Payne v. Tennessee (1991)

Payne v. Tennessee (1991) 

501 U.S. 808

Pervis Tyrone Payne was convicted by a Tennessee jury of the first-degree murders of Charisse Christopher and her two-year-­old daughter. During the sentencing phase of the trial, victim impact evidence was introduced, and in arguing for the death penalty, the prosecutor commented on the effects of the crimes upon the victims’ family. The jury sentenced Payne to death on each of the murder counts. The Tennessee Supreme Court affirmed, rejecting the contention that the admission of the victim impact evidence and the prosecutor’s closing arguments violated Payne’s Eighth Amendment rights under Booth v. Maryland (1987) and South Carolina v. Gathers (1989), which held that evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are per se inadmissible at a capital sentencing hearing. The Supreme Court granted certiorari.

Opinion of the Court: Rehnquist, Kennedy, O’Connor, Scalia, Souter, White.

Concurring opinions: O’Connor, Kennedy, White; Scalia, O’Connor, Kennedy; Souter, Kennedy.

Dissenting opinions: Marshall, Blackmun; Stevens, Blackmun.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

In this case we reconsider our holdings in Booth v. Maryland (1987), and South Carolina v. Gathers (1989), that the Eighth Amendment bars the admission of victim impact evidence during the penalty phase of a capital trial.

The petitioner, Pervis Tyrone Payne, was convicted by a jury on two counts of first-degree murder and one count of assault with intent to commit murder in the first degree. He was sentenced to death for each of the murders, and to 30 years in prison for the assault.

The victims of Payne’s offenses were 28-year-old Charisse Christopher, her 2-year-old daughter Lacie, and her 3-year-old son Nicholas. The three lived together in an apartment in Millington, Tennessee, across the hall from Payne’s girlfriend, Bobbie Thomas. On Saturday, June 27, 1987, Payne visited Thomas’ apartment several times in expectation of her return from her mother’s house in Arkansas, but found no one at home. On one visit, he left his overnight bag, containing clothes and other items for his weekend stay, in the hallway outside Thomas’ apartment. With the bag were three cans of malt liquor.

Payne passed the morning and early afternoon injecting cocaine and drinking beer. Later, he drove around the town with a friend in the friend’s car, each of them taking turns reading a pornographic magazine. Sometime around 3 P.M., Payne returned to the apartment complex, entered the Christophers’ apartment, and began making sexual advances towards Charisse. Charisse resisted and Payne became violent. A neighbor who resided in the apartment directly beneath the Christophers, heard Charisse screaming, “‘Get out, get out,’ as if she were telling the children to leave.” The noise briefly subsided and then began, “’horribly loud.’” The neighbor called the police after she heard a “blood-curdling scream” from the Christopher apartment.

When the first police officer arrived at the scene, he immediately encountered Payne who was leaving the apartment building so covered with blood that he appeared to be “‘sweating blood.’” The officer confronted Payne, who responded ” ‘I’m the complainant.’” When the officer asked, “‘What’s going on up there?’ ” Payne struck the officer with the overnight bag, dropped his tennis shoes, and fled.

Inside the apartment, the police encountered a horrifying scene. Blood covered the walls and floor throughout the unit. Charisse and her children were lying on the floor in the kitchen. Nicholas, despite several wounds inflicted by a butcher knife that completely penetrated through his body from front to back, was still breathing. Miraculously, he survived, but not until after undergoing seven hours of surgery and a transfusion of 1700 cc’s of blood—400 to 500 cc’s more than his estimated normal blood volume. Charisse and Lacie were dead.

Charisse’s body was found on the kitchen floor on her back, her legs fully extended. She had sustained 42 direct knife wounds and 42 defensive wounds on her arms and hands. The wounds were caused by 41 separate thrusts of a butcher knife. None of the 84 wounds inflicted by Payne were individually fatal; rather, the cause of death was most likely bleeding from all of the wounds.

Lacie’s body was on the kitchen floor near her mother. She had suffered stab wounds to the chest, abdomen, back, and head. The murder weapon, a butcher knife, was found at her feet. Payne’s baseball cap was snapped on her arm near her elbow. Three cans of malt liquor bearing Payne’s fingerprints were found on a table near her body, and a fourth empty one was on the landing outside the apartment door.

