juror brought this up during the course of deliberations, that the other jurors would say, we're supposed to decide whether this man lives or dies on the basis of the evidence in the case and the instructions given to us from the Court. And--
Sandra Day O'Connor: Was there an objection made at the time that this came in?
J. Brooke Lathram: --No, Your Honor.
Sandra Day O'Connor: And yet you want us to rule now, as a matter of constitutional law, that a new sentencing hearing must be given.
J. Brooke Lathram: Your Honor, Payne's counsel at... in the two State proceedings did not object to this. However--
Sandra Day O'Connor: It just seems to me it's exactly the kind of thing that if there were any question about it, that if an objection were made at the time, the trial judge could make some kind of statement to the jury and tell them to disregard any opinion testimony, if that's what the State law required. But to come back later and say there's some constitutional violation strikes me as--
J. Brooke Lathram: --Well, Your Honor--
Sandra Day O'Connor: --strange.
J. Brooke Lathram: --Excuse me, Your Honor. State law did not require that. State law allowed this to be raised on appeal, and this Federal issue was, indeed, decided by the Tennessee Supreme Court. Therefore, I think that what we have now on the books is a Tennessee decision which will be precedent for other offenders in Tennessee. So therefore, I don't that the failure to object would prevent this Court from dealing with it. But--
Byron R. White: Do you think the prosecutor would have been barred from just saying consider the impact of this death on the son?
J. Brooke Lathram: --Not at all.
Byron R. White: You don't think that would be barred by Booth?
J. Brooke Lathram: No, sir. I do not think that would be barred by Booth.
Byron R. White: But the way you interpret it, you think Booth does bar it?
J. Brooke Lathram: I think Booth bars what this prosecutor did, but doesn't bar the hypothetical statement that you're--
William H. Rehnquist: Is a prosecutor forbidden any poetic license at all in his argument? I mean, certainly, typically, you are arguing a case to a jury, you're going to use some analogies and some examples. Are you saying that he simply may never leave the cold record, even in his argument?
J. Brooke Lathram: --No, Your Honor, I'm not. What we're saying here is that this prosecutor told this jury they could do something that this Court has never even intimated, much less held could be done. This prosecutor told the jury that, ladies and gentlemen, you may execute this man because this little boy someday is going to grow up and wants you to have executed him. That is in effect what--
William H. Rehnquist: But that really is a rather strained construction. He... it seems to me, if you look at what we have of the record... you know, the opinion of the Supreme Court of Tennessee... he dealt with the facts. And in a closing argument, any lawyer is going to get into a few rhapsodies of sort. That's the way people argue cases to juries.
J. Brooke Lathram: --Your Honor, I think that the two key statements here are, first of all he said, "But there is something you can do for Nicholas. " And again... then he goes on, now what is that something. Then he goes on to say how Nicholas is going to grow up and he says, "He's going to want to know what type of justice was done. " He doesn't say he's going to want to know whether justice was done, he's going to want to know whether or not you executed this man. And here's this jury... imagine, I can't imagine anything more difficult than being on a jury like this, and already knowing what has happened to this poor youngster who saw his mother killed, who saw his sister killed, who was... all the medical problems were brought out in front of the jury. Here's this juror... jury thinking, well what, you know, that's a good point. The representative of the State has now told me that this is a reason that I may execute someone in the State of Tennessee.
John Paul Stevens: May I ask you a question here, Mr. Lathram? Do you read the Tennessee Supreme Court opinion as holding that there was or was not a Booth violation? It's a little ambiguous to me. It seems to me they may have said there's no Booth violation here at all.
J. Brooke Lathram: The Tennessee Supreme Court opinion is ambiguous, I think, Your Honor.
John Paul Stevens: And so if you found no Booth violation, there... we really wouldn't have to reach the question of whether to overrule Booth, would we?
J. Brooke Lathram: I thing what the court held was that there may have been a Booth violation. In fact, I think that the court held... well, the court held that the grandmother's testimony was technically irrelevant under Booth.
John Paul Stevens: You said was irrelevant. I'm not sure they said it was a violation of Booth.
J. Brooke Lathram: It's difficult to tell. It's within the context of a paragraph--
John Paul Stevens: It could have been irrelevant as a matter of State law, I suppose.
J. Brooke Lathram: --It's possible that that could have been the case. But then, as far as the argument, Your Honor, I think what the court said is there may have been a Booth violation here, but we believe that it was harmless error. I think that's... again, the opinion is not really a model of clarity.
John Paul Stevens: Mr. Lathram, suppose he hadn't referred specifically to the child, but had just said, you know, the citizens of this community, when they see this verdict come down, they're going to ask whether justice has been done. They've seen one of their members brutally murdered, a child orphaned. They're going to want to know what quality of justice you've meted out on behalf of the community. And they, you know, they... they want severe justice. Is that all right?
J. Brooke Lathram: I think that would be a perfectly permissible argument, Your Honor. But I see a marked distinction between that and--
Antonin Scalia: Between that and referring to the child.
