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On October 11, 2016, the Supreme Court decided Bosse v. Oklahoma. In 1987, the U.S. Supreme Court held in Booth v. Maryland that the Eighth Amendment prohibits a sentencing jury in a death penalty case from considering victim impact evidence that does not directly relate to the circumstances of the crime. Four years later in Payne v. Tennessee, the Supreme Court clarified that the ban only applied to certain kinds of victim impact testimony.

Shaun Michael Bosse was convicted of three counts of first-degree murder. The prosecution sought the death penalty and, over Bosse’s objection, asked three of the victims’ family members to recommend a sentence to the jury. All three recommended the death penalty, and the jury sentenced Bosse to death. Bosse appealed, arguing that the testimony violated the Eighth Amendment under Booth. The Oklahoma Court of Criminal Appeals affirmed, holding that Payne had implicitly overruled Booth’s ban as it related to characterizations of the defendant and opinions about the sentence.

By a vote of 8-0, the U.S. Supreme Court vacated the decision of the Oklahoma Court of Criminal Appeals and remanded the case. The Supreme Court held in a per curiam opinion that the Oklahoma Court of Criminal Appeals erred in concluding that Payne had implicitly overruled Booth in its entirety. Supreme Court decisions remain binding precedent until reconsidered, the Court explained--even when subsequent cases have raised doubts about their continuing vitality. Justice Thomas filed a concurring opinion in which Justice Alito joined.

To discuss the case, we have Erin Sheley, who is Assistant Professor, University of Calgary Faculty of Law.

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