BROWN, WARDEN v. SANDERS

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212 OCTOBER TERM, 2005
Syllabus
BROWN, WARDEN v. SANDERS
certiorari to the united states court of appeals for
the ninth circuit
No. 04–980. Argued October 11, 2005—Decided January 11, 2006
In convicting respondent Sanders of, inter alia, first-degree murder, the
jury found four “special circumstances,” each of which rendered him
death eligible under Cal. Penal Code Ann. § 190.2. At the penalty
phase, the jury was instructed to consider a list of sentencing factors,
including “[t]he circumstances of the crime . . . and the existence of any
special circumstances found to be true,” § 190.3(a), and sentenced him to
death. The State Supreme Court invalidated two of the special circum
stances on direct appeal, but nonetheless affirmed the conviction and
sentence. The Federal District Court subsequently denied Sanders ha
beas relief, rejecting his claim that the jury’s consideration of invalid
special circumstances rendered his death sentence unconstitutional.
Reversing, the Ninth Circuit applied the rules for “weighing” States,
see Stringer v. Black, 503 U. S. 222, rather than “non-weighing” States,
see Zant v. Stephens, 462 U. S. 862, and found that Sanders had been
unconstitutionally deprived of an individualized death sentence.
Held:
1. The requirement that States limit the class of murderers to which
the death penalty may be applied, Furman v. Georgia, 408 U. S. 238
(per curiam), is usually met when the trier of fact finds at least one
statutory eligibility factor at either the guilt or penalty phase. Once
this narrowing requirement has been satisfied, the sentencer must de
termine whether an eligible defendant should receive the death penalty;
many States channel this function by specifying aggravating factors
(sometimes identical to the eligibility factors) that are to be weighed
against mitigating considerations. In answering the question con
fronted here—what happens when the sentencer imposes the death pen
alty after finding a valid eligibility factor, but under a scheme in which
another eligibility factor is later held invalid—this Court has set forth
different rules for so-called weighing and non-weighing States. In a
weighing State, the sentencer could consider as aggravation only speci
fied eligibility factors. Where the sentencer relied on an eligibility fac
tor that was later invalidated, the sentencer was erroneously invited to
count the invalid factor as weighing in favor of death, thus “skewing”
the weighing process, Stringer, supra, at 232. Such automatic skewing
would not necessarily occur in a non-weighing State, however, which

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Syllabus
permitted the sentencer to consider aggravating factors different from,
or in addition to, the eligibility factors. This weighing/non-weighing
scheme seems needlessly complex and incapable of providing for the full
range of variations. This Court is henceforth guided by the following
rule: An invalidated sentencing factor (whether an eligibility factor or
not) will render the sentence unconstitutional by reason of its adding an
improper element to the aggravation scale in the weighing process un
less one of the other sentencing factors enables the sentencer to give
aggravating weight to the same facts and circumstances. Pp. 216–221.
2. The jury’s consideration of invalid special circumstances in Sand
ers’ case gave rise to no constitutional violation. In California, the
“special circumstances” listed in § 190.2 are the eligibility factors de
signed to satisfy Furman’s narrowing requirement. If the jury finds
the existence of one of those circumstances, it must “take into account”
a separate list of sentencing factors, including § 190.3(a)’s “circumstances
of the crime” factor. That factor has the effect of rendering all the
specified factors nonexclusive, thus making California (in this Court’s
prior terminology) a non-weighing State. Setting aside the weighing/
non-weighing dichotomy and applying the more direct analysis set out
here, two of the four special circumstances were invalidated, but the
remaining two are sufficient to satisfy Furman’s narrowing requirement
and alone rendered Sanders death eligible. Moreover, all of the facts
and circumstances admissible to prove the invalid eligibility factors
were also properly adduced as aggravating facts and circumstances
under the “circumstances of the crime” sentencing factor. Even if
§ 190.3(a)’s direction to consider “the existence of any special circum
stances found to be true” placed special emphasis upon the facts and
circumstances relevant to the invalid factors, that impact “cannot fairly
be regarded as a constitutional defect in the sentencing process,” Zant,
supra, at 889. Pp. 221–225.
373 F. 3d 1054, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J.,
and O’Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a
dissenting opinion, in which Souter, J., joined, post, p. 225. Breyer, J.,
filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 228.
Jane N. Kirkland, Deputy Attorney General of California,
argued the cause for petitioner. With her on the briefs were
Bill Lockyer, Attorney General, Manuel M. Medeiros, State
Solicitor General, Robert R. Anderson, Chief Assistant At
torney General, Mary Jo Graves, Senior Assistant Attorney

