BOOTH v. MARYLAND

Print this transcript Transcript: 

Argument of George E. Burns, Jr.

Chief Justice Rehnquist: We will hear arguments this afternoon in No. 86-5020, John Booth against Maryland.

You may proceed whenever you're ready, Mr. Burns.

Mr. Burns: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the State of Maryland may constitutionally execute a defendant based on a public opinion poll.

This Court has repeatedly... most recently in this term in California versus Brown... said there are two relevant considerations in a capital sentencing.

First, the defendant's background.

Obviously that's not at issue in victim impact statements.

The second thing are the circumstances of the crime.

The circumstances of the crime, of course, in a normal way are also not involved.

There's no contention that the victims who testified were at the crime scene, were involved with the crime, but that the crime was instituted against them as opposed to the actual victims.

The State, however, argues that this is still part of the circumstances of the crime.

The argument really comes down to no more than saying,

"If I cast a pebble into the ocean, the ripples just go on forever. "

The problem with that, I think, is not only has it never been used as a basis for criminal sentencing, it's probably not even a good basis for tort law.

The implications are simply staggering, because I think it's fair to say that each and every one of us is offended by violent crime.

That being the case, there's no reason every citizen who is offended by this shouldn't come in and express that view.

Indeed, we might have an 800 number linked up to the courtroom.

People could call in.

More specifically, lawyers and judges who are involved in these cases are certainly offended by the facts that they have to deal with, the crime that they have to deal with.

It would seem that it would be fair to call them in as also--

Unknown Speaker: What exactly was introduced in evidence here, Mr. Burns?

Mr. Burns: --Here we have the testimony of, or the statements of the immediate family; that is, the mother... excuse me, son, daughter of the victims... the actual victims.

I use the victims in two words... two ways.

"Victims" obviously meaning the murder victims, victims as included in this case included those people, family members, who obviously were upset by the crime, as anyone would be, but were not present in any way at the crime, and at whom the crime was not actually aimed at.

So that was what we had in this case.

That is the complaint.

The State, in short--

Unknown Speaker: You'd allow it to be introduced, I presume, if as one of the aggravating circumstances, it was shown that the victim was tortured to death in front of his wife or something like that, wouldn't you?

Mr. Burns: --I think there are circumstances--

Unknown Speaker: Then the fact that the wife was so much aggrieved by it you think would be relevant?

Mr. Burns: --Well, I think it would be relevant in a slightly different way, Justice Scalia.

In that circumstances it is a crime.

The crime does become more horrible, if it were not just the wife, if it were just a citizen that had to stand here and watch this.

I do think that is aggravating that you put someone through that.

So I think it is an aggravating circumstance of the crime, as opposed to someone who is not present at the crime.

So I agree... My answer is: yes, but perhaps for a slightly different reason than you suggest.

Unknown Speaker: I don't understand why in principle you say simply the fact that the crime does more harm is not a valid aggravating factor.

Let's assume that I'm pulling a bank robbery and I aim at a guard intending to kill him.

If I happen to kill him, I'm liable for much graver punishment than if my aim is bad and he's only wounded; correct?

Mr. Burns: I'm not sure, Your Honor, because in one case you have murder and in one attempted murder, except if there is the aggravating factor of capital crime.

You have in Maryland at least life in each case.

Unknown Speaker: Well, I think you certainly would not deny that a State can have different punishments, and considerably different, for a murder that goes awry, and one that is actually committed.

Mr. Burns: I agree, Your Honor.

Unknown Speaker: Although the evil of the person who pulls the trigger, the blackness of his soul, is exactly the same; right?

He's just as bad a person.

Mr. Burns: I agree, Your Honor.

Unknown Speaker: So somehow the harm that is inflicted upon society is a perfectly valid factor.

Now, why does it just have to be the harm upon the victim?

Mr. Burns: If that's true, Your Honor, we eliminate reasons for foreseeability, because I think in Your Honor's hypothetical, we do have the foreseeability problem.

If I point a gun in a bank and shoot it, I surely am aware that anyone there may be injured.

I am not likely to be aware that the victim that gets hit, for example, has a loving family and children as opposed to a victim who may be hated by everyone.

That's very unlikely that I'm going to be aware of that.

And I would agree, Justice Scalia, if we have a case, for example, of someone saying,

"I'm very fond of Mr. Smith. "

"I've liked Mr. Smith for ten years, but I hate his family. "

"I'm going to get even with his family by killing Mr. Smith. "

Well, in that case I would agree that the circumstance of the crime is precisely that.

But the ordinary situation is, there certainly may be all these ripple effects, but it really has nothing to do with the blackness of the soul of the defendant, because the defendant isn't aware, and in most instances, to put it bluntly, is indifferent to all these things.

Unknown Speaker: But why is the blackness of the soul of the defendant, as you and Justice Scalia have been saying, the only thing that the State may produce evidence about?

Certainly our cases have given the broadest latitude to the defendant, to show anything in the defendant's background that may make the jury have a feel for and be sympathetic to him.

Why can't the State at the same time be entitled to make the victim human and make the family human, to get across to the jury just what the impact of this act was?

Mr. Burns: Well, Chief Justice, I think one clear thing is presumably the defendant's background is relevant, why he's here.

The victim--

Unknown Speaker: This Court has said it was relevant.

Mr. Burns: --Yes, in the past.

Unknown Speaker: And presumably this Court could say the victims were relevant.

Mr. Burns: This Court could--

Unknown Speaker: So the question is: What reason supporting one doesn't support the other?

Mr. Burns: --I think one question is: Does it have an effect on why this individual committed this particular crime?

Certainly defendant's background does.

Does it have any effect on the crime, for example, if one sees two people that both look like they're from Skid Row, shoots one.

It turns out he's a Skid Row person, and no one much cares.

He shoots another person, and it turns out this person was actually a renowned surgeon, and he happened to be dressed that way.

And, indeed, probably a thousand lives will be lost because he'll be unable to be the surgeon in those cases.

But again--

Unknown Speaker: Mr. Burns, do you suppose that it's possible for a State to make it an aggravating circumstance to murder someone who is a policeman?

Mr. Burns: --I think it is, Justice O'Connor, if I may add one thing.

I think it would have to be that you would have reason to know it is a policeman as opposed to not.

Unknown Speaker: Well, maybe; maybe not.

Do you think the State can make it an aggravating circumstance to murder the parent of minor children?

Mr. Burns: I think if the State tied it to a knowledge and specific purpose for doing that.

Unknown Speaker: Well, maybe; maybe not.

That's the issue.

Does the defendant's knowledge of that have to be a component, or is it possible to take into consideration the scope of harm to society?

Mr. Burns: That's the question, Your Honor.

But I think the difficulty is if we open this and prevent scope of society arguments is, again, we're not really focusing on culpability of the defendant.

It's hard for the defendant to be... judge his culpability in light of what not only he does not know in many cases, but could not conceivably know.

So that we have... and I think this goes to the arbitrary factor.

We have two defendants who have both acted in a horrible way, society would agree.

One, purely by fortuitous circumstances, has caused all these additional harms, not because he's worse or better than the other defendant, but simply by chance.

I think it's difficult to see how that cannot have an arbitrary result, because we're not looking at what this criminal did, what he deliberately caused to be done, but merely fortuitous circumstances of again the ripple effect for society.

Unknown Speaker: Is that any more arbitrary than Justice Scalia's example of the attempted murderer who aims for the forehead, misses and gets ten years, as opposed to the man who hits and is executed?

Mr. Burns: I don't think that is arbitrary at all, Your Honor, again because when I point the gun at someone, I surely must know... I mean, I think it's the basis of the criminal law--

Unknown Speaker: When you know you're going to miss?

I mean, the hypothesis is you intend to hit him square in the forehead, and in one case you miss.

Mr. Burns: --Precisely, Judge Scalia.

I may have benefited from that.

My point is: The defendant who hits the victim and is punished greater can hardly complain because someone else missed him.

In that circumstances, both of them knew, or should have known, the consequences.

I surely know, if I point a gun at someone and I intend to kill them, that I may well do that.

If I don't, I may have been lucky.

But it has nothing to do with fortuitous circumstances in the sense that I don't have control of.

Unknown Speaker: I could say if you do, you're unlucky.

I mean, you know,--

Mr. Burns: Maybe very unlucky.

Unknown Speaker: --which direction you want to look at it from.

But the point is: It seems to me you're talking about culpability as though the only elements that go into culpability are how wicked is your intent, number one, and perhaps, perhaps... Well, I guess that's it.

How wicked is your intent?

It seems to me that another quite independent element of culpability is simply how great is the harm you did.

How great is the harm that you did?

Mr. Burns: The difficulty, Justice Scalia, is that I think we're going to have to simply change what we've said about criminal law for at least the last 200 years.

Culpability has been the hallmark of criminal law, unlike tort law, because again we're punishing people for their bad acts, what they consciously are doing, not what other circumstances may, quite beyond their acts, cause.

If you're trying to use this... and I suppose deterrence is a factor in all of criminal law... if you're trying to deter someone, you may deter someone by saying,

"If this happens, if you do this and you kill someone, we're going to punish you in this way. "

It's hard to deter someone by simply saying,

"Well, if after the fact we decide that there may have been ripple effects, that this person had a caring family as opposed to an uncaring family-- "

Unknown Speaker: It's not deterrence; it's not deterrence.

It's expression of society's outrage and revulsion.

Mr. Burns: --Well, Your Honor, the question of outrage--

Unknown Speaker: Call it vindication, if you like.

Mr. Burns: --Pardon?

I'm sorry.

Unknown Speaker: Call it vindication, if you like.

Mr. Burns: Well, I think that... if I may... leads us to a second problem.

The State has attempted to link that up by saying: It goes to retribution.

And certainly there are opinions by Justices of this Court talking about retribution in capital punishment.

However, those opinions are dealing with the question of whether there should be capital punishment or not, not the procedures to carry out retribution.

And I think the point is significant.

For example, if the State is right, and all I have to show is that this procedure is consistent with retribution, then it's obvious that defendant should be tortured during sentencing.

It's difficult to think of anything that could better serve retribution.

Or if one doesn't like that, one could at least bound, gag and chain him during it.

Again, it serves as retribution.

The point is: Retribution has a legitimate basis, if one accepts it, in deciding whether or not we apply the ultimate punishment, but it doesn't help at all to say, "Is the procedure fair", because it would seem to me that the less fair the procedure, the greater retribution.

If one uses that argument, it militates in favor of having the most unfair procedure.

And I think this may be an example.

If not the most unfair procedure, certainly an unfair one in this particular case.

Unknown Speaker: Mr. Burns, aren't there a number of States with capital punishment laws that look to, as an aggravating circumstance, the extent to which other people might have been endangered by the conduct?

Mr. Burns: I think, Justice O'Connor... the ones I'm familiar with... are ones where you're talking about... and Maryland has that, too, of killing more than one person.

But, once again, the defendant certainly knows--

Unknown Speaker: No.

I think there are a number that look to the extent to which other people were endangered, not killed.

Mr. Burns: --Again, I can't say that I'm completely familiar with every other statute, other than Maryland's, but I believe those are again to be tied--

For example, if you put a bomb in this building, surely one knows that the chances of killing more than one person are very, very great.

And again I think that is easy to tie to foreseeability, as opposed to the situation where no one can possibly foresee.

So I'm learning my answer, because I'm not terribly familiar with all these statutes, but I think you can distinguish them in that way.

A word perhaps should be said about, in passing, the state's use of authority.

The State, not unreasonably, has combed the country for those cases which best support its position--

Unknown Speaker: Let me come back just a minute and say that... or inquire whether you think it is generally foreseeable when you murder someone that it's very likely you will leave a number of family members distraught and devastated, that that's the likelihood, really?

Mr. Burns: --That may be reasonably likelihood, reasonable likelihood that someone may be.

But again you don't know how extreme, and there are going to be extremes.

Unknown Speaker: Well, but just if you limit it to that kind of reasonable concern, do you think that's inherently improper, viewed in the light of the other aggravating circumstances that States have adopted?

Mr. Burns: I don't think so, Justice O'Connor.

And I think there are several perhaps additional problems with this, because not only are we talking about leaving these victims, we're also talking about a very personalized thing.

For example, let's suppose that there are two murders.

And in one case... They both have loving families.

But some people, their grief just as intense, would prefer not to participate, would prefer not to be involved in this.

They want certainly justice, but they also want to not be involved.

So they're not going to have much in the victim impact statement.

They may say,

"No, we're not going to be involved. "

The other case, the people may... Their grief may take the opposite view.

But once again here, not only do we have fortuitous circumstances in where there are family members, but it turns on the specific reaction of the family members, rather than the actual victim or the defendant.

Unknown Speaker: Well, Mr. Burns, hasn't tort law for a long time distinguished between intentional torts and negligent torts in this respect, that with respect to intentional torts, you take the consequences as you find them, and you're responsible for even fairly unforeseeable consequences.

It's just in the negligence areas that the foreseeability question comes in.

Mr. Burns: I certainly agree, Mr. Chief Justice, there's a difference.

Unknown Speaker: So that an intentional killer is really not in a position as applying traditional tort laws to complain that he killed someone who had a far more bereaved family than the next person.

Mr. Burns: Mr. Chief Justice, I certainly agree with you that the family could successfully sue the killer.

