738
Opinion of the Court
factors supported by the evidence and all the mitigating factors supported by the evidence.
. . . . . "If you unanimously find, from your consideration of all the evidence, that there are no mitigating factors sufficient to preclude imposition of the death sentence, then you should sign the verdict requiring the Court sentence the Defendant to death." App. 122-123.
Any juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider the mitigating evidence and to decide if it is sufficient to preclude imposition of the death penalty. Any contrary reading of this instruction, or more importantly, the controlling statute, renders the term "sufficient" meaningless. The statute plainly indicates that a lesser sentence is available in every case where mitigating evidence exists; thus any juror who would invariably impose the death penalty upon conviction cannot be said to have reached this decision based on all the evidence. While Justice Scalia chooses to argue that such a "merciless juro[r]" is not a "lawless" one, post, at 751, he is in error, for such a juror will not give mitigating evidence the consideration that the statute contemplates. Indeed, the Illinois Supreme Court recognizes that jurors are not impartial if they would automatically vote for the death penalty, and that questioning in the manner petitioner requests is a direct and helpful means of protecting a defendant's right to an impartial jury. See n. 3, supra. The State has not suggested otherwise in this Court.
Surely if in a particular Illinois case the judge, who imposes sentence should the defendant waive his right to jury sentencing under the statute, see n. 1, supra, was to announce that, to him or her, mitigating evidence is beside the point and that he or she intends to impose the death penalty without regard to the nature or extent of mitigating evidence
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