Respondent was convicted of murder and sentenced to death in a
South Carolina court. The prosecutor's closing argument at the
sentencing phase included his reading to the jury at length from a
religious tract the victim was carrying and comments on the
personal qualities that the prosecutor inferred from the victim's
possession of the religious tract and a voter registration card.
Finding that the prosecutor's
"extensive comments to the jury regarding the victim's character
were unnecessary to an understanding of the circumstances of the
crime,"
the South Carolina Supreme Court concluded that those comments
"conveyed the suggestion [respondent] deserved a death sentence
because the victim was a religious man and a registered voter,"
and, in reliance on
Booth v. Maryland, 482 U.
S. 496, reversed respondent's death sentence and
remanded for a new sentencing proceeding.
Held: "For purposes of imposing the death penalty . . .
[the defendant's] punishment must be tailored to his personal
responsibility and moral guilt."
Enmund v. Florida,
458 U. S. 782,
458 U. S. 801.
Here, the prosecutor's comments concerned the victim's personal
characteristics, and
"[a]llowing the jury to rely on [this information] . . . could
result in imposing the death sentence because of factors about
which the defendant was unaware, and that were irrelevant to the
decision to kill."
Booth v. Maryland, supra, at
482 U. S. 505.
The content of the religious tract and the voter registration card
could not possibly have been relevant to the "circumstances of the
crime." Where there was no evidence that respondent read either the
tract or the voter card, the content of the papers the victim was
carrying was purely fortuitous, and could not provide any
information relevant to respondent's moral culpability,
notwithstanding that the papers had been admitted in evidence for
other purposes. Pp.
490 U. S.
810-812.
295 S.C. 476,
369 S.E.2d
140, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., filed a
concurring opinion,
post, p.
490 U. S. 812.
O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
and KENNEDY, J., joined,
post, p.
490 U. S. 812.
SCALIA, J., filed a dissenting opinion,
post, p.
490 U. S.
823.
Page 490 U. S. 806
JUSTICE BRENNAN delivered the opinion of the Court.
Respondent Demetrius Gathers was convicted of murder and
sentenced to death for the killing of Richard Haynes. The evidence
at trial showed that Gathers and three companions encountered
Haynes, a stranger to them, at a park
Page 490 U. S. 807
bench one evening. When Haynes rebuffed Gathers' attempt to
initiate a conversation, Gathers and his friends assaulted Haynes,
beating and kicking him severely and smashing a bottle over his
head. Before leaving the scene, Gathers beat Haynes with an
umbrella, which he then inserted into the victim's anus. Some time
later, Gathers apparently returned to the scene and stabbed Haynes
with a knife.
Richard Haynes was about 31 years old, and unemployed. For two
years prior to his death, he had been experiencing "some mental
problems" and had been "in and out of [a] mental hospital" three
times. App. 4. Although without formal religious training, Haynes
considered himself a preacher, and referred to himself as "Reverend
Minister"; his mother testified that he would he would "tal[k] to
people all the time about the Lord."
Id. at 5-6. He
generally carried with him several bags containing articles of
religious significance, including two Bibles, rosary beads, plastic
statues, olive oil, and religious tracts. Among these items, on the
evening of his murder, was a tract entitled "The Game Guy's
Prayer." Relying on football and boxing metaphors, it extolled the
virtues of the good sport. After Haynes was beaten, his assailants
went through his belongings, looking (apparently in vain) for
something worth stealing. In rummaging through his personal
effects, they scattered on the ground the contents of his wallet
and bags, including the just-mentioned tract.
Gathers was tried in the Court of General Sessions for
Charleston County, South Carolina. During the guilt phase, the
articles found at the scene of the crime were admitted into
evidence without objection.
* The jury found
Gathers
Page 490 U. S. 808
guilty of murder and first-degree criminal sexual conduct. All
of the testimony and exhibits from the guilt phase were readmitted
into evidence at the sentencing phase. The State presented no other
evidence at the sentencing phase, but the prosecutor's closing
argument included the following remarks, which are the basis for
the present controversy:
"We know from the proof that Reverend Minister Haynes was a
religious person. He had his religious items out there. This
defendant strewn [
sic] them across the bike path, thinking
nothing of that."
"Among the many cards that Reverend Haynes had among his
belongings was this card. It's in evidence. Think about it when you
go back there. He had this [
sic] religious items, his
beads. He had a plastic angel. Of course, he is now with the angels
now, but this defendant Demetrius Gathers could care little about
the fact that he is a religious person. Cared little of the pain
and agony he inflicted upon a person who is trying to enjoy one of
our public parks."
"But look at Reverend Minister Haynes' prayer. It's called the
Game Guy's Prayer."