I have no difficulty with that whatsoever.

I think in our brief we make clear, one of the early divisions between tort law and criminal law was just that, is to take the victim as you find the situation.

And the idea, obviously, of tort law is to put people, make people whole to the extent you can.

Obviously, realistically in this case, you can't; but to the extent that you can.

And so I'm certainly not suggesting that you couldn't sue in tort, but--

Unknown Speaker: But you're insisting that there's a foreseeable... a principle of foreseeability here that should somehow limit your client's criminal liability.

Mr. Burns: --Yes, Your Honor.

Unknown Speaker: I'm suggesting that that... that there's a very good analogy from tort law that suggests that isn't the case.

Mr. Burns: Well, I suggest, Your Honor, that that obviously this Court can do as it will, but I think to do that, we're going to have to substitute tort law for criminal law.

Criminal law has never been built on that basis.

And I think the reason Mr. Chief Justice has to draw all the the analogy from tort law is precisely that.

It's not criminal law.

Unknown Speaker: You think... you think that you can't be convicted of the crime of killing a federal officer unless you knew he was federal officer?

Mr. Burns: Well--

Unknown Speaker: Right?

Mr. Burns: --as always--

Unknown Speaker: You don't take the victim the way you find him?

You look down and you say,

"My God, I've killed a federal officer. "

Mr. Burns: --I would say if you reasonably--

Unknown Speaker: I'll tell you... well, I don't think reasonably.

You have no idea whether he's your Federal Officer or not when you... when you kill him.

And if you've killed a federal officer, I think you take your victim the way you find him.

Mr. Burns: --I'm just... I'm not familiar with the case.

I don't know if Your Honor has one in mind.

I think, for example, let's... the situation... I don't... this is not a Federal case.

It was a Maryland case where you have someone posing as a drug dealer.

And I think in that situation, it's very difficult to argue is, when someone is being killed in a drug transaction because he's posing as a drug... drug dealer, that you're actually killing a federal officer because it doesn't serve that purpose of--

Unknown Speaker: And if you rob a bank and you don't know that it's a Federal bank, you're... you're not prosecutable under the laws governing the robbery of a Federal bank?

Mr. Burns: --I think it's reasonableness... is if everyone realizes that banks, most banks perhaps, many banks, are Federal banks, is if someone is deliberately posing as a drug dealer, I don't think one can reasonably say,

"I must, therefore, assume-- "

Unknown Speaker: Everybody realizes... everybody realizes people have relatives whom they leave behind.

Mr. Burns: --They realize that.

Unknown Speaker: And all that this Statute permits is those relatives to come in and demonstrate the harm that this individual has done, just as... just as he's entitled to put on exculpatory testimony, his mother coming on and saying, you know, "It was my fault", or whatever.

Mr. Burns: The difficulty is--

Unknown Speaker: These are just the realities of things.

Mr. Burns: --Presumably his mother... it may been her fault.

I don't know that it is.

That may have some bearing on what he did.

What he did was certainly not because and not intended, in the normal situation, to these other individuals.

And it's very difficult, Justice Scalia,--

Unknown Speaker: Then you're getting back to your assumption that the only proper basis for setting a level of punishment is the nature of his soul.

And what I'm saying is, it isn't.

It's also the amount of harm that he's caused.

Mr. Burns: --I think, Your Honor, Justice Scalia, in part I agree with you.

But I think it's foreseeable harm, not unforeseeable harm.

I think that's the only difference I have with you--

Unknown Speaker: Can we just back up for minute?

Did you say that the man doesn't know that... that everybody knows that all the banks are Federal banks?

Mr. Burns: --I'm saying... I said, Justice Marshall,--

Unknown Speaker: Are you from Maryland?

I mean, are you from Maryland and you say that?

Mr. Burns: --Now, Justice, we've changed that in Maryland.

Unknown Speaker: Mr. Burns, I thought the question before us in this case was admissibility of the Victim Impact Statements.

Mr. Burns: Yes, Justice Powell.

Unknown Speaker: We haven't talked very much about that, have we?

Mr. Burns: Well, I think this all is the question of admissibility comes down to, whether it serves one of these purposes.

Unknown Speaker: Well, let me ask you this.

Was the Victim Impact Statement by the son and, I guess, daughter and maybe children, grandchildren--

Mr. Burns: That's correct, Justice Powell.

Unknown Speaker: --introduced in evidence at the sentencing hearing?

Mr. Burns: Yes, Justice Powell.

Unknown Speaker: Were you permitted to cross-examine?

Mr. Burns: By agreement of all the parties, the preferred... the options given the Defense in this case were, you can have live or statements.

By agreements, they thought it was less prejudicial than you had the statements.

So the answer is, they didn't cross-examine him.

But I can't honestly say, obviously, that's because of the procedure.

It was because the procedure that the parties agreed that it would be less prejudicial than for statements.

Unknown Speaker: Under Maryland law, you would have had the opportunity to cross-examine?

If they had testified, I think you certainly would have, yes, Justice Powell.

What's the difference between filing written statements and testifying?

Could you file any--

Mr. Burns: I don't understand, Justice Powell.

Unknown Speaker: --any conflicting... conflicting statements?

Mr. Burns: I'm afraid I don't understand your question.

Unknown Speaker: You don't understand the question?

On page 59 of the Appendix, there is a Victim Impact Statement of Mr. and Mrs.... what is it?

Bronstein?

Mr. Burns: Yes, Justice.

Unknown Speaker: And you say that was filed at the sentencing hearing.

And you did not cross-examine Mr. and Mrs. Bronstein?

Mr. Burns: No.

They were not there, no.

Unknown Speaker: But couldn't you have... couldn't you have insisted they be there so you could cross-examine them.

Mr. Burns: I think that's true.

They... I think they could have.

As I pointed out, Justice Powell, in this case, all the parties... well, obviously, defense didn't want any Victim Impact Statement.

The response was,

"Well, is... would you prefer us to have live victims or the Statement? "

And I think defense counsel made that choice.

Obviously, if they would have come, I see no reason why they could not be cross-examined in that circumstance.

I reserve my time for rebuttal.

Argument of Charles O. Monk II

Chief Justice Rehnquist: Thank you, Mr. Burns.

We'll hear now from you Mr. Monk.

Mr. Monk: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether victim impact evidence can be introduced at the sentencing phase of a capital case consistent with the Eighth Amendment.

We believe that it can under Maryland's carefully devised capital sentencing process.

The Maryland General Assembly has chosen to include victim impact evidence in the death penalty process.

In doing so, however, Maryland has not undermined the substantial safeguards of its process that guide the discretion of the sentencer and insure that the death penalty is not imposed in an arbitrary or capricious manner.

