AYERS, ACTING WARDEN v. BELMONTES

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Syllabus
AYERS, ACTING WARDEN v. BELMONTES
certiorari to the united states court of appeals for
the ninth circuit
No. 05–493. Argued October 3, 2006—Decided November 13, 2006
In the penalty phase of respondent’s capital murder trial, he introduced
mitigating evidence to show, inter alia, that he would lead a construc
tive life if incarcerated rather than executed, testifying that he had done
so during a previous incarceration, when he had embraced Christianity.
Two prison chaplains and his Christian sponsors from that time testified
on his behalf, and the parties’ closing arguments discussed this mit
igating evidence and how the jury should consider it. The trial judge
told the jury to consider “[a]ny other circumstance which extenu
ates the gravity of the crime even though it is not a legal excuse for the
crime,” an instruction known as “factor (k)” under California’s then
applicable statutory scheme. Respondent was sentenced to death. He
contended, on direct review and in federal habeas proceedings, that fac
tor (k) and the trial court’s other instructions barred the jury from con
sidering his forward-looking mitigation evidence in violation of his
Eighth Amendment right to present all mitigating evidence in capital
sentencing proceedings. The Federal District Court denied relief, but
the Ninth Circuit reversed. On reconsideration in light of Brown v.
Payton, 544 U. S. 133, the Ninth Circuit again invalidated respondent’s
sentence.
Held: The factor (k) instruction is consistent with the constitutional right
to present mitigating evidence in capital sentencing proceedings.
Pp. 12–24.
(a) This Court has previously found that factor (k) does not preclude
consideration of constitutionally relevant evidence, such as mitigating
evidence about a defendant’s precrime background and character, Boyde
v. California, 494 U. S. 370, 377–378, 386, or postcrime rehabilitation,
Brown v. Payton, supra, at 135–136, and found the proper inquiry to be
“whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consideration of con
stitutionally relevant evidence,” Boyde, supra, at 380. Pp. 12–14.
(b) That inquiry applies here. Like Payton, this case involves
forward-looking evidence and comes to the Court on federal habeas pro
ceedings, but unlike Payton, it was filed before the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The
Ninth Circuit distinguished Payton on this ground, but erred in finding

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Syllabus
a “reasonable probability” that the jury did not consider evidence of
respondent’s future potential. 414 F. 3d 1094, 1138. Pp. 14–24.
(1) The Circuit adopted a narrow and unrealistic interpretation of
factor (k), ruling that “this instruction allows the jury to consider evi
dence that bears upon the commission of the crime by the defendant
and excuses or mitigates his culpability for the offense,” 414 F. 3d, at
1134. As Boyde and Payton explain, the jury is directed “to consider
any other circumstance that might excuse the crime.” Boyde, supra,
at 382. Just as precrime background and character (Boyde) and post
crime rehabilitation (Payton) may “extenuat[e] the gravity of the
crime,” so may some likelihood of future good conduct count as a circum
stance tending to make a defendant less deserving of the death penalty.
The Ninth Circuit failed to heed the full import of Payton’s holding,
which is significant even where AEDPA is inapplicable. Moreover,
since respondent sought to extrapolate future behavior from precrime
conduct, his mitigation theory was more analogous to the good-character
evidence Boyde found to fall within factor (k)’s purview. Pp. 15–16.
(2) This Court’s interpretation of factor (k) is the one most consist
ent with the evidence presented to the jury, the parties’ closing argu
ments, and the trial court’s other instructions. It is improbable that
the jury believed that the parties were engaged in an exercise in futility
when respondent presented extensive forward-looking evidence in open
court. Both prosecution and defense arguments assumed the evidence
was relevant. The prosecutor’s remarks that the evidence was weak
and his opinion about the weight it should be given confirmed to the
jury that it should analyze respondent’s future potential. Respondent’s
personal pleas were consistent with a trial in which the jury would as
sess his future prospects in determining what sentence to impose. This
analysis is confirmed by defense counsel’s closing arguments. The trial
court’s other instructions make it quite implausible that the jury would
deem itself foreclosed from considering respondent’s full case in mitiga
tion. The judge told the jury to consider all of the evidence, which
included respondent’s forward-looking mitigation case. The sharp con
trast between the aggravation instruction (only enumerated factors
could be considered) and the mitigation one (listed factors were merely
examples) also made clear that the jury was to take a broad view of
mitigating evidence. In concluding otherwise, the Ninth Circuit cited
juror queries as evidence of confusion. Assuming that interpretation
is correct, the court’s conclusion that a juror likely ignored forward
looking evidence presupposes what it purports to establish, namely, that
forward-looking evidence could not fall within factor (k). Pp. 16–24.
414 F. 3d 1094, reversed and remanded.

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Opinion of the Court
Kennedy, J., delivered the opinion of the Court, in which Roberts,
C. J., and Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a con
curring opinion, in which Thomas, J., joined, post, p. 24. Stevens, J.,
filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ.,
joined, post, p. 25.
Mark A. Johnson, Deputy Attorney General of California,
argued the cause for petitioner. With him on the briefs
were Bill Lockyer, Attorney General, Manuel M. Medeiros,
State Solicitor General, Donald E. de Nicola, Deputy State
Solicitor General, Mary Jo Graves, Chief Assistant Attorney
General, Robert R. Anderson, former Chief Assistant Attor
ney General, Michael P. Farrell, Senior Assistant Attorney
General, Eric L. Christoffersen, Assistant Supervising Dep
uty Attorney General, and Ward A. Campbell, former Super
vising Deputy Attorney General.
Eric S. Multhaup, by appointment of the Court, 547 U. S.
1190, argued the cause for respondent. With him on the
brief was Christopher H. Wing.*
Justice Kennedy delivered the opinion of the Court.
Fernando Belmontes, the respondent here, was tried in
1982 in the Superior Court of the State of California in and
for the County of San Joaquin. A jury returned a verdict
of murder in the first degree and then determined he should
*Briefs of amici curiae urging reversal were filed for the State of Texas
et al. by Greg Abbott, Attorney General of Texas, Kent C. Sullivan, First
Assistant Attorney General, Don Clemmer, Deputy Attorney General, and
Gena Bunn and Edward L. Marshall, Assistant Attorneys General, and
by the Attorneys General for their respective States as follows: Troy King
of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, John W.
Suthers of Colorado, Charles J. Crist, Jr., of Florida, Lawrence G. Wasden
of Idaho, Lisa Madigan of Illinois, Jim Hood of Mississippi, George J.
Chanos of Nevada, Patricia A. Madrid of New Mexico, Jim Petro of Ohio,
Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South
Carolina, Mark L. Shurtleff of Utah, Robert F. McDonnell of Virginia,
and Rob McKenna of Washington; and for the Criminal Justice Legal
Foundation by Kent S. Scheidegger.

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be sentenced to death. The issue before us concerns a jury
instruction in the sentencing phase.
The trial court, following the statute then in effect, di
rected the jury, with other instructions and in a context to
be discussed in more detail, to consider certain specific fac
tors either as aggravating or mitigating. The trial court
further instructed the jury to consider “[a]ny other circum
stance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime.” App. 184.
Under the then-applicable statutory scheme this general or
catchall factor was codified at Cal. Penal Code Ann. § 190.3(k)
(West 1988); and it is referred to as “factor (k).”
Belmontes contended, on direct review, in state collateral
proceedings, and in the federal habeas proceedings giving
rise to this case, that factor (k) and the trial court’s other
instructions barred the jury from considering his forward
looking mitigation evidence—specifically evidence that he
likely would lead a constructive life if incarcerated instead
of executed. The alleged limitation, in his view, prevented
the jury from considering relevant mitigation evidence, in
violation of his Eighth Amendment right to present all miti
gating evidence in capital sentencing proceedings. See, e. g.,
Penry v. Johnson, 532 U. S. 782, 797 (2001); Skipper v. South
Carolina, 476 U. S. 1, 4–5, 8 (1986); Eddings v. Oklahoma,
455 U. S. 104, 112 (1982). The California Supreme Court,
affirming the judgment and sentence, rejected this conten
tion and other challenges. People v. Belmontes, 45 Cal. 3d
744, 799–802, 819, 755 P. 2d 310, 341–343, 355 (1988).
In February 1994, after exhausting state remedies, re
spondent filed an amended federal habeas petition. The
United States District Court for the Eastern District of Cali
fornia denied relief, App. to Pet. for Cert. 140a–141a, 145a,
but a divided panel of the United States Court of Appeals
for the Ninth Circuit reversed in relevant part, Belmontes v.
Woodford, 350 F. 3d 861, 908 (2003). Over the dissent of
eight judges, the Court of Appeals denied rehearing en banc.

