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For years Oklahoma prosecutors have encouraged family members of murder victims to tell jurors that they wanted to see a sentence of death imposed upon the capital defendant charged for the crime. But, years ago the Supreme Court held that a victim’s family members’ opinions about the defendant and the appropriate sentence violate the Eighth Amendment because they invite arbitrariness in the sentencing process. Undeterred, Oklahoma’s highest criminal court (the Oklahoma Court of Criminal Appeals or OCCA) explicitly sanctioned the practice even though Oklahoma was the only state in the country that condoned this sort of extremely emotional and prejudicial testimony. Finally, the U.S. Supreme Court has stepped in and made it crystal clear that this prosecutorial tactic to secure death sentences violates the Eighth Amendment, just as it had held nearly thirty years ago.

The result is not surprising—commentators and capital case watchers have suggested for years that this time would come. Indeed, the federal Tenth Circuit Court of Appeals flagged the precise issue in a 2013 opinion when it struck down a death sentence and found that the Oklahoma practice violated clearly established federal law: “The admission of sentencing-phase victim-impact testimony recommending the death penalty violated Defendant’s Eighth Amendment rights. By holding otherwise, the OCCA reached ‘a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States.’” Remarkably, the OCCA flatly ignored the federal circuit court’s unambiguous interpretation of “clearly established federal law.” Perhaps more remarkably, Oklahoma prosecutors, legislators, and appellate judges simply pushed ahead, allowing more death-demand testimony to taint additional capital cases; in doing so, they jeopardized the sentencing outcomes, risking reversals that may require more proceedings and potentially more painful courtroom experiences for victims’ family members.

It took many years and many petitions in different cases, but last month the U.S. Supreme Court finally intervened to correct Oklahoma’s legacy of ignoring the constitutional limits on victim impact evidence in the case of Shaun Michael Bosse. In a unanimous three-page opinion called Bosse v. Oklahoma, the Court wrote:

“[I]t is this Court’s prerogative alone to overrule one of its precedents.” . . . The Oklahoma Court of Criminal Appeals has recognized that Payne “specifically  acknowledged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appropriate punishment. . . . That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further . . . . “Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”  

In short, the U.S. Supreme Court blasted the OCCA for acting as if it were the ultimate authority on the U.S. Constitution.

But, as the case goes back to the state court, the prosecution is turning to its favorite fallback in the playbook: the DA will try to persuade the OCCA that the blatant Eighth Amendment violation against Bosse was nothing more than “harmless error.” Can such an error truly be harmless? If prosecutors believed that victim impact testimony about the appropriate sentence was superfluous to the jury’s ultimate decision, why did they so vigorously and indeed recklessly seek to include it in so many capital cases?

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