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214 BROWN v. SANDERS
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General, and Ward A. Campbell, Supervising Deputy Attor
ney General.
Nina Rivkind, by appointment of the Court, 544 U. S.
1017, argued the cause for respondent. With her on the
brief were Cliff Gardner and Eric E. Jorstad.*
Justice Scalia delivered the opinion of the Court.
We consider the circumstances in which an invalidated
sentencing factor will render a death sentence unconstitu
tional by reason of its adding an improper element to the
aggravation scale in the jury’s weighing process.
I
Respondent Ronald Sanders and a companion invaded the
home of Dale Boender, where they bound and blindfolded
him and his girlfriend, Janice Allen. Both of the victims
were then struck on the head with a heavy, blunt object;
Allen died from the blow. Sanders was convicted of first
degree murder, of attempt to murder Boender, and of rob
bery, burglary, and attempted robbery.
Sanders’ jury found four “special circumstances” under
California law, each of which independently rendered him
eligible for the death penalty. See Cal. Penal Code Ann.
§ 190.2 (West Supp. 1995). The trial then moved to a penalty
phase, at which the jury was instructed to consider a list of
sentencing factors relating to Sanders’ background and the
nature of the crime, one of which was “[t]he circumstances
of the crime of which the defendant was convicted in the
present proceeding and the existence of any special circum
stances found to be true.” § 190.3(a) (West 1999). The jury
sentenced Sanders to death.
On direct appeal, the California Supreme Court declared
invalid two of the four special circumstances found by the
*Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda
tion as amicus curiae urging reversal.

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jury. It nonetheless affirmed Sanders’ death sentence, rely
ing on our decision in Zant v. Stephens, 462 U. S. 862 (1983),
which, it said, “upheld a death penalty judgment despite in
validation of one of several aggravating factors.” People v.
Sanders, 51 Cal. 3d 471, 520, 797 P. 2d 561, 589–590 (1990) (in
bank). It affirmed the conviction and sentence in all other
respects. We denied certiorari. Sanders v. California, 500
U. S. 948 (1991).
Sanders then filed a petition for a writ of habeas corpus
pursuant to 28 U. S. C. § 2254 in the United States District
Court for the Eastern District of California, arguing, as rele
vant here, that the jury’s consideration of invalid special cir
cumstances rendered his death sentence unconstitutional.1
After Sanders exhausted various state remedies, the District
Court denied relief.
The Court of Appeals for the Ninth Circuit reversed.
Sanders v. Woodford, 373 F. 3d 1054 (2004). It concluded
that “the California court erroneously believed that it could
apply the rule of Zant v. Stephens, 462 U. S. 862 (1983)—
which is applicable only to nonweighing states—and uphold
the verdict despite the invalidation of two special circum
stances because it was upholding other special circum
stances.” Id., at 1064 (citations omitted). Finding Califor
nia to be a weighing State, and applying the rules we have
announced for such States, see Stringer v. Black, 503 U. S.
222, 232 (1992), the Ninth Circuit concluded that California
courts could uphold Sanders’ death sentence only by find
ing the jury’s use of the invalid special circumstances to
have been harmless beyond a reasonable doubt or by inde
pendently reweighing the sentencing factors under § 190.3.
Since, it continued, the state courts had done neither, Sand
ers had been unconstitutionally deprived of an “individual
1 Because Sanders filed his habeas petition before April 24, 1996, we do
not apply the substantive review standards required by the Antiterrorism
and Effective Death Penalty Act of 1996, 110 Stat. 1214. See Lindh v.
Murphy, 521 U. S. 320, 327 (1997).