J. Brooke Lathram: --Yes, Your Honor, because what they're asking... I can't think of... again, I know I'm being somewhat repetitious, but to me, there's nothing more arbitrary than to allow a person's fate to depend upon the opinion of a single survivor.
Antonin Scalia: Why isn't it arbitrary to have it depend on the opinion of the community or my perception of the opinion of the community?
J. Brooke Lathram: Because I think that when the jury applies its collective judgment, and it serves as the conscious of the entire community. And I think prosecutors often tell the jury, you are the conscience of the community. That gets back to my point on retribution. Retribution is something for society, not for a particular individual.
Antonin Scalia: But no, I may be a very kindly person and opposed to capital punishment if it were left up to me, but I am told by the prosecutor, you... you're not sitting to give vent to your own feelings, you are supposed to express what you think is the moral outrage of the community. And this community is a hard-hat community, and we... you should consider whether they would want this person executed. Now, that kind argument's okay, I don't know why that isn't just as arbitrary, as you put it.
J. Brooke Lathram: This Court, Your Honor... and I think this will respond to it... this Court has, I think, in Booth and the majority opinion... and again, I'm separating this survivor opinion away from the victim impact, which I'm going to come to in just a minute... but this Court has never intimated, and in fact, all the State courts' decisions, I believe, and this is, I think, brought out in the Huertas argument, have indicated that it's improper for a survivor to express an opinion. And it's... if I'm not mistaken, and I could be because I don't know the Huertas record as well as, perhaps, I should, but I think that went back to Ohio on a State law determination that the expressions of opinions like this are impermissible. Now, that's Ohio State Law, and we're dealing with the Eighth Amendment.
Antonin Scalia: I agree. How many States do permit it to come in? Frankly, I find it extraordinary to have it admitted. But that's quite separate from the question of whether it's constitutional if a State wants to do that. How many States do do it, do you know?
J. Brooke Lathram: No, Your Honor. I would, and I'm going to go out on a limb here, but I would venture to say that no State does. But I don't have anything to back me up on that. I just can't imagine any State allowing it. And I do think it rises to an Eighth Amendment violation because, again, the best way to answer it is to... is to focus on the what would happen if the victim's survivor said, I don't want him killed. To me, the guy is just as heinous and the need for retribution is just a great, notwithstanding the fact that a defense lawyer is able to go out and find one witness who can come in and say, well, gosh, I have some problems about the death penalty.
Antonin Scalia: Do you think this Court would permit the exclusion of testimony that the survivors do not want him killed?
J. Brooke Lathram: Absolutely.
Antonin Scalia: We've said all mitigating evidence has to come in.
J. Brooke Lathram: I think what the Court said, I respectfully submit, that what the Court said in Lockett was that all relevant mitigating evidence must come in. I don't think the Court has ever said that anything a defense lawyer can dream up as mitigating is allowed to come into evidence. I think that you have got to... there's got... in order for evidence to be relevant, of course, it must assist the jury in deciding one of the issues placed before it. And one of the... the issue here at the selection stage, is whether or not a defendant deserves to die. And it seems to me that for the jury to decide this unbelievably pressing, important, emotional question on the basis of whether a victim happens to think he should die or not, injects the kind of arbitrariness into the decision that this Court has frowned upon since 1972.
Byron R. White: Well now, counsel, what else in this case is arguably barred by Booth?
J. Brooke Lathram: Your Honor, I would like to now turn to the grandmother's testimony and the arguments based on the grandmother's testimony. We were asked to brief the question of whether Booth should be overruled, and we've done that. We tried to answer the questions raised by the dissenting opinions, and those questions... those opinions raised very tough questions. We did the best we could. I think our reply brief did a better job than our first brief. Let me preface my remarks by saying that I would never come into this Court and endorse a position that would invalidate a statute that enhances punishment on the basis of harm. I believe very strongly, and I know this Court has said this, that legislatures have very substantial leeway in our form of Government to make these kinds of hard choices. And in fact, I think that anything that encourages more legislative accountability is to be applauded. And I certainly recognize that this Court does not sit as legislature to review and correct unwise policy decisions. My concern with overruling Booth can best be summarized this way. And what I've tried to do is reconcile Booth with those punishment enhancement statutes. And that's what we tried to do in our reply brief. And I think I can express my concern best by focusing on two hypotheticals. Let's take the Air Piracy Statute. And let's first take this situation. Hijacking number 1, a death results. Hijacking number 2, because of a mere fortuity, there is no death that results. I think Booth would agree that the statute, because that is the Air Piracy Statute, is valid. And I certainly would accept that because, after all, we have a determination by society that the crime may be aggravated because of the harm, even though the hijacker didn't intend the harm, and the hijacker himself was not the one directly responsible for it. Again, that is a valid exercise of retribution by our national legislature, Congress. Now, let's compare that with this hypothetical. Let's take, again, two hijackings. And let's assume that in both a death results. But let's assume that in hijacking number 1, the victim who dies is a person beloved by society and leaves behind several aggrieved survivors. Let's assume that in example number 2, the victim who dies is, if I may use the word, a reprobate, who's... who doesn't leave behind any aggrieved survivors at all. My concern with overruling Booth is raised by this question. Is hijacker number 2 really less blameworthy? Is he really less deserving of death than hijacker number 1, simply because the victim was a reprobate who left no aggrieved survivors? Perhaps that's a policy question, and that's the issue, isn't it? That's what the Court has to decide. Is this something that for the legislatures to decide, or does this introduce an arbitrary variable into the sentencing determination?