Payne was apprehended later that day hiding in the attic of the home of a former girlfriend. As he descended the stairs of the attic, he stated to the arresting officers, “Man, I ain’t killed no woman.” According to one of the officers, Payne had “a wild look about him. His pupils were contracted. He was foaming at the mouth, saliva. He appeared to be very nervous. He was breathing real rapid.” He had blood on his body and clothes and several scratches across his chest. It was later determined that the blood stains matched the victims’ blood types. A search of his pockets revealed a packet containing cocaine residue, a hypodermic syringe wrapper, and a cap from a hypodermic syringe. His overnight bag, containing a bloody white shirt, was found in a nearby Dumpster.

At trial, Payne took the stand and, despite the overwhelming and relatively uncontroverted evidence against him, testified that he had not harmed any of the Christophers. Rather he asserted that another man had raced by him as he was walking up the stairs to the floor where the Christophers lived. He stated that he had gotten blood on himself when, after hearing moans from the Christophers’ apartment, he had tried to help the victims. According to his testimony, he panicked and fled when he heard police sirens and noticed the blood on his clothes. The jury returned guilty verdicts against Payne on all counts.

During the sentencing phase of the trial, Payne presented the testimony of four witnesses: his mother and father, Bobbie Thomas, and Dr. John T. Huston, a clinical psychologist specializing in criminal court evaluation work. Bobbie Thomas testified that she met Payne at church, during a time when she was being abused by her husband. She stated that Payne was a very caring person, and that he devoted much time and attention to her three children, who were being affected by her marital difficulties. She said that the children had come to love him very much and would miss him, and that he “behaved just like a father that loved his kids.” She asserted that he did not drink, nor did he use drugs, and that it was generally inconsistent with Payne’s character to have committed these crimes. Dr. Huston testified that based on Payne’s low score on an IQ test, Payne was “mentally handicapped.” Huston also said that Payne was neither psychotic nor schizophrenic, and that Payne was the most polite prisoner he had ever met. Payne’s parents testified that their son had no prior criminal record and had never been arrested. They also stated that Payne had no history of alcohol or drug abuse, he worked with his father as a painter, he was good with children, and that he was a good son.

The State presented the testimony of Charisse’s mother, Mary Zvolanek. When asked how Nicholas had been affected by the murders of his mother and sister, she responded:

He cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I’m worried about my Lacie.

In arguing for the death penalty during closing argument, the prosecutor commented on the continuing effects of Nicholas’ experience, stating:

But we do know that Nicholas was alive. And Nicholas was in the same room. Nicholas was still conscious. His eyes were open. He responded to the paramedics. He was able to follow their directions. He was able to hold his intestines in as he was carried to the ambulance. So he knew what happened to his mother and baby sister.

There is nothing you can do to ease the pain of any of the families involved in this case. There is nothing you can do to ease the pain of Bernice or Carl Payne, and that’s a tragedy. There is nothing you can do basically to ease the pain of Mr. and Mrs. Zvolanek, and that’s a tragedy. They will have to live with it the rest of their lives. There is obviously nothing you can do for Charisse and Lacie Jo. But there is something that you can do for Nicholas.

Somewhere down the road Nicholas is going to grow up, hopefully. He’s going to want to know what happened. And he is going to know what happened to his baby sister and his mother. He is going to want to know what type of justice was done. He is going to want to know what happened. With your verdict, you will provide the answer.

In the rebuttal to Payne’s closing argument, the prosecutor stated:

You saw the videotape this morning. You saw what Nicholas Christopher will carry in his mind forever. When you talk about cruel, when you talk about atrocious, and when you talk about heinous, that picture will always come into your mind, probably throughout the rest of your lives.

 . . . No one will ever know about Lacie Jo because she never had the chance to grow up. Her life was taken from her at the age of two years old. So, no, there won’t be a high school principal to talk about Lacie Jo Christopher, and there won’t be anybody to take her to her high school prom. And there won’t be anybody there—there won’t be her mother there or Nicholas’ mother there to kiss him at night. His mother will never kiss him good night or pat him as he goes off to bed, or hold him and sing him a lullaby.

[Petitioner’s attorney] wants you to think about a good reputation, people who love the defendant and things about him. He doesn’t want you to think about the people who love Charisse Christopher, her mother and daddy who loved her. The people who loved little Lacie Jo, the grandparents who are still here. The brother who mourns for her every single day and wants to know where his best little playmate is. He doesn’t have anybody to watch cartoons with him, a little one. These are the things that go into why it is especially cruel, heinous, and atrocious, the burden that that child will carry forever.