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Belmontes v. Woodford, 359 F. 3d 1079 (2004). This Court
granted certiorari, vacated the judgment, and remanded for
further consideration in light of Brown v. Payton, 544 U. S.
133 (2005). Brown v. Belmontes, 544 U. S. 945 (2005). On
remand, a divided panel again invalidated respondent’s sen
tence; it distinguished Payton on the grounds that the Anti
terrorism and Effective Death Penalty Act of 1996 (AEDPA),
110 Stat. 1214, though applicable in that case, does not apply
here. Belmontes v. Brown, 414 F. 3d 1094, 1101–1102 (2005).
Over yet another dissent, the Court of Appeals again denied
rehearing en banc. Belmontes v. Stokes, 427 F. 3d 663
(2005). We granted certiorari, 547 U. S. 1110 (2006), and
now reverse.
I
The evidence at trial showed that in March 1981, while
burglarizing a home where two accomplices had attended
a party, respondent unexpectedly encountered 19-year-old
Steacy McConnell. Respondent killed her by striking her
head 15 to 20 times with a steel dumbbell bar. Respondent
had armed himself with the dumbbell bar before entering
the victim’s home. See Belmontes, supra, at 760–764, 755
P. 2d, at 315–317.
In the sentencing phase of his trial Belmontes introduced
mitigating evidence to show, inter alia, that he would make
positive contributions to society in a structured prison envi
ronment. Respondent testified that, during a previous term
under the California Youth Authority (CYA), he had behaved
in a constructive way, working his way to the number two
position on a fire crew in the CYA fire camp in which he
was incarcerated. App. 44–45, 53. About that time he had
embraced Christianity and entered into a Christian sponsor
ship program. He admitted that initially he participated in
this program to spend time away from the camp. Later,
after forming a good relationship with the married couple
who were his Christian sponsors, he pursued a more reli
gious life and was baptized. Although his religious commit

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ment lapsed upon his release from the CYA, he testified that
he would once again turn to religion whenever he could re
dedicate himself fully to it. Id., at 46–48, 53–55. Finally,
he answered in the affirmative when asked if he was “pre
pared to contribute in anyway [he] can to society if [he was]
put in prison for the rest of [his] life.” Id., at 58.
Respondent’s former CYA chaplain testified at the sen
tencing hearing that respondent’s conversion appeared genu
ine. The chaplain, describing respondent as “salvageable,”
expressed hope that respondent would contribute to prison
ministries if given a life sentence. Id., at 79–83. An assist
ant chaplain similarly testified that, based on past experi
ence, respondent likely would be adept at counseling other
prisoners to avoid the mistakes he had made when they leave
prison. Id., at 95–96. And respondent’s Christian sponsors
testified he was like a son to them and had been a positive
influence on their own son. They also indicated he had par
ticipated in various activities at their church. Id., at 99–
103, 110–114.
After respondent presented his mitigating evidence, the
parties made closing arguments discussing respondent’s miti
gating evidence and how the jury should consider it. Re
spondent was also allowed to provide his own statement.
The trial judge included in his instructions the disputed fac
tor (k) language, an instruction that has since been amended,
see Cal. Jury Instr., Crim., No. 8.85(k) (2005).
II
In two earlier cases this Court considered a constitutional
challenge to the factor (k) instruction. See Brown v. Pay
ton, supra; Boyde v. California, 494 U. S. 370 (1990). In
Boyde, the Court rejected a claim that factor (k), with its
focus on circumstances “ ‘extenuat[ing] the gravity of the
crime,’ ” precluded consideration of mitigating evidence
unrelated to the crime, such as evidence of the defend
ant’s background and character. Id., at 377–378, 386. The

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“proper inquiry,” the Court explained, “is whether there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of con
stitutionally relevant evidence.” Id., at 380. Since the de
fendant in Boyde “had an opportunity through factor (k) to
argue that his background and character ‘extenuated’ or ‘ex
cused’ the seriousness of the crime,” the Court saw “no rea
son to believe that reasonable jurors would resist the view,
‘long held by society,’ that in an appropriate case such evi
dence would counsel imposition of a sentence less than
death.” Id., at 382 (citing Penry v. Lynaugh, 492 U. S. 302,
319 (1989)). During the sentencing phase in Boyde, more
over, the defense had presented extensive evidence regard
ing background and character, so construing factor (k) to
preclude consideration of that evidence would have required
the jurors not only to believe that “the court’s instructions
transformed all of this ‘favorable testimony into a virtual
charade,’ ” 494 U. S., at 383 (quoting California v. Brown,
479 U. S. 538, 542 (1987)), but also to disregard another in
struction requiring the jury to “ ‘consider all of the evidence
which has been received during any part of the trial of this
case,’ ” 494 U. S., at 383.
In Payton, the Court again evaluated arguments that fac
tor (k) barred consideration of constitutionally relevant evi
dence—this time, evidence relating to postcrime rehabilita
tion, rather than precrime background and character. See
544 U. S., at 135–136. Payton did not come to this Court,
as had Boyde, on direct review, but rather by federal habeas
petition subject to AEDPA. Relief was available only if
“the state court’s adjudication of the claim ‘resulted in a deci
sion that was contrary to, or involved an unreasonable appli
cation of, clearly established Federal law, as determined by
the Supreme Court of the United States.’ ” Payton, supra,
at 141 (quoting 28 U. S. C. § 2254(d)(1)). Although the prose
cutor in Payton had argued to the jury—incorrectly—that

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factor (k) did not permit consideration of postcrime rehabili
tation evidence, this Court concluded that the California Su
preme Court reasonably applied Boyde in finding no Eighth
Amendment violation. 544 U. S., at 142, 146–147. Accept
ing the prosecutor’s reading would have required “the sur
prising conclusion that remorse could never serve to lessen
or excuse a crime.” Id., at 142. Furthermore, countering
any misimpression created by the prosecution’s argument,
the defense in Payton had presented extensive evidence and
argument regarding a postcrime religious conversion and
other good behavior. The trial court had instructed the jury
to consider all evidence admitted “ ‘during any part of the
trial in this case, except as you may be hereafter in
structed,’ ” and the prosecution itself “devoted substantial
attention to discounting [the postcrime evidence’s] impor
tance as compared to the aggravating factors.” Id., at 145–
146. Hence, the state court in Payton could reasonably
have concluded that, as in Boyde, there was no reasonable
likelihood that the jury understood the instruction to pre
clude consideration of the postcrime mitigation evidence it
had heard. 544 U. S., at 147.
III
As the Court directed in Boyde, we inquire “whether there
is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consider
ation of constitutionally relevant evidence.” 494 U. S., at
380. Here, as in Payton, respondent argues that factor
(k) prevented the jury from giving effect to his forward
looking evidence. And, as in Payton, respondent’s case
comes to this Court in federal habeas proceedings collater
ally attacking the state court’s ruling. Unlike in Payton,
however, the federal petition in this case was filed before
AEDPA’s effective date. AEDPA and its deferential stand
ards of review are thus inapplicable. See Woodford v. Gar
ceau, 538 U. S. 202, 210 (2003). The Court of Appeals distin

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guished Payton on this ground. See 414 F. 3d, at 1101–1102.
It was mistaken, however, to find a “reasonable probability”
that the jury did not consider respondent’s future potential.
Id., at 1138.
A
The Court of Appeals erred by adopting a narrow and, we
conclude, an unrealistic interpretation of factor (k). “Most
naturally read,” the Court of Appeals reasoned, “this in
struction allows the jury to consider evidence that bears
upon the commission of the crime by the defendant and ex
cuses or mitigates his culpability for the offense.” Id., at
1134. As both Boyde and Payton explain, however, this in
terpretation is too confined. “The instruction did not . . .
limit the jury’s consideration to ‘any other circumstance of
the crime which extenuates the gravity of the crime.’ The
jury was directed to consider any other circumstance that
might excuse the crime.” Boyde, supra, at 382; see also
Payton, supra, at 141–142. And just as precrime back
ground and character (Boyde) and postcrime rehabilitation
(Payton) may “extenuat[e] the gravity of the crime,” so may
some likelihood of future good conduct count as a circum
stance tending to make a defendant less deserving of the
death penalty. Cf. Skipper, 476 U. S., at 4–5 (explaining that
while inferences regarding future conduct do not “relate spe
cifically to [a defendant’s] culpability for the crime he com
mitted,” those inferences are “ ‘mitigating’ in the sense that
they might serve ‘as a basis for a sentence less than death’ ”
(quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality
opinion))).
The Court of Appeals failed to heed the full import of Pay
ton’s holding, a holding that has significance even where
AEDPA is inapplicable. Payton indicated that reading fac
tor (k) to preclude consideration of postcrime evidence would
require “the surprising conclusion that remorse could never
serve to lessen or excuse a crime.” 544 U. S., at 142. So,
too, would it be counterintuitive if a defendant’s capacity to