Antonin Scalia: Why isn't--
J. Brooke Lathram: My big problem--
Antonin Scalia: --Why isn't it arbitrary whether the death occurs? I mean hijacker number 1 shoots off a pistol to scare the people. Unfortunately for him, the bullet ricochets, and kills someone. Hijacker number 2 does the same thing; the bullet doesn't ricochet and kill anybody. As far as moral blameworthiness is concerned, it's exactly the same, isn't it? One has caused more harm than the other, and we punish him more severely.
J. Brooke Lathram: --It's exactly the same except that in that situation, Your Honor, society, working through the Congress, has made a valid, non-arbitrary classification of death eligibility. We are not trying... what's wrong with the second example, I respectfully submit, is that we're letting the decision on whether or not to impose death depend upon nonspecific variables that the legislature has not given any definition to and--
Antonin Scalia: Well, but wait a minute. You're letting the jury in both cases decide whether or not to impose death. You're allowing the jury, in either case, to say, well, in our opinion, he shouldn't get death anyway.
J. Brooke Lathram: --That's correct, Your Honor.
Antonin Scalia: Well, then how can you pretend that the legislature has set some rigorous penalty that mathematically follows?
J. Brooke Lathram: Well, in the first hypothetical, all the jury is called upon to do is, first, determine whether a death occurred. Usually that's going to be stipulated, or that there won't be any dispute about that. The jury doesn't go along... doesn't after that then decide, well, I think death should be imposed because the victim who was killed in this case happens to be a person who was well loved by his family members.
Antonin Scalia: They can take into account any mitigating circumstance and decide not to impose death on the basis of any mitigating circumstance that appeals to them.
J. Brooke Lathram: Your Honor, it's inconceivable to me, and perhaps... maybe it should be conceivable, but it's inconceivable to me that a defense lawyer could come in and say, ladies and gentlemen of the jury, you've got to consider all mitigating evidence. And one piece of mitigating evidence that I want to offer is this. The man that died in this hijacking, even though my client didn't know him at all, was a reprobate who used to cheat on his income taxes, and who used to cheat on his wife, and was basically no good, and wasn't loved by any family members. If it's going to be open season where we're going to allow defense lawyers to do that type of thing, then I respectfully submit, Your Honor, we're going to be injecting all kinds of arbitrary variables into the sentencing process that the Eighth Amendment prohibits.
David H. Souter: Mr. Lathram, let me make two suggestions and get your responses to them. The first is that whether or not the person is a saint or a reprobate, and whether or not the jury is told about it really isn't any more... doesn't inject anything more arbitrary than the fortuity of death resulting or not resulting, it seems to me. He performs certain dangerous acts; he realizes that they may cause death. By the same token, he realizes that if he performs them, the victim may be a saint. In each case, it seems to me, that it's fortuitous. The second suggestion is this. Isn't the real problem with getting into the... or at least with the prosecution's taking the affirmative in getting into the character of the victim, that it implies that society is valuing victims differently? Isn't the real problem one, almost one, a kind of maybe a second-tier equality before the law argument, that society is placing different values on their victims... on victims?
J. Brooke Lathram: I think that's correct, Your Honor, and I think that that is the point that we made in the first part of our reply brief in this case. I think that when society, speaking through its legislature, has a valid governmental interest for making a classification, whether based on harm or based on victim status, such as the peace officer. It is not saying that one member of society is worth more than another. All it's saying is that we have a legitimate governmental interest in extending protection to peace officers, or whatever. But when we allow--
David H. Souter: Is that an Eighth Amendment concern?
J. Brooke Lathram: --Yes, Your Honor, I think it is because it injects, again, an arbitrary factor that I think would run afoul of Furman--
David H. Souter: The valuation itself is an arbitrary factor because it is insupportable. Is that the argument?
J. Brooke Lathram: --Yes, sir, it's the nonspecificity of whether or not somebody has led an exemplary life or a non-exemplary life, or has led a good... is a good person or a bad person, or left behind aggrieved survivors or not aggrieved survivors.
William H. Rehnquist: Thank you Mr. Lathram. General Burson, we'll hear now from you.
Charles W. Burson: Mr. Chief Justice, and may it please the Court: Booth v. Maryland and South Carolina v. Gathers were wrongly decided in that they were founded on the flawed propositions that victim impact information may be unrelated to any legitimate sentencing consideration, that its inherently emotional appeal will shift the focus of the sentencer to irrelevant factors, and that in so shifting the focus of the sentencer, it will result in the arbitrary imposition of the sentence. It's the State's position that the full extent of harm done is relevant to the personal responsibility and moral guilt of the defendant. That some individual characterization of the victim is necessary to enable the sentencer to make a decision, a particularized decision, and a moral decision in the sentencing process. Third, it's relevant to the penological objective of retribution. Given its probative value, it can hardly be said that it inherently invites an arbitrary sentencing decision. Indeed, its inconclusion suggests a more reliable decision. For these reasons, this information should not be precluded as an Eighth Amendment proposition on a blanket basis.
Antonin Scalia: Mr. Burson, or General Burson, nothing you've said goes to comments concerning the views of the victim's family as to what penalty should be imposed. What you have said all goes to how many children were left, how much they missed their father, and so forth.
Charles W. Burson: Correct.
Antonin Scalia: But not to what penalty the father wants imposed.
Charles W. Burson: Yes. It's... first of all--
Antonin Scalia: What is the relevance of that?
Charles W. Burson: --it's our position that, as has been discussed, that is not present in this case. But, in response to your question, we would say that as an Eighth Amendment proposition, it's relevant to the penological principle of retribution, as was suggested. This should come as no great surprise to the jury that the survivors would feel this way. Now, each State, again, we emphasize as an Eighth Amendment proposition, we don't think the basis is there to exclude it. Each State, in making its policy decisions and weighing whether it should come in or not, that should be left to them. In Georgia--
John Paul Stevens: But General Burson, may I interrupt you at that point because, taking the other side of the coin, as Justice Scalia asked your adversary earlier, if we get survivor opinion that the death penalty should not be imposed and if you decide that's relevant, then it's relevant mitigating evidence and it must come in under Lockett. Is that your view?
Charles W. Burson: --No, sir. Under Lockett, there are restrictions to the mitigating evidence. The mitigating evidence must relate to the character of the victim, the record, or the circumstances of the crime. That's our point. What this... what evidence seems to have to comport to is the former line of cases, which narrows the jury discretion, the Lockett line, which says anything--
John Paul Stevens: So, just to make sure I understand, your point is that it's permissible for the prosecutor to put this kind of evidence in, but not for the defendant.
Charles W. Burson: --No. I didn't understand that to be your question. I would suggest that then runs into, perhaps, a Gardner-type problem, that if the prosecution opens the door by putting it in, that then the--
John Paul Stevens: But it is entirely the election of the prosecutor whether this kind of evidence can be received?
Charles W. Burson: --I think that is a decision that would have to make on a State-by-State basis. Our position is, it is not--
John Paul Stevens: But the State could decide, as a matter of its own law, that we will receive such evidence from the prosecutor and exclude it from the defendant. A State could do that, I understand you to say.
Charles W. Burson: --Well, they have to make that decision within the parameters of due process.
John Paul Stevens: Well, I'm assuming that's the decision they make.
Charles W. Burson: Well, but they then make--
John Paul Stevens: There will be no constitutional objection to that decision, in your view?
Charles W. Burson: --No, I didn't say that. I said that as an Eighth Amendment--
John Paul Stevens: Well, what would be the constitutional objection then?
Charles W. Burson: --Due process, Gardner v. Florida, may well be the objection then.
John Paul Stevens: So then you are saying, if a State adopts a rule that it will receive this evidence from the prosecutor, due process requires it must also receive it from the defendant.
Charles W. Burson: I think that would be a possible--
John Paul Stevens: So the defendant then, in such a State, would have the right to put on survivors who will testify they do not think the death penalty should be imposed?
Charles W. Burson: --I think that's--
John Paul Stevens: That would be your view?
Charles W. Burson: --where that takes me, and in fact, Georgia in the Rowe Mine case, did allow that. In fact, reverse on the fact that the trial judge didn't let the defense put it on as mitigating evidence.
Thurgood Marshall: Mr. Attorney General?
Charles W. Burson: Yes, sir.
Thurgood Marshall: What happened to the old-time theory that the crime was against the State and not the individual?
Charles W. Burson: Well, I think at the very heart of our--
Thurgood Marshall: It's about gone, hasn't it?
Charles W. Burson: --Yes, sir... no, sir. I think at the very heart of our proposition is that we are looking at societal harm. We are not just talking about to the harm to the individual. I think the--
Thurgood Marshall: My other question was the record in this case shows that the jury was shown pictures of the dead bodies, the brutal... blood all over the place, and everything that could be photographed was shown to the jury, and practically no defense. What in the world did you need any more evidence for?
Charles W. Burson: --Well, I think the point is, it was relevant, it was probative, and the trial judge made that decision.
Thurgood Marshall: What more did you need?
Charles W. Burson: Well, I think that--
Thurgood Marshall: Can you imagine any jury not convicting?
Charles W. Burson: --I think that they needed a... at least a characterization of the victim as a unique human being, other than just as a corpse. And that's all I think the... what was depicted in what you are speaking of.
Thurgood Marshall: You mean you needed more than a bloody body?
Charles W. Burson: Your Honor, I would respectfully say that the State was entitled to put on more than a bloody body, yes, sir.
Anthony M. Kennedy: Do you think that-- --[inaudible] oh, can't speak for the State. This is the State of Tennessee. Right?
Charles W. Burson: With all due respect, I don't think the child was speaking for the State.
Thurgood Marshall: Well then, the title says Tennessee v. so-and-so. So-and-so against Tennessee, doesn't it?
