STATE OF OHIO, PETITIONER V. EDIBERTO HUERTAS No. 89-1944 In The Supreme Court Of The United States October Term, 1990 On Writ Of Certiorari To The Supreme Court Of Ohio Brief For The United States As Amicus Curiae Supporting Petitioner TABLE OF CONTENTS Question Presented Interest of the United States Statement Summary of argument Argument: I. The Eighth Amendment does not impose a per se rule against the admission of victim impact evidence at the sentencing phase of a capital trial II. Principles of stare decisis do not require continued adherence to Booth and Gathers Conclusion QUESTION PRESENTED The United States will address the following question: Whether the admission of "victim impact" evidence in the sentencing phase of a capital trial violates the Eighth Amendment. INTEREST OF THE UNITED STATES In recent years, the United States has joined the States in adopting various measures to make the criminal justice system more responsive and accountable to the victims of crime. The goal that the criminal justice process adequately consider the harm inflicted by criminal activity appears both in federal criminal law generally and more specifically in the capital context in which this case arises. As part of the effort to "enhance and protect the necessary role of crime victims * * * in the criminal justice process," Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, Section 2(b)(2), 96 Stat. 1248-1249, Congress has mandated that the presentence report prepared after conviction for a federal crime contain "information concerning any harm, including financial, social, psychological, and physical harm done to or loss suffered by any victim of the offense * * *." Id. Section 3, 96 Stat. 1249 (directing the amendment of Fed. R. Crim. P. 32(c)(2)). /1/ Pursuant to his authority under the Victim and Witness Protection Act, the Attorney General has promulgated guidelines to carry out the policies of that Act. Those guidelines direct, inter alia, that "federal prosecutors should advocate the interests of victims at the time of sentencing." Department of Justice, Guidelines for Victim and Witness Assistance, 48 Fed. Reg. 33,777 (1983). The Sentencing Guidelines developed pursuant to the Sentencing Reform Act of 1984 demonstrate a similar concern, permitting upward adjustment in sentencing based on the vulnerability or status of the victim or on the degree of harm caused by the defendant. See Sentencing Guidelines Sections 3A1.1, 3A1.2; see also 18 U.S.C. 3553(b). The strong federal interest in permitting consideration of the harm inflicted on victims of crime is also evident in the context of capital sentencing. For example, Fed. R. Crim. P. 32(c)(2) applies in full to prosecutions under the capital sentencing provisions of the Air Piracy Act, 49 U.S.C. 1472-1473. The death penalty is also available under the Anti-Drug Abuse Amendments Act of 1988, 21 U.S.C. 848(e), in the case of certain continuing criminal enterprise drug offenses involving intentional murder. Although that Act mandates that no presentence report should be prepared in the capital sentencing context, 21 U.S.C. 848(j), it permits the sentencer to find an aggravating circumstance where "(t)he victim was particularly vulnerable due to old age, youth, or infirmity." 21 U.S.C. 848(n)(9). The Act also authorizes any other factor aggravating the crime to be presented to the sentencer upon notice to the defendant, thus authorizing federal prosecutors to present victim impact evidence where appropriate. 21 U.S.C. 848(h)(1)(B) and 848(n). /2/ The Court's resolution of this case may directly affect the validity of those provisions of federal law, and it will certainly affect the future development of federal law concerning the use of victim impact evidence at a capital sentencing hearing. /3/ STATEMENT 1. Respondent knew Elba Ortiz and Ralph Harris from the time they attended high school together in Lorain, Ohio. Although respondent and Ortiz never married, they had two children. At some point, respondent ended his relationship with Ortiz and entered into a common law marriage with another woman. He later resumed the relationship with Ortiz and separated from his wife. During early 1986, respondent lived with Ortiz intermittently. Harris, who was a sergeant in the United States Air Force, began dating Ortiz in May 1986. Respondent told Harris to stop dating Ortiz and threatened to "waste him" if Harris continued to see her. Pet. App. 2-4; Pet. 3-4. On June 6, 1986, respondent drank beer and smoked marijuana after work. That night, respondent and his roommate visited several bars in Lorain. Respondent claimed to have consumed 6 to 19 beers, 6 to 10 shots of rum, and 1/4 to 1/2 gram of cocaine during the course of the evening; his roommate estimated that they also smoked 5 or 6 marijuana cigarettes. Respondent telephoned Ortiz and asked if he could come to her apartment. She refused and told respondent that Harris was spending the night with her. At about 3 a.m. on June 7, respondent broke into Ortiz's apartment. Harris confronted respondent in the hallway, where respondent stabbed Harris. Respondent then attempted unsuccessfully to enter Ortiz's bedroom. After respondent left the apartment, Ortiz took Harris to a hospital emergency room. Harris was able to give a statement to the police, but he died from his wounds later in the day. Pet. App. 4-8. 