In fact, I suggest that Maryland's bifurcated death penalty procedure contains many more procedural safeguards than other sentencing procedures already approved by this Court.

Maryland has ten limited circumstances where the death penalty may be appropriate.

With the exception of a person that contracts for murder, only a principal in the first degree, that is, one that actually commits the murder or kills the victim, is subject to capital punishment in Maryland.

The aggravated murderers, where the death penalty can be imposed, include such things as victim... as the victim was a law enforcement officer.

And let me stop here, Justice Scalia.

In Maryland, the defendant would not have to know that the victim was a law enforcement officer.

It would be sufficient that the... that the victim was a law enforcement officer on duty to constitute an aggravated circumstance under the Maryland Statute.

Another... another example of the aggravated circumstances required by the Maryland Statute is that the victim was taken or attempted to be taken in the course of a kidnapping or abduction.

In this case, the aggravating circumstance is that the defendant committed the murder while committing robbery.

Under Maryland's death penalty law, if no aggravating circumstance is found, then life imprisonment is the sentence.

However, if one or more aggravating circumstances are found to exist and the standard is beyond a reasonable doubt, then we shift to mitigating circumstances for consideration.

In addition to Stat. 7, statutorily defined mitigating circumstances, Maryland also permits the defendant wide discretion to present other facts in mitigation.

Mitigating circumstances under the Maryland procedure must only be proved by a preponderance of the evidence.

A single mitigating circumstance is sufficient under the Maryland procedure to outweigh whatever aggravating circumstances are found and indicate that life sentence is appropriate.

In this case, the jury found and noted on the verdict sheet under the open-ended-other-facts category that the defendant's family environment, child neglect, and lack of strong father image were mitigating factors.

I think this is important because it indicates that the jury was, in fact, listening to the evidence and understanding what the defendant was presenting.

Unknown Speaker: Mr. Monk, I think the question I have I'd like you to address, frankly, is that the Maryland sentencing scheme, as you've been describing it and as the record discloses, is very specific.

In fact, the jury is actually given a form--

Mr. Monk: That's correct, Your Honor.

Unknown Speaker: --and it lists the aggravating circumstances, and the jury is told to check off on the form what ones it finds.

And the form includes space to put the mitigating circumstances.

And they're asked to say what they are.

And then they're told that if they find that the aggravating circumstances outweigh the mitigating, they are to return the sentence of death.

Mr. Monk: That's correct.

Unknown Speaker: Now, the use of the Victim Impact Statement is not described on the form for sentencing.

It's doesn't fit into this very precise procedural scheme at all.

And it appears to me that the Victim Impact Law was, perhaps, passed later and is kind of an add-on, and that the form has never been adjusted to reflect how the jury is to use it.

And, indeed, in this case it was just the subject of argument by the Prosecutor, I suppose, after the Statement had been admitted.

And I'm concerned about what you see about the kind of guidance that would meet Federal constitutional standards in a death-sentencing scheme is required for the use of victim impact statements.

Mr. Monk: Justice O'Connor, I would agree with you that there is no place on the form for the jury directly to consider victim impact evidence.

But I disagree with you that is not clearly a part of the process.

The Maryland Court of Appeals in this case, I think, addressed exactly your concern when it said the victim impact evidence reflects the gravity or aggravating circumstances of the crime.

There's no place on the form, I might say, for a description of the heinous nature of the crime, the fact that the Bronsteins were bound and gagged and stabbed numerous times.

There's no place on the form for the jury to look at that evidence either.

Unknown Speaker: Well, I think if I'd been a juror, I might have been quite confused about what use to make of the Victim Impact Statement in a scheme like Maryland's that has been made so specific.

And that's why I'm asking you for help.

Mr. Monk: Well, I suggest to you, Justice O'Connor, that the process, what the jury was supposed to do in this case and I think was Maryland's process calls for, is that once the jury finds the threshold of an aggravated murder, that it was committed in the case in connection with a robbery, then they take into consideration the circumstances of the crime, the victim impact, the defendant's criminal record, in considering the aggravating quality of the crime, and then weigh that against the mitigating circumstances presented by the defendant.

It's... it's not there on the form, but it is part of the process.

Unknown Speaker: Nowhere are they told to do that though.

Mr. Monk: Well, I think there could be an instruction if there was not a request for such an instruction in this case.

There was an instruction, however that say... that said that you weigh... that gave... the suggestions to the jury about what an aggravating circumstance meant and what a mitigating circumstance meant.

And I think that that kind of instruction is sufficient for the jury to understand the process that it's undertaking.

Unknown Speaker: May I ask this question?

Under the Maryland Statute... I'm sure it's here somewhere, but I haven't been able to lay my hands on it... is the effect of the murder on the victim's family a statutory aggravating factor?

Mr. Monk: It is not, Justice Powell.

Unknown Speaker: It is in getting to the case in any event?

Mr. Monk: Pardon me.

Unknown Speaker: I say--

Mr. Monk: How does it come in?

Unknown Speaker: --There's a separate statute in Maryland that says this is admissible in a capital case?

Mr. Monk: That's right.

The Statute... the General Assembly has defined what evidence is admissible in a capital case.

And among that list is a pre-sentence report including the Victim Impact Statement.

And that's how it comes into the process.

The pre-sentence report details the criminal history of the defendant and some relevant information about his background.

Unknown Speaker: My understanding is that although counsel for the defendant in this case objected to the introduction of this Victim Impact Statement, counsel did not choose to cross-examine the parties who signed these testimonials as to the effect of the murder on them.

Mr. Monk: That's correct.

And, in fact, the Statement, as the Petitioner has indicated in argument, came in as a joint exhibit of the--

Unknown Speaker: Would he have had the right to cross-examine those people?

Could you--

Mr. Monk: --Would have--

Unknown Speaker: --Could you have introduced a statement if he had objected and said,

"If you bring them up here, I'm going to cross-examine them? "

Mr. Monk: --I think he could have, and I think the Court would have been required to give him the opportunity to rebut the evidence.

Under Maryland's scheme, it clear--

Unknown Speaker: To cross-examine them?

Mr. Monk: --Yes.

Unknown Speaker: Can you give me a case on that?

Mr. Monk: Well, I think the Statute, itself, reflects it, Justice Marshall.

The Statute says--

Unknown Speaker: Does the Statute say, "An impact statement" is admissible?

Mr. Monk: --Yes, it does.

But the Statute also indicates--

Unknown Speaker: It says, impact statement?

Mr. Monk: --It says, including a victim impact statement, in the description of the pre-sentence report.

Unknown Speaker: 0 [Inaudibles.]

Mr. Monk: It's in the Statute, I believe.

Unknown Speaker: That' okay.

I can find it.

