ABSTRACT
The petitioner in Payne v. Tennessee, 501 US 808, brutally stabbed to death a neighbour and her two-year-old daughter and seriously wounded her three-year-old son. Payne asked the Supreme Court to set aside his capital sentence on the ground that victim-impact evidence had been received at his penalty trial, in violation of Booth v. Maryland, 482 US 496. In Payne, by contrast, a lone witness, the grandmother of the sole survivor of the knife attack, testified briefly that her grandson cried for his mother and baby sister. In South Carolina v. Gathers, 490 US 805, the Court had even extended Booth to bar prosecutorial argument dwelling on the victim's characteristics. These facts led two of the dissenters in Payne who had formed part of the slim, five-justice majority in Booth to comment cynically in Payne that power, not reason, informed the approach of the new majority. The justices could have avoided overturning Booth by distinguishing Payne upon its facts.