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redeem himself through good works could not extenuate his
offense and render him less deserving of a death sentence.
In any event, since respondent sought to extrapolate fu
ture behavior from precrime conduct, his mitigation theory
was more analogous to the good-character evidence exam
ined in Boyde and held to fall within factor (k)’s purview.
See 494 U. S., at 381 (describing the evidence at issue as in
cluding evidence of the defendant’s “strength of character”).
Both types of evidence suggest the crime stemmed more
from adverse circumstances than from an irredeemable char
acter. See 414 F. 3d, at 1141–1142 (O’Scannlain, J., concur
ring in part and dissenting in part); cf. Johnson v. Texas,
509 U. S. 350, 369 (1993) (noting that the “forward-looking”
future-dangerousness inquiry “is not independent of an as
sessment of personal culpability”).
B
Our interpretation of factor (k) is the one most consistent
with the evidence presented to the jury, the parties’ closing
arguments, and the other instructions provided by the trial
court. Each of these will be discussed in turn.
As the Court of Appeals recognized, future-conduct evi
dence was central to the mitigation case presented by the
defense. See 414 F. 3d, at 1134. Indeed, although the de
fense also adduced evidence of a troubled upbringing, re
spondent testified that he could not use his difficult life “as
a crutch to say I am in a situation right now, I’m here now
because of that.” App. 40. Given this assertion, and con
sidering the extensive forward-looking evidence presented
at sentencing—evidence including testimony from two prison
chaplains, respondent’s church sponsors, and respondent
himself—the jurors could have disregarded respondent’s fu
ture potential only if they drew the unlikely inference that
“the court’s instructions transformed all of this ‘favorable
testimony into a virtual charade,’ ” Boyde, supra, at 383
(quoting Brown, 479 U. S., at 542). It is improbable the ju

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rors believed that the parties were engaging in an exercise
in futility when respondent presented (and both counsel later
discussed) his mitigating evidence in open court.
Arguments by the prosecution and the defense assumed
the evidence was relevant. The prosecutor initially dis
cussed the various factors that were to guide the jury. He
referred to factor (k) as “a catchall.” App. 153. He then
discussed respondent’s religious experience in some detail.
With respect to whether this experience fit within factor (k),
he indicated: “I’m not sure it really fits in there. I’m not
sure it really fits in any of them. But I think it appears to
be a proper subject of consideration.” Id., at 154. These
seemingly contradictory statements are explained by the
prosecutor’s following comments.
The prosecutor suggested (quite understandably on the
record) that respondent’s religious evidence was weak. He
stated: “You know, first of all, it’s no secret that the evidence
upon which the defendant’s religious experience rests is
somewhat shaky.” Ibid. He also opined that the experi
ence had to be taken “with a grain of salt.” Id., at 155.
The jury would have realized that, when the prosecutor sug
gested respondent’s religious experience did not fit within
factor (k), he was discussing the persuasiveness of the evi
dence, not the jury’s ability to consider it. After all, he
thought religion was “a proper subject of consideration.”
Id., at 154.
The prosecutor then discussed how the jury should weigh
respondent’s “religious awakening”:
“I suppose you can say it would be appropriate be
cause—in this fashion: The defendant may be of value
to the community later. You recall the people talking
about how he would have the opportunity to work with
other prisoners in prison. And I think that value to
the community is something that you have to weigh in.
There’s something to that.
“On the other hand, the fact that someone has religion
as opposed to someone doesn’t should be no grounds for

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either giving or withholding life. I mean let’s turn it
around and look at the other side of the coin. Suppose
someone said he didn’t belong to a church and didn’t talk
to a minister. Would that man deserve to die merely
because of that? So if he says he has religion, does he
deserve the other penalty, life? I don’t think that that
should be an influencing factor at all in that respect.
I don’t think the law contemplates that and I don’t think
it’s right.” Id., at 155.
These remarks confirmed to the jury that it should analyze
respondent’s future potential, his future “value to the com
munity.” Ibid. This is what respondent himself wanted it
to do. And while the prosecutor commented that the law
did not contemplate jury consideration of respondent’s reli
gious conversion, respondent did not argue that the jury
should consider the mere fact that he had discovered reli
gion. Rather, as manifested by his arguments on appeal,
respondent wanted to use this religious evidence to demon
strate his future “value to the community,” not to illustrate
his past religious awakening. Nothing the prosecutor said
would have convinced the jury that it was forbidden from
even considering respondent’s religious conversion, though
surely the jury could discount it; and nothing the prosecutor
said would have led the jury to think it could not consider
respondent’s future potential, especially since he indicated
that this is exactly what the jury had “to weigh” in its delib
eration. Ibid.
After the prosecutor concluded his arguments, the trial
judge allowed respondent to speak on his own behalf. Re
spondent, while not showing any remorse, suggested that
life imprisonment offered “an opportunity to achieve goals
and try to better yourself.” Id., at 163. He also stated:
“I myself would really like to have my life and try to improve
myself.” Id., at 164. Respondent’s personal pleas were
consistent with a trial in which the jury would assess his
future prospects in determining what sentence to impose.

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Defense counsel’s closing arguments confirm this analysis.
To be sure, commenting on the mitigating evidence, he ini
tially indicated: “I’m not going to insult you by telling you
I think [the mitigating evidence] excuses in any way what
happened here. That is not the reason I asked these people
to come in.” Id., at 166. Read in context defense counsel’s
remarks did not imply the jury should ignore the mitigating
evidence. Rather, conforming to the dichotomy within fac
tor (k) itself, his remarks merely distinguished between a
legal excuse and an extenuating circumstance. Cf. Cal.
Penal Code Ann. § 190.3(k) (“[a]ny other circumstance which
extenuates the gravity of the crime even though it is not a
legal excuse for the crime”).
That defense counsel did, in fact, want the jury to take
into account respondent’s future potential became manifest
near the end of his argument. He suggested that the “peo
ple who came in here [and] told you about [respondent]” pro
vided the jury with “a game plan” for what respondent could
do with his life. App. 170. He continued: “We’re just sug
gesting the tip of the iceberg because who knows in 20, 30,
40, 50 years what sorts of things he can do, as he fits into
the system, as he learns to set his goals, to contribute some
thing in whatever way he can.” Ibid. This would have left
the jury believing it could and should contemplate respond
ent’s potential.
Other instructions from the trial court make it quite im
plausible that the jury would deem itself foreclosed from
considering respondent’s full case in mitigation. Before
enumerating specific factors for consideration—factors in
cluding the circumstances of the crime, the defendant’s age,
and “[t]he presence or absence of any prior felony convic
tion,” id., at 184, as well as the factor (k) catchall—the judge
told the jury: “In determining which penalty is to be imposed
on the defendant you shall consider all of the evidence which
has been received during any part of the trial of this case,

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except as you may be hereafter instructed.” Id., at 183.
After listing the factors, he indicated:
“After having heard all of the evidence and after hav
ing heard and considered the arguments of counsel, you
shall consider, take into account and be guided by the
applicable factors of aggravating and mitigating circum
stances upon which you have been instructed.
“If you conclude that the aggravating circumstances
outweigh the mitigating circumstances, you shall impose
a sentence of death. However, if you determine that
the mitigating circumstances outweigh the aggravating
circumstances, you shall impose a sentence of confine
ment in the state prison for life without the possibility
of parole.” Id., at 185.
The judge then gave a supplemental instruction regarding
aggravating and mitigating factors:
“I have previously read to you the list of aggravating
circumstances which the law permits you to consider if
you find that any of them is established by the evidence.
These are the only aggravating circumstances that you
may consider. You are not allowed to take account of
any other facts or circumstances as the basis for decid
ing that the death penalty would be an appropriate pun
ishment in this case.
“However, the mitigating circumstances which I have
read for your consideration are given to you merely as
examples of some of the factors that you may take into
account as reasons for deciding not to impose a death
penalty or a death sentence upon Mr. Belmontes. You
should pay careful attention to each of these factors.
Any one of them standing alone may support a decision
that death is not the appropriate punishment in this
case.” Id., at 185–186.
Given the evidence and arguments presented to the jury,
these instructions eliminate any reasonable likelihood that a

