Booth v. Maryland Brief of Amicus Curiae Stephanie Roper Foundation in Support of Respondent

    No. 86-5020

In The

j&uprctttt (Jxrnrt of Uje Intteii States
------------------- ♦ . ......... — —

October Term, 1986 

JOHN BOOTH,

Petitioner,

vs.

STATE OF MARYLAND,

Respondent.

On Writ o f  Certiorari to the Court o f  Appeals o f Maryland

BRIEF OF AMICUS CURIAE STEPHANIE ROPER 
FOUNDATION, INC., IN SUPPORT OF RESPONDENT

RUSSELL P. BUTLER 
LOUIS J. DiTRANI*

5210 Auth Road 
Suitland, Maryland 20746 

, (301) 423-8100
*  Counsel o f Record

KURT W. WOLFGANG 
O f Counsel

5189
[ B t *  *N J  (201) 257-6850-(800) 3 A P P E A L *N Y  (212) 840-4640*MA (617) 542 l U 4

^ p n n U n . i n c .  D c  <202) 7H3-7288-PA (2151 925-6500»USA (800) 5 A PPEAL





TABLE OF CONTENTS
QUESTION PRESENTED................. I
TABLE OF CONTENTS...................II
TABLE OF AUTHORITIES ............... H I
STATEMENT OF INTEREST OF

AMICUS CURAIE...........   1
SUMMARY OF ARGUMENT.............   6
ARGUMENT:

Victim impact evidence is 
relevant, appropriate evidence 
for consideration at sentencing..7

CONCLUSION....................... . • 27

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TABLE OF AUTHORITIES
Cases
People v. Haskett, 301 Cal.3d 841,
863-64 (1982................. .....24
Statute
Md. Ann. Code of 1957, art 27
634D.... . ......................... 10
Miscelleanous
American Bar Assn., Guidelines for 
the Fair Treatment of Victims and 
Witnesses in the Criminal Justice 
System.......... ....... %......11
U.S. Dept, of Justice, Office of 
Justice Programs, Office for Victims
of Crime, Victims of Crime,
Proposed Model Legislation,
(1986)  ........................... 11
President's Task Force on Victims of 
Crime, Final Report (1982.....22
The Holy Bible.................... 23



QUESTION PRESENTED 
Whether victim impact evidence 

is appropriate for consideration at sentencing.

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STATEMENT OF INTEREST OF 
AMICUS CURIAE

The Stephanie Roper Foundation, 
Inc.,(the Foundation) is a private, non­
profit volunteer—based organization in­
corporated under the laws of the State of 
Maryland. The Foundation and its sister 
organization, The Stephanie Roper Commit­
tee, Inc.) provides assistance free of 
charge to crime victims. Services avail­
able include:

. legal services 

. transportation to court 

. counseling and assistance
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regarding the trial process.
. court-watch programs 
. a public speaking network 
. legislative and

intergovernmental services

The Foundation requires no dues for 
membership, and subsists upon donations 
from members, charitable organizations, 
andtthe general public.

The membership of the Committee is 
composed of concerned citizens from all 
50 states, several U.S. territories and 
foreign countries, although the vast ma­
jority of members reside in Maryland.

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Currently, membership exceeds 11,000 in 
number.

In the spring of 1982, Stephanie 
Roper, a 22 year old honor student, and 
the Foundation's namesake, was brutally 
raped and murdered. When her two murder­
ers were sentenced in the fall of that 
year, no victim impact statements were 
prepared or considered, in apparent con­
travention to Chapter 495 of the Laws of 
Maryland, 1982. To rectify this situa­
tion, the Foundation drafted remedial 
legislation which was introduced, amend­
ed, and passed as Chapter 345 of the Laws 
of Maryland, 1983. Of Counsel on this

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brief is Kurt W. Wolfgang, who was in 
1983 the registered lobbyist for the 
Foundation, and who, along with members 
of the legislature, participated in 
drafting the 1983 legislation.

The outcome of the present case, is 
the first victims rights legislation ever 
scrutinized by our nation's Supreme 
Court, will affect victims rights legis­
lation across the country, and will pro­
vide the most powerful measure to date 
with which crime victims and their survi­
vors can assess the gravity assigned by 
the courts to their anguish and suffe­
ring. Both petitioner and respondent

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have consented to the filing of this 
amicus curiae brief, and their letters of 
consent are attached hereto as Appendix 
A.

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Summary of the Argument

The State of Maryland has a legitimate 
interest in providing the sentencing au­
thority in criminal cases with evidence 
related to the social, personal, and so­
cietal consequences, or costs, of the 
convicted criminal's intentional vio­
lence. Because of the relevance of vic­
tim impact evidence upon sentencing, 
admission of such evidence is congruous 
with the constitutional principals appli­
cable to sentencing, including capital 
sentencing.