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ized death sentence.” 373 F. 3d, at 1064. We granted cer
tiorari. 544 U. S. 947 (2005).
II
Since Furman v. Georgia, 408 U. S. 238 (1972) (per cu
riam), we have required States to limit the class of mur
derers to which the death penalty may be applied. This
narrowing requirement is usually met when the trier of
fact finds at least one statutorily defined eligibility factor at
either the guilt or penalty phase. See Tuilaepa v. Califor
nia, 512 U. S. 967, 971–972 (1994).2 Once the narrowing re
quirement has been satisfied, the sentencer is called upon to
determine whether a defendant thus found eligible for the
death penalty should in fact receive it. Most States channel
this function by specifying the aggravating factors (some
times identical to the eligibility factors) that are to be
weighed against mitigating considerations. The issue in the
line of cases we confront here is what happens when the sen
tencer imposes the death penalty after at least one valid eli
gibility factor has been found, but under a scheme in which
an eligibility factor or a specified aggravating factor is later
held to be invalid.
To answer that question, our jurisprudence has distin
guished between so-called weighing and non-weighing
States. The terminology is somewhat misleading, since we
have held that in all capital cases the sentencer must be
allowed to weigh the facts and circumstances that arguably
2 Our cases have frequently employed the terms “aggravating circum
stance” or “aggravating factor” to refer to those statutory factors which
determine death eligibility in satisfaction of Furman’s narrowing require
ment. See, e. g., Tuilaepa v. California, 512 U. S., at 972. This terminol
ogy becomes confusing when, as in this case, a State employs the term
“aggravating circumstance” to refer to factors that play a different role,
determining which defendants eligible for the death penalty will actually
receive that penalty. See Cal. Penal Code Ann. § 190.3 (West 1999). To
avoid confusion, this opinion will use the term “eligibility factor” to de
scribe a factor that performs the constitutional narrowing function.

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justify a death sentence against the defendant’s mitigating
evidence. See, e. g., Eddings v. Oklahoma, 455 U. S. 104, 110
(1982). The terminology was adopted, moreover, relatively
early in the development of our death-penalty jurisprudence,
when we were perhaps unaware of the great variety of forms
that state capital-sentencing legislation would ultimately
take. We identified as “weighing State[s]” those in which
the only aggravating factors permitted to be considered by
the sentencer were the specified eligibility factors. See,
e. g., Parker v. Dugger, 498 U. S. 308, 313, 318–319 (1991) (cit
ing Fla. Stat. § 921.141(3)(b) (1985)); Richmond v. Lewis, 506
U. S. 40, 47 (1992) (quoting Ariz. Rev. Stat. Ann. § 13–703(E)
(1989)). Since the eligibility factors by definition identified
distinct and particular aggravating features, if one of them
was invalid the jury could not consider the facts and circum
stances relevant to that factor as aggravating in some other
capacity—for example, as relevant to an omnibus “circum
stances of the crime” sentencing factor such as the one in
the present case. In a weighing State, therefore, the sen
tencer’s consideration of an invalid eligibility factor neces
sarily skewed its balancing of aggravators with mitigators,
Stringer, 503 U. S., at 232, and required reversal of the sen
tence (unless a state appellate court determined the error
was harmless or reweighed the mitigating evidence against
the valid aggravating factors), ibid.
By contrast, in a non-weighing State—a State that permit
ted the sentencer to consider aggravating factors different
from, or in addition to, the eligibility factors—this automatic
skewing would not necessarily occur. It would never occur
if the aggravating factors were entirely different from the
eligibility factors. Nor would it occur if the aggravating fac
tors added to the eligibility factors a category (such as an
omnibus “circumstances of the crime” factor, which is quite
common) that would allow the very facts and circumstances
relevant to the invalidated eligibility factor to be weighed