Charles W. Burson: Yes, sir.
Thurgood Marshall: And it's a Tennessee problem. And it's not the child's problem.
Charles W. Burson: The child is a member of the Tennessee society.
Thurgood Marshall: Will any other member come in and talk?
Charles W. Burson: I think that that would probably be left up to the trial judge and to the relationship of the--
Thurgood Marshall: Come off the street and say, I don't think this man should go, I think he should be killed. You can't do that, can you?
Charles W. Burson: --I think that that would be, again, guided by our concepts of fundamental fairness under the due process clause.
Thurgood Marshall: xxx that what you want to talk about? Do you really want to talk about fairness?
Charles W. Burson: Yes, sir.
Byron R. White: General, I take it you think that unless Booth is overruled, you are going to lose this case?
Charles W. Burson: Well, Your Honor, we--
Byron R. White: Because you think that this victim impact evidence would not pass muster under Booth.
Charles W. Burson: --The answer is, no, because we think that if you do not overrule Booth, that this was, as the supreme court... supreme court found harmless error beyond a reasonable doubt.
Byron R. White: Oh, I see.
Charles W. Burson: But we do suggest that the information that came in--
Byron R. White: But you say... but you say it was error under Booth.
Charles W. Burson: --We say that Booth is--
Byron R. White: Whether harmless or not, it was error.
Charles W. Burson: --Yes. That Booth is broad enough to cover this information, with exception of our exception about the... about the... the statements of the prosecutors about justice being done. But the rest we say would be covered by the Booth and Gathers principles. At the core of... and this goes to our point about the reliability of the decision, it seems that at the core of the court's focus on personal responsibility and moral guilt, is the proposition that the ultimate choice the jury must make between life and death is a profoundly moral one. That morality is given expression as a constitutional principle through the Eighth Amendment. Its meaning at any given time must derive from the prevailing standards of decency in the society. Our society, through its State and national legislative bodies, is clear in its message. Decency and morality and the administration of justice insist on relevant victim impact information in the sentencing process.
John Paul Stevens: General Burson, let me just ask one other question similar to the other one I asked you about. Do you also take the position that the defendant should be able to put in evidence that the victim was an unworthy person?
Charles W. Burson: As an Eighth Amendment proposition, we are not suggesting that that is necessarily prohibited. Our point is that this is not precluded as an Eighth Amendment proposition--
John Paul Stevens: Oh, I understand.
Charles W. Burson: --in that what a state should be entitled to do is balance its particular legitimate policy interest against the introduction of this evidence. For instance, a State may well conclude that to allow a defendant to put on a negative societal impact evidence without the State opening it up, that that, in essence, would invite open season on victims. And that balancing that interest against the interest of fairness in the trial process, the State may well conclude, no, we are not going to allow that. They could cure that with an instruction.
John Paul Stevens: But you would say that if the State puts on evidence about the character of the victim, the witnesses could be cross-examined to test the credibility of that testimony?
Charles W. Burson: Yes.
John Paul Stevens: They could do that? But the... but it's a one way street on whether... who can open the door. The State can open the door with this evidence but the defendant could not?
Charles W. Burson: I'm suggesting the State could make that choice.
John Paul Stevens: Right. You were saying, then, really flatly in disagreement with what your opposing counsel said in response to a suggestion I made, that it really is legitimate to value victims differently, depending upon the circumstances of the lives that they have chosen to lead.
Charles W. Burson: What I am suggesting, and I think it is a significant difference, and yes, I do agree with counsel. But the point is different. What--
William H. Rehnquist: I'm sorry. You agree with opposing counsel?
Charles W. Burson: --No, no, no. I disagree because I don't think what we are asking to be done is evaluation of the worth and the sanctity of a human life. I think the clearest example is, if we look, and I kind of hate to use this example, if we look at the President and we look at a homeless person, there is no doubt that the sanctity of their lives is equal and the society values them equally. For the purposes of our proposition, there further can be no doubt that the taking of the life of the President creates much greater societal harm than the taking of the life of the... of the homeless person. So it is in looking at that societal harm that we suggest is something that is legitimate for the jury to consider.
William H. Rehnquist: Yes. But there, you have a... your opponent argues that that's a distinction Congress has drawn, that you treat the harm to the President differently from other people. You can have a more serious penalty. But can you... would it be permissible for a statute to say that, a father... if the victim is the father of a family of four, the death penalty may be imposed, but if it was a single parent, it may not be imposed? Would that be a... would that be a constitutional statute?
Charles W. Burson: Well, are we speaking now as a... as a statutory aggravating factor, because I think there is a difference in where we--
John Paul Stevens: Right. If you had an aggravating factor, that if you are the father of a family of four, that would make you eligible for the death penalty, but if you're a single parent, you're not... it would not.
Charles W. Burson: --Oh, if the victim--
John Paul Stevens: If the victim--
Charles W. Burson: --is a family... father of a family of four. I think that that would depend in terms of defining an aggravator whether that were sufficiently narrow to define the class and whether that was a sufficiently principled basis in which to--
John Paul Stevens: --Unless the question, is there a principle--
Charles W. Burson: --name an aggravator.