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ARGUMENT
VICTIM IMPACT EVIDENCE IS RELEVANT, 

APPROPRIATE EVIDENCE FOR CONSIDERATION AT 
SENTENCING.

Historically, only the state and the 
defendant have been considered parties to 
criminal proceedings. The legal fiction 
that a crime is committed only against 
the state has led to some absurd, and 
avoidable inequities in the past.

Recently, legislatures and courts 
have expanded the role of' crime victims 
in criminal proceedings, in order to cor­
rect some of those inequities of the 
past. One of the areas in which legisla­
tures and courts have sought to increase

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the participation of crime victims is 
during sentencing through the provision 
of evidence relating to the consequences 
of the criminal upon the victim and his 
or her family. Maryland enacted such a 
law allowing, in cases of violent crime, 
for the submission of a written victim 
impact statement.

In 1983, two changes were affected 
to this law which constitute the subject 
of the present controversy. Chapter 345 
of the Laws of Maryland, 1983, allows 
that a victim's family can provide the 
necessary information to be presented 
during sentencing, if the victim is un-

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able. More importantly, the legislature 
clarified its original law to reflect 
that victim impact statements should be 
applied in capital sentencing as well as 
the sentencing of other violent offenses. 
The Maryland General Assembly had deter­
mined the propriety and relevance of vic­
tim impact statements for all sentencing, 
including death penalty sentencing. Re­
cently, the Maryland General' Assembly has 
again affirmed its policy of requiring 
convicted violent criminals to account 
for the consequences of their actions. 
The legislature passed a law allowing 
victims to present an oral address at

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time of sentencing, much like the defen­
dant's right to allocate at sentencing in 
Maryland. ^

The petitioner considers victim im­
pact evidence to be irrelevant. The more 
progressive view, however, is quite the 
opposite view. The American Bar Associa­
tion's Guidelines for the Fair Treatment

2of Victims and Witnesses (ABA Guide­
lines) were the culmination of a compre­
hensive effort to formulate' guidelines 
that respected the rights'of both defen­
dants and victims. In August, 1983, the 
ABA Guidelines were adopted by the Asso-

1. MD. Ann Code of 1957, art, 26 i  643D

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ciation's policy-governing body, 
House of Delegates.

The ABA Guideline 11 provides: 
GUIDELINE 11
Prior to the sentencing of 
an offender in a serious 
case, victims or their 
representatives should
have the opportunity to 
inform the sentencing body 
of the crime's physical, 
psychological, and finan­
cial repercussions on the 
victim's family. Juris­
dictions may do this in 
one . or several ways, 
including:

(a) written statement 
prepared by the victim's fami­
ly. Jurisdictions may do this 
in one or several ways, 
including:
(b) written statement 
prepared by the probation de­
partment after consultation 
with the victim or the vic­
tim ' s representative; and/or
(c) oral statement by

2. ABA, Guidelines for the Fair Treatment of 
Victims and Witnesses in the Criminal 
Justice System (1983).

the

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the victim or the victim's 
representative before the sen­
tencing body.

The rationale for this 
guideline is set out in the 
commentary accompanying model 
victim impact legislation 
promulgated by the ABA and the 
National Association of Attor­
ney's General: ^

Commentary

The December 1982 Final 
Report of the President's Task 
Force on Victims of Crime has 
recommended that legislation be 
proposed and enacted to require 
victim impact statements at se­
ntencing. The American Bar As-

3. U.S. Department of Justice, Office of

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sociation and the National 
Organization for Victims Assis­
tance are among the national 
organizations which have en­
dorsed such statements.

Most states' common law 
allows the sentencing court to 
solicit information from crime 
victims and whomever else may 
have relevant information. How­
ever, legislation instituting 
formal procedures giving victims 
the opportunity to initiate 
"victim impact statements" in­
forming and sentencing court of 
the crime's impact on them and 
their families is a phenomenon 
which began only a few years 
ago. nevertheless, today the 
federal government and thirty- 
four states have enacted legis­
lation authorizing written 
victim impact statements. In 
addition, nineteen states have 
explicitly authorized the victim 
or the victim's representative 
to appear personally or by coun­
sel at the sentencing hearing.

Justice Programs Office for Victims of 
Crime, Victims of Crime, Proposed 
Model Legislation (1986), p. 11-4

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Just decisions require 
reliable— and complete—
information. The victim impact 
statement provides a means 
whereby information about the 
crime's impact can be provided 
to the sentencing court from 
those most directly affected 
financially, socially, psycho­
logically, and physically.
The ABA Guidelines reach a simi-

4lar conclusion:

Prior to the sentencing an 
offender in a serious case, vic­
tims or the representatives 
should have the opportunity to 
inform the sentencing body of 
the crime's physical. psycho­
logical, and financial repercus­
sion on the victim or on the 
victim's family...
In addition, the comments to the 
ABA guideline are relevant to 
the defendant's assertions.
Victim impact evidence is rele­
vant to a sentencing court.