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in aggravation under a different rubric. We therefore set
forth different rules governing the consequences of an invali
dated eligibility factor in a non-weighing State.3 The sen
3 Justice Breyer contends that harmless-error review applies in both
weighing and non-weighing States. See post, at 235–239 (dissenting opin
ion). It would be strange indeed to discover at this late stage that our
long-held distinction between the two sorts of States for purposes of re
viewing invalid eligibility factors in fact made no difference. Cf., e. g.,
Stringer v. Black, 503 U. S. 222, 232 (1992) (weighing/non-weighing distinc
tion is “of critical importance”). Not surprisingly, the Courts of Appeals
have uniformly understood that different rules apply to weighing and
non-weighing States, and that harmless-error review is necessary only in
the former. See, e. g., Sanders v. Woodford, 373 F. 3d 1054, 1059–1060
(CA9 2004); Flamer v. Delaware, 68 F. 3d 736, 746–749 (CA3 1995); Wil
liams v. Cain, 125 F. 3d 269, 281 (CA5 1997).
Our own cases, moreover, are flatly inconsistent with requiring
harmless-error review in both types of States. As Justice Breyer
notes, post, at 235, Zant v. Stephens, 462 U. S. 862 (1983), did endorse
the Georgia Supreme Court’s holding that attaching the statutory label
“aggravating” to the invalid eligibility factor had an “inconsequential im
pact on the jury’s decision regarding the death penalty,” id., at 889 (inter
nal quotation marks omitted). But the core holding is what we said next:
“More importantly, . . . any possible impact cannot fairly be regarded
as a constitutional defect in the sentencing process.” Ibid. (emphasis
added); see also post, at 237–239. Zant must therefore be read not as
holding that any constitutional error was harmless, but as rejecting re
spondent’s claim of constitutional error.
Neither Clemons v. Mississippi, 494 U. S. 738 (1990), nor Stringer says
anything to the contrary. Justice Breyer points out that Clemons’
harmless-error discussion focused on the emphasis given to the invalid
factor, rather than on the fact that Mississippi is a weighing State, but that
is hardly relevant: Our discussion of how harmless-error analysis should be
conducted (the issue in the passage from Clemons that Justice Breyer
cites, 494 U. S., at 753–754) says nothing about when that analysis should
be conducted (the issue addressed by the weighing/non-weighing distinc
tion). On the latter question, Clemons maintains the distinction envi
sioned in Zant, see 462 U. S., at 890–891, between Georgia (a non-weighing
State) and Mississippi (a weighing State), see Clemons, supra, at 745.
Likewise, Stringer specifically distinguishes between non-weighing
States, in which “the fact that [the jury] also finds an invalid aggravating

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tencer’s consideration of an invalid eligibility factor amounts
to constitutional error in a non-weighing State in two situa
tions. First, due process requires a defendant’s death sen
tence to be set aside if the reason for the invalidity of the
eligibility factor is that it “authorizes a jury to draw adverse
inferences from conduct that is constitutionally protected,”
or that it “attache[s] the ‘aggravating’ label to factors that
are constitutionally impermissible or totally irrelevant to the
sentencing process, . . . or to conduct that actually should
militate in favor of a lesser penalty.” Zant, 462 U. S., at 885.
Second, the death sentence must be set aside if the jury’s
consideration of the invalidated eligibility factor allowed it
to hear evidence that would not otherwise have been before
it. See id., at 886; see also Tuggle v. Netherland, 516 U. S.
10, 13–14 (1995) (per curiam).4
This weighing/non-weighing scheme is accurate as far as
it goes, but it now seems to us needlessly complex and inca
pable of providing for the full range of possible variations.
For example, the same problem that gave rise to our
weighing-State jurisprudence would arise if it were a sen
tencing factor, and not an eligibility factor, that was later
found to be invalid. The weighing process would just as
factor does not infect the formal process of deciding whether death is
an appropriate penalty,” 503 U. S., at 232, and weighing States, in which
“constitutional harmless-error analysis or reweighing at the trial or appel
late level” is required, ibid.
4 The fact that a sentencer’s consideration of an invalid eligibility factor
in a non-weighing State may nonetheless amount to constitutional error
explains Tuggle’s characterization of Zant as holding “that a death sen
tence supported by multiple aggravating circumstances need not always
be set aside if one aggravator is found to be invalid,” 516 U. S., at 11
(emphasis added); cf. post, at 239 (Breyer, J., dissenting), as well as our
related comment in Clemons that, “[i]n a [non-weighing] State like
Georgia, . . . the invalidation of one aggravating circumstance does not
necessarily require an appellate court to vacate a death sentence and re
mand to a jury,” 494 U. S., at 744–745 (emphasis added); cf. post, at 241
(Breyer, J., dissenting).