Mr. Monk: Also the... I think if the Court would look at the Maryland Court of Appeals earlier decision in Lodowski where the Court of Appeals took the opportunity to construe this Statute is further guidance in that case.

Unknown Speaker: General Monk, can I ask you a question?

In your response to Justice O'Connor prompt, you described the Statement,

"It reflects the aggravated nature of the crime. "

or something like that.

Mr. Monk: That's correct.

Unknown Speaker: Do you think it would be permissible for the State Statute to provide that if a victim leaves surviving two or three children, that shall be considered an aggravating circumstance, a statutory aggravating circumstance justifying the death penalty might not otherwise be justified?

Mr. Monk: Well, I think in the same vein that I think it's permissible that we decide that the commission of... or murder of a police officer in the course of his duties: If the General Assembly were to decide that, I think it's possible that that could be considered a statutory aggravating circumstance.

I don't think that's--

Unknown Speaker: And you think it would be constitutional to do that is what I am asking.

Mr. Monk: --I think they could do so constitutionally.

I don't think that is what they have done here.

Unknown Speaker: No, I understand.

Although one could argue that the effect of it is pretty much the same because it... I suppose it could... this bit of evidence could make the difference between the jury finding a man... imposing the death sentence and not doing so.

That must be the very purpose of it.

Indeed, I don't understand what you've done here if... why it is... why it should not be excluded as totally irrelevant evidence unless it is an aggravating circumstance.

What does it bear upon unless it bears upon aggravation?

Mr. Monk: Justice Scalia, indeed, that's what the Maryland Court of Appeals said.

They said this evidence reflects the gravity of the crime and the aggravating quality of the crime--

Unknown Speaker: So it is an aggravating circumstance established by a separate statute.

It is just not listed in the other Statute that lists all the aggravating circumstances?

Mr. Monk: --That's right.

But in a sense, we're playing a bit of a word game here because aggravating circumstances within the meaning of the Maryland Statutes are thresholds which have to be crossed before you become death eligible.

And it's... it is not that.

And that's important to understand.

Unknown Speaker: But I suppose it could be made that under your view of the case?

Mr. Monk: Well, to the extent that the Maryland General Assembly could decide that a police officer killed in the performance of duty constitutes an aggravating circumstance,--

Unknown Speaker: Well, I understand.

So your answer is yes?

Mr. Monk: --I think they could decide that, yes.

Unknown Speaker: Do I understand that the Maryland Statute authorizes imposing the death penalty just because the jury hears and believes the statements of victim... of relatives?

Mr. Monk: That's correct.

Unknown Speaker: You have to find a statutory aggravating circumstance?

Mr. Monk: That's exactly right.

You have to be a principal in the first degree and find a statutory aggravating circumstance.

Then you consider--

Unknown Speaker: And so there's no... there's no separate aggravating circumstance for victim impact... of impact on victims?

Mr. Monk: --That is exactly correct, Justice White.

Unknown Speaker: No, but as I understand it, you think there could be.

There would be no constitutional objection to that because the argument would be precisely the same?

Mr. Monk: Well, I don't know that the argument would be precisely the same.

But I... but I don't think...--

0 [Inaudibles.]

Unknown Speaker: Well, if it can make the difference, and I think you've accepted that it could, between having a death sentence imposed in one case and not in another case, which was identical except for the absence of an impact statement, I don't know why that isn't the classic example of an aggravating circumstance.

Mr. Monk: Well, under the Maryland scheme, and I think under the Eighth Amendment jurisprudence of this Court, the State should and is required to limit and define those cases...--

0 [Inaudibles.]

Unknown Speaker: Well, this is one classic...--

0 [Inaudibles.]

--the only victims who had children which would limit it but as compared to victims who did not have children.

Mr. Monk: I would agree that they could do so, and the General Assembly could do so.

Whether this Court would find that as it has with respect to rape that that's... that that's cruel and unusual punishment, I can't say.

But I think as a logical matter, they could do so and create that threshold, aggravating circumstance, as opposed to how the evidence came in in this case which is... goes to the aggravating--

Unknown Speaker: Right.

Mr. Monk: --quality or nature of the crime.

Unknown Speaker: I think you must make that argument in order to sustain the Statute.

Mr. Monk: I would like to say a few more words about the Maryland statutory scheme itself because I think once the Court understands the scheme and understands the safeguards built into the scheme, they will understand why the introduction of this evidence was not arbitrary or create an arbitrary or capricious result.

Under the Maryland law, whenever the death penalty is imposed, the decision is subject to immediate review and direct review by the Maryland Court of Appeals.

In addition, the trial Judge must submit a report to the Court of Appeals detailing information about the defendant, the conduct of the trial, and a recommendation by the trial Judge as to whether imposition of the sentence of death is justified.

Now let me say, the defendant has a choice in Maryland.

He can choose the jury or he can choose the trial judge at the sentencing phase of the process.

And the jury's decision is binding if he chooses the jury.

In reviewing the case, the Court of Appeals is specifically required under Maryland Statute to determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.

In this case, the Court of Appeals concluded that the introduction of the victim impact evidence did not present an arbitrary factor.

As a final consideration, the Court of Appeals undertakes a proportionality review to determine whether the sentence is excessive or disproportionate to the penalty imposed in a similar case, considering both the crime and the defendant.

It is, I suggest to you, in the face of this carefully devised statutory scheme, that Petitioner would have this Court rule that victim impact evidence cannot be introduced consistent with the Eighth Amendment.

We submit to do so would be improper extension of the Eighth Amendment jurisprudence of this Court.

It has long been recognized that retribution is a valid rationale for the death penalty.

In non-capital cases, it is typical in assessing a punishment to be imposed to consider the impact of the crime upon the victim.

As Justice Marshall noted earlier, Maryland just suffered through a savings and loan crisis.

When we came to the point of sentencing the criminals involved in the savings and loan crisis, certainly the impact of their crimes on the State of Maryland was a relevant consideration and was appropriately taken into consideration by the Court.

And I don't think it offended the Eighth Amendment in any way, shape, or form to do so.

Indeed, we recognize in our system of legal process, to paraphrase the words of Justice Stewart in Gregg, that channeling the instinct for retribution through the administration of criminal justice is essential in an ordered society that asks its citizens to rely upon legal processes rather than self-help to vindicate their wrongs.

Consequently, it is entirely consistent with this long-recognized precept of criminal justice that Maryland provide the sentencer in capital cases with a victim impact information that can be used in considering what retribution should be exacted as a consequence of the defendant's conduct.

Significantly the Maryland Court of Appeals in this case held that there is a reasonable nexus between the impact of the crime upon the victim's family and the facts and circumstances surrounding the crime, especially as I said before, as to the gravity or aggravating quality of the offense.