John Paul Stevens: --Is there a principle basis for drawing that distinction?
Charles W. Burson: There may well be. I think that would have to be expressed and looked at in each individual case. But there may well be a societal difference in taking the bread winner of four children, and a State might end up defining that as an aggravating factor. There is nothing inherent in it that would prohibit it from being.
Antonin Scalia: I think you have to say that. I mean, surely if a jury can... if you're going to say the jury can do it, I think you have to say the legislature can do it.
Charles W. Burson: I think the principle, Justice Scalia, would be that if it is too broad so as not to actually narrow the class, the vagueness of it. But the example given is not very vague and I would say you have a fairly limited class of victims there.
Sandra Day O'Connor: General Burson, do you think that it would be permissible for the State to have evidence introduced to show that the victim went to church every Sunday and never took a drink? I mean, is that the kind of evidence that you're arguing should be allowed?
Charles W. Burson: The type of evidence that we are arguing for is, as far as... again, there is the societal harm evidence, which may be embodied in a particular characteristic of the victim. But there is another reason we think it should come in, and that was pointed out by the Chief--
Sandra Day O'Connor: You think that kind of evidence should come in?
Charles W. Burson: --Well, as--
Sandra Day O'Connor: Is that what the State wants to do?
Charles W. Burson: --It depends on how far it goes. It depends on... what we are looking for is enough to flesh out that this was a unique, living human being, as Chief Justice mentioned in Mills--
Sandra Day O'Connor: Is there any limiting principle? Is there a limiting principle of foreseeability of the harm, for example?
Charles W. Burson: --We would suggest, no, as far as the foreseeability. We have suggested that the personal responsibility of the defendant extends to... it goes to the full extent of his harm, and that is very much an objective factor. We have also suggested, however, that it's... that is a... to the extent that moral culpability and that mental state is insisted on by the court, that moral culpability as a mental state embraces more than subjective foreseeability.
Sandra Day O'Connor: And the full extent of the harm includes, in your view, the personal characteristics of the victim?
Charles W. Burson: It may. For instance, in this case, the fact that... Charisse Christopher was a mother of two children. That... the fact... of two infant children, the fact that she was a mother and had two infant children is an individual characteristic that does reflect the additional harm, also, to society.
Sandra Day O'Connor: Well, the human characteristics, she was a nice mother, she always took them to Sunday school.
Charles W. Burson: I think those human characteristics are more appropriately viewed as to whether they are needed to paint a basic picture of this unique human being. When they go to the point, when they go to the point of suggesting that her life is worth more in terms of the sanctity of life than the life of the defendant, then, we think, you have a problem. That's where the line should be drawn.
Anthony M. Kennedy: Laying aside, for the moment, the constitutional considerations, just from the standpoint of your expertise as an attorney general and as a prosecutor, would you recommend that every State in the Union permit all of the evidence that was introduced in this record?
Charles W. Burson: Well, yes, because I think that this was determined by the trial judge, and we had arbitrariness review, proportionality review. So--
Anthony M. Kennedy: My concern is that prosecutors tend to go to the very limits of the law. I don't know if you had the opportunity to read the record in Huertas v. Ohio, in which the aggrieved mother or grandmother testified as to the appropriate penalty. And if we overrule Booth v. Gathers, we are going to have testimony that is of this very, very emotional and potentially prejudicial nature.
Charles W. Burson: --We would suggest, in that regard, we have our due process principles. We have our appellate review principles. Fundamental fairness, I think it was suggested--
Anthony M. Kennedy: We have had no case that I recall in which we have set aside a death verdict for inflammatory... inflammatory arguments by the prosecutor. We have come close to that. We have said that there is a due process component.
Charles W. Burson: --Well, I think that's just one of the points. Are we now creating a new standard with Booth? I don't think this was the intention. Maybe it was, but in Booth and Gathers, we have created a new standard at a very low threshold for prosecutorial argument. I mean, we are before, where the serious contention is being made that those references to justice are constitutional error under... under Booth and Gathers. And we would suggest that it's up to the States, not... not as an Eighth Amendment proposition, but the State should determine the degree to which that comes in and balance those interests to these substantive factors.
Anthony M. Kennedy: Incidentally, just to make the record clear, I take it you don't defend the stabbing of the diagram?
Charles W. Burson: I'm not here to defend that. That's not an issue we would suggest is before the Court. When you say the evidence in the case, I'm assuming we're talking about all the evidence that's relevant--
Anthony M. Kennedy: That was the meaning of my question.
Charles W. Burson: --to the issues before this case.
John Paul Stevens: May I just ask one last question? It seems to me your standard is whether the evidence would show that the victim was a unique, living human being. I think those were your words. That seems to me to assume that some are unique and others are not.
Charles W. Burson: Well, I think this goes to... I think this... that is a very serious question, because I think what Booth and Gather suggest, contrary to what we have said, that we have to have a particularized decision on the defendant, what they are suggesting is a generic victim, an abstract victim, an invisible victim at the sentencing--
John Paul Stevens: No, a victim... I suggest what the defendant knows about the victim may properly come into... into evidence. This is... we're dealing entirely with evidence that the defendant did not know about. It was all unforeseen to the defendant.