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clearly have been prima facie “skewed,” and skewed for the
same basic reason: The sentencer might have given weight
to a statutorily or constitutionally invalid aggravator.5 And
the prima facie skewing could in appropriate cases be shown
to be illusory for the same reason that separates weighing
States from non-weighing States: One of the other aggravat
ing factors, usually an omnibus factor but conceivably an
other one, made it entirely proper for the jury to consider
as aggravating the facts and circumstances underlying the
invalidated factor.
We think it will clarify the analysis, and simplify the
sentence-invalidating factors we have hitherto applied to
non-weighing States, see supra, at 218–219, if we are hence
forth guided by the following rule: An invalidated sentencing
factor (whether an eligibility factor or not) will render the
sentence unconstitutional by reason of its adding an im
proper element to the aggravation scale in the weighing
process 6 unless one of the other sentencing factors enables
the sentencer to give aggravating weight to the same facts
and circumstances.
This test is not, as Justice Breyer describes it, “an in
quiry based solely on the admissibility of the underlying evi
dence.” Post, at 241 (dissenting opinion). If the presence
5 This very problem may have been present in Stringer v. Black, supra.
There, although the Mississippi courts invalidated an aggravating circum
stance—whether the murder was “especially heinous, atrocious, or cruel,”
Miss. Code Ann. § 99–19–101(5)(h) (1993 Cum. Supp.)—that was not one of
the specified eligibility factors, see § 97–3–19(2) (1994), we nonetheless
treated Mississippi as a weighing State. Since, however, Mississippi law
provided that the jury could not impose a death sentence unless it found
the existence of at least one statutory aggravating factor, see § 99–19–
101(3)(b) (1993 Cum. Supp.), it could be argued that the additional aggra
vating factors were converted into de facto eligibility factors.
6 There may be other distortions caused by the invalidated factor beyond
the mere addition of an improper aggravating element. For example,
what the jury was instructed to consider as an aggravating factor might
have “actually . . . militate[d] in favor of a lesser penalty,” Zant, supra, at
885. See supra, at 219.

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of the invalid sentencing factor allowed the sentencer to con
sider evidence that would not otherwise have been before it,
due process would mandate reversal without regard to the
rule we apply here. See supra, at 219; see also n. 6, supra.7
The issue we confront is the skewing that could result from
the jury’s considering as aggravation properly admitted evi
dence that should not have weighed in favor of the death
penalty. See, e. g., Stringer, 503 U. S., at 232 (“[W]hen the
sentencing body is told to weigh an invalid factor in its deci
sion, a reviewing court may not assume it would have made
no difference if the thumb had been removed from death’s
side of the scale”). As we have explained, such skewing will
occur, and give rise to constitutional error, only where the
jury could not have given aggravating weight to the same
facts and circumstances under the rubric of some other, valid
sentencing factor.
III
In California, a defendant convicted of first-degree murder
is eligible for the death penalty if the jury finds one of the
“special circumstances” listed in Cal. Penal Code Ann. § 190.2
(West Supp. 2005) to be true. These are the eligibility fac
tors designed to satisfy Furman. See People v. Baciga
7 This explains the footnote in Clemons v. Mississippi, supra, at 754,
n. 5, on which Justice Breyer relies, see post, at 240. That footnote
addressed petitioner’s argument that the Mississippi Supreme Court had
arbitrarily refused to order jury resentencing, even though it had done so
in an earlier case, Johnson v. State, 511 So. 2d 1333 (1987), rev’d, 486 U. S.
578 (1988), on remand, 547 So. 2d 59 (1989) (en banc). We distinguished
the two cases, noting that in Johnson, “the jury was permitted to consider
inadmissible evidence in determining the defendant’s sentence,” 494 U. S.,
at 754–755, n. 5, whereas in Clemons, “there is no serious suggestion that
the State’s reliance on the [invalid] factor led to the introduction of any
evidence that was not otherwise admissible in either the guilt or sentenc
ing phases of the proceeding,” id., at 755, n. 5. The crux of this distinction
is that the sentencer’s consideration of improper evidence is an error dis
tinct from the one at issue here and in Clemons, to wit, the jury’s weighing
in favor of death a factor that should not have been part of its calculus.