2. At his trial, respondent testified that he did not intend to kill anyone, that he was intoxicated at the time of the stabbing, and that he could not remember the event. Respondent was convicted of aggravated murder with prior calculation and design, aggravated murder in the course of an aggravated burglary, and aggravated burglary. Respondent was sentenced to death. Pet. App. 4-8. During the sentencing phase of the trial, the court admitted into evidence a presentence investigation report, prepared at respondent's request, that contained a summary of an interview with the victim's parents. Both parents also testified as rebuttal witnesses for the prosecution at the sentencing hearing. The evidence from the parents was offered to show the effect of respondent's act on the surviving victims of the crime. Pet. App. 10-11. 3. The Ohio Court of Appeals affirmed the convictions and the death sentence. Pet. App. 63-115. The court held that admission of the victim impact evidence was error, but that respondent was not prejudiced because the presentence report contained only two paragraphs of victim impact evidence and included some statements that were helpful to respondent. Pet. App. 76-78. 4. The Ohio Supreme Court affirmed respondent's convictions but vacated his death sentence. Pet. App. 1-62. Relying on this Court's decisions in Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 109 S. Ct. 2207 (1989), the court held that "the introduction of victim impact evidence in the penalty phase of a capital trial is constitutionally impermissible." Pet. App. 12. The court rejected four arguments advanced by the State to distinguish this case from Booth. First, the court agreed with the State that the Ohio jury's sentencing recommendation, unlike the Maryland jury's determination in Booth, is not binding on the trial court. But in Gathers, the court pointed out, this Court applied the rule of Booth to South Carolina's sentencing process, which is an advisory process like that of Ohio. Pet. App. 15. Second, the court refused to distinguish Booth and Gathers on the ground that the victim impact evidence in this case did not play a significant role in the sentencing process. Although the court acknowledged that the victim impact evidence in Booth was more extensive than the evidence in this case, the court concluded that "Mrs. Harris's grief-stricken, emotional testimony is compelling even in a cold transcript; it is almost impossible to believe that a jury could hear it and remain unaffected." Pet. App. 17. Third, the court rejected the argument that the victim impact testimony was admissible to rebut respondent's effort to show at the sentencing hearing that he was basically a good person who had acted under the influence of drugs and alcohol. The court observed that the victim impact testimony was not relevant to respondent's character or drug problems, and so was not proper rebuttal testimony. Pet. App. 18. Fourth, the court was unpersuaded by the State's argument that, because respondent was well acquainted with the victim and his family, the victim impact evidence fell within an exception to the Booth rule for evidence that "relate(s) directly to the circumstances of the crime." 482 U.S. at 507 n.10. The court held that under Booth the extent of the murderer's knowledge about the victim has no bearing on the murderer's moral guilt unless the murderer acted with the motive to harm the victim's family. Pet. App. 19-20, 60 & n.4. /4/ In a concurring opinion, Chief Justice Moyer agreed with the majority that this Court's decisions in Booth and Gathers required that respondent's death sentence be vacated. He added, however, that in his view this Court should reconsider Booth and Gathers and provide additional direction to the lower courts with respect to the treatment of victim impact evidence in capital sentencing proceedings. Pet. App. 45-47. Justices Douglas and Resnick each wrote dissenting opinions. Justice Douglas took the position that Booth bars victim impact evidence only where there is "a substantial risk that the sentencing decision will be based upon arbitrary or irrelevant consideration(s)," and that there was no such risk in this case. Pet. App. 