4. ABA Guidelines, pp.19-21



"Good [sentencing] deci­
sions require good —  and com­
plete —  information allowing 
the victim to provide factual 
information to the sentencing 
court about issues of relevance 
to the sentencing is no more a 
play on the sympathy of the sen­
tencing court than allowing the 
defendant to provide facts about 
his or her personal circumstanc­
es which may affect a just 
sentence.
...Allowing victims direct or 
indirect access to the sentenc­
ing body a this final stage is 
of course the most effective 
means of guaranteeing that such 
relevant personal information is 
brought to its attention.
A convicted criminal is respon­

sible, and should be held respons­
ible, for the consequences of his 
violence. When a bank robber enters

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a bank, he has no idea how much mon­
ey, if any, he will retrieve. Under 
the analysis of the petitioner, the 
amount stolen should not only be ir­
relevant, but the Supreme Court 
should dictate its irrelevance to the 
states, because the convicted crimi­
nal could not have forseen nor con­
trolled the amount of money he could 
liberate. Perhaps more to the point, 
the petitioners analysis would hold 
that since the criminal could neither 
control nor forsee the abject terror 
resulting from his brandishing a 
firearm within the bank, that it

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would not only be unjust, but uncon­
stitutional for the states to allow 
such spurious events to be accounted 
for at time of sentencing.

What of the terrorist hijacker 
who holds a hostage for weeks, or 
even years? The poor, misguided soul 
had no way of knowing that constitu­
tion of his victim's family was such 
that his crime would cause emotional, 
or perhaps even physical scars which 
could last, and ruin, a lifetime. 
These "fortuitous circumstances," 
under the petitioners analysis, must 
be charged to the account of God, or

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the Fates, or perhaps decadent 
American Society... anyone but the 
pitiable criminal.

The people of the State of 
Maryland, through their legislature 
have decided otherwise. While there 
are many policy reasons supporting 
Maryland's position that the true 
effects of the crime upon the victim 
and the victim's family are relevant 
to sentencing in all violent offens­
es, this court should be mindful 
that the soundness of the policy is 
not the ultimate question for the 
court to decide. Rather, the court

• - 18-



must decide whether Maryland Legisla­
ture has the authority to set such 
policy.

The arguments raised by the pe­
titioner and the Amicus NAACP on this 
score appear to be twofold. 5 
First by, the information contained 
in the victim impact statement in 
this case, impact on the Bronstein 
family placed, in one fashion or an­
other, improper pressure on the sen­
tencing authority. This argument was 
raised several years ago to the Pres­
ident's Task Force on Victims of 
Crime. Their response:
5. We discount entirely the NAACP contention 

that allowing victim impact evidence would 
require courts to hear sim ilar evidence

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The argument is that par­
ticipation by victims at sen­
tencing will place improper 
pressure on judges. The duty of 
a judge is to dispense justice, 
and the passing of judgment is a 
difficult task. The difficulty 
of the task should not be re­
lieved, however, by discharging 
it unfairly. Hearing from the 
defendant and his family and 
looking into the faces of his 
children while passing sentence 
is not easy, but no one could 
responsibly suggest that the 
defendant be denied his right to 
be heard or suffer a sentence 
imposed in secret in order to 
spare the judge. The victim, no 
less than the defendant, has a 
real and personal interest in 
seeing the imposition of a just 
penalty. The goal of victim 
participation is not to pressure 
justice, but to aid in its at­
tainment. The judge cannot take 
a balanced view if his informa­
tion is acquired from only one 
side. The prosecutor can begin 
to present the other side, but 
he was not personnal affected by
from the defendant as mitigation.
Courts are already required to hear such 
information from the defendant, and in

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the crime or its aftermath, and 
may not be fully aware of the 
price the victim has paid. It 
is as unfair to require that the 
victim depend solely on the in­
tercession of the prosecutor as 
it would be to require that the 
defendant rely solely on his 
counsel.

Victim impact evidence, then, 
increases the justness of sentences, 
rather than rendering them unfair. 
Victim impact evidence would diminish 
the possibility of an arbitrary or 
freakish imposition of the death pen­
alty by providing high quality, reli­
able and relevant information upon 
which to base a rational judgment.

fact, hear volumes of character and family 
testimony in capital sentencing proceedings. 
See Lockett v. Ohio, 438U.S.686 (1978).