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Opinion of the Court
juror would consider respondent’s future prospects to be be
yond the bounds of proper consideration. The judge told
the jury to consider “all of the evidence,” and “all of the
evidence” included respondent’s forward-looking mitigation
case. While the judge did end his broad command to ap
praise all the evidence with the qualifier “except as you may
be hereafter instructed,” id., at 183, he did not later instruct
the jury that it should disregard respondent’s future poten
tial in prison. The jury could not fairly read the limitation
in the instruction to apply to respondent’s central mitigation
theory. By contrast, in response to a juror’s question, the
trial judge specifically instructed the jury not to consider
whether respondent could receive psychiatric treatment
while in prison.
The sharp contrast between the court’s instruction on ag
gravation (that only enumerated factors could be considered)
and its instruction on mitigation (that listed factors were
“merely . . . examples,” id., at 186) made it clear that the
jury was to take a broad view of mitigating evidence. Com
ing back to back, the instructions conveyed the message that
the jury should weigh the finite aggravators against the po
tentially infinite mitigators. That the trial judge told the
jury to “pay careful attention” to the listed mitigating fac
tors, ibid., moreover, did not compel the jury to give them
sole consideration. For this to be the case, the jury would
have had to fail to take the judge at his word. The judge did
not advise the jury to pay exclusive attention to the listed
mitigating circumstances, and he had told the jury that these
circumstances were simply examples.
It is implausible that the jury supposed that past deeds
pointing to a constructive future could not “extenuat[e] the
gravity of the crime,” as required by factor (k), much less
that such evidence could not be considered at all. Boyde
concludes that in jury deliberations “commonsense under
standing of the instructions in the light of all that has taken
place at the trial [is] likely to prevail over technical hairsplit

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22 AYERS v. BELMONTES
Opinion of the Court
ting.” 494 U. S., at 381. Here, far from encouraging the
jury to ignore the defense’s central evidence, the instructions
supported giving it due weight.
In concluding otherwise, the Court of Appeals cited que
ries from some of the jurors as evidence of confusion. Al
though the jury’s initial question is not in the record, it
appeared to ask the judge about the consequences of failing
to reach a unanimous verdict. Cf. 414 F. 3d, at 1135. In
response, the judge reread portions of the instructions and
stated that “all 12 jurors must agree, if you can.” App. 190.
Before the judge sent the jury back for further deliberation,
the following exchange took place:
“JUROR HERN: The statement about the aggrava
tion and mitigation of the circumstances, now, that was
the listing?
“THE COURT: That was the listing, yes, ma’am.
“JUROR HERN: Of those certain factors we were to
decide one or the other and then balance the sheet?
“THE COURT: That is right. It is a balancing proc
ess. Mr. Meyer?
“JUROR MEYER: A specific question, would this be
an either/or situation, not a one, if you cannot the other?
“THE COURT: No. It is not that.
“JUROR MEYER: It is an either/or situation?
“THE COURT: Exactly. If you can make that
either/or decision. If you cannot, then I will discharge
you.
“JUROR HAILSTONE: Could I ask a question? I
don’t know if it is permissible. Is it possible that he
could have psychiatric treatment during this time?
“THE COURT: That is something you cannot con
sider in making your decision.” Id., at 191.
The Court of Appeals decided Juror Hern’s questions indi
cated she thought (incorrectly) that only listed mitigating
factors were on the table—an error, in the Court of Appeals’

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Opinion of the Court
view, that should have prompted a clarifying instruction con
firming that all the mitigating evidence was relevant. 414
F. 3d, at 1136. The Court of Appeals further supposed the
response to Juror Hailstone’s question compounded the prob
lem, since psychiatric treatment presumably would be neces
sary only in aid of future rehabilitation. Id., at 1137.
The Court of Appeals’ analysis is flawed. To begin with,
attributing to Juror Hern a dilemma over the scope of miti
gation is only one way to interpret her questions, and, as the
California Supreme Court observed on direct review, it is
not necessarily the correct one, see Belmontes, 45 Cal. 3d, at
804, 755 P. 2d, at 344. It is at least as likely that the juror
was simply asking for clarification about California’s overall
balancing process, which requires juries to consider and bal
ance enumerated factors (such as age and criminal history)
that are labeled neither as mitigating nor as aggravating.
As Juror Hern surmised (but sought to clarify), the jury it
self must determine the side of the balance on which each
listed factor falls. See Cal. Penal Code Ann. § 190.3 (provid
ing that, “[i]n determining the penalty, the trier of fact shall
take into account” any relevant listed factors); see generally
Tuilaepa v. California, 512 U. S. 967, 978–979 (1994) (noting
that the § 190.3 sentencing factors “do not instruct the sen
tencer how to weigh any of the facts it finds in deciding upon
the ultimate sentence”).
Even assuming the Court of Appeals correctly interpreted
Juror Hern’s questions, the court’s conclusion that this juror
likely ignored forward-looking evidence presupposes what it
purports to establish, namely, that forward-looking evidence
could not fall within factor (k). As discussed earlier, noth
ing barred the jury from viewing respondent’s future pros
pects as “extenuat[ing] the gravity of the crime,” so nothing
barred it from considering such evidence under the rubric
of the “listing.” As for Juror Hailstone’s psychiatric-care
question, this inquiry shows that, if anything, the jurors
were considering respondent’s potential. The trial court’s

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24 AYERS v. BELMONTES
Scalia, J., concurring
response, far from implying a broad prohibition on forward
looking inferences, was readily explicable by the absence of
any evidence in the record regarding psychiatric care.
In view of our analysis and disposition in this case it is
unnecessary to address an argument for reversing the Court
of Appeals based on the Court’s holding in Johnson v. Texas,
509 U. S. 350 (1993), a subject raised by Judge O’Scannlain
in his separate opinion in the Court of Appeals. See 414
F. 3d, at 1141–1142 (opinion concurring in part and dissenting
in part).
IV
In this case, as in Boyde and as in Payton, the jury heard
mitigating evidence, the trial court directed the jury to con
sider all the evidence presented, and the parties addressed
the mitigating evidence in their closing arguments. This
Court’s cases establish, as a general rule, that a jury in such
circumstances is not reasonably likely to believe itself barred
from considering the defense’s evidence as a factor “extenu
at[ing] the gravity of the crime.” The factor (k) instruction
is consistent with the constitutional right to present mitigat
ing evidence in capital sentencing proceedings.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins,
concurring.
I adhere to my view that limiting a jury’s discretion to
consider all mitigating evidence does not violate the Eighth
Amendment. See Walton v. Arizona, 497 U. S. 639, 673
(1990) (Scalia, J., concurring in part and concurring in judg
ment). Even accepting the Court’s jurisprudence to the
contrary, however, this is arguably an easy case, given our
reiteration in Johnson v. Texas, 509 U. S. 350, 372 (1993), that
a jury need only “be able to consider in some manner all of

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25 Cite as: 549 U. S. 7 (2006)
Stevens, J., dissenting
a defendant’s relevant mitigating evidence,” and need not “be
able to give effect to mitigating evidence in every conceiv
able manner in which the evidence might be relevant.” But
since petitioner has not relied on Johnson, as Judge O’Scann
lain did below, see Belmontes v. Brown, 414 F. 3d 1094, 1141–
1142 (CA9 2005) (opinion concurring in part and dissenting in
part), I am content to join in full the Court’s opinion, which
correctly applies Boyde v. California, 494 U. S. 370 (1990).
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
In Lockett v. Ohio, 438 U. S. 586 (1978), the Court set aside
Ohio’s death penalty statute as unconstitutional because it
unduly restricted the mitigating evidence that a jury could
consider in deciding whether to impose the death penalty.
In his opinion announcing the judgment, Chief Justice
Burger wrote:
“There is no perfect procedure for deciding in which
cases governmental authority should be used to impose
death. But a statute that prevents the sentencer in all
capital cases from giving independent mitigating weight
to aspects of the defendant’s character and record and
to circumstances of the offense proffered in mitigation
creates the risk that the death penalty will be imposed
in spite of factors which may call for a less severe pen
alty. When the choice is between life and death, that
risk is unacceptable and incompatible with the com
mands of the Eighth and Fourteenth Amendments.”
Id., at 605 (plurality opinion).
The respondent here, Fernando Belmontes, was sentenced
to death in 1982, a scant four years after Lockett. See Peo
ple v. Belmontes, 45 Cal. 3d 744, 755 P. 2d 310 (1988). Yet
at the time of his sentencing, there remained significant re
sidual confusion as to whether the Constitution obligated
States to permit juries to consider evidence that, while not