49-50. Justice Douglas also concluded that even if the admission of the victim impact evidence was error, the error was harmless beyond a reasonable doubt. In her separate dissenting opinion, Justice Resnick urged that this Court reconsider Booth and Gathers. Based on her view that the sentencing body cannot make "(a)n appropriate, fair and just determination," Pet. App. 58, unless it is permitted to know "all the facts surrounding both the defendant and the victim," Pet. App. 56, she concluded that the admission of the victim impact statement in this case was not prejudicial error. Pet. App. 58. SUMMARY OF ARGUMENT 1. This Court's decisions in Booth and Gathers are grounded in the proposition that the full extent of the harm caused by a murderer has no bearing on the extent of the defendant's personal responsibility for the crime. This proposition is not only contrary to traditional approaches to criminal sentencing, but it improperly intrudes into the considered (and contrary) judgment of legislative bodies as to the appropriate range of considerations to be taken into account by the sentencing authority. The full consequences of a defendant's acts are relevant to capital cases as well as to cases involving other forms of punishment. The Court so held in Tison v. Arizona, 481 U.S. 137 (1987), where the Court made clear that in certain circumstances, a defendant may be subject to the death penalty because of the consequences of the actions of another person, even though the defendant does not specifically intend those consequences. More generally, the harm caused by a criminal act has always been regarded as relevant to the question of punishment, even in capital cases. That is, a murder may be distinguishable from an attempted murder by nothing more than poor aim on the part of the defendant, but the fact that the victim dies is highly relevant to the availability of the death penalty as punishment for the crime. Thus, notwithstanding its obvious sensitivity, nothing about the capital sentencing context makes it constitutionally impermissible to identify the consequences of the defendant's acts as bearing on the appropriateness of imposing the penalty of death. The undeniable fact that victim impact evidence may in some cases include improper or inflammatory evidence does not justify Booth's per se rule excluding all victim impact evidence from capital sentencing proceedings. If particular evidence is inflammatory or otherwise unfairly prejudicial, the trial court can and should exclude it. If evidence is improperly admitted, its admission can be fully and carefully reviewed on appeal and a death sentence that is determined to have been imposed on the basis of improper evidence can be vacated. These are not novel suggestions, but rather familiar tasks for trial and appellate courts to perform under applicable rules of evidence. The risk that admitting evidence of the consequences of a defendant's conduct may in some cases result in the admission of improper evidence is scarcely a reason for erecting a constitutional rule barring any evidence relating to the effect that a defendant's conduct has had on the persons who have been left behind. Booth's rigid rule is in severe tension with the principle that a sentencer cannot be precluded from considering any aspect of the defendant's character or record that may provide a basis for imposing a sentence other than death. If the jury must consider the defendant as a "uniquely individual human being()," Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion), then there is no convincing reason -- at least none grounded in the Constitution -- to prevent the jury from also considering the unique characteristics or circumstances of the victim. Indeed, this Court has already recognized that the victim's status can properly be considered in some settings as a factor weighing in favor of imposing the death penalty. See Roberts v. Louisiana, 431 U.S. 633, 636 (1977) (victim's status as a law enforcement officer may be considered as an aggravating factor). 2. Principles of stare decisis do not preclude reexamination of Booth. Although stare decisis serves important purposes, it is a flexible policy, not an inflexible rule. The Court's willingness to reconsider its prior decisions is, quite appropriately, greater in constitutional than in statutory cases, for in that setting there is no other method of correcting errors short of constitutional amendment. Moreover, the Court has expressly stated that a prior decision is more likely to be overruled if it has bred confusion or anomalous results, or if it disserves principles of democratic self-governance. Both of these factors weigh heavily in favor of abandoning Booth. For each of these reasons, we are firmly persuaded that the case presents