« "Slave Narratives and the Sentencing Court" | Main | "Could Atticus Finch get elected?" »

October 11, 2016

Fascinating SCOTUS per curiam summary opinion stresses that Eighth Amendment still limits victim testimony in capital cases

The Supreme Court's order list this morning includes a little and very interesting summary opinionin Bosse v. Oklahoma, No. 15-9173 (S. Ct. Oct. 11, 2016) (available here). The order rules in favor of Shaun Michael Bosse, who was convicted and sentence to death by a jury "of three counts of first-degree murder for the 2010 killing of Katrina Griffin and her two children." Here is the per curiam Bosse ruling account of the problem below and its consequences:

Over Bosse’s objection, the State asked three of the victims’ relatives torecommend a sentence to the jury. All three recommended death, and the jury agreed. Bosse appealed, arguing that this testimony about the appropriate sentence violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed his sentence, concluding that there was “no error.” 2015 OK CR 14, ¶¶ 57–58, 360 P. 3d 1203, 1226–1227. We grant certiorari and the motion for leave to proceed in forma pauperis, and now vacate the judgment of the Oklahoma Court of Criminal Appeals.

“[I]t is this Court’s prerogative alone to overrule one of its precedents.” United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); internal quotation marks omitted); see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). The Oklahoma Court of Criminal Appeals has recognized that Payne “specifically acknowledged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appropriate punishment. Ledbetter, 933 P.2d at 890–891. That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further and conclude that Payne implicitly overruled Booth in its entirety. “Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Hohn v. United States, 524 U. S. 236, 252–253 (1998).

The Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence unless this Court reconsiders that ban.  The state court erred in concluding otherwise. 

The State argued in opposing certiorari that, even if the Oklahoma Court of Criminal Appeals was wrong in its victim impact ruling, that error did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law. See Brief in Opposition 14–15. Those contentions may be addressed on remand to the extent the court below deems appropriate.

Justice Thomas (joined by Justice Alito) added this one paragraph concurring opinion:

We held in Booth v. Maryland, 482 U. S. 496 (1987), that the Eighth Amendment prohibits a court from admitting the opinions of the victim’s family members about the appropriate sentence in a capital case. The Court today correctly observes that our decision in Payne v. Tennessee, 501 U.S. 808 (1991), did not expressly overrule this aspect of Booth.  Because “it is this Court’s prerogative alone to overrule one of its precedents,” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997), the Oklahoma Court of Criminal Appeals erred in holding that Payne invalidated Booth in its entirety.  In vacating the decision below, this Court says nothing about whether Booth was correctly decided or whether Payne swept away its analytical foundations. I join the Court’s opinion with this understanding.

October 11, 2016 at 10:07 AM | Permalink


Of course, the Court, to its shame, didn't enforce that rule against Ronnie White and company when Simmons' death sentence was overturned. The OCCA should note that when it issues an order on remand.


Posted by: federalist | Oct 11, 2016 10:26:29 AM

To me, seemed like a self-protection device -- it's our job to overturn our precedents.

Posted by: Joe | Oct 11, 2016 11:15:54 AM


Posted by: former AFPD | Oct 11, 2016 11:42:48 AM

Right, Joe, the problem is that the Court hasn't always been consistent with that--See Simmons. I was just calling that out, but you probably knew that and chose not to engage.

former AFPD--cute--apparently, though, you cannot address my point about the clear inconsistency here.

Posted by: federalist | Oct 11, 2016 12:24:41 PM

I was responding to Doug Berman's post, but overall, yes, it is somewhat interesting to look at the specific cases where among all the possible cases, the Supreme Court over the years picks one now and then to use per curiams like this. They have done this in various cases to uphold or strike down defendant rights, looking at things big picture.

Posted by: Joe | Oct 11, 2016 1:22:38 PM

I would love to see Simmons's brief in opposition from 2003 to see how they addressed this question of the lower court finding that the Supreme Court had implicitly overruled a precedent.

In any case -- while not formally pronounced -- the rule is simple. If the majority wants to reconsider its precedent, they grant and set for full briefing and argument. If the majority does not want to reconsider the precedent, they summarily reverse with a reminder that only the Supreme Court can overrule a Supreme Court case.

Posted by: tmm | Oct 11, 2016 2:00:01 PM

The Supreme Court should pretty much always reverse and remand where the lower courts violate the binding precedent rule. The Court probably doesn't, but it should.

tmm, your attempt to deflect the issue away is silly--the bottom line is that the Simmons Court should have noted that the Missouri Supreme Court had no business flouting its then-controlling precedent--that the Court chose to use Simmons as a vehicle for the BS rule that we cannot execute 17 year olds doesn't excuse SCOMO.

Posted by: federalist | Oct 11, 2016 2:07:04 PM

The actual practice is less simple.

There are loads of potential cases, but the Supreme Court reaches out like this in only some, and does so often in bland terms resulting in people trying to read between the lines. A few commentators critiqued this including the messaging that isn't totally aboveboard.

Posted by: Joe | Oct 11, 2016 2:51:18 PM

There's no reading between the lines--the OCCA got it wrong from a technical legal sense--as did the Missouri Supreme Court--the OCCA got bench-slapped, SCOMO did not. That's lawlessness in action.

Posted by: federalist | Oct 11, 2016 4:08:08 PM

federalist can discuss what he wants, but my reference to "reading between the lines" was a GENERAL statement regarding per curiams of this sort as a whole. It wasn't about a specific one in particular.

Posted by: Joe | Oct 11, 2016 7:21:36 PM

Simmons is not a valid application of the rule. Binding SCOTUS precedent requires a court to take into account evolving standards of decency when interpreting the current application of the eighth amendment to a mode of punishment. As such, in the eighth amendment context, a SCOTUS ruling that a death penalty application doesn't violate the standards of decency in year X is not, and cannot, be binding precedent for the entirely different question of whether the practice violates the standard of decency that is current more than a decade later.

Posted by: Poirot | Oct 12, 2016 9:42:11 PM


"[I]n the end our own judgment [i.e., SCOTUS, not SCOMO] will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment."

That means that SCOMO was wrong, and SCOTUS should be pitilessly criticized for the double standards.

Posted by: federalist | Oct 13, 2016 10:18:35 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB