STEVENS, J., concurring

factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.

The order of the Court of Appeals is vacated, and the cases are remanded for further proceedings consistent with this opinion. Pursuant to this Court's Rule 45.3, the Clerk is directed to issue the judgment in these cases forthwith.

It is so ordered.

JUSTICE STEVENS, concurring.

Allowing the election to proceed without enjoining the statutory provisions at issue will provide the courts with a better record on which to judge their constitutionality. At least two important factual issues remain largely unresolved: the scope of the disenfranchisement that the novel identification requirements will produce, and the prevalence and character of the fraudulent practices that allegedly justify those requirements. Given the importance of the constitutional issues, the Court wisely takes action that will enhance the likelihood that they will be resolved correctly on the basis of historical facts rather than speculation.

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 constructive 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 mitigating evidence and how the jury should consider it. The trial judge told the jury to consider "[a]ny other circumstance which extenuates 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 thenapplicable statutory scheme. Respondent was sentenced to death. He contended, on direct review and in federal habeas proceedings, that factor (k) and the trial court's other instructions barred the jury from considering 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 constitutionally 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 proceedings, 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

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 evidence 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 postcrime rehabilitation (Payton) may "extenuat[e] 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. 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 consistent with the evidence presented to the jury, the parties' closing arguments, 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 assess 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 mitigation. The judge told the jury to consider all of the evidence, which included respondent's forward-looking mitigation case. The sharp contrast 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 forwardlooking 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.

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 concurring 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 Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen, Assistant Supervising Deputy Attorney General, and Ward A. Campbell, former Supervising 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.

Opinion of the Court

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, directed the jury, with other instructions and in a context to be discussed in more detail, to consider certain specific factors either as aggravating or mitigating. The trial court further instructed the jury to consider "[a]ny other circumstance 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 forwardlooking 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 mitigating 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 contention 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, respondent filed an amended federal habeas petition. The United States District Court for the Eastern District of California 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.