one of those rare instances in which a recent decision of this Court should be reexamined and overruled. ARGUMENT I. THE EIGHTH AMENDMENT DOES NOT IMPOSE A PER SE RULE AGAINST THE ADMISSION OF VICTIM IMPACT EVIDENCE AT THE SENTENCING PHASE OF A CAPITAL TRIAL In Booth v. Maryland, 482 U.S. 496 (1987), this Court held that the Eighth Amendment prohibits a jury from considering a victim impact statement at the sentencing phase of a capital murder trial. Two years later, in South Carolina v. Gathers, 109 S. Ct. 2207 (1989), the Court applied that rule and held that it was error for the prosecutor to comment to the sentencing jury on the personal qualities of the victim. In both cases, the Court made it clear that the admissibility of victim impact evidence was not to be determined on a case-by-case basis, but that such evidence was per se inadmissible in the sentencing phase of a capital case except, perhaps, to the extent that it "relate(d) directly to the circumstances of the crime." Booth, 482 U.S. at 507 n.10; Gathers, 109 S. Ct. at 2211. This case presents an opportunity to reexamine the per se rule announced in Booth and applied in Gathers. In our view, the Eighth Amendment does not foreclose Congress or a State from deciding that the harm caused by a defendant is relevant to his punishment. Nor can we discern in the Eighth Amendment any basis for judicially foreclosing the use of victim impact evidence to demonstrate the harm caused by a murderer to the victim's relatives and loved ones and to society in general. Accordingly, Booth's interposition of a per se rule against the admission of such evidence lacks an adequate foundation in the Constitution. 1. The Booth majority began its analysis with the observation that the Constitution requires the jury to make an individualized determination as to whether a defendant should be executed based on "the character of the individual and the circumstances of the crime." 482 U.S. at 502 (quoting Zant v. Stephens, 462 U.S. 862, 879 (1983)). The majority conceded that no prior decision of this Court had mandated that only the defendant's character and the immediate circumstances of the crime may constitutionally be considered in a capital sentencing proceeding. But the Court concluded that other factors are irrelevant to the capital sentencing decision unless they have "some bearing on the defendant's 'personal responsibility and moral guilt.'" 482 U.S. at 502 (quoting Enmund v. Florida, 458 U.S. 782, 801 (1982)). The Court viewed the character of the victim and the effect of the killing as having nothing to do with "the blameworthiness of a particular defendant." 482 U.S. at 504. The Court therefore held that, except in narrowly defined circumstances, the prosecution may not introduce evidence on those issues at a capital sentencing hearing. /5/ The basic fallacy in Booth's reasoning is the conclusion that the harm caused by a murderer does not, and constitutionally may not, bear on the appropriateness of capital punishment. As the dissenting opinions in Booth and Gathers noted, the criminal law has long embraced the principle that a defendant may be held personally responsible for the harm caused by his actions, and that he may be punished even for unintended consequences of those actions. Booth, 482 U.S. at 516 (opinion of White, J.); id. at 519 (opinion of Scalia, J.); Gathers, 109 S. Ct. at 2214 (opinion of O'Connor, J); id. at 2217 (opinion of Scalia, J.). The correspondence between the harm caused by a bad act and the punishment imposed for the act applies in the context of capital sentencing as well. For example, this Court has forbidden the imposition of capital punishment for certain crimes less grave than murder, see Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult woman); Enmund v. Florida, 458 U.S. 782, 797 (1982) (armed robbery), because those crimes do not possess the special degree of "injury to the person and to the public," Coker, 433 U.S. at 598 (opinion of White, J.), that is present when the defendant's conduct results in the taking of a human life. In upholding the death penalty's application to certain felony murder prosecutions, the Court has made clear that a State may constitutionally make the death penalty turn on the consequences of a defendant's actions -- even unintended consequences. Thus, in Tison v. Arizona, 481 U.S. 137 (1987), the Court held that a defendant who acts with reckless disregard for human life may be subject to the death penalty based on his participation in a robbery, if the robbery results in death. But the Constitution would not, in the Court's view, permit imposition of the death penalty on the same defendant, acting in exactly the same way, with equal recklessness as to human life, if the dangerous felony in which he participated