South Carolina v. Gathers/Concurrence White

by Byron White

Justice WHITE, concurring.

Unless Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (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, 107 S.Ct. 2529, 96 L.Ed.2d 440 (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 the family members' opinions about the crime, the defendant, and the proper penalty to be imposed. Id., at 509-515, 107 S.Ct., at 2536-2539. The majority in Booth took the view that such information "may be wholly unrelated to the blameworthiness of a particular defendant," id., at 504, 107 S.Ct., at 2534, and could divert the capital sentencer's attention from the circumstances of the crime and the defendant's background and record, id., at 505, 107 S.Ct., at 2534. 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 507, 107 S.Ct., at 2535. 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 508, 107 S.Ct., at 2536.

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 (1988). See also People v. Rich, 45 Cal.3d 1036, 1089-1090, 248 Cal.Rptr. 510, 543-544, 755 P.2d 960, 993-994 (1988); People v. Ghent, 43 Cal.3d 739, 771-772, 239 Cal.R tr. 82, 103, 739 P.2d 1250, 1271 (1987).

I joined both dissents in Booth, see Booth, 482 U.S., at 515, 107 S.Ct., at 2539 (WHITE, J., dissenting); id., at 519, 107 S.Ct., at 2541 (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 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, 398, 108 S.Ct. 1860, 1877, 100 L.Ed.2d 384 (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, 823, 102 S.Ct. 3368, 3390, 73 L.Ed.2d 1140 (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.

* 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 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 clearl 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.

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.

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, supra, 486 U.S., at 397, 108 S.Ct., at 1876 (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, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), judgment reinstated, 809 F.2d 700 (CA11) (en banc), cert. denied, 483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 744 (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, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (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, 102 S.Ct. 869, 71 L.Ed.2d 1 (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, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (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 the events of September 13, 1986, but all of it was relevant to the jury's assessment of respondent 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, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (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, 462, 104 S.Ct. 3154, 3163, 82 L.Ed.2d 340 (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, 149, 107 S.Ct. 1676, 1683, 95 L.Ed.2d 127 (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 150, 107 S.Ct., at 1684. 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 152, 107 S.Ct., at 1685, and that "the record would support a finding of the culpable mental state of reckless indifference to human life" id., at 151, 107 S.Ct., at 1684. We noted that "reckless indifference to the value of human life may be every bit as shocking to the moral sense as an 'intent to kill,' " id., at 157, 107 S.Ct., at 1688, and we remanded the case to the Supreme Court of Arizona for a specific determination whether the Tisons possessed that mental state, id., at 158, 107 S.Ct., at 1688. 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 516, 107 S.Ct., at 2540 (WHITE, J., dissenting) ("There is no hing 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 id., supra, at 519, 107 S.Ct., at 2541. 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," id., at 517, 107 S.Ct., at 2540 (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 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, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), so information about his equally unique 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 a d 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, 482 U.S., at 516, 107 S.Ct., at 2540 (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, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). Because neither aspect of the Eighth Amendment was offended by the prosecutor's remarks, I would reverse the judgment below.

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. McCleskey v. Kemp, 481 U.S. 279 [107 S.Ct. 1756, 95 L.Ed.2d 262] (1987)." Booth, 482 U.S., at 517, 107 S.Ct., at 2540. See also Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (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, 242, 92 S.Ct. 2726, 2728, 33 L.Ed.2d 346 (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, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (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, 362, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393 (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 518, 107 S.Ct., at 2541 (WHITE, J., dissenting); id., at 506-507, 107 S.Ct., at 2534-2535 (opinion of the Court). In this case, however, respondent has pointed to no evidence introduced at the penalty phase that he was pr cluded from rebutting. Rather, the prosecutor commented 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, 107 S.Ct. 2529, 96 L.Ed.2d 440 (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 515, 107 S.Ct., at 2539 (WHITE, J., dissenting); id., at 519, 107 S.Ct., at 2541 (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 816-820 (O'CONNOR, J., dissenting); Mills v. Maryland, 486 U.S. 367, 397, 108 S.Ct. 1860, 1876, 100 L.Ed.2d 384 (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 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, 154, 101 S.Ct. 1032, 1036, 67 L.Ed.2d 132 (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, 330-331, 106 S.Ct. 662, 664-665, 88 L.Ed.2d 662 (1986) (overruling Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)); United States v. Scott, 437 U.S. 82, 86-87, 98 S.Ct. 2187, 2191-2192, 57 L.Ed.2d 65 (1978) (overruling United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975)); West Virginia Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943) (overruling Minersville School District Board of Education v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (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 surroundi g 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, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). Once a law-abiding society has revised its laws and practices to comply with such an erroneous decision, the existence of a new "consensus" can be appealed to-or at least the existence of the pre-existing 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, 854-855, 108 S.Ct. 2687, 2709, 101 L.Ed.2d 702 (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, 665, 64 S.Ct. 757, 765, 88 L.Ed. 987 (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.

Notes