" Dear God, help me to be a sport in this little game of life. I
don't ask for any easy place in this lineup. Play me anywhere you
need me. I only ask you for the stuff to give you one hundred
percent of what I have got. If all the hard drives seem to come my
way, I thank you for the compliment. Help me to remember that you
won't ever let anything come my way that you and I together can't
handle. And help me to take the bad break as part of the game. Help
me
Page 490 U. S. 809
to understand that the game is full of knots and knocks and
trouble, and make me thankful for them. Help me to be brave, so
that the harder they come, the better I like it. And, oh God, help
me to always play on the square. No matter what the other players
do, help me to come clean. Help me to study the book, so that I'll
know the rules, to study and think a lot about the greatest player
that ever lived and other players that are portrayed in the book.
If they ever found out the best part of the game was helping other
guys who are out of luck, help me to find it out, too. Help me to
be regular, and also an inspiration with the other players.
Finally, oh God, if fate seems to uppercut me with both hands, and
I am laid on the shelf in sickness or old age or something, help me
to take that as part of the game, too. Help me not to whimper or
squeal that the game was a frameup or that I had a raw deal. When,
in the falling dusk, I get the final bell, I ask for no lying,
complimentary tombstones. I'd only like to know that you feel that
I have been a good guy, a good game guy, a saint in the game of
life."
"Reverend Minister Haynes, we know, was a very small person. He
had his mental problems. Unable to keep a regular job. And he
wasn't blessed with fame or fortune. And he took things as they
came along. He was prepared to deal with tragedies that he came
across in his life."
"
* * * *"
"You will find some other exhibits in this case that tell you
more about a just verdict. Again this is not easy. No one takes any
pleasure from it, but the proof cries out from the grave in this
case. Among the personal effects that this defendant could care
little about when he went through it is something that we all
treasure. Speaks a lot about Reverend Minister Haynes. Very simple,
yet very profound. Voting. A voter's registration card.
Page 490 U. S. 810
"
"Reverend Haynes believed in this community. He took part. And
he believed that, in Charleston County, in the United States of
America, that in this country, you could go to a public park and
sit on a public bench and not be attacked by the likes of Demetrius
Gathers."
Id. at 41-43.
Finding that these "extensive comments to the jury regarding the
victim's character were unnecessary to an understanding of the
circumstances of the crime," the Supreme Court of South Carolina
concluded that the prosecutor's remarks "conveyed the suggestion
appellant deserved a death sentence because the victim was a
religious man and a registered voter." 295 S.C. 476, 484,
369 S.E.2d
140, 144 (1988). Relying on our decision in
Booth v.
Maryland, 482 U. S. 496
(1987), the court reversed Gathers' sentence of death and remanded
for a new sentencing proceeding. We granted certiorari, 488 U.S.
888 (1988), and we now affirm.
Our capital cases have consistently recognized that
"[f]or purposes of imposing the death penalty, . . . [the
defendant's] punishment must be tailored to his personal
responsibility and moral guilt."
Enmund v. Florida, 458 U. S. 782,
458 U. S. 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,
481 U. S. 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"). Two Terms ago, in
Booth v. Maryland,
supra, we addressed the question whether use of "victim impact
statements" in capital sentencing proceedings violated this
principle that a sentence of death must be related to the moral
culpability of the defendant. We held that such statements
introduced factors that might be "wholly unrelated to the
blameworthiness of a particular defendant." 482 U.S. at
482 U. S.
504.
The statements placed before the jury in
Booth included
descriptions of the victims' personal characteristics,
statements
Page 490 U. S. 811
concerning the emotional impact of the crime on the victims'
family, and the family members' opinions about the crime and the
defendant. At issue in the present case is a statement of the first
sort -- one concerning personal characteristics of the victim.
While in this case it was the prosecutor, rather than the victim's
survivors, who characterized the victim's personal qualities, the
statement is indistinguishable in any relevant respect from that in
Booth. As in
Booth,
"[a]llowing the jury to rely on [this information] . . . could
result in imposing the death sentence because of factors about
which the defendant was unaware, and that were irrelevant to the
decision to kill."
Id. at
482 U. S.
505.
Our opinion in
Booth, however, left open the
possibility that the kind of information contained in victim impact
statements could be admissible if it "relate[d] directly to the
circumstances of the crime."
Id. at
482 U. S. 507,
n. 10. South Carolina asserts that such is the case here. Brief for
Petitioner 25-41. It contends that the various personal effects
which were "maliciously strewn around [the victim's] body during
the event" were "relevant to the circumstances of the crime or
reveal certain personal characteristics of the defendant."
Id. at 28.