did not result in the death of one of the victims. See Tison, 481 U.S. at 148 (death penalty "plainly excessive" for armed robbery unaccompanied by a homicide). The impact on the victim plainly makes the difference as to whether the same act may or may not lead to a sentence of death. Likewise, even though the death penalty may not be imposed for the rape of an adult woman, see Coker v. Georgia, supra, the case is dramatically changed if the victim dies as a result of injuries suffered during the rape. In that event, even if the defendant did not specifically intend to kill the victim, the defendant would be subject in most jurisdictions to prosecution for felony murder and, in light of Tison's analysis, could constitutionally be sentenced to death. If it is true, as this Court's cases indicate, that the consequences of a crime to the immediate victim are highly relevant to punishment, then it is difficult to understand why the Constitution prohibits Congress or a State from attaching weight to the effects that a murder may have on the surviving members of the victim's family. Legislative bodies can reasonably conclude -- with the most powerful moral justification -- that survivors and loved ones are themselves very much "victims" of the crime of murder. /6/ The reality of this point is underscored in case after case coming before this Court. Booth itself demonstrates the profound suffering by family members occasioned by the brutal murder of an elderly, defenseless couple. Less dramatically, the fact that a would-be murderer escapes the death penalty because he is a bad shot and only wounds his victim, or because his victim obtains prompt medical attention and survives, does not render it arbitrary to impose the death penalty on a defendant who, with precisely the same mental state, succeeds in his effort. Similarly there should be no constitutional bar to considering the effects that a defendant's act of murder has on the public and the members of the victim's family, even if that means that another defendant may escape the death penalty because the loss of the victim in his case is not as deeply or as widely felt. 2. Although Booth held that the "full range of foreseeable consequences of a defendant's actions," 482 U.S. at 504, is not relevant "in the unique circumstance of a capital sentencing proceeding," the reasoning that led the Court to that conclusion was based mainly on its concern that the admission of victim impact evidence would "create() an impermissible risk that the capital sentencing decision will be made in an arbitrary manner." Id. at 505. Thus, the Court concluded that admitting victim impact evidence would result in the imposition of capital punishment based on the ability of the victim's relatives to sway the jury or the fortuity that the victim was a "sterling member of the community." Id. at 505-506. In our view, the concerns identified by the Court in Booth do not justify a per se rule excluding victim impact evidence in capital sentencing proceedings without further inquiry into the nature of the evidence in question. It cannot be denied, as the Court noted in Booth, 482 U.S. at 505, that some family members are more articulate than others, and that some are more willing than others to express their grief to a jury. But such differences in personality and background constitute an inescapable feature of a criminal justice system in which the participants are individual human beings of widely differing backgrounds, abilities, and experiences. To state the obvious, all witnesses, including witnesses for the defense, differ in their ability to present their testimony in an effective and persuasive manner, just as defense lawyers and prosecutors differ in their ability to present evidence and argument to the jury. There is nothing so distinctive about victim impact testimony as to raise these ordinary and unavoidable variations to the level of a constitutional infirmity, and to require exclusion of an entire category of evidence that legislative bodies have determined to be proper and appropriate. Of course, a capital sentencing decision may not be based on constitutionally impermissible factors such as the race of the victim. See McCleskey v. Kemp, 481 U.S. 279 (1987). But the risk that juries may base their decisions on such impermissible factors is present regardless of whether victim impact evidence is admitted, and it is by no means clear that introduction of victim impact evidence will have the effect of increasing that risk; indeed, such evidence may have the opposite effect. /7/ In any event, the risk that the jury might occasionally misuse particular evidence is more appropriately addressed on a case-by-case basis; it does not justify a per se rule, grounded in the higher law of the