## Facts

- James P. Free, Jr. was convicted of murder in Illinois state court and sentenced to death under Illinois’s capital sentencing scheme.
- Free filed a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 raising numerous challenges to his conviction and sentence.
- The district court referred parts of the matter to Magistrate Judge Bernard Weisberg, who conducted an evidentiary hearing focused on whether the sentencing jury likely misunderstood how to treat mitigating evidence under the pattern instructions used in Illinois capital cases.
- Free argued that the Illinois penalty-phase instructions—especially the direction to impose death if the jurors found “no mitigating factors sufficient to preclude the imposition of the death sentence”—did not clearly communicate a weighing process and instead suggested that death should follow unless mitigation “prevented” it.
- To support that claim, Free relied primarily on two juror-comprehension surveys conducted in Cook County, Illinois, in 1990 and 1992 by academic researchers (including Professor Hans Zeisel) that tested actual jurors’ understanding of Illinois capital sentencing instructions.
- The surveys examined whether jurors understood, among other things, the meaning of “sufficient to preclude,” whether mitigation needed to be unanimous, and whether the statute required aggravation to outweigh mitigation before death could be imposed.
- The State objected to the surveys on grounds including sample representativeness and differences between the two survey administrations, but the researchers presented statistical confidence intervals (including 95% and 99% levels) tied to the reported response rates.
- The magistrate judge concluded the record showed a significant likelihood of juror confusion and recommended granting habeas relief as to the death sentence; both Free and the State filed objections, and the district judge conducted review of the recommendation and the developed record.

## Issues

1. Whether the Eighth and Fourteenth Amendments were violated because the Illinois capital sentencing instructions used in Free’s case created a substantial risk that jurors misunderstood their duty to consider and give effect to mitigating evidence.
2. Whether empirical juror-survey evidence could be considered in a federal habeas case to assess how capital jurors likely understood the challenged instructions.
3. Whether any failure to raise or develop the juror-comprehension claim fully in state court was excused by “cause and prejudice,” including cause based on the later availability of the survey evidence.
4. Whether granting relief would require announcing a “new rule” barred on habeas by Teague v. Lane, or instead would apply existing Eighth Amendment doctrine to the evidentiary record developed in federal court.

## Decision

- The district court (N.D. Ill.) granted the writ of habeas corpus as to Free’s death sentence and left the underlying murder conviction undisturbed. 806 F. Supp. 705.
- The court concluded that the “sufficient to preclude” formulation, as presented through the Illinois pattern instructions given at Free’s penalty phase, posed an unacceptable risk that jurors would misapprehend how mitigation operated and would not reliably perform the sentencing task required by the Eighth Amendment.
- The court credited the evidentiary hearing record and found the juror surveys sufficiently reliable and probative to show that jurors frequently misconstrued the instructions in ways tied to the constitutional concern—confusion about the meaning of “preclude” and about how mitigating evidence could affect the outcome.
- The court rejected the State’s objections that the surveys were too unrepresentative or too inconsistent to be useful, emphasizing the manner of administration to actual jurors and the statistical treatment of the results.
- The court held Free established cause and prejudice to the extent any procedural default argument applied, because the core empirical basis for the claim was not realistically available during the state proceedings and the risk of a misunderstanding-based death sentence constituted prejudice.
- The court determined Teague did not bar relief because Free was not seeking a new constitutional rule; he sought application of established Eighth Amendment requirements (including guided discretion and meaningful consideration of mitigation) to evidence showing how the instructions functioned in practice.
- As a remedy, the court vacated the death sentence and allowed Illinois to pursue a new capital sentencing proceeding with constitutionally adequate instructions.

## Legal Principles

- A death sentence violates the Eighth Amendment if the sentencing process creates a substantial risk that jurors cannot understand their task in a way that permits consideration and effect of mitigating evidence.
- Capital sentencing instructions must provide intelligible guidance that channels sentencing discretion; instructions that reasonably lead jurors to think death is the default outcome unless mitigation “prevents” it raise constitutional concerns.
- In federal habeas review, a court may consider evidence developed outside the trial record, including empirical evidence, when deciding whether the challenged sentencing procedure created an unconstitutional risk of arbitrary death sentencing.
- A habeas petitioner may overcome a procedural default by showing cause (such as the practical unavailability of key evidentiary support during state litigation) and prejudice (a meaningful likelihood that the error affected the sentencing outcome).
- Teague v. Lane does not bar habeas relief when the petitioner seeks application of settled Eighth Amendment doctrine to a developed factual record rather than adoption of a new constitutional standard.
- When the constitutional error is confined to the penalty phase, the proper relief is vacatur of the death sentence while leaving the conviction intact and permitting the State to conduct a new sentencing hearing.

## Conclusion

In United States ex rel. Free v. Peters, the district court granted federal habeas relief from an Illinois death sentence after finding that the penalty-phase instructions—especially the “no mitigating factors sufficient to preclude” language—created a serious risk that jurors misunderstood how to treat mitigation, and it relied heavily on juror-survey evidence developed at a federal evidentiary hearing to conclude the sentencing process did not satisfy the Eighth Amendment; the conviction remained in place and Illinois was permitted to seek a new sentencing proceeding.


United States ex rel. Free v. Peters, 806 F. Supp. 705 (1992)