We disagree. The fact that Gathers scattered Haynes' personal
papers around his body while going through them looking for
something to steal was certainly a relevant circumstance of the
crime, and thus a proper subject for comment. But the prosecutor's
argument in this case went well beyond that fact: he read to the
jury at length from the religious tract the victim was carrying,
and commented on the personal qualities he inferred from Haynes'
possession of the "Game Guy's Prayer" and the voter registration
card. The
content of these cards, however, cannot possibly
have been relevant to the "circumstances of the crime." There is no
evidence whatever that the defendant read anything that was printed
on either the tract or the voter card. Indeed, it is extremely
unlikely that he did so. The testimony at trial
Page 490 U. S. 812
was that Gathers went through Haynes' bags very quickly, "just
throwing [his belongings] everywhere, looking through things," App.
27, and that he spent not more than a minute doing so,
id.
at 28. The crime took place, moreover, at night, along a dark path
through a wooded area.
Id. at 17; Record 621-622, 926-927.
Nor did the assailants have flashlights.
Id. at 622-623.
Under these circumstances, the content of the various papers the
victim happened to be carrying when he was attacked was purely
fortuitous, and cannot provide any information relevant to the
defendant's moral culpability. Notwithstanding that the papers had
been admitted into evidence for another purpose, their content
cannot be said to relate directly to the circumstances of the
crime.
The judgment of the Supreme Court of South Carolina is
therefore
Affirmed.
* The objects found scattered around Haynes' body were, for the
most part, admitted into evidence during the testimony of
Charleston police officer Anthony Hazel. Record 768-790. At no time
then, or otherwise during the guilt phase, was there any reference
to the content of the papers Haynes had with him. For example, the
following was the entire colloquy at the time many of the papers
were admitted:
"Q. Okay. . . . What else?"
"A. Point C, we found some personal papers."
"Q. Personal papers that appeared to belong to the victim?"
"A. Yes, sir."
"Q. That would be State's Exhibit 19?"
"A. Yes."
Id. at 782.
See also id. at 787.
JUSTICE WHITE, concurring.
Unless
Booth v. Maryland, 482 U.
S. 496 (1987), is to be overruled, the judgment below
must be affirmed. Hence, I join JUSTICE BRENNAN's opinion for the
Court.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE
KENNEDY join, dissenting.
In
Booth v. Maryland, 482 U. S. 496
(1987), this Court held that the Eighth Amendment prohibited a jury
from considering a victim impact statement during the sentencing
phase of a capital trial. The document at issue in
Booth
was compiled by the Maryland Division of Parole and Probation on
the basis of extensive interviews with the two murder victims' son,
daughter, son-in-law, and granddaughter. In addition to evidence
relating to the personal qualities of the victims themselves, the
statement in
Booth described the emotional impact of the
crime on the victims' family members, including their resulting
sleeplessness, fear, depression, and constant painful memories. The
statement also described
Page 490 U. S. 813
the family members' opinions about the crime, the defendant, and
the proper penalty to be imposed.
Id. at
482 U. S.
509-515. The majority in
Booth took the view
that such information "may be wholly unrelated to the
blameworthiness of a particular defendant,"
id. at
482 U. S. 504,
and could divert the capital sentencer's attention from the
circumstances of the crime and the defendant's background and
record,
id. at
482 U. S. 505.
The majority noted that introduction of evidence of a victim's good
character would entitle the defendant to rebut this evidence,
resulting in "a
mini-trial' on the victim's character."
Id. at 482 U. S. 507.
The Court also expressed concern that the opinions of family
members regarding the crime and the defendant could serve to
"inflame the jury and divert it from deciding the case on the
relevant evidence concerning the crime and the defendant."
Id. at 482 U. S.
508.
Since our decision in
Booth, there has been
considerable confusion in the lower courts about the precise scope
of its holding. Some courts, like the South Carolina Supreme Court
in this case, have read
Booth for the broad proposition
that "the injection of the victim's personal characteristics into
the sentencing determination" violates the Eighth Amendment. 295
S.C. 476, 484,
369 S.E.2d
140, 144 (1988). Other courts have declined to read
Booth so broadly, holding that it does not prohibit
prosecutorial argument at the penalty phase concerning the personal
characteristics of the victim.
See, e.g., Daniels v.
State, 528
N.E.2d 775, 782 (Ind.1988);
Moon v. State, 258 Ga.
748, 756,
375 S.E.2d
442, 450 (Ga.1988).
See also People v.
Rich, 45 Cal. 3d
1036, 1089-1090,
755 P.2d 960,
993-994 (1988);
People v. Ghent, 43 Cal. 3d
739, 771-772,
739 P.2d 1250,
1271 (1987).