Charles W. Burson: --Well, I don't think--
John Paul Stevens: That's all Booth covers.
Charles W. Burson: --I don't think in this case, we are. I think--
John Paul Stevens: Well, that may be. Maybe that's why Booth doesn't apply here.
Charles W. Burson: --Well, I think that Booth does apply. But, Your Honor, I don't think that's what... if it wasn't for... if it wasn't foreseeable, we're saying, then we have to deal with a generic victim. And again, I think I mentioned before, as Chief Justice Rehnquist pointed out in Mills, that unless we have a basic character sketch, something to let us know this is a... not a corpse but a unique, living human being, the... how can you make... how could we make that moral judgment?
John Paul Stevens: Does not that... does not that to assume that some human beings are not unique?
Charles W. Burson: No. What it assumes is that our present standard is a generic victim.
William H. Rehnquist: Thank you, General Burson. General Thornburgh, we'll hear now from you.
Dick Thornburgh: Mr. Chief Justice, and may it please the Court: We urge overruling of Booth v. Maryland and South Carolina v. Gathers. We submit that there is nothing cruel or unusual about the jury's consideration of victim impact evidence in the sentencing stage. Booth's contrary view, however wise or unwise it may be as a matter of social policy, is simply not required by the Eighth Amendment to the Constitution. We urge the Court to adopt, instead, a rule which gives due weight to expressions by the Congress and the overwhelming majority of State legislatures that permit consideration of victim impact evidence in all cases. Victim impacts evidence should be considered in capital cases to ensure not only that the defendant is held morally responsible for the victim's death, but to hold defendant accountable for the full extent of the harm caused by his or her criminal acts. We echo Justice Blackmun's observation in Furman, that the misery occasioned to the victims, the families of the victims, and to the communities where the offenses took place, are matters which perhaps deserve not to be entirely overlooked. Consideration of victim impact evidence is an aid in determining the full accountability of the murderer, does not risk an arbitrary or capricious result but's indeed rational and reasonable. Victim impact evidence is relevant to establishing the full range of retribution.
John Paul Stevens: Mr. Attorney General, do you take the view that it's a one-way street or a two-way street? Can the defendant introduce evidence that the victim was an unworthy person?
Dick Thornburgh: I think that's a matter that has to be decided by legislative bodies or in a particular case by the court.
John Paul Stevens: But you would take the view it's permissible to allow it by... constitutionally permissible--
Dick Thornburgh: That's a constitutional matter, yes.
John Paul Stevens: --to allow it for the prosecutor and deny it to the defendant.
Dick Thornburgh: As a constitutional matter, yes.
Sandra Day O'Connor: General Thornburgh, what if the State legislature hasn't enacted anything relating to victim impact evidence, but the prosecutor wants to introduce evidence about the character of the deceased? This was a good church-going person who never told a lie and so forth and so on.
Dick Thornburgh: Depending upon the delineation of aggravating and minimizing circumstances, that might well be admissible within the confines of a legislative definition. In this case--
Sandra Day O'Connor: No, my assumption is it doesn't... it doesn't relate directly to anything the legislature has said.
Dick Thornburgh: --I think that our position is that in order for the jury to hold the defendant fully accountable for the extent of the harm that's been inflicted upon the victim, its... his or her family or their community, that that kind of evidence is properly received as a constitutional matter. There is nothing infirm under the Eighth Amendment about receiving that information.
Sandra Day O'Connor: Well, then why wouldn't evidence as to the unsavory nature of the victim be relevant as far as the defendant's case is concerned?
Dick Thornburgh: I'm suggesting that that, again, is a matter for State law and there is nothing--
Sandra Day O'Connor: Well, I'm asking you though, in the absence of State law, because I suspect in many of these situations, we don't have a directly relevant State law. We're going to have prosecutors and defense counsel out there wondering what to do and how far they can go.
Dick Thornburgh: --My own sense--
Sandra Day O'Connor: And I'm just wondering what your theory is.
Dick Thornburgh: --My own sense is that the defense counsel should not be permitted to denigrate the value of the life that already has found to have been taken under circumstances justifying death sentence eligibility. That the characteristics of the life that's been taken are admissible to give the jury the full picture of the nature and extent of the harm that's been caused by the defendant's act so that they can hold that defendant fully accountable to the full extent of the harm that's been done to the family and the community and the like.
Sandra Day O'Connor: Well, how about pure opinion testimony of a survivor as to the penalty?
Dick Thornburgh: Opinion testimony, again, I don't think, as a constitutional matter, should be barred. Again, I'm not terribly sure that if I were drafting the legislation that provided for these kinds of situations, that that would be at the top of the list. But as a constitutional matter, I don't see any infirmity in having that opinion on either side presented.
Thurgood Marshall: But the full extent... I mean, once a man is sentenced to death, what else can you do to him?
Dick Thornburgh: Nothing.
Thurgood Marshall: So, you don't... full extent doesn't help in this case, does it?
