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Subject: 90-5721 -- DISSENT, PAYNE v. TENNESSEE




    SUPREME COURT OF THE UNITED STATES


No. 90-5721



PERVIS TYRONE PAYNE, PETITIONER v.
TENNESSEE


on writ of certiorari to the supreme court of tennessee, western division


[June 27, 1991]



    Justice Stevens, with whom Justice Blackmun joins, dissenting.

    The novel rule that the Court announces today represents a dramatic
departure from the principles that have governed our capital sentencing
jurisprudence for decades.  Justice Marshall is properly concerned about
the majority's trivialization of the doctrine of stare decisis.  But even
if Booth and Gathers had not been decided, today's decision would represent
a sharp break with past decisions.  Our cases provide no support whatsoever
for the majority's conclusion that the prosecutor may introduce evidence
that sheds no light on the defendant's guilt or moral culpability, and thus
serves no purpose other than to encourage jurors to decide in favor of
death rather than life on the basis of their emotions rather than their
reason.

    Until today our capital punishment jurisprudence has required that any
decision to impose the death penalty be based solely on evidence that tends
to inform the jury about the character of the offense and the character of
the defendant.  Evidence that serves no purpose other than to appeal to the
sympathies or emotions of the jurors has never been considered admissible.
Thus, if a defendant, who had murdered a convenience store clerk in cold
blood in the course of an armed robbery, offered evidence unknown to him at
the time of the crime about the immoral character of his victim, all would
recognize immediately that the evidence was irrelevant and inadmissible.
Evenhanded justice requires that the same constraint be imposed on the
advocate of the death penalty.

I
    In Williams v. New York, 337 U. S. 241 (1949), this Court considered
the scope of the inquiry that should precede the imposition of a death
sentence.  Relying on practices that had developed "both before and since
the American colonies became a nation," id., at 246, Justice Black
described the wide latitude that had been accorded judges in considering
the source and type of evidence that is relevant to the sentencing
determination.  Notably, that opinion refers not only to the relevance of
evidence establishing the defendant's guilt, but also to the relevance of
"the fullest information possible concerning the defendant's life and
characteristics."  Id., at 247.  "Victim impact" evidence, however, was
unheard of when Williams was decided.  The relevant evidence of harm to
society consisted of proof that the defendant was guilty of the offense
charged in the indictment.

    Almost 30 years after our decision in Williams, the Court reviewed the
scope of evidence relevant in capital sentencing.  See Lockett v. Ohio, 438
U. S. 586 (1978).  In his plurality opinion, Chief Justice Burger concluded
that in a capital case, the sentencer must not be prevented "from
considering, as a mitigating factor, any aspect of a defendant's character
or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death."  Id., at 604 (emphasis
deleted).  As in Williams, the character of the offense and the character
of the offender constituted the entire category of relevant evidence.
"Victim impact" evidence was still unheard of when Lockett was decided.

    As the Court acknowledges today, the use of victim impact evidence "is
of recent origin," ante, at 11.  Insofar as the Court's jurisprudence is
concerned, this type of evidence made its first appearance in 1987 in Booth
v. Maryland, 482 U. S. 496.  In his opinion for the Court, Justice Powell
noted that our prior cases had stated that the question whether an
individual defendant should be executed is to be determined on the basis of
" `the character of the individual and the circumstances of the crime,' "
id., at 502 (quoting Zant v. Stephens, 462 U. S. 862, 879 (1983); Eddings
v. Oklahoma, 455 U. S. 104, 112 (1982)).  Relying on those cases and on
Enmund v. Florida, 458 U. S. 782, 801 (1982), the Court concluded that
unless evidence has some bearing on the defendant's personal responsibility
and moral guilt, its admission would create a risk that a death sentence
might be based on considerations that are constitutionally impermissible or
totally irrelevant to the sentencing process.  482 U. S., at 502.  Evidence
that served no purpose except to describe the personal characteristics of
the victim and the emotional impact of the crime on the victim's family was
therefore constitutionally irrelevant.