The jury sentenced Payne to death on each of the murder counts.

The Supreme Court of Tennessee affirmed the conviction and sentence. The court rejected Payne’s contention that the admission of the grandmother’s testimony and the State’s closing argument constituted prejudicial violations of his rights under the Eighth Amendment as applied in Booth v. Maryland and South Carolina v. Gathers. The court characterized the grandmother’s testimony as “technically irrelevant,” but concluded that it “did not create a constitutionally unacceptable risk of an arbitrary imposition of the death penalty and was harmless beyond a reasonable doubt.”

The court determined that the prosecutor’s comments during closing argument were “relevant to [Payne’s] personal responsibility and moral guilt.” The court explained that “[w]hen a person deliberately picks a butcher knife out of a kitchen drawer and proceeds to stab to death a twenty-eight-year-old mother, her two and one-half year old daughter and her three and one-half year old son, in the same room, the physical and mental condition of the boy he left for dead is surely relevant in determining his ‘blameworthiness.’ ” The court concluded that any violation of Payne’s rights under Booth and Gathers “was harmless beyond a reasonable doubt.”

We granted certiorari to reconsider our holdings in Booth and Gathers that the Eighth Amendment prohibits a capital sentencing jury from considering “victim impact” evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.

In Booth, the defendant robbed and murdered an elderly couple. As required by a state statute, a victim act statement was prepared based on interviews with the victims’ son, daughter, son-in-law, and granddaughter. The statement, which described the personal characteristics of the victims, the emotional impact of the crimes on the family, and set forth the family members’ opinions and characterizations of the crimes and the defendant, was submitted to the jury at sentencing. The jury imposed the death penalty. The conviction and sentence were affirmed on appeal by the State’s highest court.

The Court held by a 5-to-4 vote that the Eighth Amendment prohibits a jury from considering a victim impact statement at the sentencing phase of a capital trial. The Court made 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 to the extent that it “relate[d] directly to the circumstances of the crime.” In Gathers, decided two years later, the Court extended the rule announced in Booth to statements made by a prosecutor to the sentencing jury regarding the personal qualities of the victim.

The Booth Court began its analysis with the observation that the capital defendant must be treated as a “‘uniquely individual human bein[g],’” and therefore the Constitution requires the jury to make an individual determination as to whether the defendant should be executed based on the “‘character of the individual and the circumstances of the crime.’” The Court concluded that while no prior decision of this Court had mandated that only the defendant’s character and immediate characteristics of the crime may constitutionally be considered, other factors are irrelevant to the capital sentencing decision unless they have “some bearing on the defendant’s ‘personal responsibility and moral guilt.’” To the extent that victim impact evidence presents “factors about which the defendant was unaware, and that were irrelevant to the decision to kill,” the Court concluded, it has nothing to do with the “blameworthiness of a particular defendant.” Evidence of the victim’s character, the Court observed, “could well distract the sentencing jury from its constitutionally required task [of] determining whether the death penalty is appropriate in light of the background and record of the accused and the particular circumstances of the crime.” The Court concluded that, except to the extent that victim impact evidence relates “directly to the circumstances of the crime,” the prosecution may not introduce such evidence at a capital sentencing hearing because “it creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.”

Booth and Gathers were based on two premises: that evidence relating to a particular victim or to the harm that a capital defendant causes a victim’s family do not in general reflect on the defendant’s “blameworthiness,” and that only evidence relating to “blameworthiness” is relevant to the capital sentencing decision. However, the assessment of harm caused by the defendant as a result of the crime charged has understandably been an important concern of the criminal law, both in determining the elements of the offense and in determining the appropriate punishment. Thus, two equally blameworthy criminal defendants may be guilty of different offenses solely because their acts cause differing amounts of harm. “If a bank robber aims his gun at a guard, pulls the trigger, and kills his target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt in both cases is identical, but his responsibility in the former is greater.”

We have held that the State cannot preclude the sentencer from considering “any relevant mitigating evidence” that the defendant proffers in support of a sentence less than death. Eddings v. Oklahoma (1982). Thus we have, as the Court observed in Booth, required that the capital defendant be treated as a ” ‘uniquely individual human bein[g].’” But it was never held or even suggested in any of our cases preceding Booth that the defendant, entitled as he was to individualized consideration, was to receive that consideration wholly apart from the crime which he had committed. The language quoted from Woodson in the Booth opinion was not intended to describe a class of evidence that could not be received, but a class of evidence which must be received. Any doubt on the matter is dispelled by comparing the language in Woodson with the language from Gregg v. Georgia, quoted above, which was handed down the same day as Woodson. This misreading of precedent in Booth has, we think, unfairly weighted the scales in a capital trial; while virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances, the State is barred from either offering “a glimpse of the life” which a defendant “chose to extinguish,” or demonstrating the loss to the victim’s family and to society which have resulted from the defendant’s homicide.

