The U.S. Supreme Court has reversed a deci­sion of the Oklahoma Court of Criminal Appeals that affirmed the death sen­tence imposed on Shaun Michael Bosse. In a unan­i­mous per curi­am deci­sion issued October 11, the Court held that Oklahoma pros­e­cu­tors had improp­er­ly pre­sent­ed tes­ti­mo­ny from three mem­bers of the vic­tims’ fam­i­lies ask­ing the jury to sen­tence Bosse to death. The Court had ruled in 1987 in Booth v. Maryland that the use of vic­tim-impact tes­ti­mo­ny in deter­min­ing whether a cap­i­tal defen­dant would be sen­tenced to death vio­lat­ed the 8th Amendment. Four years lat­er, after a per­son­nel change on the Court, it retreat­ed from part of that deci­sion, hold­ing in Payne v. Tennessee that the pre­sen­ta­tion of tes­ti­mo­ny relat­ing to the effect of the vic­tim’s death on his or her loved ones was con­sti­tu­tion­al­ly per­mis­si­ble. The Oklahoma Court of Criminal Appeals then ruled that Payne had implic­it­ly over­ruled Booth in its entire­ty, per­mit­ting Oklahoma pros­e­cu­tors to present high­ly emo­tion­al pleas from vic­tims’ fam­i­ly mem­bers ask­ing juries to impose the death penal­ty. Oklahoma was the only juris­dic­tion in the coun­try to inter­pret Payne in that man­ner, and Bosse’s peti­tion for review argued that ​“Oklahoma stands alone” and that its ​“out­lier” prac­tice was uncon­sti­tu­tion­al. The Supreme Court sum­mar­i­ly reversed the Oklahoma court, writ­ing that it has nev­er over­ruled the por­tion of Booth that pro­hibits vic­tims’ fam­i­ly tes­ti­mo­ny offer­ing ​“opin­ions about the crime, the defen­dant, and the appro­priate pun­ish­ment.” The Court fur­ther declared that its deci­sion in Booth ​“remain[s] bind­ing prec­edent until we see fit to recon­sid­er [it].” While the Bosse deci­sion pre­vents Oklahoma pros­e­cu­tors from pre­sent­ing this type of tes­ti­mo­ny in the future, its impact on the numer­ous oth­er cas­es in which Oklahoma pros­e­cu­tors pre­sent­ed this tes­ti­mo­ny is less clear. The Court remand­ed Bosse’s case to the Oklahoma Court of Criminal Appeals, which may con­sid­er whether the improp­er tes­ti­mo­ny con­sti­tut­ed harm­less error. Similar harm­less error review may be required in oth­er Oklahoma cases.

(A. Howe, ​“No grants from morn­ing orders,” SCOTUSblog, October 11, 2016.) You can read Shaun Michael Bosse’s peti­tion for writ of cer­tio­rari here and Oklahoma’s brief in oppo­si­tion to the peti­tion here, as well as the Court’s opin­ion in Bosse v. Oklahoma, No. 15 – 9173. See U.S. Supreme Court.

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