Thus, the Maryland Court appropriately gives deference to the Maryland statutory scheme and holds that victim impact evidence is admissible simply as another circumstance of the crime.

It is not, and let me emphasize this, indeed it cannot be, under the Maryland law, a call for the death penalty.

This is not private vengeance.

Instead, it simply provides additional probative information that the sentencer can use in weighing the aggravating nature of the crime against whatever mitigating circumstances it has found.

The introduction of this victim impact evidence is not as Petitioner suggests "wholly arbitrary".

Under the Maryland statutory scheme, it must be admitted in every case whether it is traumatic or inconsequential.

In this regard, it is no more arbitrary than the crime itself.

Justice Rehnquist--

Unknown Speaker: Before you, the blue brief, the last pages of the blue brief--

Mr. Monk: --Yes, I do.

Unknown Speaker: --Is... down there in Roman numeral... Roman numeral five and six, are those the... is that the only... are those the only mentions of the family members?

Mr. Monk: That's correct.

Unknown Speaker: And in six, it says... in five, it says the statement must contain any request for psychological services by the victim's family.

Mr. Monk: That's correct.

Unknown Speaker: And in six, it says any other information about the victim's family that the court requires.

Mr. Monk: That's correct.

Unknown Speaker: Was there some requirement by the Court in this case?

Mr. Monk: The Court requested a pre-sentence report.

And the probation officer then interviewed the family of the victim and reported--

Unknown Speaker: Well, I know, but this seems to indicate that the Judge has to require information about the impact on the victim's family.

Mr. Monk: --In this case the Court did not specifically request information about the victim's family.

He did request a pre-sentence report.

And, as part of that pre-sentence report, the probation officer conducted an interview of the family and prepared the victim impact statements that were admitted in evidence as a--

Unknown Speaker: Does the judge ever instruct with respect to a victim impact statement, what its relevance is, or how it should be used?

Mr. Monk: --The judge could instruct.

Unknown Speaker: Does he ever?

Mr. Monk: He was not requested to do so in this case.

Unknown Speaker: Does he ever?

Mr. Monk: Well, I can't speak across all of Maryland's cases.

But I certainly think it's appropriate to do so.

And I think I--

Unknown Speaker: But you don't recall any instance where the judge did comment on it?

Mr. Monk: --I have not... I do not know of such an instance.

Unknown Speaker: But you know... you know what a prosecutor says about it, doesn't he... don't you?

Mr. Monk: The prosecutor in this case read the Victim Impact Statements.

Unknown Speaker: And so then argued from what?

Mr. Monk: He argued from it that there... that this was a serious crime, and it caused harm to the defendant's family... the victim's family.

Unknown Speaker: And, therefore, it helped to illuminate what aggravating circumstance?

Mr. Monk: Well, in this case the aggravating circumstance was that the crime was committed while committing a robbery.

It helped illuminate the fact that the crime was particularly heinous and that it caused severe harm.

And that was weighed against the mitigating circumstances proffered by the defendant.

Unknown Speaker: What aggravating circumstance did the jury find in this case?

Mr. Monk: Number ten that the... on the Maryland statutory scheme, that the crime was committed while committing robbery.

Unknown Speaker: Is that the only one?

Mr. Monk: That's correct.

Unknown Speaker: Now how did a victim impact statement, how could that have illuminated that?

Mr. Monk: Well--

Unknown Speaker: It may have... did they ask for... for the especially heinous, aggravating--

Mr. Monk: --No.

Unknown Speaker: --circumstance?

Mr. Monk: You see that... under the Maryland scheme, there is no direction that you look for especially heinous or anything of that nature as there is in other State statutes.

Under the Maryland scheme, what happens is that once you have met the threshold that the crime was committed while committing a... murder was committed while committing a robbery, then the aggravating nature of the crime, itself, the criminal history of the defendant and the impact upon the victim's family--

Unknown Speaker: I see.

Mr. Monk: --comes into evidence and is used as a weight on that side to compare to the mitigating circumstances presented by the defendant.

Unknown Speaker: General Monk, while you're interrupted.

Can I ask one other thing?

About this aggravating circumstance, killing a police officer... and the Statute doesn't require that the defendant know that he was a police officer--

Mr. Monk: That's correct.

Unknown Speaker: --has the Appellate Court in Maryland construed that Statute and held that that is a correct instruction?

Mr. Monk: Yes.

Unknown Speaker: It has?

Mr. Monk: Yes.

Let me just say which... that takes me to my next point which is foreseeability.

I think foreseeability is an important... an important question here.

And I agree with Justice Rehnquist that I think there is a distinction on the defendant's direction... direct acts... on his knowing act is what's at issue.

It is quite clear that the defendant knows, I believe, or should have known, when he takes another person's life, that the family of the victim will suffer greatly as a consequence of his conduct even if he doesn't know who the family is.

He knows that the person... it's reasonable to assume that he knows the person has a family, and they're going to suffer as a result of his wanton act.

Unknown Speaker: Yes, but General Monk, doesn't the jury also know that?

If that's so... common knowledge, why do you need the victim impact statement?

Mr. Monk: Well, Justice Stevens, I think that goes back to my earlier point that I... and I think it's a legislative judgment that Maryland has made that there's a role to play for victim impact evidence when we get to that final stage, after we have determined that this is an aggravated murder, and we have met all the other prerequisites of principal in the first degree and so forth, when we get to the weighing of the moral judgment, the Maryland General Assembly has said, Why can't we have a limited introduction of the impact of the crime upon the victim?

Personalize... personalize the facts from the victim's side when the jury makes that moral judgment of weighing--

Unknown Speaker: And makes it more likely that it will impose the death sentence?

Mr. Monk: --Well, I don't think that you can necessarily come to that conclusion.

You know, on the other side of the fence--

Unknown Speaker: Don't you go too far when you say that the jury knows that he has a family?

The jury knows that he may have a family.

That's all the jury knows.

This shows that, in fact, he does have a family.

Mr. Monk: --He does have a family.

Unknown Speaker: Just as the jury knows that he may have had a deprived childhood.

But the exculpatory evidence that can come in shows that he, in fact, did have a deprived childhood.

Mr. Monk: That is correct, Justice Scalia.

Unknown Speaker: xxx... impact statement that would help the criminal?

Mr. Monk: Well, I can imagine the victim impact statement that would not, in any way, indicate or add to the aggravating quality of the crime.

For instance, suppose the victim didn't have a family at all, the victim impact statement would indicate that.

A family--

Unknown Speaker: Do you think that would help?

Mr. Monk: --Well, I don't think it would add to the heinous nature of the crime.

Unknown Speaker: My question was, help.

Mr. Monk: Well, obviously, he committed this murder.

Nothing is going to help him--

Unknown Speaker: Nothing would help--

Mr. Monk: --from the victim's side of the equation.