Payne echoes the concern voiced in the Booth case that the admission of victim impact evidence permits a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind—for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim’s “uniqueness as an individual human being,” whatever the jury might think the loss to the community resulting from his death might be. The facts of Gathers are an excellent illustration of this: the evidence showed that the victim was an out of work, mentally handicapped individual, perhaps not, in the eyes of most, a significant contributor to society, but nonetheless a murdered human being.

Under our constitutional system, the primary responsibility for defining crimes against state law, fixing punishments for the commission of these crimes, and establishing procedures for criminal trials rests with the States.

“Within the constitutional limitations defined by our cases, the States enjoy their traditional latitude to prescribe the method by which those who commit murder should be punished.” Blystone v. Pennsylvania (1990). The States remain free, in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs. Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities. We think the Booth Court was wrong in stating that this kind of evidence leads to the arbitrary imposition of the death penalty. In the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. Courts have always taken into consideration the harm done by the defendant in imposing sentence, and the evidence adduced in this case was illustrative of the harm caused by Payne’s double murder.

We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” By turning the victim into a “faceless stranger at the penalty phase of a capital trial,” Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.

The present case is an example of the potential for such unfairness. The capital sentencing jury heard testimony from Payne’s girlfriend that they met at church, that he was affectionate, caring, kind to her children, that he was not an abuser of drugs or alcohol, and that it was inconsistent with his character to have committed the murders. Payne’s parents testified that he was a good son, and a clinical psychologist testified that Payne was an extremely polite prisoner and suffered from a low IQ. None of this testimony was related to the circumstances of Payne’s brutal crimes. In contrast, the only evidence of the impact of Payne’s offenses during the sentencing phase was Nicholas’s grandmother’s description—in response to a single question—that the child misses his mother and baby sister. Payne argues that the Eighth Amendment commands that the jury’s death sentence must be set aside because the jury heard this testimony. But the testimony illustrated quite poignantly some of the harm that Payne’s killing had caused; there is nothing unfair about allowing the jury to bear in mind that harm at the same time as it considers the mitigating evidence introduced by the defendant. The Supreme Court of Tennessee in this case obviously felt the unfairness of the rule pronounced by Booth when it said “[i]t is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of Defendant (as was done in this case), without limitation as to relevancy, but nothing may be said that bears upon the character of, or the harm imposed, upon the victims.”

In Gathers, as indicated above, we extended the holding of Booth barring victim impact evidence to the prosecutor’s argument to the jury. Human nature being what it is, capable lawyers trying cases to juries try to convey to the jurors that the people involved in the underlying events are, or were, living human beings, with something to be gained or lost from the jury’s verdict. Under the aegis of the Eighth Amendment, we have given the broadest latitude to the defendant to introduce relevant mitigating evidence reflecting on his individual personality, and the defendant’s attorney may argue that evidence to the jury. Petitioner’s attorney in this case did just that. For the reasons discussed above, we now reject the view—expressed in Gathers—that a State may not permit the prosecutor to similarly argue to the jury the human cost of the crime of which the defendant stands convicted. We reaffirm the view expressed by Justice Cardozo in Snyder v. Massachusetts (1934): “justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”

We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.

Payne and his amicus argue that despite these numerous infirmities in the rule created by Booth and Gathers, we should adhere to the doctrine of stare decisis and stop short of overruling those cases. Stare decisis is the preferred course because it 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. Adhering to precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.” Burnet v. Coronado Oil & Gas Co. (1932) (Justice Brandeis, dissenting). Nevertheless, when governing decisions are unworkable or are badly reasoned, “this Court has never felt constrained to follow precedent.” Smith v. Allwright (1944). Stare decisis is not an inexorable command; rather, it “is a principle of policy and not a mechanical formula of adherence to the latest decision.” Helvering v. Hallock (1940). This is particularly true in constitutional cases, because in such cases “correction through legislative action is practically impossible.” Burnet v. Coronado Oil & Gas Co. (Justice Brandeis, dissenting). Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved. The opposite is true in cases such as the present one involving procedural and evidentiary rules.