I joined both dissents in
Booth, see Booth, supra, at
482 U. S. 515
(WHITE, J., dissenting);
id. at
482 U. S. 519
(SCALIA, J., dissenting), believing that the case was wrongly
decided on its facts, and rested on a misinterpretation of the
Eighth Amendment and this Court's cases thereunder. Although I
remain persuaded that
Booth was wrong when decided and
stand ready
Page 490 U. S. 814
to overrule it if the Court would do so, we can reach a proper
disposition in this case without such action.
Booth's
central holding, that statements about the harm to a victim's
family have no place in capital sentencing, does not control the
case before us today. At issue here are solely prosecutorial
comments about the victim himself. Thus, we must decide whether to
adopt a broad reading of
Booth as establishing a rigid
Eighth Amendment rule eliminating virtually all consideration of
the victim at the penalty phase, or a narrower reading of that
decision which would allow jury consideration of information about
the victim and the extent of the harm caused in arriving at its
moral judgment concerning the appropriate punishment.
See Mills
v. Maryland, 486 U. S. 367,
486 U. S. 398
(1988) (REHNQUIST, C.J., dissenting) ("I do not interpret
Booth as foreclosing the introduction of all evidence, in
whatever form, about a murder victim").
Because the Eighth Amendment itself requires "that the penalty
imposed in a capital case be proportional to the harm caused and
the defendant's blameworthiness,"
Enmund v. Florida,
458 U. S. 782,
458 U. S. 823
(1982) (O'CONNOR, J., dissenting), I would reject a rigid Eighth
Amendment rule which prohibits a sentencing jury from hearing
argument or considering evidence concerning the personal
characteristics of the victim. I would thus reverse the judgment of
the South Carolina Supreme Court in this case. I also would decline
respondent's invitation that this Court comb the record for
indications that the prosecutor "misrepresented the evidence" in
his closing argument or appealed to religious bias in violation of
the Due Process Clause of the Fourteenth Amendment.
See
Brief for Respondent 21-24. Instead, I would remand the case to the
South Carolina Supreme Court for that particular inquiry.
I
On a Saturday evening in September, 1986, Richard Haynes sat
peacefully on a park bench near his mother's home with a Bible and
various religious items at his side. A
Page 490 U. S. 815
vulnerable man with a history of mental problems, Haynes called
himself "Reverend Minister," and shared his religious views with
those who would listen. Haynes was approached by respondent
Demetrius Gathers and three companions, who sat down on the bench
next to him and drank beer. After Haynes told Gathers he did not
wish to converse with him, Gathers and two of his companions beat
Haynes brutally, and Gathers smashed a bottle over his head. App.
18-22. As Haynes lay helpless, Gathers and one of his compatriots
rummaged through the various religious and other items in Haynes'
possession, strewing them around on the ground as they looked for
something to steal.
Id. at 27-28, 34-35. Gathers'
companions then left, but Gathers remained at the scene, striking
the unconscious Haynes with an umbrella and then forcing the
umbrella into his anus.
Id. at 23-26. Gathers then
departed, and walked to a nearby apartment complex.
Id. at
26. Sometime later, Gathers and one other companion returned to the
park with a knife. Gathers admitted that he then stabbed Haynes to
death.
Id. at 30, 36.
At Gathers' trial for murder and criminal sexual conduct,
Richard Haynes' mother testified without objection about her son's
mental problems and his practice of carrying a Bible and other
religious items and "talk[ing] to people all the time about the
Lord."
Id. at 5. One of Gathers' companions testified that
Haynes' Bible was clearly visible on the park bench as they
approached him on the night of the murder.
Id. at 26-27.
All the items Haynes carried with him that night -- including olive
oil, plastic angels, rosary beads, two Bibles, a voter registration
card, and the "Game Guy's Prayer" -- were introduced into evidence
without objection during the guilt phase of the trial.
Id.
at 8-10; Record 565-567, 782-783, 785-787. Those items were
reintroduced into evidence without objection at the penalty phase.
Id. at 1167.
Page 490 U. S. 816
The jury convicted respondent of murder and first degree
criminal sexual conduct. During his closing argument at the penalty
phase, the prosecutor referred to the fact that Richard Haynes was
a religious person, as well as a vulnerable man with mental
problems who was unable to keep a regular job. The prosecutor
referred to several of the religious items that had been introduced
into evidence. He also read the "Game Guy's Prayer" in its
entirety, suggesting that Haynes was the sort of person who "took
things as they came along" and "was prepared to deal with tragedies
that he came across in his life." App. 43. The prosecutor also
referred to Haynes' voter registration card found beside his body,
arguing that the card "[s]peaks a lot about Reverend Minister
Haynes" who "believed in this community" and believed "that in this
country you could go to a public park and sit on a public bench and
not be attacked by the likes of Demetrius Gathers."
