The Supreme Court issued its first decision of the October 2016 term, a per curiam (unsigned) opinion in Bosse v. Oklahoma, on Tuesday, October 11. Bosse, a simple case involving the use of victim impact statements (testimony from the relatives of the victims of a crime) retains some limits that such statements.
Nearly thirty years ago, in Booth v. Maryland, the Supreme Court ruled that, in capital murder cases, juries would not be allowed to consider testimony from the victim’s family during the sentencing phase. Such testimony would violate the defendant’s Eighth Amendment right against cruel and unusual punishment. According to Justice Lewis Powell, the author of the decision, because the testimony from family members would be disproportionately passionate and focus on the crime’s impact on the family, the testimony would not paint an accurate portrayal of the defendant. Thus, a defendant could be granted the death sentence for reasons that were not tied to his or her actions. Further, Powell argues that the family’s passion may discourage reasoned decision-making in the jury room.
Four years later, in Payne v. Tennessee (1991), the Court reconsidered its blanket ban on victim impact statements. They reversed a portion of Booth, allowing statements related to the personal characteristics of the victim and the emotional effects of the crime on the victim’s family. However, Payne never overturned another portion of Booth, bans on testimony from the victim’s family that relayed opinions about the crime itself and the proper punishment.
At issue in Bosse v. Oklahoma is the remaining bans. Did Payne overrule all of Booth? The Oklahoma Court of Criminal Appeals believed that Payne did, implicitly at least. In the case, Shaun Bosse was convicted in 2011 on three counts of murder: of Katrina Griffin and her two children. Upon a request by the state, three of Griffin’s family members recommended a sentence to the jury. The jury adopted their recommendation of death. Bosse appealed the decision to the Oklahoma Court of Criminal Appeals, arguing that familial testimony on the recommended sentences was prohibited under Booth. The appeals court affirmed Bosse’s sentence and the Supreme Court decided to hear the case.
In a smack-down of, admittedly, less-than-epic proportions, the Supreme Court rejected the Oklahoma Court’s ruling by citing a litany of cases defending the Supreme Court’s sole authority to overrule one of its own precedents. The Oklahoma Court recognized that Payne specifically did not overrule the relevant portion of Booth so it shouldn’t have determined that Bosse’s Eighth Amendment rights were not violated. Regardless of whether subsequent cases have called into question portions of an earlier decision, the explicit precedent stands and guides lower courts until a new precedent is set by the Court. The state of Oklahoma claimed that the family’s testimony did not affect the jury’s decision and a death sentence would have been issued no matter what. The Court’s response: let’s find out. The case was remanded to the lower court.
Justice Clarence Thomas wrote a concurring opinion, joined by Justice Alito, briefly arguing that his decision was motivated not by whether Booth was decided correctly (they certainly disagree with the decision) but rather whether precedents set by the Supreme Court ought to be followed. They both, of course, believe Supreme Court precedents ought to be followed until that body overrules them.