Dick Thornburgh: Justice Marshall, what I am trying to convey is a sense--
Thurgood Marshall: Well, what I'm trying to convey is that you... this case, they showed everything necessary to bring in a death penalty. And then they added this on.
Dick Thornburgh: --We would suggest that in making the determination as to whether a death penalty eligible defendant is to, in fact, suffer the death penalty, it's important for the jury to have the full picture of the harm that was caused by the act which took the life of the victim.
Thurgood Marshall: And anything in addition you can think of.
Dick Thornburgh: Not anything in addition you can think of, because a trial judge has and exercises the opportunity--
Thurgood Marshall: Well, do you agree with me that there was enough there without that... the bloodied pictures, et cetera?
Dick Thornburgh: --I didn't try the case, so I wouldn't want to make that judgment. But I know a prosecutor wants to--
Thurgood Marshall: Well, you have tried other cases, haven't you?
Dick Thornburgh: --Yes, I have.
Thurgood Marshall: Well, wouldn't you think that was enough?
Dick Thornburgh: In this case, I think the prosecutor properly decided to admit the evidence, to sketch for the jury the full extent of the impact of the loss, to hold the defendant accountable for that.
Thurgood Marshall: xxx overruling Booth? Do you agree?
Dick Thornburgh: I do not think so.
Thurgood Marshall: Well, why Booth?
Dick Thornburgh: Because I think Booth goes to great pains to presume harm from this evidence.
Thurgood Marshall: But the court didn't. The Tennessee court didn't.
Dick Thornburgh: The Tennessee court followed Booth.
Thurgood Marshall: It didn't say so.
Dick Thornburgh: But found it to be harmless error, not--
Thurgood Marshall: It didn't say so.
Dick Thornburgh: --It found the admission of this evidence to be error under Booth but found it to be harmless.
Thurgood Marshall: That's right.
Dick Thornburgh: And we're suggesting that its finding of error is error, and we're urging this court to overrule it.
Thurgood Marshall: And we have to go this... we have to go this one step further and overrule Booth?
Dick Thornburgh: Yes, we are. There is another factor, I think, that we have to deal with here, and legitimately. There are concerns about particular cases where the risks posed by potential inflammatory or prejudicial evidence may be offered. But we are suggesting that those can be accommodated by the kinds of safety valves that exist in the conduct of the case. Judges are used to making those decisions with respect to prejudicial evidence, and the appellate review process, which offers a chance for that judgment to be clarified. But what we are suggesting is that it is inappropriate to have a constitutional rule, per se, which excludes all of the evidence with respect to what the impact on the victim, the victim's family, and the victim's community was. We suggest, also, that this per se rule is really unworkable in practice because some--
John Paul Stevens: Mr. Attorney General, do you understand that per se rule to apply to a matter that the defendant knew about, or are we only talk about a matter the defendant could not have reasonably foreseen?
Dick Thornburgh: --Clearly, the highest case of culpability is on matters that the defendant knew about.
John Paul Stevens: But you don't understand Booth to exclude that evidence?
Dick Thornburgh: No.
John Paul Stevens: Oh, okay.
Dick Thornburgh: But what we're saying is that in order to assess the full impact of the act that the defendant carried out and to hold that defendant fully accountable, it's necessary to go beyond the ambit of simply what that defendant knew and to take into account the actual impact so that the jury has the full picture.
Antonin Scalia: General Thornburgh, do you agree with General Burson that there are really two different sorts of victim impact evidence and that both can get in? I mean, one is really an aggravating, you know, he was the father of 10 children who will miss him, and their lives will be harder because he's gone, and therefore, society is harmed. And the other one is, this was a poor reprobate, never did a lick of work in his life, but you know, a gentle soul, never harmed anybody... just to humanize the victim, not to show any greater harm to society.
Dick Thornburgh: Let me recast that--
John Paul Stevens: Would both types be admissible in your view?
Dick Thornburgh: --Let me, if I might Justice Scalia, recast that dichotomy, because I think there is entirely too much focus upon the characteristics, per se. But those characteristics have relevance only insofar as they reflect the actual harm that was done by the criminal act for which everyone agrees we must hold this defendant accountable. It's not the characteristics, themselves but what has resulted from the death of that individual in a loss to the victim, the family, and the community. Now, I think it would be inadmissible, and no one supports the proposition that in these considerations, the characteristics, themselves, should govern the determination. But insofar as they reflect the degree of the loss that was suffered by the criminal act carried out, that they are inadmissible... are admissible.
John Paul Stevens: Then you're saying there is a difference between the two categories that Justice Scalia described?
Dick Thornburgh: Well, I am suggesting that in both categories, it's not the characteristics of the victim that govern--
John Paul Stevens: But the second category doesn't show anything about harm. It just shows he was a real nice guy.
Dick Thornburgh: --Well, that could have been... the loss of that life could have been of great harm to family, friends, community.
John Paul Stevens: No, but just testimony limited to the fine, moral character of the victim, without any indication of harm--
Dick Thornburgh: Well, real nice guys are... the loss of real nice guys is something of importance to this community, as to all the communities as well.
William H. Rehnquist: Thank you, General Thornburgh. The case is submitted.