Constitution, that victim impact evidence may never be admitted at a capital sentencing hearing. At the same time, Booth surely was correct in observing, 482 U.S. at 508, that testimony by members of the victim's family, like other forms of emotionally charged evidence, may in some cases so inflame the jury as to create an unacceptable risk that a death sentence was imposed for arbitrary and capricious reasons. But that possibility does not justify a prophylactic, constitutionally based rule, especially in the face of considered legislative judgments to the contrary. Trial courts routinely exclude evidence if it has an undue tendency to inflame the jury. And -- in an extreme case -- if the admission of prejudicial matter has resulted in a fundamentally unfair sentencing proceeding, the defendant may be constitutionally entitled to vacation of sentence on that ground. Cf. Lisenba v. California, 314 U.S. 219, 228-229 (1941). Nor is the promise of reliability in sentencing proceedings an empty one; this Court "has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake." Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (O'Connor, J., concurring). In view of those protections, claims that victim impact evidence was so emotionally charged as to invalidate the jury's sentencing decision should be resolved on a case-by-case basis. /8/ 3. The rule in Booth, if vigorously applied, would require that all information about the victim's character be omitted from the jury's capital sentencing deliberations. But the Court's prior decisions have never suggested such an extreme result. In Roberts v. Louisiana, 431 U.S. 633, 636 (1977), for example, the Court stated that "the fact that the murder victim was a peace officer performing his regular duties may be regarded as an aggravating circumstance." /9/ Although it is no doubt possible to distinguish on a case-by-case basis between a victim's status as a law enforcement officer and other facts about the victim, such as that he was the parent of minor children, it is hard to find any constitutional basis for such distinctions, and the process of defining what is constitutionally permissible therefore is bound to be unstable and to create intractable line-drawing problems. Cf. Packer, Making the Punishment Fit the Crime, 77 Harv. L. Rev. 1071, 1078 n.21 (1964) ("Description, even approval, of the prevailing mood of penal philosophy * * * is one thing; its elevation to constitutional dogma is quite another."). In addition, this Court has held that the Constitution requires that "the sentencer * * * (cannot) be precluded 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." Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion). See also Skipper v. South Carolina, 476 U.S. 1 (1986); Eddings v. Oklahoma, 455 U.S. 104 (1982). That principle is, of course, consistent with the need for a thorough and searching inquiry when the sentencer must decide a question of life or death. When combined with the rule of Booth and Gathers, however, that principle creates an anomaly. The sentencer is required to consider the full range of facts about the defendant's character and circumstances, but may not be told anything of the character of the victim or the extent of the harm the defendant has inflicted upon others. We can discern nothing in the Constitution that requires such a one-sided presentation. As Justice Cardozo wrote for the Court, "(J)ustice, though due to the accused, is due to the accuser also. * * * We are to keep the balance true." Snyder v. Massachusetts, 291 U.S. 97, 122 (1934). If a sentencing jury is to "express the conscience of the community on the ultimate question of life or death," Witherspoon v. Illinois, 391 U.S. 510, 519 (1968) (footnote omitted), there should be no constitutional prohibition against permitting the jury to have a complete picture of the act the defendant has committed and all of those whose lives have been affected so profoundly by that act. /10/ II. PRINCIPLES OF STARE DECISIS DO NOT REQUIRE CONTINUED ADHERENCE TO BOOTH AND GATHERS The doctrine of stare decisis serves important purposes in our legal system. The doctrine promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. See Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986). But the Court has recognized that "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision." Helvering v. Hallock, 309 U.S. 106, 119 (1940). And it is well settled that stare decisis is less inflexible in constitutional cases than in statutory cases, because in the former cases "correction through legislative action is practically impossible." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 407 (1932) (Brandeis, J., dissenting). See also Monell v. Department of Social Services, 436 U.S. 658, 696 (1978). Although the Court has not adopted a "rigid formula" for deciding when a prior construction of the Constitution should be overruled, Vasquez, 474 U.S. at 266, it has identified several factors that bear on that determination. One question is whether the prior rule has bred confusion or led to anomalous results. Solorio v. United States, 483 U.S. 435, 448-450 (1987); Erie R.R. v. Tompkins, 304 U.S. 64, 74-78 (1938). Another is whether a prior decision, even one of fairly recent vintage, "disserves principles of democratic self-governance." Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 547 (1985). Both of these factors, in our view, point strongly toward reconsideration of Booth and Gathers. There is no question that Booth has spawned confusion and uncertainty in the lower courts. See Gathers, 109 S. Ct. at 2212 (O'Connor, J., dissenting) (citing cases); Mills v. Maryland, 486 U.S. 367, 395-398 (1988) (Rehnquist, C.J., dissenting). Indeed, in this very case, Chief Justice Moyer noted in his concurrence that the fact that the majority and the two dissenters all interpreted Booth and Gathers differently vividly demonstrates the uncertainty of the law. Pet. App. 45-46. Although the Booth Court painted with a broad brush, questions linger as to whether Booth outlaws admission of any statements or evidence relating to the character of the victim or the impact of the crime, or whether Booth's prohibition applies only to evidence that resembles the formal victim impact statement at issue in that case. An even more difficult question is whether, and if so what, victim characteristics remain legitimate subjects for consideration in sentencing. For, as noted above, the Court has stated that certain victim characteristics, such as the victim's status as a police officer, may appropriately be made an aggravating circumstance, see Roberts v. Louisiana, supra, and it appears that Booth did not alter that rule. But the co-existence of Roberts and Booth still leaves open other questions, such as whether the victim's youth, age, or infirmity may be taken into account, see 21 U.S.C. 848(n)(9); whether the defendant must have been aware of those factors in order for them to be taken into account; or even whether the defendant must have acted with intent to exploit those characteristics. It may be that this Court could reduce the level of uncertainty over time by deciding a series of cases limiting and defining Booth's reach. But because the principles informing Booth's exclusionary approach have no natural limits, the process of enforcing its reach will necessarily have an ipse dixit quality to it, rather than constituting a logical extrapolation from principles that the Booth majority laid down. In addition, Booth will continue to create conflicts with state and federal sentencing practices, by virtue of its being at odds with the generally accepted principle that a criminal may be punished for the consequences of his acts. That principle manifests itself in many ways, each of which presents an occasion for a conflict with the principles informing Booth. More fundamentally, as we have suggested, Booth substantially interferes with the traditional responsibility of legislatures to determine which factors shall be relevant in imposing criminal sentences. See Gore v. United States, 357 U.S. 386, 393 (1958). In recent years, both Congress and many state legislatures have enacted legislation recognizing and protecting the rights of victims of crime. /11/ Booth is not only inconsistent with the significant body of victim rights legislation that has emerged in recent years, but it forecloses the opportunity for further development of community values through additional legislation on that subject by Congress and the States. In view of its doctrinal weakness and its interference with the considered judgment of democratic institutions with respect to sentencing, Booth should not stand. CONCLUSION The judgment of the Supreme Court of Ohio should be reversed. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General PAUL J. LARKIN, JR. Assistant to the Solicitor General NOVEMBER 1990 /1/ As amended, Fed. R. Crim. P. 32(c)(2)(D) requires that a presentence report include "verified information stated in a nonargumentative style containing an assessment of the financial, social, psychological, and medical impact upon, and cost to, any individual against whom the offense has been committed." /2/ There are currently two capital cases under 21 U.S.C. 848 pending in the Northern District of Illinois. The use of victim impact evidence has also been at issue in a capital proceeding under the Uniform Code of Military Justice. United States v. Murphy, 30 M.J. 1040 (A.C.M.R. 1990). /3/ Recent legislative efforts demonstrate a continuing interest in the use of victim impact