Nor, I guess, in Maryland's judgment, should it.

What Maryland has done here is found a role, and we think an appropriate role, consistent with the Eighth Amendment for the victims in the criminal justice system.

Unknown Speaker: --Mr. Monk, what is the relevance of the recommendation of the surviving family members as to the proper punishment to be imposed?

Mr. Monk: Under Maryland's procedure, they are explicitly not permitted to make any demand for death penalty or what... any recommendation whatsoever.

Unknown Speaker: Wasnt' there something in the Victim Impact Statement here that really incorporated their recommendations?

Mr. Monk: Well, I think there were two comments that are--

Unknown Speaker: Right.

Mr. Monk: --pointed out by Petitioner in Amici.

One comment is something to the effect that they were seeking swift justice.

I certainly don't think that necessarily implicates the death penalty.

And the other comment was that the defendant not be permitted to commit this type of crime again.

And I suggest to you that life imprisonment accomplishes that end.

Now, I'm not saying that--

Unknown Speaker: You don't... you don't stand here and try to justify introducing before the jury the recommendation of family members on the penalty?

Mr. Monk: --I do not.

Indeed, it cannot be under the Maryland Statute.

It's specifically excluded by the Maryland Statute.

Unknown Speaker: And so what would you do to the extent they're included?

Should they be removed--

Mr. Monk: They should be redacted--

Unknown Speaker: --from the statement?

Redacted--

Mr. Monk: --The trial court should redact any such statements?

Unknown Speaker: --And arguably, a couple of these should have been redacted?

Mr. Monk: Well, I think reasonable minds could differ on whether they could or they couldn't.

The trial Judge didn't think so.

The Maryland Court of Appeals also decided that they... that they were not necessary to do so.

I'm not going to say that anybody looking at this automatically would say,

"Gee, I... maybe this goes too far. "

I think the question before this Court is not whether a few of these statements are beyond what they should have been under the Maryland Statute or not, but whether this evidence comes in at all under the Eighth Amendment.

And I think Maryland has found a way to include it within the process without making the process arbitrary or capricious.

Unknown Speaker: Mr. Monk, while we're talking about Maryland practice, could the substance of this statement have been introduced in the trial itself?

Mr. Monk: No, it could not as far as I can see, Justice Powell.

I was speaking about the foreseeability of this, and let me just finally make my points on that.

Indeed, if you... if we accept the premise that the defendant knows or should have known that there's a family to be harmed when he commits the murder, then as the sentencer judges his moral capacity, it is called upon to recognize whether he felt any concern or remorse for the harm caused to the victim and the victim's family.

In this case, the evidence showed the defendant was particularly callous to the grave harm he caused others when he described to his cohorts that they should pay no mind to the brutally murdered bodies of Mr. and Mrs. Bronstein when they returned to the house to ransack and steal more property.

He, obviously, was totally unconcerned that the Bronstein family would suffer greatly from his brutal acts.

He was simply concerned about taking their property without getting caught.

Nevertheless, I suggest to you that it was or should have been completely foreseeable to Booth, especially considering he lived two houses down the street, that the family would suffer greatly as a direct result of his conduct.

Consequently, it is not at all unfair to require that the sentencer consider victim impact evidence in making a moral judgment regarding Booth's crimes.

One other point that I want to respond to that the Petitioner has made is the emotional impact of this evidence.

Petitioner claims that victim impact evidence is so emotionally charged as to introduce an arbitrary factor that will disrupt the exercise of the guided discretion of the sentencer.

Victim impact evidence may well be emotional.

However, by itself, this should not be a problem of constitutional dimension.

First, the trial court can instruct the jury upon the use of victim impact evidence, although as I have said here, he was not requested to do so.

Secondly--

Unknown Speaker: You may include it in... in your consideration of... of how serious a crime this was?

The more serious it is, the more what?

Mr. Monk: --Well, that's essentially... I think that's essentially correct.

The Maryland Court of Appeals said something to the effect that the sentencer may consider the impact of the offense upon the victim or the victim's family as it relates to the gravity or aggravating quality of the crime.

And I think that's appropriate.

That's what it comes in... that's the place in the process that it comes in.

It just like a description of the crime, itself.

If this case were sent back,--

Unknown Speaker: Well, when the prosecutor is asking for the death penalty and as he's trying to get it, he uses this because he thinks it will help him attain that goal; doesn't he?

Mr. Monk: --It comes in in every case, whether the prosecutor wants it in or not.

And so that's another reason why I don't think it's arbitrary.

It is... whatever it is, it is the circumstances of the crime that is... and the consequences of the crime that is before the sentencer when they're weighing and making the moral judgment they're called upon to make.

Unknown Speaker: That the probation officer, does he prepare the--

Mr. Monk: The probation officer does, yes, Justice.

Unknown Speaker: --And if he finds out that the children of the victim think that it was good riddance, he puts that in the report, too?

Mr. Monk: Well, he puts in whatever--

Unknown Speaker: Does he?

Mr. Monk: --whatever he finds.

He puts in whatever he finds.

And the defendant is given the opportunity to challenge whatever evidence comes in...--

0 xxx.

Unknown Speaker: 0 xxx.

Well, wait a minute.

Or at least relieved when somebody is out of the way?

0 xxx.

Mr. Monk: Is it up to the--

Unknown Speaker: Obviously, it is.

I mean, if the probation officer, if the guy said,

"I think this is a dirty xxx and he's a this and all and all, but I'm a man of God, and I believe that I could not but recommend it. "

Could he leave the rest of it off?

Mr. Monk: --He can't... he can't recommend a sentence.

He could--

Unknown Speaker: Well, could he leave out some good things?

Of course, he could.

Mr. Monk: --Of course, he could.

But let me say this.

Under the Maryland process, Justice Marshall, the defendant is entitled to rebut whatever evidence that comes in.

And so if there's any doubt that the facts have not come out fairly in the victim impact statement, he has the opportunity to present countervailing evidence.

But he does have the opportunity to cross-examine if he suggests to the Court--

Unknown Speaker: To the officer?

Mr. Monk: --Well, I... the evidence doesn't have to come in to the probation officer.

I mean, the victim... at the sentencing phase on a capital case, there is some evidence that comes in as hearsay.

Unknown Speaker: My question was limited to the probation officer.

He has nothing that he can do about the probation officer, absolutely nothing.

Mr. Monk: Well, I assume that he could call the probation officer and ask him how he prepared the report.

There's nothing in the process--

Unknown Speaker: Can you give me a case on that?

Mr. Monk: --Well, the Statute, itself, permits him to rebut, and I... it seems to me that he can do whatever is reasonable to rebut under the Maryland--

Unknown Speaker: But have you ever heard of it?