Ibid.
The sentencing jury was then given instructions which are not
challenged here, and returned a recommendation that the death
sentence be imposed. The South Carolina Supreme Court reversed
Gathers' death sentence, finding that the prosecutor's closing
argument at the sentencing proceeding violated the Eighth Amendment
"by focusing extensively on the personal characteristics of the
victim." 295 S.C. at 482, 369 S.E.2d at 143.
II
Booth should not be read, in my view, to preclude
prosecutorial comment which gives the sentencer a "glimpse of the
life" a defendant "chose to extinguish."
Mills v.
Maryland, 486 U.S. at
486 U. S. 397 (REHNQUIST, C.J., dissenting).
"The fact that there is a victim, and facts about the victim
properly developed during the course of the trial, are not so far
outside the realm of 'circumstances of the crime' that mere mention
will always be problematic."
Brooks v. Kemp, 762 F.2d 1383, 1409 (CA11 1985) (en
banc),
vacated on other grounds, 478 U.S. 1016 (1986),
judgment reinstated, 809 F.2d 700
Page 490 U. S. 817
(CA11) (en banc),
cert. denied, 483 U.S. 1010 (1987).
In my view, nothing in the Eighth Amendment precludes the
prosecutor from conveying to the jury a sense of the unique human
being whose life the defendant has taken.
More fundamentally, this case illustrates the one-sided nature
of the moral judgment that the Court's broad reading of
Booth would require of the capital sentencer. This Court
has consistently required that a jury at the penalty phase be
allowed to consider a wide range of information concerning the
background of the defendant. Thus, not merely the circumstances of
the crime are relevant, but, as we stated in
Lockett v.
Ohio, 438 U. S. 586,
438 U. S. 604
(1978):
"[T]he Eighth and Fourteenth Amendments require that the
sentencer . . . not be precluded from considering,
as a
mitigating factor, any aspect of a defendant's character or
record . . . that the defendant proffers as a basis for a sentence
less than death"
(emphasis in original; footnote omitted).
See also Eddings
v. Oklahoma, 455 U. S. 104
(1982). Our decisions in
Lockett and
Eddings were
based on the proposition that the decision of the capital sentencer
is a profoundly moral one, and must reflect the moral judgment of
the community regarding the proper penalty to be inflicted on a
particular individual for his or her actions. Evidence extraneous
to the crime itself is deemed relevant, and indeed,
constitutionally so,
"because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to a
disadvantaged background, or to emotional and mental problems, may
be less culpable than defendants who have no such excuse."
California v. Brown, 479 U. S. 538,
479 U. S. 545
(1987) (O'CONNOR, J., concurring). In this case, the sentencing
jury heard testimony from respondent's mother, his sister, and his
cousin, all indicating that he was an affectionate and caring
person. Record 1183, 1187, 1199. Gathers' sixth grade teacher
testified that he was a quiet and affectionate child, but that he
was not given sufficient guidance and discipline at home.
Id. at 1193, 1195. None of this evidence was directly
relevant to
Page 490 U. S. 818
the events of September 13, 1986, but all of it was relevant to
the jury's assessment of the defendant himself and his moral
blameworthiness.
Similarly, one of the factors that has long entered into
society's conception of proper punishment is the harm caused by the
defendant's actions. Thus, we have long recognized that retribution
itself is a valid penological goal of the death penalty.
See
Gregg v. Georgia, 428 U. S. 153,
428 U. S. 183
(1976) (opinion of Stewart, Powell, and STEVENS, JJ.). Indeed, we
have expressly noted that, while "retribution is an element of all
punishments society imposes," it "clearly plays a more prominent
role in a capital case."
Spaziano v. Florida, 468 U.
S. 447,
468 U. S. 462
(1984).
"The heart of the retribution rationale is that a criminal
sentence must be directly related to the personal culpability of
the criminal offender."
Tison v. Arizona, 481 U. S. 137,
481 U. S. 149
(1987). Moreover, one essential factor in determining the
defendant's culpability is the extent of the harm caused.
That the harm caused by a defendant's actions is relevant to the
capital sentencer's moral judgment concerning the appropriate
penalty, even if the defendant did not specifically intend that
harm, is a principle recognized both in the decisions of this Court
and in legislative decisions concerning appropriate levels of
punishment. In
Tison v. Arizona, supra, we held that the
Eighth Amendment did not preclude imposing the death penalty on two
brothers who participated substantially in their father's armed
prison breakout and in a related kidnaping and robbery that
resulted in four murders, even though neither defendant "took any
act which he desired to, or was substantially certain would, cause
death."
