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Supreme Court Emphasizes Limits to Victim Impact Testimony

By Casey C. Sullivan, Esq. on October 19, 2016 | Last updated on March 21, 2019

The Supreme Court's ban on victim impact testimony that recommends specific sentencing outcomes (like the death penalty) is still in effect despite the opinion being partially overruled, the Court announced in a per curiam decision last week.

The brief ruling involves the interplay of Booth v. Maryland, the 1987 case in which the Court ruled that the Eighth Amendment prohibits victim's family members' opinions about the crime, and Payne v. Tennessee, decided just four years later, which allowed testimony about the emotional impact of crimes. Consider the opinion a bit of a revival for Booth, or at least a reminder that the Court's earlier limitations on victim impact statements haven't been fully abandoned.

Booth, Payne, and Bosse

The case, Bosse v. Oklahoma, came before the Supreme Court after Shaun Michael Bosse was sentenced to death for killing a 25-year-old woman and her two children. During sentencing, the prosecutor asked three of the victim's relatives to recommend a sentence. All recommended death.

On appeal, the Oklahoma Court of Criminal Appeals ruled that Booth did not prevent the sort of testimony offered during Bosse's sentencing. It rejected the assertion that, as the Tenth Circuit had found, a footnote by Chief Justice Rehnquist in Payne meant that Booth had not been overruled. Instead, the Oklahoma court found, Payne had "implicitly overruled" Booth's holdings regarding "characterizations of the defendant and opinions of the sentence."

Not so, the Supreme Court said, repeating the language found in Rehnquist's footnote:

"Booth also held that the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment," but no such evidence was presented in Payne, so the Court had no occasion to reconsider that aspect of the decision.

As for being "implicitly overruled," the Oklahoma court "was wrong to go further and conclude that Payne implicitly overruled Booth in its entirety." When we throw out precedent, we'll let you know, the Court concluded.

After 25 Years, Victim Statements Are Still Controversial

Victim statements remain controversial, though they have been allowed in almost every state since Payne was decided and have moved well beyond capital offenses.

Advocates for victim statements say they can help convey the gravity of a crime. The Department of Justice says the statements may "provide some measure of closure" to victims.

But, 25 years after Payne, the results of victim impact statements have been mixed. Research indicates that "hearing the statements makes capital juries less careful in their decisions," DePaul University College of Law professor Susan A. Bandes wrote recently in the Atlantic. "For victims, the takeaway is more complicated," she concludes. "There is evidence that the statements may reinforce harmful stereotypes and encourage judgments about 'worthy' and 'unworthy' victims."

But if the jury is still out on the benefits victim impact statements provide, the Supreme Court's order reminds us that there are still significant limits to their usage.

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