    Our decision in Booth was entirely consistent with the practices that
had been followed "both before and since the American colonies became a
nation," Williams, 337 U. S., at 246.  Our holding was mandated by our
capital punishment jurisprudence, which requires any decision to impose the
death penalty to be based on reason rather than caprice or emotion.  See
Gardner v. Florida, 430 U. S. 349, 362 (1977) (opinion of Stevens, J.).
The dissenting opinions in Booth and in Gathers can be searched in vain for
any judicial precedent sanctioning the use of evidence unrelated to the
character of the offense or the character of the offender in the sentencing
process.  Today, however, relying on nothing more than those dissenting
opinions, the Court abandons rules of relevance that are older than the
Nation itself, and ventures into uncharted seas of irrelevance.

II
    Today's majority has obviously been moved by an argument that has
strong political appeal but no proper place in a reasoned judicial opinion.
Because our decision in Lockett, 438 U. S., at 604 (opinion of Burger, C.
J.), recognizes the defendant's right to introduce all mitigating evidence
that may inform the jury about his character, the Court suggests that
fairness requires that the State be allowed to respond with similar
evidence about the victim.  See ante, at 15-16. {1}  This argument is a
classic non sequitur: The victim is not on trial; her character, whether
good or bad, cannot therefore constitute either an aggravating or
mitigating circumstance.

    Even if introduction of evidence about the victim could be equated with
introduction of evidence about the defendant, the argument would remain
flawed in both its premise and its conclusion.  The conclusion that
exclusion of victim impact evidence results in a significantly imbalanced
sentencing procedure is simply inaccurate.  Just as the defendant is
entitled to introduce any relevant mitigating evidence, so the State may
rebut that evidence and may designate any relevant conduct to be an
aggravating factor provided that the factor is sufficiently well defined
and consistently applied to cabin the sentencer's discretion.

    The premise that a criminal prosecution requires an evenhanded balance
between the State and the defendant is also incorrect.  The Constitution
grants certain rights to the criminal defendant and imposes special
limitations on the State designed to protect the individual from
overreaching by the disproportionately powerful State.  Thus, the State
must prove a defendant's guilt beyond a reasonable doubt.  See In re
Winship, 397 U. S. 358 (1970).  Rules of evidence are also weighted in the
defendant's favor.  For example, the prosecution generally cannot introduce
evidence of the defendant's character to prove his propensity to commit a
crime, but the defendant can introduce such reputation evidence to show his
law-abiding nature.  See, e. g., Fed. Rule Evid. 404(a).  Even if balance
were required or desirable, today's decision, by permitting both the
defendant and the State to introduce irrelevant evidence for the
sentencer's consideration without any guidance, surely does nothing to
enhance parity in the sentencing process.

III


    Victim impact evidence, as used in this case, has two flaws, both
related to the Eighth Amendment's command that the punishment of death may
not be meted out arbitrarily or capriciously.  First, aspects of the
character of the victim unforeseeable to the defendant at the time of his
crime are irrelevant to the defendant's "personal responsibility and moral
guilt" and therefore cannot justify a death sentence.  See Enmund v.
Florida, 458 U. S. 782, 801 (1982); see also id., at 825 (O'Connor, J.,
dissenting) ("[P]roportionality requires a nexus between the punishment
imposed and the defendant's blameworthiness"); Tison v. Arizona, 481 U. S.
137, 149 (1987) ("The heart of the retribution rationale is that a criminal
sentence must be directly related to the personal culpability of the
criminal offender"); California v. Brown, 479 U. S. 538, 545 (1987)
(O'Connor, J., concurring).

    Second, the quantity and quality of victim impact evidence sufficient
to turn a verdict of life in prison into a verdict of death is not defined
until after the crime has been committed and therefore cannot possibly be
applied consistently in different cases.  The sentencer's unguided
consideration of victim impact evidence thus conflicts with the principle
central to our capital punishment jurisprudence that, "where discretion is
afforded a sentencing body on a matter so grave as the determination of
whether a human life should be taken or spared, that discretion must be
suitably directed and limited so as to minimize the risk of wholly
arbitrary and capricious action."  Gregg v. Georgia, 428 U. S. 153, 189
(1976) (opinion of Stewart, Powell, and Stevens, JJ.).  Open-ended reliance
by a capital sentencer on victim impact evidence simply does not provide a
"principled way to distinguish [cases], in which the death penalty [i]s
imposed, from the many cases in which it [i]s not."  Godfrey v. Georgia,
446 U. S. 420, 433 (1980) (opinion of Stewart, J.).

