Anthony Kennedy

“ In a State where there is no final mandatory or balancing stage in the sentencing process that could allow a single juror to control the ultimate outcome, it simply imposes a proof requirement that must be met before the evidence can be used as a mitigating factor specifically found by the jury as a whole. ”

“ Even so, the Court stressed that the unanimity requirement there, combined with the final stage of the Maryland statute, could produce an arbitrary result: "a jury that does not unanimously agree on the existence of any mitigating circumstance may not give mitigating evidence any effect whatsoever, and must impose the sentence of death." ”

“ If the jurors follow their instructions, as we must assume they will, the 11 must disregard the mitigating circumstance. After the balancing step of the statute is performed, there can be only one result. The " 'judgment is death even though eleven jurors think the death penalty wholly inappropriate.' " Mills, supra, 486 U.S., at 374, 108 S.Ct., at 1865. Given the reasoned, moral judgment inherent in capital sentencing by the jury, the extreme arbitrariness of this potential result is evident. ”