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26 AYERS v. BELMONTES
Stevens, J., dissenting
extenuating the defendant’s culpability for the crime, might
nevertheless call for a sentence less than death. Cf. People
v. Easley, 34 Cal. 3d 858, 875–880, 671 P. 2d 813, 823–827
(1983) (noting arguments on both sides).
The California death penalty statute in effect in 1982 quite
plainly rested on the assumption that California could pre
clude the consideration of such evidence. The statute com
manded that the jury “shall impose” a death sentence if ag
gravating circumstances outweigh mitigating circumstances,
and limited the jury’s inquiry to 11 discrete categories of
evidence. See Cal. Penal Code Ann. § 190.3 (West 1988).
Other than factors relating to the defendant’s age and prior
criminal record, every one of those categories relates to the
severity of the crime of which the defendant was convicted.1
1 Those categories are:
“(a) The circumstances of the crime of which the defendant was con
victed in the present proceeding and the existence of any special circum
stances found to be true . . . .
“(b) The presence or absence of criminal activity by the defendant
which involved the use or attempted use of force or violence or the express
or implied threat to use force or violence.
“(c) The presence or absence of any prior felony conviction.
“(d) Whether or not the offense was committed while the defendant was
under the influence of extreme mental or emotional disturbance.
“(e) Whether or not the victim was a participant in the defendant’s hom
icidal conduct or consented to the homicidal act.
“(f) Whether or not the offense was committed under circumstances
which the defendant reasonably believed to be a moral justification or ex
tenuation for his conduct.
“(g) Whether or not defendant acted under extreme duress or under
the substantial domination of another person.
“(h) Whether or not at the time of the offense the capacity of the de
fendant to appreciate the criminality of his conduct or to conform his con
duct to the requirements of law was impaired as a result of mental disease
or defect, or the affects of intoxication.
“(i) The age of the defendant at the time of the crime.
“( j) Whether or not the defendant was an accomplice to the offense and
his participation in the commission of the offense was relatively minor.

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And while the eleventh catchall “factor (k)” authorized con
sideration of “[a]ny other circumstance which extenuates the
gravity of the crime even though it is not a legal excuse for
the crime,” § 190.3(k), factor (k)’s restrictive language sent
the unmistakable message that California juries could prop
erly give no mitigating weight to evidence that did not ex
tenuate the severity of the crime.
Just a year after respondent’s sentencing the California
Supreme Court evinced considerable discomfort with factor
(k). In People v. Easley, after discussing the possible un
constitutionality of the penalty phase instructions, the court
inserted a critical footnote effectively amending factor
(k) and expanding the evidence that a California jury could
properly consider in deciding whether to impose a death
sentence:
“In order to avoid potential misunderstanding in the fu
ture, trial courts—in instructing on [factor (k)]—should
inform the jury that it may consider as a mitigating fac
tor ‘any other circumstance which extenuates the grav
ity of the crime even though it is not a legal excuse for
the crime’ and any other ‘aspect of [the] defendant’s
character or record . . . that the defendant proffers as a
basis for a sentence less than death.’ ” 34 Cal. 3d, at
878, n. 10, 671 P. 2d, at 826, n. 10 (emphasis added).2
“(k) Any other circumstance which extenuates the gravity of the crime
even though it is not a legal excuse for the crime.” Cal. Penal Code Ann.
§ 190.3 (West 1988).
The 1988 version of § 190.3 also provided that “[a]fter having heard and
received all of the evidence, . . . the trier of fact shall consider, take into
account and be guided by the aggravating and mitigating circumstances
referred to in this section,” and “shall determine whether the penalty shall
be death or confinement in state prison for a term of life without the
possibility of parole.”
2 The California Legislature also responded to the confusion by amend
ing factor (k) to include “any sympathetic or other aspect of the defend
ant’s character or record that the defendant offers as a basis for a sentence

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28 AYERS v. BELMONTES
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Although Easley came too late to help respondent, the Cal
ifornia Supreme Court’s evident concern that capital juries
must be permitted to consider evidence beyond that which
“extenuates the gravity of the crime” proved prescient. In
Skipper v. South Carolina, 476 U. S. 1 (1986)—decided two
years before the California Supreme Court affirmed respond
ent’s conviction and therefore fully applicable here, see Grif
fith v. Kentucky, 479 U. S. 314, 322–323 (1987)—we expressly
rejected the argument, presented in Justice Powell’s sepa
rate opinion, that the States retained the authority to deter
mine what mitigating evidence is relevant “as long as they
do not foreclose consideration of factors that may tend to
reduce the defendant’s culpability for his crime,” see Skip
per, 476 U. S., at 11 (opinion concurring in judgment).
Apart from the traditional sentencing factors such as “[e]vi
dence concerning the degree of the defendant’s participation
in the crime, or his age and emotional history,” Justice Pow
ell would have held that States could properly exclude evi
dence during a capital sentencing proceeding. Id., at 13.
The majority, however, took a more expansive view. Al
though it recognized that the probative force of Skipper’s
excluded evidence “would not relate specifically to petition
er’s culpability for the crime he committed, [there was] no
question but that such inferences would be ‘mitigating’ in
the sense that they might serve ‘as a basis for a sentence
less than death.’ ” Id., at 4–5 (quoting Lockett, 438 U. S.,
at 604 (plurality opinion); emphasis added). After Skipper,
then, the law was clear: A capital jury must be allowed to
consider a broader category of mitigating evidence than nor
mally relevant in noncapital proceedings.
Respondent was sentenced, however, before Easley re
wrote factor (k) and before Skipper resolved the confusion
less than death, whether or not related to the offense for which he is on
trial.” Cal. Jury Instr., Crim., No. 8.85(k) (2005) (brackets omitted).
That amendment confirms the view that the category of evidence that may
provide the basis for a sentence other than death is much broader than
the category described in factor (k).

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Stevens, J., dissenting
over whether States had the constitutional latitude to re
strict evidence that did not “tend to reduce the defendant’s
culpability for his crime,” 476 U. S., at 11 (Powell, J., concur
ring in judgment). As the following review of the record
will underscore, that confusion pervaded every aspect of re
spondent’s sentencing hearing. It addled the trial judge, the
prosecutor, defense counsel, and—inevitably—the jurors
themselves.
I
At the sentencing hearing, after the prosecution put on
its case—which consisted mainly of evidence of respondent’s
previous conduct, see Belmontes, 45 Cal. 3d, at 795, 755 P. 2d,
at 338–339—respondent countered with testimony from his
grandfather and his mother. That testimony focused almost
entirely on respondent’s background: His father drank to ex
cess and savagely beat his wife; his parents were divorced
when he was 9 or 10 years old; his mother remarried, but
again divorced when respondent was 14 or 15 years old; at
this point respondent became difficult to control, and, in 1979,
he was sent to the California Youth Authority (Youth Au
thority); after his release, respondent did not live with his
mother, although he kept in touch with her by telephone and
was very close with his 15-year-old sister. See generally
App. 5–22.
Next, the jury heard testimony from Robert Martinez and
his wife Darlene, both of whom testified that they were close
friends with respondent but admitted that they had seen him
only once after he was released from the Youth Authority.
Id., at 26–27, 35. Robert further testified that respondent
was the best man at his wedding and that, prior to his wed
ding, the two of them would spend a lot of time together,
working on Martinez’s car, drinking beer, and smoking mari
juana. Id., at 25, 28. The focus of Darlene’s testimony was
that she was a born-again Christian, and that, when respond
ent visited Darlene and her husband after his release from
the Youth Authority, he told her that he was also a born
again Christian. Id., at 35–36.

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30 AYERS v. BELMONTES
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Respondent then testified on his own behalf. When asked
about his childhood, respondent answered that he “can’t use
it as a crutch to say I am in a situation right now, I’m here
now because of that.” Id., at 40. He went on to describe
his relationships with his father and grandfather and to re
late his experience at the Youth Authority. Id., at 41–45.
Respondent testified that, while at the Youth Authority, he
became involved in a Christian program and developed a re
lationship with his sponsors in that program, Beverly and
Fred Haro. Id., at 46–48. Upon his release, however, re
spondent started having problems and abandoned his reli
gious commitment, something he had not yet regained fully
at the time of the sentencing hearing. Id., at 53–54. Re
spondent then described his life in prison and stated that,
were he given a life sentence, he would attempt to make a
positive contribution to society. Id., at 55–58. On cross
examination, most of the prosecutor’s questions focused on
the sincerity of respondent’s religious commitment. Id., at
58–65.
The following day, respondent presented testimony from
Reverend Dale Barrett and Don Miller, both ministers who
worked at the Youth Authority location where respondent
was held. Reverend Barrett described the Youth Author
ity’s M–2 program through which respondent was matched
with the Haros. Id., at 74–76. He then testified about re
spondent’s involvement with the church and the M–2 pro
gram, and how his interactions with respondent led him to
believe that he was “salvageable.” Id., at 76–82. Miller
similarly testified about respondent’s participation in the
program and his belief that respondent would be adept at
speaking with other prisoners about accepting religion. Id.,
at 92, 95–96; see also id., at 96 (testifying that respondent
would “[d]efinitely . . . be used in the prison system for this
sort of activity”).
Finally, the jury heard testimony from respondent’s spon
sors in the M–2 program, Fred and Beverly Haro. The