evidence in this context. For example, the President's crime bill in the 101st Congress included as aggravating factors in capital cases the victim's vulnerability "due to old age, youth, or infirmity," and the victim's employment in certain official capacities. S. 1225, 101st Cong., 1st Sess. Section 202 (1989). Another crime bill, passed by the Senate, contained a provision requiring that a victim impact statement be prepared and that such a statement "shall be considered by the court or jury" at the penalty phase of a capital proceeding. S. 1970, 101st Cong., 1st Sess. Section 3593(g) (1989). The viability of such measures, and the future development of legislative approaches to the issue, will almost certainly be affected by the Court's decision in this case. /4/ The court also held that it was improper for family members to offer their opinions as to the appropriate sentence, as Harris's father had done in this case. Such opinions, the court held, "undermine the defendant's right to trial by an impartial court" and could make the sentencing determination turn on the family's general views about capital punishment. Pet. App. 22. /5/ Booth suggested that victim impact evidence may be admissible if it relates "directly to the circumstances of the crime." The Court also acknowledged that "(f)acts about the victim and family also may be relevant in a noncapital criminal trial." 482 U.S. at 507 n.10. /6/ The Guidelines for Victim and Witness Assistance promulgated by the United States Department of Justice provide that "(t)he term 'victim' also includes the immediate family of a minor or a homicide victim." 48 Fed. Reg. 33,775. /7/ The evidence may personalize the victim for the jurors and make it more likely that they will emphathize with the family members of a victim with whom the jurors might otherwise feel that they have very little in common. /8/ Part of the evidence complained of in this case was an opinion by the victim's father that respondent should receive the death penalty. Such evidence appears to go beyond showing the effects of the crime on the surviving victims and therefore ordinarily should not be admitted as a form of victim impact evidence. But admission of that evidence does not require affirmance of the ruling below. The Ohio Supreme Court clearly decided this case as it did because it regarded itself bound by the broad prohibition on victim impact evidence set forth in Booth. If this Court removes that prohibition by overruling or limiting Booth, the Ohio Supreme Court will be free to consider the narrower question of the propriety and effect of the father's opinion evidence. We therefore suggest that the Court remand this case to the Supreme Court of Ohio to permit the state courts to determine in the first instance whether the opinion evidence from the victim's father requires reversal of the death sentence in this case. That course is similar to the one suggested by Justice O'Connor in her dissent in Gathers. See 109 S. Ct. at 2216 (O'Connor, J., dissenting). /9/ Federal statutes authorize the death penalty for the assassination of the President or Vice President, 18 U.S.C. 1751, 1111, a Member of Congress, Cabinet officer, Supreme Court Justice, or the head of an Executive Department, 18 U.S.C. 351. /10/ The imbalance that results from the rule announced in Booth is plain upon examination of the range of mitigating evidence that courts are constitutionally required to admit in capital sentencing proceedings. See, e.g., State v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258 (1990) (witnesses testified about "tempestuous atmosphere of defendant's childhood home; they related, among other things, that defendant's father, who drank, died when defendant was 12 years old, causing his mother to work two jobs and preventing her from closely supervising him"); Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L. Rev. 299, 300-301 (1983) (describing sentencing hearing in which defendant's son testified). /11/ The Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248, requires that presentence reports in most federal cases, including capital prosecutions under the Air Piracy Act, contain victim impact information. In addition, the Court noted in Booth that 36 States permit or require the use of victim impact statements in some contexts. 482 U.S. at 509 n.12 (citing National Organization for Victim Assistance, Victim Rights and Services: A Legislative Directory 32-33 (1985); McLeod, Victim Participation at Sentencing, 22 Crim. L. Bull. 501, 507 & n.22 (1986)). Legislative decisions are foremost among the "objective indicia" of contemporary values to which the Court has looked in its Eighth Amendment cases. See, e.g., McCleskey, 481 U.S. at 279; Gregg v. Georgia, 428 U.S. 153, 175 (1976) (lead opinion).