William J. Brennan, Jr.

“ Booth has not even an arguable basis in the common-law background that led up to the Eighth Amendment, in any longstanding societal tradition, or in any evidence that present society, through its laws or the actions of its juries, has set its face against considering the harm caused by criminal acts in assessing responsibility. The Court's opinion in Booth, like today's opinion, did not even try to assert the contrary. We provide far greater reassurance of the rule of law by eliminating than by retaining such a decision. ”

“ Once it is accepted, moreover, that the nature of the specific harm may be considered, I see no basis for drawing a distinction for Eighth Amendment purposes between the admirable personal characteristics of the particular victim and the particular injury caused to the victim's family and fellow citizens. ”

“ Once a law-abiding society has revised its laws and practices to comply with such an erroneous decision, the existence of a new "consensus" can be appealed to-or at least the existence of the pre-existing consensus to the contrary will no longer be evident-thus enabling the error to triumph by our very failure promptly to correct it. ”