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Haros described meeting respondent and their experiences
with him. See generally id., at 99–104; 110–112. They also
testified about how close they had grown to respondent and
about respondent’s embrace of religion. Id., at 101–102;
112–113.
Taken as a whole, the sentencing testimony supports three
conclusions: First, excepting questions concerning the sin
cerity of respondent’s religious convictions, there was no sig
nificant dispute about the credibility of the witnesses; sec
ond, little if any of the testimony extenuated the severity of
respondent’s crime; and third, the testimony afforded the
jury a principled basis for imposing a sentence other than
death.
II
The prosecutor began his closing argument at the penalty
phase by describing “th[e] listing of aggravating and mitigat
ing circumstances” and instructing the jury that it must
“weigh one against the other.” Id., at 148. While he ob
served that “there is a proper place for sympathy and pas
sion,” ibid., the prosecutor emphasized that the jury could
only consider “the kind of sympathy the instruction tells you
to consider [i. e., sympathy that] naturally arises or properly
arises from the factors in aggravation and mitigation,”
id., at 149 (emphasis added). He repeated to the jury that
its duty was to “simpl[y] weig[h]” certain factors that the
judge “will tell you that you may take into account,” id., at
150–151, and he went through those listed factors one by one,
carefully discussing the evidence that supported each factor,
id., at 151–157.
When the prosecutor turned to factor (k), he directly ad
dressed the theory “that the defendant’s religious experience
is within that catchall that relates to the defendant at the
time he committed the crime, extenuates the gravity of the
crime.” Id., at 154. The prosecutor expressed doubt that
the jury could consider the evidence at all, stating “I’m not
sure it really fits in there. I’m not sure it really fits in any

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32 AYERS v. BELMONTES
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of them. But I think it appears to be a proper subject of
consideration.” Ibid. And again, after discussing the evi
dence supporting respondent’s religious experience, the
prosecutor questioned: “[I]s a religious awakening a basis for
determining penalty? That’s really the issue, how much
does that weigh, or does it weigh on one side or the other.”
Id., at 155. Ultimately, the prosecutor concluded: “I suppose
you can say it would be appropriate because—in this fashion:
The defendant may be of value to the community later. . . .
And I think that value to the community is something that
you have to weigh in. There’s something to that.” Ibid.
But immediately thereafter, the prosecutor told the jury:
“On the other hand, the fact that someone has religion
as opposed to someone doesn’t should be no grounds for
either giving or withholding life. . . . So if he says he has
religion, does he deserve the other penalty, life? I don’t
think that that should be an influencing factor at all in
that respect. I don’t think the law contemplates that
and I don’t think it’s right.” Ibid. (emphasis added).
In conclusion, the prosecutor described the circumstances of
the crime and asserted that “[a] dreadful crime requires a
dreadful penalty . . . .” Id., at 160.
Following the prosecutor’s closing argument, the trial
judge allowed respondent to address the jury directly. Re
spondent again stated that he could not use his childhood as
a crutch to explain his mistakes, and he said that his Chris
tianity, too, could not be used as a crutch. Id., at 162. Re
spondent then asked to keep his life, explaining that he un
derstood that he had to pay for the victim’s death, but that
he wanted the opportunity to try to improve himself in the
future. Id., at 163.
Respondent’s attorney, John Schick, then addressed the
jury. He made no effort to persuade the jurors that the mit
igating evidence somehow extenuated the severity of the

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crime. On the contrary, he said “I’m not going to insult you
by telling you I think [the mitigating evidence] excuses in
any way what happened here. That is not the reason I
asked these people to come in.” Id., at 166. Instead, he
argued that respondent might be able to make a positive con
tribution in a prison environment. He spoke about the way
that respondent improved after he met Beverly and Fred
Haro and about the way that respondent’s religion shaped
him, observing that religion plays a “very, very vital function
. . . in anybody’s life.” Ibid. But Schick took care to em
phasize that religion “does not excuse” the murder; rather,
the point of that mitigating evidence was to let the jury
“know something about the man.” Id., at 167, 166. He ad
mitted that respondent “cannot make it on the outside,” id.,
at 167, recognized that respondent needed to be punished,
and asked that the jury impose life in prison, a punishment
“that has meaning, that has teeth in it . . . ,” id., at 169.
Critically, Schick contended that life in prison was an ap
propriate sentence because respondent could, if given the
chance, “contribute something in whatever way he can.”
Id., at 170.
In sum, both counsel agreed that none of the mitigating
evidence could detract from the gravity of the crime, and
defense counsel even insisted that it would “insult” the jury
to suggest that the mitigating evidence “excuses in any way
what happened.” Id., at 166.
III
At a conference on jury instructions with the two counsel,
the trial judge plainly indicated that he believed that factor
(k) circumscribed the mitigating evidence the jury could con
sider. The judge lifted the principal jury instructions ver
batim from 7 of the 11 traditional sentencing factors set forth
in the statute, App. 184, but he refused defense counsel’s re
quest to give the jury a separate list of potential mitigating

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34 AYERS v. BELMONTES
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factors, id., at 142–143. Among those requested were two
that specifically instructed the jury to consider respondent’s
ability to perform constructive work in prison and to live in
confinement without acts of violence. See Brief for Re
spondent 5, n. 1. Those instructions would have been en
tirely proper—indeed, probably mandated—under our hold
ing in Skipper. But the prosecutor, not having the benefit
of Skipper, argued to the judge that “none [of the proposed
mitigating instructions] here . . . relates to circumstances
concerning the crime. I can’t conceal the fact that I think
that is the determinative factor in this case.” App. 142.
Agreeing, the judge refused to include the mitigating in
structions, making the astonishing statement that the in
structions already “seem to be a little over-laden with the
factors in mitigation rather than in aggravation.” Ibid.
Of particular importance, the judge modified defense coun
sel’s request that the jury be told that the instructions did
not contain an exhaustive list of mitigating factors. Id., at
141. While he did give such an instruction, ante, at 20, he
refused to include the following requested reference to non
statutory factors: “ ‘You may also consider any other cir
cumstances [relating to the case or the defendant, Mr. Bel
montes,] as reasons for not imposing the death sentence.’ ”
Brief for Respondent 25–26; contra, App. 186. The judge
thus expressly declined to invite the jury to weigh “poten
tially infinite mitigators,” contrary to the Court’s assumption
today, see ante, at 21. A more accurate summary of his
rulings is that the jury could weigh nonstatutory circum
stances—but only if they extenuated the severity of respond
ent’s offense.
IV
The next morning, the trial judge gave the jurors their
instructions. He opened with the unyielding admonition
that “[y]ou must accept and follow the rules of law as I state
them to you,” App. 175, and explained that he was required

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to read the instructions aloud even though they would have
a written copy available during their deliberations, ibid.
After reading a set of boilerplate instructions, id., at 176–
183, the judge turned to the subject of “determining which
penalty is to be imposed on the defendant,” id., at 183. He
told the jury to “consider all of the evidence . . . except as
you may be hereafter instructed,” ibid. (emphasis added),
and then stated: “You shall consider, take into account and
be guided by the following factors, if applicable,” id., at
183–184. He then proceeded to repeat verbatim 7 of the 11
factors set forth in the statute. Id., at 184. Except for the
reference to the “age of the defendant at the time of the
crime,” ibid., every one of those factors related to the sever
ity of the crime itself. See n. 1, supra. The last of them,
the factor (k) instruction, focused the jury’s attention on any
circumstance that “extenuates the gravity of the crime even
though it is not a legal excuse for the crime.” Ibid. No
factor permitted the jury to consider “any other ‘aspect of
[the] defendant’s character or record . . . that the defendant
proffers as a basis for a sentence less than death.’ ” Easley,
34 Cal. 3d, at 878, n. 10, 671 P. 2d, at 826, n. 10 (quoting
Lockett, 438 U. S., at 604 (plurality opinion)).
Emphasizing the importance of the listing of aggravating
and mitigating circumstances, the judge next instructed the
jury that it “shall consider, take into account and be guided
by the applicable factors of aggravating and mitigating cir
cumstances upon which you have been instructed.” App.
185 (emphasis added). In other words, in reaching its deci
sion, the jury was to consider each of the “applicable fac
tors”—here, the seven factors the judge just finished read
ing—and no others.
As the Court points out, ante, at 21, the judge did tell the
jury that “the mitigating circumstances which I have read
for your consideration are given to you merely as examples
of some of the factors that you may take into account as