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lupo, 6 Cal. 4th 457, 467–468, 862 P. 2d 808, 813 (1993) (in
bank). If the jury finds the existence of one of the special
circumstances, it is instructed to “take into account” a sepa
rate list of sentencing factors describing aspects of the de
fendant and the crime. Cal. Penal Code Ann. § 190.3 (West
1999). These sentencing factors include, as we have said,
“[t]he circumstances of the crime of which the defendant was
convicted in the present proceeding.”
The Court of Appeals held that California is a weighing
State because “ ‘the sentencer [is] restricted to a “weighing”
of aggravation against mitigation’ and ‘the sentencer [is] pre
vented from considering evidence in aggravation other than
discrete, statutorily-defined factors.’ ” 373 F. 3d, at 1061
(quoting Williams v. Calderon, 52 F. 3d 1465, 1478 (CA9
1995); brackets in original). The last statement is inaccu
rate. The “circumstances of the crime” factor can hardly be
called “discrete.” It has the effect of rendering all the speci
fied factors nonexclusive, thus causing California to be (in
our prior terminology) a non-weighing State. Contrary to
Sanders’ contention, and Justice Stevens’ views in dissent,
the mere fact that the sentencing factors included “the exist
ence of any special circumstances [eligibility factors] found
to be true,” Cal. Penal Code Ann. § 190.3(a), did not make
California a weighing State. That fact was redundant for
purposes of our weighing jurisprudence because it in no way
narrowed the universe of aggravating facts the jury was
entitled to consider in determining a sentence.8 But leaving
8 Justice Stevens argues that § 190.3(a) may have affected the jury’s
deliberations in other ways, but we rejected each of these theories in Zant
v. Stephens, 462 U. S. 862 (1983). The possibility that the jury would
“coun[t] the nature of the crime twice,” post, at 226 (Stevens, J., dissent
ing), if it were instructed to consider both the facts of the crime and the
eligibility circumstances was present in Zant. The jury there was told it
could take into account all relevant circumstances, but also—much like the
jury here—was instructed to consider “ ‘any of [the] statutory aggravating
circumstances [i. e., eligibility factors] which you find are supported by the
evidence.’ ” 462 U. S., at 866. Likewise, the jury in Zant might have

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aside the weighing/non-weighing dichotomy and proceeding
to the more direct analysis set forth earlier in this opinion:
All of the aggravating facts and circumstances that the inval
idated factor permitted the jury to consider were also open
to their proper consideration under one of the other factors.
The erroneous factor could not have “skewed” the sentence,
and no constitutional violation occurred.
More specifically, Sanders’ jury found four special circum
stances to be true: that “[t]he murder was committed while
the defendant was engaged in . . . Robbery,” § 190.2(a)(17)(A)
(West Supp. 2005); that it was “committed while the defend
ant was engaged in . . . Burglary in the first or second de
gree,” § 190.2(a)(17)(G); that “[t]he victim [Allen] was a wit
ness to a crime who was intentionally killed for the purpose
of preventing . . . her testimony in any criminal . . . proceed
ing,” § 190.2(a)(10); and that “[t]he murder was especially
heinous, atrocious, or cruel,” § 190.2(a)(14). The California
Supreme Court set aside the burglary-murder special
circumstance under state merger law because the instruc
tions permitted the jury to find a burglary (and thus the
burglary-murder special circumstance) based on Sanders’ in
tent to commit assault, which is already an element of homi
cide, see People v. Wilson, 1 Cal. 3d 431, 439–440, 462 P. 2d
22, 27–28 (1969) (in banc). 51 Cal. 3d, at 517, 797 P. 2d, at
587. The court invalidated the “heinous, atrocious, or cruel”
special circumstance because it had previously found that to
be unconstitutionally vague. Id., at 520, 797 P. 2d, at 589
(citing People v. Superior Court, 31 Cal. 3d 797, 647 P. 2d 76
(1982) (in bank)).
As the California Supreme Court noted, however, “the
jury properly considered two special circumstances [eligibil
ity factors] (robbery-murder and witness-killing).” 51 Cal.
“give[n] greater weight,” post, at 226 (Stevens, J., dissenting), to the facts
underlying the eligibility circumstances, but we explicitly held that any
such effect “cannot fairly be regarded as a constitutional defect in the
sentencing process,” 462 U. S., at 889. See infra, at 224–225.