Applying these general principles, the Court has during the past 20 Terms overruled in whole or in part 33 of its previous constitutional decisions. Booth and Gathers were decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions. They have been questioned by members of the court in later decisions, and have defied consistent application by the lower courts. Reconsidering these decisions now, we conclude for the reasons heretofore stated, that they were wrongly decided and should be, and now are, overruled. We accordingly affirm the judgment of the Supreme Court of Tennessee.

Affirmed.

JUSTICE O’CONNOR, with whom JUSTICE WHITE and JUSTICE KENNEDY join, concurring.

We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence, “the Eighth Amendment erects no per se bar.” If, in a particular case, a witness’ testimony or a prosecutor’s remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment. . . .

“Murder is the ultimate act of depersonalization.” It transforms a living person with hopes, dreams, and fears, into a corpse, thereby taking away all that is special and unique about the person. The Constitution does not preclude a State from deciding to give some of that back.

JUSTICE SCALIA, with whom JUSTICE O’CONNOR and JUSTICE KENNEDY join as to Part II, concurring.

The response to Justice Marshall’s strenuous defense of the virtues of stare decisis can be found in the writings of Justice Marshall himself. That doctrine, he has reminded us, “is not ‘an imprisonment of reason.’” Guardians Assn. v. Civil Service Comm’n of New York City (1983) (Justice Marshall, dissenting). If there was ever a case that defied reason, it was Booth v. Maryland, imposing a constitutional rule that had absolutely no basis in constitutional text, in historical practice, or in logic. Justice Marshall has also explained that “‘[t]he jurist concerned with public confidence in, and acceptance of the judicial system might well consider that, however admirable its resolute adherence to the law as it was, a decision contrary to the public sense of justice as it is, operates, so far as it is known, to diminish respect for the courts and for law itself.’”

Booth‘s stunning ipse dixit, that a crime’s unanticipated consequences must be deemed “irrelevant” to the sentence, conflicts with a public sense of justice keen enough that it has found voice in a nationwide “victim’s rights” movement.

Today, however, Justice Marshall demands of us some “special justification”—beyond the mere conviction that the rule of Booth significantly harms our criminal justice system and is egregiously wrong—before we can be absolved of exercising “[p]ower, not reason.” I do not think that is fair. In fact, quite to the contrary, what would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes.

JUSTICE SOUTER, with whom JUSTICE KENNEDY joins, concurring.

To hold, however, that in setting the appropriate sentence a defendant must be considered in his uniqueness is not to require that only unique qualities be considered. While a defendant’s anticipation of specific consequences to the victims of his intended act is relevant to sentencing, such detailed foreknowledge does not exhaust the category of morally relevant fact. One such fact that is known to all murderers and relevant to the blameworthiness of each one was identified by the Booth majority itself when it barred the sentencing authority in capital cases from considering “the full range of foreseeable consequences of a defendant’s actions.” Murder has foreseeable consequences. When it happens, it is always to distinct individuals, and after it happens other victims are left behind. Every defendant knows, if endowed with the mental competence for criminal responsibility, that the life he will take by his homicidal behavior is that of a unique person, like himself, and that the person to be killed probably has close associates, “survivors,” who will suffer harms and deprivations from the victim’s death. Just as defendants know that they are not faceless human ciphers, they know that their victims are not valueless fungibles, and just as defendants appreciate the web of relationships and dependencies in which they live, they know that their victims are not human islands, but individuals with parents or children, spouses or friends or dependents. Thus, when a defendant chooses to kill, or to raise the risk of a victim’s death, this choice necessarily relates to a whole human being and threatens an association of others, who may be distinctly hurt. The fact that the defendant may not know the details of a victim’s life and characteristics, or the exact identities and needs of those who may survive, should not in any way obscure the further facts that death is always to a “unique” individual, and harm to some group of survivors is a consequence of a successful homicidal act so foreseeable as to be virtually inevitable.

That foreseeability of the killing’s consequences imbues them with direct moral relevance and evidence of the specific harm caused when a homicidal risk is realized is nothing more than evidence of the risk that the defendant originally chose to run despite the kinds of consequences that were obviously foreseeable. It is morally both defensible and appropriate to consider such evidence when penalizing a murderer, like other criminals, in light of common knowledge and the moral responsibility that such knowledge entails. Any failure to take account of a victim’s individuality and the effects of his death upon close survivors would thus more appropriately be called an act of lenity than their consideration an invitation to arbitrary sentencing. Indeed, given a defendant’s option to introduce relevant evidence in mitigation, sentencing without such evidence of victim impact may be seen as a significantly imbalanced process.

