Yesterday's Supreme Court decision in Ayers v. Belmontes is arguably another example of the point I made a few days ago about the handicaps our system of concrete review imposes. The case presented the question whether California's catchall factor in capital sentencing permitted the jury to give full mitigating force to the defendant's proffered evidence that his religious awakening would lead him, if spared, to spend his life in prison serving others. Earlier cases had upheld California's provision (k) in other contexts, and so did this one, even though factor (k)'s specific language seems to focus only on the circumstances of the crime, rather than the perpetrator's character apart from the crime. The factor invites jurors to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” As Justice Stevens (for himself and Justices Souter, Ginsburg, and Breyer) argued in dissent, in light of the lawyers' arguments and the law at the time of the sentencing hearing, the jury could have thought that this instruction made the evidence concerning Belmontes' potential for good deeds in prison irrelevant.
Maybe that's right; maybe it's wrong. But it strikes me that this is an especially odd case in which to decide the question, given that the defendant's theory of mitigation is bizarre on its face. He claimed -- and he had supporting testimony from ministers -- that when he had previously been incarcerated as a youth, he had undergone a religious awakening, and done good works. Based on this experience and his sincere religious beliefs, he argued, he should be spared for the good he would do by living out his days in prison as a Christian. EXCEPT THAT AFTER HIS FIRST RELIGIOUS AWAKENING HE KILLED A 19-YEAR-OLD WOMAN BY BLUDGEONING HER 15 TO 20 TIMES WITH A STEEL DUMBBELL. It is simply not plausible that a jury would think that his religious convictions were insufficient to prevent him from committing murder, yet productive of enough good to count for anything in mitigation of his sentence.
Consequently, the majority is right when it says that factor (k) gave the jury an adequate opportunity to consider the mitigating force of Belmontes' evidence, because that evidence cannot have had any serious mitigating force at all. Unfortunately, however, the case will stand as a precedent in California in cases in which the evidence ought to have real mitigating force, such as circumstances in which the evidence of repentance occurs AFTER the crime.