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36 AYERS v. BELMONTES
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reasons for deciding not to impose . . . a death sentence . . . ,”
App. 186. But immediately afterwards, he instructed
the jury to “pay careful attention to each of these factors.
Any one of them standing alone may support a decision that
death is not the appropriate punishment in this case.” Ibid.
(emphasis added). Since none of “these factors” (save for
the age of the defendant) encompassed any mitigating cir
cumstance unrelated to the severity of the crime, the most
natural reading of the instruction is that any mitigating fac
tor that lessens the severity of the offense may support a
sentence other than death. On this view, any other mitigat
ing circumstance is simply irrelevant to (in the prosecutor’s
words) the “simple weighing” the jury was tasked with per
forming. Id., at 150.
V
Questions asked by at least six different jurors during al
most two full days of deliberation gave the judge an ample
opportunity to clarify that the testimony offered on behalf of
respondent, if credited by the jury, provided a permissible
basis for imposing a sentence other than death. Far from
eliminating their obvious confusion, his responses cemented
the impression that the jurors’ lone duty was to weigh speci
fied, limited statutory factors against each other.
After a lunch break, the judge reconvened the jury to an
swer a question that does not appear in the record; in re
sponse, the judge merely reread instructions telling the jury
that it “must agree, if [it] can,” and that it “shall consider,
take into account and be guided by the applicable factors of
aggravating and mitigating circumstances upon which you
have been instructed.” Id., at 185, 188–189 (emphasis
added). Because all of those factors were traditional sen
tencing factors, and because none of them permitted consid
eration of Skipper-type mitigating evidence, the judge’s
response was the functional equivalent of yet another admo
nition to disregard most of respondent’s evidence.

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After a colloquy between the judge and four different ju
rors (Hailstone, Wilson, Norton, and Huckabay) about the
likelihood of reaching a unanimous verdict,3 other jurors
asked the judge a series of questions reflecting a concern
about whether it was proper to consider aggravating or miti
gating circumstances other than those specifically listed in
his instructions:
“JUROR HERN: The statement about the aggrava
tion and mitigation of the circumstances, now, that was
the listing?
“THE COURT: That was the listing, yes, ma’am.
“JUROR HERN: Of those certain factors we were to
decide one or the other and then balance the sheet?
“THE COURT: That is right. It is a balancing proc
ess. Mr. Meyer?
“JUROR MEYER: A specific question, would this be
an either/or situation, not a one, if you cannot the other?
“THE COURT: No. It is not that.
“JUROR MEYER: It is an either/or situation?
3 “JUROR HAILSTONE: If we can’t, Judge, what happens?
“THE COURT: I can’t tell you that.
“JUROR WILSON: That is what we wanted to know.
“THE COURT: Okay. I know what will happen, but I can’t tell you
what will happen.
“MR. SCHICK: Maybe we should inquire whether the jury could reach
a verdict.
“THE COURT: Do you think, Mr. Norton, you will be able to make a
decision in this matter?
“JUROR HAILSTONE: Not the way it is going.
“JUROR NORTON: That is tough, yes.
“THE COURT: Do you think if I allow you to continue to discuss the
matter and for you to go over the instructions again with one another,
that the possibility of making a decision is there?
“JUROR NORTON: I believe there is a possibility.
“JUROR HUCKABAY: We did need more time.
“THE COURT: I think so. I think you need more time. ” App.
190–191.

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38 AYERS v. BELMONTES
Stevens, J., dissenting
“THE COURT: Exactly. If you can make that
either/or decision. If you cannot, then I will discharge
you.
“JUROR HAILSTONE: Could I ask a question? I
don’t know if it is permissible. Is it possible that he
could have psychiatric treatment during this time?
“THE COURT: That is something you cannot con
sider in making your decision.” App. 191.
The judge’s responses strongly suggest that the “list
ing”—the listed statutory factors—was all that the jury
could properly consider when “balanc[ing] the sheet.” See
n. 1, supra. But it is difficult, if not impossible, to see how
evidence relating to future conduct even arguably “extenu
ate[d] the gravity of the crime” 4 under factor (k), and none
of those listed factors gave the jury the chance to con
sider whether respondent might redeem himself in prison.
Cf. Brown v. Payton, 544 U. S. 133, 157 (2005) (Souter, J.,
dissenting) (“[I]t would be more than a stretch to say that
the seriousness of the crime itself is affected by a defendant’s
subsequent experience”). And rather than inviting an
open-ended review of mitigating factors that would include
consideration of the defendant’s possible future behavior in
prison, the judge’s answers emphasized the constraints on
the “either/or” decision the jurors had to make.5
4 Skipper v. South Carolina, 476 U. S. 1, 4 (1986), recognized that a de
fendant’s potential good behavior in the future would not relate to his
“culpability for the crime he committed.” Even the concurrence agreed:
“Almost by definition,” it reasoned, a prisoner’s good behavior “neither
excuses the defendant’s crime nor reduces his responsibility for its com
mission.” Id., at 12 (Powell, J., concurring in judgment).
5 When Juror Hailstone asked the judge about a particular piece of
forward-looking evidence—the possibility that respondent would get psy
chiatric treatment in prison—the judge told the jury that it could not
consider that evidence in making its decision. The judge’s answer, while
legally correct, lent further support to the conclusion that respondent’s
future conduct in a structured prison environment was not relevant be
cause it did not fall within any of the listed factors.

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39 Cite as: 549 U. S. 7 (2006)
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The arguments of counsel, the actual instructions to the
jury, and this colloquy all support the conclusion that the
jurors understood their task was to run through the listed
statutory factors and weigh them against each other to de
termine whether respondent should be sentenced to death.
Very little of respondent’s evidence, however, even arguably
“extenuate[d] the gravity of the crime.” In my judgment,
it is for that reason much more likely than not that the jury
believed that the law forbade it from giving that evidence
any weight at all. The Court of Appeals therefore correctly
set aside respondent’s death sentence. See Boyde v. Cali
fornia, 494 U. S. 370, 380 (1990) (plurality opinion) (requiring
that a defendant show only that “there is a reasonable likeli
hood that the jury has applied the challenged instruction in
a way that prevents the consideration of constitutionally rel
evant evidence”).
VI
Nothing in the Court’s opinion in Boyde upsets my view
that respondent’s death sentence cannot stand. Over the
dissent of four Justices, the Court in Boyde both adopted a
new “legal standard for reviewing jury instructions claimed
to restrict impermissibly a jury’s consideration of relevant
evidence,” id., at 378, and approved a blatantly atextual
interpretation of the unadorned factor (k) instruction, id.,
at 382, and n. 5. Applying its new standard and its dubious
reading of factor (k), the Court held that there was “not
a reasonable likelihood that Boyde’s jurors interpreted the
trial court’s instructions to prevent consideration of mitigat
ing evidence of background and character.” Id., at 381.
The Court rejected Boyde’s argument that factor (k) made
it impossible for the jury to consider testimony that Boyde
had won a prize for dance choreography while in prison,
which Boyde argued was Skipper-type evidence relating to
whether “he could lead a useful life behind bars,” 494 U. S.,
at 382, n. 5. But the Court did not hold or suggest that
factor (k) allowed for the consideration of Skipper-type evi

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40 AYERS v. BELMONTES
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dence. Instead, the Court found that the evidence of his
dance choreography talents was presented as part of his
“overall strategy to portray himself as less culpable than
other defendants due to his disadvantaged background and
his character strengths,” 494 U. S., at 382, n. 5 (emphasis
added), and therefore fell within the ambit of factor (k).
Thus, although the Boyde opinion does not state so explicitly,
it assumes that the factor (k) instruction would not permit
the jury to consider Skipper-type “evidence of postcrime
good prison behavior to show that [a defendant] would not
pose a danger to the prison community if sentenced to life
imprisonment rather than death.” 494 U. S., at 382, n. 5;
see also Skipper, 476 U. S., at 4 (recognizing that inferences
regarding a defendant’s “probable future conduct if sen
tenced to life in prison . . . would not relate specifically to
[the defendant’s] culpability for the crime he committed”);
Payton, 544 U. S., at 164 (Souter, J., dissenting) (“Boyde
did not purport to hold that factor (k) naturally called for
consideration of postcrime changes of fundamental views”).
Here, respondent contends that there is a reasonable likeli
hood that the judge’s instructions prevented the jury from
considering precrime, forward-looking mitigation evidence
regarding the possibility that he would lead a constructive
life in a prison setting. Not only does the Court’s opinion
in Boyde fail to support the improbable argument that re
spondent’s mitigating evidence falls within factor (k)’s pur
view, but its reasoning is entirely consistent with the Court
of Appeals’ contrary conclusion.
Similarly, the Court’s recent decision in Payton has little
bearing here. In Payton, we granted certiorari to decide
whether the Ninth Circuit’s decision affirming the District
Court’s grant of habeas relief “was contrary to the limits on
federal habeas review imposed by 28 U. S. C. § 2254(d).” 544
U. S., at 136. In concluding that it was, the Court relied
heavily on the deferential standard of habeas review estab
lished by the Antiterrorism and Effective Death Penalty Act