Mr. Monk: --I have not seen--

Unknown Speaker: Have you ever heard of it in Maryland?

Mr. Monk: --To my knowledge, I have never seen a case where he's called.

Unknown Speaker: I'm sure.

Mr. Monk: But that doesn't... that's not to say that it couldn't be done.

Unknown Speaker: General Monk, I assume that the same thing is true of all of the... of all of the aggravating factors that the State doesn't have to introduce everyone of them if it doesn't want to.

Mr. Monk: That is correct.

Unknown Speaker: There's no obligation on the State to come forward with an aggravating factor though it may exist.

Mr. Monk: The State needs only to demonstrate beyond a reasonable doubt that one of the aggravating circumstances exist.

Thank you.

Rebuttal of George E. Burns, Jr.

Chief Justice Rehnquist: Thank you, Mr. Monk.

Mr. Burns, you have ten minutes remaining.

Mr. Burns: Mr. Chief Justice, may it please the Court:

Initially, one technical problem: The State, very confidently, has said the Maryland Statute doesn't matter whether you know it's a police officer or not.

The Court of Appeals has disagreed with that in a case cited by the State and in the briefs... I won't give you the cite... the Court of Appeals did think it mattered--

So I don't think that it supports the State's position whatsoever.

Also,--

Unknown Speaker: 0 xxx.

--is it a defense?

Mr. Burns: --Yes, Your Honor.

In the sense that the Court of Appeals--

Unknown Speaker: You cannot be convicted for killing an officer unless you knew he was an officer?

Mr. Burns: --Unless you knew reasonably...--

0 xxx.

Unknown Speaker: That's what the holding was?

Mr. Burns: Yes, Your Honor.

Unknown Speaker: What is...--

0 xxx.

Mr. Burns: Lodowski versus State just cites in the State's brief... it's 302 Md. 691.

So that has been decided in a contrary way.

I think it was intriguing that the State took the position that, to Justice Stevens' question, that you could have an aggravating factor that a defendant had children, three children presumably.

Well, if that's true, I think you can go a step farther.

And under this theory is, for example, we could say, it's an aggravating factor if you have four, not it you have two.

Or perhaps, if we thought it was a good idea that people didn't have children and wanted to control our population, presumably the State could under those circumstances say, then it's only an aggravating factor if there are no children.

In short, I think what the State's done is point out the completely arbitrary nature of these things that have really nothing to do with the crime itself.

Unknown Speaker: 0 xxx.

--aggravating factor.

Why is that more...--

0 xxx.

Mr. Burns: Well, Your Honor, I think all the other aggravating factors are things that are focusing on precisely what the defendant did.

Unknown Speaker: If you assume that the only thing relevant is how evil is the defendant.

Mr. Burns: How evil--

Unknown Speaker: How much harm has the defendant done?

Mr. Burns: --One, and two, whether what he did was foreseeable.

I don't suggest that it's only evil--

Unknown Speaker: If you assume it's... it's those two only, and not, I think--

Mr. Burns: --I think that's true, Justice Scalia.

And I think, absent that, we simply have no way to introduce anything but the most arbitrary standard.

And we're not, again, focusing on... particularly pointing out those particularly bad individuals that we want to execute, we're going to pinpoint those individuals who may, through... the fault obviously is theirs to the crime... but in terms of all these other circumstances, it really has nothing to do with what they were thinking or what they knew.

And, indeed, it may turn out--

Unknown Speaker: --You may think that the difference between murder and attempted murder is arbitrary; I don't.

And I don't think your law states that.

Mr. Burns: --Justice Scalia, I disagree.

I've never suggested that was arbitrary.

On the contrary, I think it's--

Unknown Speaker: A distinction you've drawn between them.

Mr. Burns: --I think it's fairly easy when you look at the situation.

It's very difficult for me to be in the situation of trying to murder someone and not realize either it's going to be attempt or murder.

I have complete control over that.

I don't see how I can possibly argue that that's arbitrary.

Unknown Speaker: When you kill someone, you know he's either going to have a family or he's not going to have a family.

Mr. Burns: I have no control over whether he does.

As the State pointed out, the defendant in this case, probably in any case, is unconcerned.

That may be callous, but it also doesn't show evil heart in that, I want to punish this person's children; I want to make his family... it may be that I would introduce evidence that maybe the defendant would say to someone,

"I committed this crime; perhaps, I shouldn't have, but I really hope that he had no family and no children. "

Unknown Speaker: But the intent of the two defendants is exactly the same; they both intended to kill the person.

Mr. Burns: That's true.

Unknown Speaker: And the only reason you punish one more than the other is not because he knew more or he intended more, but simply because he did more harm.

That's the only reason.

Mr. Burns: As I pointed out, Justice Scalia, if we accept that, if we accept that, then I think it becomes reasonable to weigh is, who is this victim in the community?

Was he the surgeon that's going to save a thousand lives?

Or was he the drug dealer who, perhaps, was going to eliminate lives?

Are we going to have a system that's going to turn on: Some lives are worth giving more protection to than others, because that's really what it comes down to.

It isn't that the defendant's chooses to kill the surgeon as opposed to the drug dealer.

It happens that way.

And the question is: Is the society... are we, as a society, prepared at this point to say,

"Well, some victims, we really don't care that much about, so we wouldn't consider capital punishment. "

"There are other victims that we care a great deal about because they had nice families. "

as opposed to the person, for example, who is a very unpleasant person and has impatient heirs.

Presumably in the logic of the thing, the probation officer should come in and say,

"This is favorable. "

"You should never give death to this person because he was a terrible person; his heirs are happy; the impact is good. "

Unknown Speaker: That's not comparable.

That's not at all comparable with what's going on here.

We're... we're not saying, is it a nice family, or is it a bad family.

It's just how much has the family been harmed?

Mr. Burns: But Justice Scalia,--

Unknown Speaker: 0 xxx.

--who they are.

It's not--

Mr. Burns: --The difficulty is how can you get away with that--

Unknown Speaker: --saying some families are worth a lot and other families are worth nothing.

That's not what's going on.

Mr. Burns: --How can you get away from that is: If I have a family that's loving, caring, articulate, and upset as opposed to: Do I have a family that doesn't care very much for me, doesn't even mildly like me.

It comes down to--

Unknown Speaker: Mr. Burns, may I suggest that you and Justice Scalia are not communicating because he's talking about non-death cases.

And your argument, as I understand it is the difference between life and death: It can't be based on a factor that has nothing to do with the blackness of the man's soul.

Mr. Burns: --You're right, Justice Stevens, if that's the case.

I'm sorry...--

0 xxx.

Unknown Speaker: But his examples are all non-death cases.

Mr. Burns: --I have disagreement on that issue.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Burns.

The case is submitted.

Unknown Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.