    The majority attempts to justify the admission of victim impact
evidence by arguing that "consideration of the harm caused by the crime has
been an important factor in the exercise of [sentencing] discretion."
Ante, at 10.  This statement is misleading and inaccurate.  It is
misleading because it is not limited to harm that is foreseeable.  It is
inaccurate because it fails to differentiate between legislative
determinations and judicial sentencing.  It is true that an evaluation of
the harm caused by different kinds of wrongful conduct is a critical aspect
in legislative definitions of offenses and determinations concerning
sentencing guidelines.  There is a rational correlation between moral
culpability and the foreseeable harm caused by criminal conduct.  Moreover,
in the capital sentencing area, legislative identification of the special
aggravating factors that may justify the imposition of the death penalty is
entirely appropriate. {2}  But the majority cites no authority for the
suggestion that unforeseeable and indirect harms to a victim's family are
properly considered as aggravating evidence on a case-by-case basis.

    The dissents in Booth and Gathers and the majority today offer only the
recent decision in Tison v. Arizona, 481 U. S. 137 (1987), and two
legislative examples to support their contention that harm to the victim
has traditionally influenced sentencing discretion.  Tison held that the
death penalty may be imposed on a felon who acts with reckless disregard
for human life if a death occurs in the course of the felony, even though
capital punishment cannot be imposed if no one dies as a result of the
crime.  The first legislative example is that attempted murder and murder
are classified as two different offenses subject to different punishments.
Ante, at 9.  The second legislative example is that a person who drives
while intoxicated is guilty of vehicular homicide if his actions result in
a death but is not guilty of this offense if he has the good fortune to
make it home without killing anyone.  See Booth, 482 U. S., at 516 (White,
J., dissenting).

    These three scenarios, however, are fully consistent with the Eighth
Amendment jurisprudence reflected in Booth and Gathers and do not
demonstrate that harm to the victim may be considered by a capital
sentencer in the ad hoc and post hoc manner authorized by today's majority.
The majority's examples demonstrate only that harm to the victim may
justify enhanced punishment if the harm is both foreseeable to the
defendant and clearly identified in advance of the crime by the legislature
as a class of harm that should in every case result in more severe
punishment.

    In each scenario, the defendants could reasonably foresee that their
acts might result in loss of human life.  In addition, in each, the
decision that the defendants should be treated differently was made prior
to the crime by the legislature, the decision of which is subject to
scrutiny for basic rationality.  Finally, in each scenario, every defendant
who causes the well-defined harm of destroying a human life will be subject
to the determination that his conduct should be punished more severely.
The majority's scenarios therefore provide no support for its holding,
which permits a jury to sentence a defendant to death because of harm to
the victim and his family that the defendant could not foresee, which was
not even identified until after the crime had been committed, and which may
be deemed by the jury, without any rational explanation, to justify a death
sentence in one case but not in another.  Unlike the rule elucidated by the
scenarios on which the majority relies, the majority's holding offends the
Eighth Amendment because it permits the sentencer to rely on irrelevant
evidence in an arbitrary and capricious manner.

    The majority's argument that "the sentencing authority has always been
free to consider a wide range of relevant material," ante, at 10 (emphasis
added), thus cannot justify consideration of victim impact evidence that is
irrelevant because it details harms that the defendant could not have
foreseen.  Nor does the majority's citation of Gregg v. Georgia concerning
the "wide scope of evidence and argument allowed at presentence hearings,"
428 U. S., at 203 (plurality opinion), support today's holding.  See ante,
at 11.  The Gregg plurality endorsed the sentencer's consideration of a
wide range of evidence "[s]o long as the evidence introduced and the
arguments made at the presentence hearing do not prejudice a defendant."
428 U. S., at 203-204.  Irrelevant victim impact evidence that distracts
the sentencer from the proper focus of sentencing and encourages reliance
on emotion and other arbitrary factors necessarily prejudices the
defendant.

