Nate Oman asked me to forward this to the list:
Eugene,
The issue in Payton is actually (not surprisingly) narrower than portrayed by USA Today. It has to do with the issue of whether or not Paton was entitled to an instruction that under the rather inelegantly worded California death penalty statute the jury could consider post-crime rehabilitation in mitigation of his sentence. The California Supreme Court has already ruled that as a matter of state law the jury can consider such evidence. At Payton's trial, however, the court didn't give the jury any instructions on this point and simply read the language in the statute. In addition, the Court allowed the prosecution to argue to the jury that the statute did NOT allow them to consider post-crime rehabilitation. Payton argues that this violated his rights under the Eighth Amendment.
There is no challenge to the religious nature of his rehabilitation before the Court. Presumably, however, a jury could not mitigate his sentence merely because of his religious conversion per se, but they could take the religious conversion as evidence of real and sincere change. Indeed, I think that a jury could even draw the inference that deeply religious conversion was more probative of deep rehabilitation than would be a purely atheistic change of heart. I do not, however, believe that the jury could permissibly take the position that an atheist was incapable of similar rehabilitation. In other words, I think that jury ought to be able to consider religion as evidence of some other factor, but should not be able to use religion itself as the factor.
Nate Oman
___________________________________
Nathan Oman
SIDLEY AUSTIN BROWN & WOOD LLP
1501 K Street, NW
Washington, DC 20005
(202) 736-8680
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