JUSTICE MARSHALL, with whom JUSTICE BLACKMUN joins, dissenting.

Power, not reason, is the new currency of this court’s decisionmaking. Four Terms ago, a five-Justice majority of this Court held that “victim impact” evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial. By another 5-4 vote, a majority of this Court rebuffed an attack upon this ruling just two Terms ago. Nevertheless, having expressly invited respondent to renew the attack, today’s majority overrules Booth and Gathers and credits the dissenting views expressed in those cases. Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.

In dispatching Booth and Gathers to their graves, today’s majority ominously suggests that an even more extensive upheaval of this Court’s precedents may be in store. Renouncing this Court’s historical commitment to a conception of “the judiciary as a source of impersonal and reasoned judgments,” Moragne v. States Marine Lines (1970), the majority declares itself free to discard any principle of constitutional liberty which was recognized or reaffirmed over the dissenting votes of four Justices and with which five or more Justices now disagree. The implications of this radical new exception to the doctrine of stare decisis are staggering. The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration, thereby inviting the very type of open defiance of our precedents that the majority rewards in this case. Because I believe that this Court owes more to its constitutional precedents in general and to Booth and Gathers in particular, I dissent.

Carried to its logical conclusion, the majority’s debilitated conception of stare decisis would destroy the Court’s very capacity to resolve authoritatively the abiding conflicts between those with power and those without. If this Court shows so little respect for its own precedents, it can hardly expect them to be treated more respectfully by the state actors whom these decisions are supposed to bind. By signaling its willingness to give fresh consideration to any constitutional liberty recognized by a 5-4 vote “over spirited dissen[t],” the majority invites state actors to renew the very policies deemed unconstitutional in the hope that this Court may now reverse course, even if it has only recently reaffirmed the constitutional liberty in question.

Indeed, the majority’s disposition of this case nicely illustrates the rewards of such a strategy of defiance. The Tennessee Supreme Court did nothing in this case to disguise its contempt for this Court’s decisions in Booth and Gathers. Summing up its reaction to those cases, it concluded:

It is an affront to the civilized members of the human race to say that at sentencing in a capital case, a parade of witnesses may praise the background, character and good deeds of Defendant (as was done in this case), without limitation as to relevancy, but nothing may be said that bears upon the character of, or harm imposed, upon the victims.

Offering no explanation for how this case could possibly be distinguished from Booth and Gathers—for obviously, there is none to offer—the court perfunctorily declared that the victim-impact evidence and the prosecutor’s argument based on this evidence “did not violate either [of those decisions].” It cannot be clearer that the court simply declined to be bound by this Court’s precedents. . . .

Far from condemning this blatant disregard for the rule of law, the majority applauds it. In the Tennessee Supreme Court’s denigration of Booth and Gathers as “an affront to the civilized members of the human race,” the majority finds only confirmation of “the unfairness of the rule pronounced by” the majorities in those cases. It is hard to imagine a more complete abdication of this Court’s historic commitment to defending the supremacy of its own pronouncements on issues of constitutional liberty.

In light of the cost that such abdication exacts on the authoritativeness of all of this Court’s pronouncements, it is also hard to imagine a more short-sighted strategy for effecting change in our constitutional order.

Today’s decision charts an unmistakable course. If the majority’s radical reconstruction of the rules for overturning this Court’s decisions is to be taken at face value—and the majority offers us no reason why it should not—then the overruling of Booth and Gathers is but a preview of an even broader and more far-reaching assault upon this Court’s precedents. Cast aside today are those condemned to face society’s ultimate penalty. Tomorrow’s victims may be minorities, women, or the indigent. Inevitably, this campaign to resurrect yesterday’s “spirited dissents” will squander the authority and the legitimacy of this Court as a protector of the powerless.

I dissent.

JUSTICE STEVENS,     with whom JUSTICE BLACKMUN joins, dissenting.

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 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.

The majority thus does far more than validate a State’s judgment that “the jury should see ‘a quick glimpse of the life the petitioner chose to extinguish.’” 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 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.” 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.”

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

Today is a sad day for a great institution.