    The majority's apparent inability to understand this fact is
highlighted by its misunderstanding of Justice Powell's argument in Booth
that admission of victim impact evidence is undesirable because it risks
shifting the focus of the sentencing hearing away from the defendant and
the circumstances of the crime and creating a " `mini-trial' on the
victim's character."  482 U. S., at 507.  Booth found this risk
insupportable not, as today's majority suggests, because it creates a
"tactical" "dilemma" for the defendant, see ante, at 13, but because it
allows the possibility that the jury will be so distracted by prejudicial
and irrelevant considerations that it will base its life-or-death decision
on whim or caprice.  See 482 U. S., at 506-507.

IV
    The majority thus does far more than validate a State's judgment that
"the jury should see `a quick glimpse of the life petitioner chose to
extinguish,' Mills v. Maryland, 486 U. S. 367, 397 (1988) (Rehnquist, C.
J., dissenting)."  Ante, at 1 (O'Connor, J., concurring).  Instead, it
allows a jury to hold a defendant responsible for a whole array of harms
that he could not foresee and for which he is therefore not blameworthy.
Justice Souter argues that these harms are sufficiently foreseeable to hold
the defendant accountable because "[e]very defendant knows, if endowed with
the mental competence for criminal responsibility, that the life he will
take by his homicidal behavior is that of a unique person, like himself,
and that the person who will be killed probably has close associates,
`survivors,' who will suffer harms and deprivations from the victim's
death."  Ante, at 4 (Souter, J., concurring).  But every juror and trial
judge knows this much as well.  Evidence about who those survivors are and
what harms and deprivations they have suffered is therefore not necessary
to apprise the sentencer of any information that was actually foreseeable
to the defendant.  Its only function can be to "divert the jury's attention
away from the defendant's background and record, and the circumstances of
the crime."  See Booth, 482 U. S., at 505.

    Arguing in the alternative, Justice Souter correctly points out that
victim impact evidence will sometimes come to the attention of the jury
during the guilt phase of the trial.  Ante, at 6.  He reasons that the
ideal of basing sentencing determinations entirely on the moral culpability
of the defendant is therefore unattainable unless a different jury is
empaneled for the sentencing hearing.  Ante, at 7.  Thus, to justify
overruling Booth, he assumes that the decision must otherwise be extended
far beyond its actual holding.

    Justice Souter's assumption is entirely unwarranted.  For as long as
the contours of relevance at sentencing hearings have been limited to
evidence concerning the character of the offense and the character of the
offender, the law has also recognized that evidence that is admissible for
a proper purpose may not be excluded because it is inadmissible for other
purposes and may indirectly prejudice the jury.  See 1 J. Wigmore, Evidence
MDRV 13 (P. Tillers rev. 1983).  In the case before us today, much of what
might be characterized as victim impact evidence was properly admitted
during the guilt phase of the trial and, given the horrible character of
this crime, may have been sufficient to justify the Tennessee Supreme
Court's conclusion that the error was harmless because the jury would
necessarily have imposed the death sentence even absent the error.  The
fact that a good deal of such evidence is routinely and properly brought to
the attention of the jury merely indicates that the rule of Booth may not
affect the outcome of many cases.