Id. at
481 U. S. 150.
We found that the Tisons' involvement in the crime was such that
"both subjectively appreciated that their acts were likely to
result in the taking of innocent life,"
id. at
481 U. S. 152,
and that "the record would support a finding of the culpable mental
state of reckless indifference to human life,"
id. at
481 U. S. 151.
We noted that "reckless indifference to the value of
Page 490 U. S. 819
human life may be every bit as shocking to the moral sense as an
intent to kill,'" id. at 481 U. S. 157,
and we remanded the case to the Supreme Court of Arizona for a
specific determination whether the Tisons possessed that mental
state, id. at 481 U. S. 158.
What was critical to the defendants' eligibility for the death
penalty in Tison was the harm they helped bring about: the
death of four innocent human beings. In a similar manner, society
punishes reckless driving differently from vehicular homicide; the
distinction rests not on any difference in the defendant's mental
state, but on the notion that one of the legitimate concerns of any
sentencer is the harm that the defendant's actions have caused.
See Booth, 482 U.S. at 482 U. S. 516
(WHITE, J., dissenting) ("There is nothing aberrant in a juror's
inclination to hold a murderer accountable not only for his
internal disposition in committing the crime, but also for the full
extent of the harm he caused"). In the death penalty context, no
State authorizes infliction of the penalty for attempted murder,
yet the criminal defendant who has attempted to kill another human
being has the same mental state as the actual killer. Indeed, as
JUSTICE SCALIA noted in dissent in Booth, the difference
between murder and attempted murder may often hinge on a fortuity
over which the defendant has no control at all. See Booth,
supra, at 482 U. S. 519.
The only distinction is the harm to the community which results
from the defendant's actions, and this distinction is deemed
sufficient to support a difference in punishment between a sentence
of years and the ultimate penalty.
Nothing in the Eighth Amendment precludes a State, if it
chooses, from "includ[ing] as a sentencing consideration the
particularized harm that an individual's murder causes to the rest
of society,"
Booth, supra, at
482 U. S. 517
(WHITE, J., dissenting). Indeed, precisely because the harm caused
to society by a particular victim's death is relevant to society's
moral judgment concerning the proper punishment, I would decline to
read
Booth for the broad proposition that the victim's
personal characteristics are irrelevant at the sentencing phase
of
Page 490 U. S. 820
a capital trial. A rigid Eighth Amendment rule which excludes
all such considerations is not supported by history or societal
consensus, and it withholds information which a State may clearly
deem relevant to the reasoned moral judgment of a capital
sentencer.
Thus, I would reverse the judgment of the South Carolina Supreme
Court on this issue. In his closing argument in this case, the
prosecutor focused on the heinous nature of respondent's crime.
App. 40-41. The prosecutor brought the jury's attention to the fact
that Richard Haynes was a religious person whose religious
belongings were callously ransacked by Gathers during the attack.
Id. at 41. The prosecutor commented on some of the
specific items introduced into evidence, and he read the "Game
Guy's Prayer," which was found at the scene of the murder. That
"Prayer," which invokes sports metaphors and stresses the virtues
of being an accepting and resilient "good sport" in the game of
life, was used by the prosecutor to stress the vulnerability and
simple humanity of the victim. As the prosecutor argued:
"Reverend Minister Haynes, we know, was a very small person. He
had his mental problems. Unable to keep a regular job. And he
wasn't blessed with fame or fortune."
Id. at 42. The prosecutor also commented on the
victim's possession of a voter registration card at the time of his
death, indicating that it "[s]peaks a lot about Reverend Minister
Haynes," and exemplified the victim's "belie[f] in this community."
In sum, the prosecutor stressed that the victim was an ordinary
citizen who trusted that he could sit quietly on a public park
bench without the risk of death.
In my view, no aspect of the prosecutor's argument in this case
violated the Eighth Amendment. The jury found at the guilt phase
that Gathers made a conscious decision to kill another human being.
Just as Gathers' own background was important to the jury's
assessment of him as a "uniquely individual human bein[g],"
see
Woodson v. North Carolina, 428 U. S. 280,
428 U. S. 304
(1976), so information about his equally unique
Page 490 U. S. 821
victim was relevant to the jury's assessment of the harm he had
caused and the appropriate penalty. Nothing in the Eighth Amendment
precludes the community from considering its loss in assessing
punishment nor requires that the victim remain a faceless stranger
at the penalty phase of a capital trial. That the victim in this
case was a deeply religious and harmless individual who exhibited
his care for his community by religious proselytization and
political participation in its affairs was relevant to the
community's loss at his demise, just as society would view with
grief and anger the killing of the mother or father of small
children.
