A sentence reinstated, a text set aside: shirking the Lockett dilemma in Ayers v. Belmontes.

• Author: Komatireddy, Saritha

Following the Supreme Court's pronouncements in Lockett v. Ohio (1) and Eddings v. Oklahoma, (2) courts have construed the Eighth Amendment to require broad and virtually limitless consideration of mitigating evidence during capital punishment sentencing hearings. The Supreme Court appears to have avoided grappling with these cases, however, in its recent decision in Ayers v. Belmontes. (3) In Belmontes, the Supreme Court reinstated the death sentence of Fernando Belmontes, holding that there was no reasonable likelihood that jurors were precluded by California's "factor (k)" jury instruction from considering evidence of future good conduct during incarceration and so the jury instruction did not violate the Eighth Amendment right to present mitigating evidence in capital sentencing trials. In so holding, the Court the clearest textual approach to the jury instruction, skirted the difficulties of the Lockett-Eddings mandate, and forewent an opportunity to address fundamental inconsistencies in the application of the death penalty.

In 1982, Fernando Belmontes was convicted of first-degree murder for striking nineteen-year-old Steacy McCornnell on the head fifteen to twenty times with a steel dumbbell bar during a burglary of McConnell's home. (4) At the sentencing phase of his trial, Belmontes introduced evidence to show that "he would become a model prisoner who could contribute something of value to society." (5) Several witnesses, including two chaplains and Belmontes himself, testified that Belmontes had behaved constructively during a previous incarceration with the California Youth Authority (CYA), even rising to the number two position on the CYA fire crew. (6) He also had participated in and gotten baptized as part of a Christian sponsorship program, had been a positive influence on the son of a married couple with whom he had formed a good relationship, and had counseled young inmates not to make the same mistakes he had made once they left prison. (7) Despite his own post-release lapse in religious commitment and McConnell's murder, Belmontes claimed he would rededicate himself to religion, and he asked for a chance to "make a positive contribution to the welfare of others while in prison." (8)

In accordance with the then-applicable statutory scheme, the trial court instructed the jury to consider certain factors as either aggravating or mitigating, among them being the existence of "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." (9) After being sentenced to death, Belmontes challenged the trial court's jury instructions, including this latter instruction--the so-called "factor (k)" instruction--through several state and federal remedial avenues. Belmontes argued that they violated the Eight Amendment by precluding from the jury's consideration the "forward-looking mitigation evidence" that he would lead a productive life in prison. (10) The Ninth Circuit Court of Appeals overturned Belmontes's death sentence in federal habeas review, holding the jury instructions to be unconstitutional. (11) The Ninth Circuit, sitting en bang declined to review its ruling. (12) The United States Supreme Court vacated the Ninth Circuit's decision (13) and remanded for reconsideration in light of the Court's decision in Brown v. Payton, in which the Court held that the California Supreme Court's determination that the "factor (k)" instruction allowed a jury to consider post-crime mitigating evidence of a defendant's religious conversion did not constitute an unreasonable application of Supreme Court precedent for purposes of habeas relief under the Anti-terrorism and Effective Death Penalty Act (AEDPA). (14) On remand, a divided Ninth Circuit panel again vacated Belmontes's death sentence, concluding that the factor (k) "instruction, read most naturally, suggested to the reasonable juror that Belmontes's evidence tending to show his probable future good conduct should be excluded from consideration," in violation of the Eighth Amendment requirement that the jury consider and weigh all mitigating evidence presented by the defendant. (15) The Court of Appeals once again denied rehearing en banc. (16)

The Supreme Court granted certiorari and reversed. Writing for the Court, (17) Justice Kennedy agreed with the Ninth Circuit that, "just as precrime background and character (Boyde) and postcrime rehabilitation (Payton) may extenuate the gravity of the crime, so may some likelihood of future good conduct count as a circumstance tending to make a defendant less deserving of the death penalty." (18) Justice Kennedy further insisted that it would be "counterintuitive if a defendant's capacity to redeem himself through good works could not extenuate his offense[.]" (19) But applying the Boyde test of whether the trial court's instructions had given rise to "a reasonable likelihood that the jury ... applied the challenged instruction in a way that prevent[ed] the consideration of constitutionally relevant evidence," (20) the Court concluded that future conduct evidence actually had been considered in Belmonte's sentencing hearing, pointing to the time spent on presenting future conduct evidence to the jury, both parties' closing arguments, and the judge's other instructions. (21)

Justice Scalia concurred, (22) joining in the Court's application of Boyde and re-asserting the view he first articulated in Walton v. Arizona. (23) He contended that even if the instruction did, in fact, limit the jury's consideration of mitigating evidence, there would still be no Eighth Amendment violation. (24)

Justice Stevens dissented, (25) with a lengthy description of the "significant residual confusion" surrounding the Belmontes sentencing hearing as to the extent of mitigating evidence that the Constitution requires courts to consider. Justice Stevens argued, "it is difficult, if not impossible, to see how evidence relating to future conduct even arguably 'extenuate[d] the gravity of the crime under factor (k)."' (26) The dissent insisted that evidence of future good conduct offers a separate "principled basis for imposing a sentence other than death." (27) Justice Stevens emphasized the prosecutor's statement that he was "not sure it really fits in [factor (k)]" (28) and that "both counsel agreed that none of the mitigating evidence could detract from the gravity of the crime." (29) Furthermore, Justice Stevens underscored the judge's answers to juror questions that "cemented the impression that the jurors' lone duty was to weigh specified, limited statutory factors against each other" (30) and did not "invite the jury to weigh 'potentially infinite mitigators'." (31) Because "factor (k)'s restrictive language sent the unmistakable message that California juries could properly give no mitigating weight to evidence that did not extenuate the severity of the crime," the dissent maintained that the jury in Belmontes's sentencing hearing did not consider future conduct evidence. (32)

In its endeavor to determine the reasonable likelihood of the jury's consideration of the evidence at issue, the Court should have more carefully employed textual statutory analysis. (33) In stead, the Court attempted to ascertain what the jury subjectively believed. For example, the Court dissected an exchange between the judge and several of the jurors to speculate about what one juror "surmised" or what other "jurors were considering." (34) In pursuing this subjective inquiry, however, the Court's approach subjects itself to a...