    In reaching our decision today, however, we should not be concerned
with the cases in which victim impact evidence will not make a difference.
We should be concerned instead with the cases in which it will make a
difference.  In those cases, defendants will be sentenced arbitrarily to
death on the basis of evidence that would not otherwise be admissible
because it is irrelevant to the defendants' moral culpability.  The
Constitution's proscription against the arbitrary imposition of the death
penalty must necessarily proscribe the admission of evidence that serves no
purpose other than to result in such arbitrary sentences.
V


    The notion that the inability to produce an ideal system of justice in
which every punishment is precisely married to the defendant's
blameworthiness somehow justifies a rule that completely divorces some
capital sentencing determinations from moral culpability is
incomprehensible to me.  Also incomprehensible is the argument that such a
rule is required for the jury to take into account that each murder victim
is a "unique" human being.  See ante, at 13; ante, at 1 (O'Connor, J.,
concurring); ante, at 4 (Souter, J., concurring).  The fact that each of us
is unique is a proposition so obvious that it surely requires no
evidentiary support.  What is not obvious, however, is the way in which the
character or reputation in one case may differ from that of other possible
victims.  Evidence offered to prove such differences can only be intended
to identify some victims as more worthy of protection than others.  Such
proof risks decisions based on the same invidious motives as a prosecutor's
decision to seek the death penalty if a victim is white but to accept a
plea bargain if the victim is black.  See McCleskey v. Kemp, 481 U. S. 279,
366 (1987) (Stevens, J., dissenting).

    Given the current popularity of capital punishment in a crime-ridden
society, the political appeal of arguments that assume that increasing the
severity of sentences is the best cure for the cancer of crime, and the
political strength of the "victims' rights" movement, I recognize that
today's decision will be greeted with enthusiasm by a large number of
concerned and thoughtful citizens.  The great tragedy of the decision,
however, is the danger that the "hydraulic pressure" of public opinion that
Justice Holmes once described, {3} -- and that properly influences the
deliberations of democratic legislatures -- has played a role not only in
the Court's decision to hear this case, {4} and in its decision to reach
the constitutional question without pausing to consider affirming on the
basis of the Tennessee Supreme Court's rationale, {5} but even in its
resolution of the constitutional issue involved.  Today is a sad day for a
great institution.







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1
    Justice Scalia accurately described the argument in his dissent in
Booth:
    "Recent years have seen an outpouring of popular concern for what has
come to be known as `victims' rights' -- a phrase that describes what its
proponents feel is the failure of courts of justice to take into account in
their sentencing decisions not only the factors mitigating the defendant's
moral guilt, but also the amount of harm he has caused to innocent members
of society.  Many citizens have found one-sided and hence unjust the
criminal trial in which a parade of witnesses comes forth to testify to the
pressures beyond normal human experience that drove the defendant to commit
his crime, with no one to lay before the sentencing authority the full
reality of human suffering the defendant has produced -- which (and not
moral guilt alone) is one of the reasons society deems his act worthy of
the prescribed penalty."  482 U. S., at 520.
    In his concurring opinion today, Justice Scalia again relies on the
popular opinion that has "found voice in a nationwide `victims rights'
movement."  Ante, at 2.  His view that the exclusion of evidence about "a
crime's unanticipated consequences" "significantly harms our criminal
justice system," ibid., rests on the untenable premise that the strength of
that system is to be measured by the number of death sentences that may be
returned on the basis of such evidence.  Because the word "arbitrary" is
not to be found in the constitutional text, he apparently can find no
reason to object to the arbitrary imposition of capital punishment.

2
    Thus, it is entirely consistent with the Eighth Amendment principles
underlying Booth and Gathers to authorize the death sentence for the
assassination of the President or Vice President, see 18 U. S. C. 15 1751,
1111, a Congressman, Cabinet official, Supreme Court Justice, or the head
of an executive department, MDRV 351, or the murder of a policeman on
active duty, see Md. Ann. Code, Art. 27, MDRV 413(d)(1) (1987).  Such
statutory provisions give the potential offender notice of the special
consequences of his crime and ensure that the legislatively determined
punishment will be applied consistently to all defendants.

3
    Northern Securities Co. v. United States, 193 U. S. 197, 400-401 (1904)
(Holmes, J., dissenting).

4
    See Payne v. Tennessee, 498 U. S. --- (1991) [111 S. Ct. 1031]
(Stevens, J., dissenting).

5
    Rust v. Sullivan, 500 U. S. ---, --- (1991) [slip op., at 1] (O'Connor,
J., dissenting).