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41 Cite as: 549 U. S. 7 (2006)
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of 1996 (AEDPA), 110 Stat. 1214. See 544 U. S., at 141.
And Justice Breyer specifically stated that he only joined
the five-Justice majority because “this is a case in which
Congress’ instruction to defer to the reasonable conclusions
of state-court judges makes a critical difference,” id., at 148
(concurring opinion), explaining that, were he a California
state judge, he “would likely hold that Payton’s penalty
phase proceedings violated the Eighth Amendment [because]
there might well have been a reasonable likelihood that Pay
ton’s jury interpreted factor (k) in a way that prevented it
from considering constitutionally relevant mitigating evi
dence—namely, evidence of his postcrime religious conver
sion,” ibid. (citation, alteration, and internal quotation marks
omitted). The fact that Payton was a case about deference
under AEDPA, rather than about a proper understanding of
the scope of factor (k), is cause enough to conclude that it
does not mandate any specific outcome here.
Indeed, given that respondent’s trial occurred the same
year and involved the same jury instructions as Payton’s,
compare 544 U. S., at 156 (Souter, J., dissenting) (“ ‘[Y]ou
shall consider all of the evidence which has been received
during any part of the trial in this case, except as you may be
hereafter instructed’ ”), with App. 183 (same), and because
AEDPA does not apply to respondent’s case, there are per
suasive reasons for concluding that Justice Souter’s pow
erful reasoning in Payton, rather than the majority’s def
erential review of a California court’s opinion, should guide
our decision. In his dissenting opinion, Justice Souter
pointed out that Payton’s trial had occurred both before the
California Supreme Court had directed trial judges to sup
plement the factor (k) instruction and before the legislature
had amended it. See 544 U. S., at 158. Without those
changes, he correctly concluded, “any claim that factor
(k) called for consideration of a defendant’s personal develop
ment in the wake of his crime was simply at odds with com
mon attitudes and the English language.” Id., at 158–159.

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Moreover, Payton did not deal with a record that discloses
actual confusion among jurors, as this record does. See
supra, at 36–39. Nor did it involve a defense attorney who,
bolstering the prosecutor’s claim that factor (k) did not allow
the jury to consider respondent’s religious conversion, re
fused to “insult” the jury “by telling you I think [the miti
gating evidence] excuses in any way what happened here,”
App. 166. Therefore, even ignoring its significantly differ
ent procedural posture, Payton, like Boyde, falls far short
of compelling the result that the Court reaches today.
VII
Instead of accepting that lay jurors would almost certainly
give the words “circumstance which extenuates the gravity
of the crime” their ordinary meaning, the Court insists that
they would have disregarded their instructions and consid
ered evidence that had nothing whatsoever to do with the
crime. This conclusion seems to me to rest on an assump
tion that the jury had an uncanny ability to predict that fu
ture opinions would interpret factor (k) to mean something
that neither the judge nor the lawyers thought it meant.
Surely the more natural inference is that the jury followed
its instructions. See Greer v. Miller, 483 U. S. 756, 766,
n. 8 (1987) (describing our “presumption” that juries follow
instructions).
The Court’s highly technical parsing of factor (k) depends
on linguistic distinctions which would only occur to trained
lawyers. See, e. g., ante, at 19 (calling attention to the “di
chotomy within factor (k) . . . between a legal excuse and
an extenuating circumstance”). And even the lawyers are
confused. The prosecutor in Payton believed that “fac
tor (k) d[oes] not permit consideration of postcrime reha
bilitation evidence.” Ante, at 14. While the majority now
blithely characterizes this view as “incorrec[t],” ante, at 13,
it is the natural reading of factor (k), and one that jurors
would have been likely to accept. Similarly, present-day

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counsel for the State of California expressed confusion at
oral argument as to whether it would have been constitu
tional for the trial judge to instruct the jury that it could
not consider any mitigating evidence unless it extenuated the
gravity of the crime, see Tr. of Oral Arg. 8–9 (retreating
from the statement that “[i]t would appear not to be” consti
tutional). The Court cannot seriously insist that a group of
12 laypersons had such command of constitutional law that,
anticipating Skipper, they took into account evidence outside
the ambit of their jury instructions.
The Court also apparently believes that when the prosecu
tor in this case suggested that factor (k) meant exactly what
it said, supra, at 32, the jury would have taken that as
merely a comment on respondent’s credibility, ante, at 17.
But this rests on a clear misreading of the record. Although
the prosecutor did argue that respondent lacked sincere reli
gious convictions, he also suggested quite powerfully that
the law did not permit the jury to consider those convictions,
however sincerely held. See App. 155 (“I don’t think the
law contemplates that and I don’t think it’s right” (emphasis
added)). Nor is there any support for the Court’s surprising
and inherently contradictory view that while the prosecutor
here “commented that the law did not contemplate jury con
sideration of respondent’s religious conversion,” ante, at 18,
“[n]othing the prosecutor said would have convinced the
jury that it was forbidden from even considering respond
ent’s religious conversion,” ibid. (emphasis added).
Admittedly, as the Court points out, there is a distinction
between limiting the jury’s consideration to “circumstance[s]
of the crime” that extenuate its severity, and limiting that
consideration to “any other circumstance that might excuse
the crime,” see ante, at 15 (internal quotation marks omit
ted). It is highly unlikely, however, that jurors would note
that subtle distinction, and even more unlikely that they
would consider it significant. Both interpretations of the
phrase focus the jury’s attention on the crime, and neither

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includes the evidence at issue in Skipper, which “[a]lmost by
definition . . . neither excuses the defendant’s crime nor re
duces his responsibility for its commission.” 476 U. S., at 12
(Powell, J., concurring in judgment). Read however gener
ously, the factor (k) limitation remains unconstitutional.
The Court makes a similarly unpersuasive argument based
on the dubious premise that a juror would understand “re
morse” to be a species of postcrime evidence that serves to
lessen or excuse the crime itself. Even if that were true,
it would not follow that jurors could somehow divine that
respondent’s evidence of a capacity to redeem himself would
both “extenuate his offense and render him less deserving of
a death sentence.” Ante, at 16.6
VIII
Unless the jurors who imposed the death sentence some
how guessed at the breadth of the rule first announced in
Lockett, that sentence was the product of an unconstitutional
proceeding. Ironically, both Chief Justice Burger (who
wrote the plurality opinion in Lockett) and Justice Powell
(who joined it) understood the Lockett rule to extend only
to evidence “that lessens the defendant’s culpability for the
crime.” Skipper, 476 U. S., at 12 (Powell, J., joined by
Burger, C. J., and Rehnquist, J., concurring in judgment).
Given that the authors of Lockett themselves disagreed as to
its scope, I am not as sanguine as the Court that the lay
members of the jury somehow knew, notwithstanding clear
jury instructions, that the testimony presented at the sen
6 In response to the majority’s suggestion that this case may be incon
sistent with Johnson v. Texas, 509 U. S. 350 (1993), ante, at 24, I note only
that Johnson addressed a very different question, namely, whether a jury
considering future dangerousness could give adequate weight to a capital
defendant’s youth. Whatever connection may exist between a defendant’s
youth and his future dangerousness, there is no connection whatsoever
between respondent’s evidence that he was capable of redemption and a
“circumstance which extenuates the gravity of the crime,” Cal. Penal Code
Ann. § 190.3(k) (West 1988).

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tencing phase of respondent’s trial could be part of the “sim
ple weighing” the jury was supposed to undertake.
When the trial judge told the jurors to consider all the
evidence “except as you may be hereinafter instructed,”
App. 183, he directed them to limit their consideration to
the traditional sentencing factors set forth in the statute.
When the prosecutor told the jurors that “I don’t think the
law contemplates” that respondent’s religion lessened the se
riousness of respondent’s offense, id., at 155, he reinforced
the impression that the jury should confine its deliberations
to the listing. And once defense counsel agreed with the
prosecutor, saying that “I’m not going to insult you by telling
you I think [the mitigating evidence] excuses in any way
what happened here,” id., at 166, surely at least some of the
jurors would have doubted the propriety of speculating
about respondent’s future conduct in prison as a basis for
imposing a sentence less than death.
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 cha
rade,” ante, at 13 (internal quotation marks omitted)—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 confu
sion 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

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date is far outweighed by the interest in maintaining confi
dence 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).
Accordingly, I respectfully dissent.