See Booth, supra, at
482 U. S. 516
(WHITE, J., dissenting). The Eighth Amendment stands as a shield
against those practices and punishments which are either inherently
cruel or which so offend the moral consensus of this society as to
be deemed "cruel and unusual."
Trop v. Dulles,
356 U. S. 86,
356 U. S. 101
(1958). Because neither aspect of the Eighth Amendment was offended
by the prosecutor's remarks, I would reverse the judgment
below.
III
As an alternative ground supporting the judgment below, Gathers
argues that the prosecutor engaged in "manipulation of the evidence
and outright fabrication" in his portrait of the victim's personal
characteristics based on inferences from the "Game Guy's Prayer"
and the voter registration card. Brief for Respondent 22. Gathers
also contends that the prosecutor's closing argument impermissibly
invited the jury to impose the death sentence on the basis of the
victim's religion and political affiliation in violation of the Due
Process Clause.
Id. at 23. It would indeed be improper for
a prosecutor to urge that the death penalty be imposed because of
the race, religion, or political affiliation of the victim. As
JUSTICE WHITE wrote in dissent in
Booth,
"It is no doubt true that the State may not encourage the
sentencer to rely on a factor such as the victim's race in
determining whether the death penalty is appropriate.
Cf.
481 U.
S. Kemp, 481 U.S.
Page 490 U. S. 822
481 U. S. 279 (1987)."
Booth, 482 U.S. at
482 U. S. 517.
See also Zant v. Stephens, 462 U.
S. 862,
462 U. S. 885
(1983) (if a State "attached the
aggravating' label to factors
that are constitutionally impermissible or totally irrelevant to
the sentencing process, such as for example the race, religion, or
political affiliation of the defendant . . . due process of law
would require that the jury's decision to impose death be set
aside"); Furman v. Georgia, 408 U.
S. 238, 408 U. S. 242
(1972) (Douglas, J., concurring); Brooks v. Kemp, 762 F.2d
at 1409.
Evaluation of Gathers' claim requires consideration of the
entire record to determine whether any allegedly erroneous or
improper remarks so infected the entire proceedings with unfairness
as to render the resulting sentence a denial of due process.
See Donnelly v. DeChristoforo, 416 U.
S. 637,
416 U. S. 643
(1974);
Darden v. Wainwright, 477 U.
S. 168 (1986). Because the "Game Guy's Prayer" was
already in evidence without objection, and could have been read by
the jury even if the prosecutor never mentioned it, the
prosecutor's reading of that document during his closing argument
may constitute harmless error. Nevertheless, I would remand this
case to the South Carolina Supreme Court to conduct this inquiry in
the first instance.
Gathers also argues that he did not have the opportunity to
rebut the prosecutor's positive statements about the victim's
characteristics, and thus that his death sentence violates the
dictates of
Gardner v. Florida, 430 U.
S. 349, 3
430 U. S. 62
(1977) (opinion of STEVENS, J.) (due process precludes imposition
of the death penalty on the basis of information in a presentence
report which the defendant had no opportunity to rebut). Brief for
Respondent 18-20. "No doubt a capital defendant must be allowed to
introduce relevant evidence in rebuttal to a victim impact
statement."
Booth, 482 U.S. at
482 U. S. 518
(WHITE, J., dissenting);
id. at
482 U. S.
506-507 (opinion of the Court). In this case, however,
respondent has pointed to no evidence introduced at the penalty
phase that he was precluded from rebutting. Rather, the prosecutor
commented
Page 490 U. S. 823
upon evidence introduced without objection at the guilt phase of
the trial, and drew various inferences from that evidence. Just as
the prosecutor could comment upon evidence in the record about the
victim during his closing argument, so could defense counsel. In
fact, defense counsel did comment upon the prosecutor's repeated
reference to Haynes as "Reverend Minister." App. 45. But, like
respondent's other due process claim, this issue is best addressed
by the South Carolina Supreme Court on remand. Because the majority
instead adopts an Eighth Amendment barrier to virtually any
discussion of the victim's personal characteristics at the penalty
phase of a murder trial, I respectfully dissent.
JUSTICE SCALIA, dissenting.
Two Terms ago, when we decided
Booth v. Maryland,
482 U. S. 496
(1987), I was among four Members of the Court who believed that the
decision imposed a restriction upon state and federal criminal
procedures that has no basis in the Constitution.
See id.
at
482 U. S. 515
(WHITE, J., dissenting);
id. at
482 U. S. 519
(SCALIA, J., dissenting). I continue to believe that
Booth
was wrongly decided, and my conviction that it does perceptible
harm has been strengthened by subsequent writings pointing out the
indefensible consequences of a rule that the specific harm visited
upon society by a murderer may not be taken into account when the
jury decides whether to impose the sentence of death.
