The U.S. Supreme Court upheld California’s death penal­ty law in a 5 – 4 deci­sion on Nov. 13 in Ayers v. Belmontes. The major­i­ty held that the state’s law allowed the jury to con­sid­er all appro­pri­ate mit­i­gat­ing evi­dence. The deci­sion reversed the U.S. Court of Appeals for the 9th Circuit, which had over­turned Belmontes death sen­tence. The dis­sent, con­sist­ing of Justices Stephens, Breyer, Ginsburg and Souter, how­ev­er, dis­agreed, con­tend­ing that the jury would have to dis­re­gard the judge’s instruc­tions in order to con­sid­er mit­i­gat­ing evi­dence about the defen­dan­t’s future prospects for reform. The dis­sent argued for a more appro­pri­ate bal­anc­ing of state’s need for its law to be car­ried out with the defen­dan­t’s right to have all the evi­dence that might save his life con­sid­ered by the jury. The dis­sent stat­ed that the state’s need for an exe­cu­tion was great­ly dimin­ished by the fact that this case was now 25 years old, and, hence, the peo­ple would gain lit­tle by hav­ing an exe­cu­tion car­ried out now, where­as the defen­dant had every­thing to lose by an unfair deci­sion:

The Court today heaps spec­u­la­tion on spec­u­la­tion to
reach the strange con­clu­sion, out of step with our case law,
that a prop­er­ly instruct­ed jury dis­re­gard­ed its instruc­tions
and con­sid­ered evi­dence that fell out­side the nar­row con­fines
of fac­tor (k). Holding to the con­trary, the Court
insists, would reduce two days of sen­tenc­ing tes­ti­mo­ny to
​“a vir­tu­al cha­rade,” — but in so con­clud­ing the Court nec­es­sar­i­ly finds
that the judge’s instruc­tions were them­selves such a ​“cha­rade
” that the jury paid them no heed. I sim­ply can­not
believe that the jurors took it upon them­selves to con­sid­er
tes­ti­mo­ny they were all but told they were for­bid­den from
con­sid­er­ing; in my view, they must at the very least have
been con­fused as to whether the evi­dence could appro­pri­ate­ly
be con­sid­ered. That con­fu­sion has cre­at­ed a risk of
error suf­fi­cient to war­rant relief for a man who has spent
more than half his life on death row. Cf. Lackey v. Texas,
514 U. S. 1045 (1995) (STEVENS, J., respect­ing denial of
cer­tio­rari). The incre­men­tal val­ue to California of car­ry­ing
out a death sen­tence at this late date is far out­weighed
by the inter­est in main­tain­ing con­fi­dence in the fair­ness of
any pro­ceed­ing that results in a State’s deci­sion to take
the life of one of its cit­i­zens. See Gardner v. Florida, 430
U. S. 349, 358 (1977) (plu­ral­i­ty opinion).

(Ayers v. Belmontes, No. 05 – 493, Nov. 13, 2006) (Stephens, J., dis­sent­ing) (empha­sis added). See Time on Death Row.

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