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Secondly the NAACP asserts, 
without evidence, that the victim 
impact statements invite juries to 
impose sentences of death for 
impermissible reasons. A cursory 
look at statistics indicates that 69% 
of violent crime victims are non­
white. Assuming a similar distribu­
tion of victims reach the sentencing 
phase of trial, victim impact evi­
dence would allow those traditionally 
ignored by government to participate 
in a fashion heretofore not possible. 
It is simply a callous speculative 
misperception that the statements of

6. President's Task Force on Victims of Crime, 
Final Report, p.78 (1982)

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poor or minorities will be any less 
eloquent or any less well received 
than any other victims statement. 
Consider one of the greatest leaders 
and law-givers of all time: Moses, 
the stutterer.^

NAACP accuses juries of deter­
mining social worth by factors such 
as education, class, wealth, race, 
and religion. This remark is nothing 
less than a cruel, unsubstantiated 
insult. Certainly such an argument 
fails to carry the petitioners burden 
of establishing the 
unconstitutionality of the statute.

7. Exodus, 4:10

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Applying these principles to the 
present case, we find some informa­
tion (such as the Bronstein's son's 
statement that his parents were 
"butchered like animals") that invoke 
emotion, but not one iota of informa­
tion contained within the statement 
should be held impermissible.

The reasoning of the Supreme 
Court of California supplies us with 
a cold bucket of common sense with 
which to drown the notion that sen­
tences must be based on the mere

8facts of the crime itself.
Although appeals to the 

sympathy of passions of the jury 
are inappropriate at the guilt

8. People v. Haskett, 30 Cal.3d 841, 863-64 
(1982).

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phase (citation omitted), at the 
penalty phase, the jury decides 
a question the resolution of 
which turns not only on the 
facts, but on the jury's moral 
assessment of those facts as 
they reflect on whether defen­
dant should be put to death. It 
is not only appropriate, but 
necessary, that the jury weigh 
the sympathetic elements of de­
fendant's background against 
those that may offend the con­
science. [The trial court] 
should allow evidence and argu­
ment on emotional though rele­
vant subjects that could provide 
legitimate reasons to sway the 
jury to show mercy or to impose 
‘the ultimate sanction.

It is important to point out
that states have their own bodies of 
evidentiary law. While the issue of 
relevance must be explored in the 
present case, it would be most re-

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grettable if the court set the prece­
dent of substituting its judgment for 
that of the state courts on a matter 
which is evidentiary in nature. This 
problem could easily be avoided by 
ruling generally that the use of vic­
tim impact evidence fails to violate 
the Constitutional rights of the de­
fendant, and that the state courts 
are free to judge the relevance of 
particular information.

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Conclusion
"A society that loses its 

capacity for moral outrage is 
doomed." The unknown author of 
this statement unwittingly para­
phrased this Court in its recog­
nition that moral outrage is one 
of the legitimate functions if 
capital punishment. Victim 
impact evidence aids sentencing 
authorities immeasurably in de­
termining what sentence is ap­
propriate to reflect society's 
moral outrage over such vile 
acts as the petitioners murder 
of Mr. and Mrs. Bronstein for 
these reasons, and the reasons 
stated above, the court should 
affirm the decision of the 
Maryland Court of Appeals.

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Respectfully Submitted,

Russell P. Butler

OF COUNSEL 
KURT W. WOLFGANG

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APPENDIX A



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Russell P. Butler, Esquire 
Stephanie Roper Foundation 
5210 Auth Road
Su i tland, Maryland 20746-4325

Re: Booth v. Maryland
No. 86-5020, October Term, 1986 
United States Supreme Court

Dear Mr. Butler:
I hereby consent on behalf of the State of Maryland to your 

filing of an amicus curiae brief in the above-captioned case.
-Very truly yours,

/ i *!■
Deborah K. Chasanow,
Assistant Attorney General 
Chief, Criminal Appeals Division

DKC:cz
CC: George E. Burns, Jr.,

Assistant Public Defender



STATC OF MARVUNO

HARRY HUOHCS•OVCNMOM

O F F I C E  O F  T H E  P U B L I C  D E F E N D E R
A P P E L L A T E  D I V I S I O N  

3 1 2  N .  E U T A W  S T R E E T  

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• •• -»•••

December 2, 1986

Russell P. Butler, Esquire 
5210 Auth Road
Suitland, Maryland 20746-4325

RE: Booth v. Maryland
No. 86-20

- Supreme Court of the United States
Dear Mr. Butler:

We agree that you may file a brief amicus curiae in 
the above case.

GEB/lv

Very truly yours.

George E.
Assistant
Appellate
3 3 3 - 4 8 4 2

T/X
Burns,
Public Defender 
Division



CERTIFICATE OF SERVICE
I hereby certify that on this 

29th Day of January, 1987, that cop­
ies of this Amicus Curiae brief were 
sent by regular mail to the parties 
at their respective place of 
business.

Russell P. Butler
Of Counsel 
Kurt W. Wolfgang

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