See
ante at
490 U. S.
816-820 (O'CONNOR, J., dissenting);
Mills v.
Maryland, 486 U. S. 367,
486 U. S. 397
(1988) (REHNQUIST, C.J., dissenting). Once it is accepted,
moreover, that the nature of the specific harm may be considered, I
see no basis for drawing a distinction for Eighth Amendment
purposes between the admirable personal characteristics of the
particular victim and the particular injury caused to the victim's
family and fellow citizens. Indeed, I would often find it
impossible to tell which was which. (Would the fact that the victim
was a dutiful husband and father be a personal characteristic, or
an indication of injury to others?) I
Page 490 U. S. 824
therefore think the present case squarely calls into question
the validity of
Booth, and I would overrule that case.
It has been argued that we should not overrule so recent a
decision, lest our action "appear to be . . . occasioned by nothing
more than a change in the Court's personnel," and the rules we
announce no more than "
the opinions of a small group of men who
temporarily occupy high office.'" Brief for Barbara Babcock et
al. as Amici Curiae 29-30 (quoting Florida Dept.
of Health and Rehabilitative Services v. Florida Nursing Home
Assn., 450 U. S. 147,
450 U. S. 154
(1981) (STEVENS, J., concurring)). I doubt that overruling
Booth will so shake the citizenry's faith in the Court.
Overrulings of precedent rarely occur without a change in the
Court's personnel. The only distinctive feature here is that the
overruling would follow not long after the original decision. But
that is hardly unprecedented. See, e.g., Daniels v.
Williams, 474 U. S. 327,
474 U. S.
330-331 (1986) (overruling Parratt v. Taylor,
451 U. S. 527
(1981)); United States v. Scott, 437 U. S.
82, 437 U. S. 86-87
(1978) (overruling United States v. Jenkins, 420 U.
S. 358 (1975)); West Virginia Board of Education v.
Barnette, 319 U. S. 624,
319 U. S. 642
(1943) (overruling Minersville School District Board of
Education v. Gobitis, 310 U. S. 586
(1940)). Indeed, I had thought that the respect accorded prior
decisions increases, rather than decreases, with their antiquity,
as the society adjusts itself to their existence, and the
surrounding law becomes premised upon their validity. The freshness
of error not only deprives it of the respect to which
long-established practice is entitled, but also counsels that the
opportunity of correction be seized at once, before state and
federal laws and practices have been adjusted to embody it. That is
particularly true with respect to a decision such as
Booth, which is in that line of cases purporting to
reflect "evolving standards of decency" applicable to capital
punishment. Trop v. Dulles, 356 U. S.
86, 356 U. S. 101
(1958) (plurality opinion). Once a law-abiding society has revised
its laws and practices to comply with such an erroneous
decision,
Page 490 U. S. 825
the existence of a new "consensus" can be appealed to -- or at
least the existence of the preexisting consensus to the contrary
will no longer be evident -- thus enabling the error to triumph by
our very failure promptly to correct it.
Cf. Thompson v.
Oklahoma, 487 U. S. 815,
487 U.S. 854-855 (1988)
(O'CONNOR, J., concurring in judgment).
In any case, I would think it a violation of my oath to adhere
to what I consider a plainly unjustified intrusion upon the
democratic process in order that the Court might save face. With
some reservation concerning decisions that have become so embedded
in our system of government that return is no longer possible (a
description that surely does not apply to
Booth), I agree
with Justice Douglas:
"A judge looking at a constitutional decision may have
compulsions to revere past history and accept what was once
written. But he remembers above all else that it is the
Constitution which he swore to support and defend, not the gloss
which his predecessors may have put on it."
Douglas, Stare Decisis, 49 Colum.L.Rev. 735, 736 (1949). Or as
the Court itself has said:
"[W]hen convinced of former error, this Court has never felt
constrained to follow precedent. In constitutional questions, where
correction depends upon amendment, and not upon legislative action,
this Court throughout its history has freely exercised its power to
reexamine the basis of its constitutional decisions."
Smith v. Allwright, 321 U. S. 649,
321 U. S. 665
(1944).
Booth has not even an arguable basis in the common law
background that led up to the Eighth Amendment, in any longstanding
societal tradition, or in any evidence that present society,
through its laws or the actions of its juries, has set its face
against considering the harm caused by criminal acts in assessing
responsibility. The Court's opinion in
Booth, like today's
opinion, did not even try to assert the contrary. We provide far
greater reassurance of the rule of law by eliminating, than by
retaining, such a decision.
I respectfully dissent.