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3d, at 520, 797 P. 2d, at 589–590. These are sufficient to
satisfy Furman’s narrowing requirement, and alone ren
dered Sanders eligible for the death penalty. Moreover, the
jury’s consideration of the invalid eligibility factors in the
weighing process did not produce constitutional error be
cause all of the facts and circumstances admissible to estab
lish the “heinous, atrocious, or cruel” and burglary-murder
eligibility factors were also properly adduced as aggravating
facts bearing upon the “circumstances of the crime” sentenc
ing factor. They were properly considered whether or not
they bore upon the invalidated eligibility factors. See 51
Cal. 3d, at 521, 797 P. 2d, at 590.
Sanders argues that the weighing process was skewed by
the fact that the jury was asked to consider, as one of the
sentencing factors, “the existence of any special circum
stances [eligibility factors] found to be true.” Cal. Penal
Code Ann. § 190.3(a) (West 1999). In Sanders’ view, that
placed special emphasis upon those facts and circumstances
relevant to the invalid eligibility factor. Virtually the same
thing happened in Zant. There the Georgia jury was per
mitted to “ ‘conside[r] all evidence in extenuation, mitigation
and aggravation of punishment,’ ” 462 U. S., at 871–872 (quot
ing Zant v. Stephens, 250 Ga. 97, 99–100, 297 S. E. 2d 1, 3–4
(1982)), but also instructed specifically that it could consider
“ ‘any of [the] statutory aggravating circumstances which you
find are supported by the evidence,’ ” 462 U. S., at 866. This
instruction gave the facts underlying the eligibility factors
special prominence. Yet, even though one of the three fac
tors (that the defendant had a “substantial history of serious
assaultive convictions,” id., at 867) was later invalidated, we
upheld the sentence. We acknowledged that the erroneous
instruction “might have caused the jury to give somewhat
greater weight to respondent’s prior criminal record than it
otherwise would have given,” id., at 888; indeed, we assumed
such an effect, ibid. But the effect was “merely a conse
quence of the statutory label ‘aggravating circumstanc[e].’ ”

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We agreed with the Georgia Supreme Court that any such
impact was “ ‘inconsequential,’ ” id., at 889, and held that it
“cannot fairly be regarded as a constitutional defect in the
sentencing process,” ibid. The same is true here.
* * *
Because the jury’s consideration of the invalid “special cir
cumstances” gave rise to no constitutional violation, the
Court of Appeals erred in ordering habeas relief. The judg
ment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
Justice Stevens, with whom Justice Souter joins,
dissenting.
Our prior cases have drawn a simple categorical distinc
tion between a nonweighing State and a weighing State. In
the former, the sole function of an aggravating circumstance
finding is to make the defendant eligible for the death pen
alty. See, e. g., Zant v. Stephens, 462 U. S. 862, 874 (1983)
(“[I]n Georgia, the finding of an aggravating circumstance
does not play any role in guiding the sentencing body in the
exercise of its discretion [to impose the death penalty], apart
from its function of narrowing the class of persons convicted
of murder who are eligible for the death penalty”). In the
latter, such a finding performs a second function—it provides
a reason for deciding to impose that sentence on an eligible
defendant. See, e. g., Clemons v. Mississippi, 494 U. S. 738,
745 (1990) (“In Mississippi, unlike the Georgia scheme consid
ered in Zant, the finding of aggravating factors is part of the
jury’s sentencing determination, and the jury is required
to weigh any mitigating factors against the aggravating
circumstances”).
Thus, in a nonweighing State, the finding of four aggravat
ing circumstances has the same legal significance as a finding

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of three, and invalidation of one is presumptively harmless.
See Stringer v. Black, 503 U. S. 222, 232 (1992) (“In a non
weighing State, so long as the sentencing body finds at least
one valid aggravating factor, the fact that it also finds an
invalid aggravating factor does not infect the formal process
of deciding whether death is an appropriate penalty”). By
contrast, when a jury is told to weigh aggravating circum
stances against mitigating evidence in making its penalty de
cision, four aggravators presumptively are more weighty
than three. See ibid. (“[W]hen the sentencing body is told
to weigh an invalid factor in its decision, a reviewing court
may not assume it would have made no difference if the
thumb had been removed from death’s side of the scale”).
For example, when a jury, as here, is incorrectly informed
that its finding that a killing was “heinous, atrocious, or
cruel” provides a reason for imposing death, see generally
Cal. Penal Code Ann. § 190.2(a)(14) (West Supp. 2005), that
error may well affect the jury’s deliberations. Having been
told to weigh “[t]he circumstances of the crime . . . and the
existence of any [aggravating] circumstances found to be
true,” § 190.3(a) (West 1999) (emphasis added), the jury may
consider its conclusion that the killing was heinous sepa
rately from the “circumstances of the crime” underlying that
erroneous conclusion, improperly counting the nature of the
crime twice in determining whether a sentence of death is
warranted. Or the jury, recognizing that the legislature has
decided that a “heinous, atrocious, or cruel” murder, without
more, can be worthy of the death penalty, may consider this
a legislative imprimatur on a decision to impose death and
therefore give greater weight to its improper heinousness
finding than the circumstances of the crime would otherwise
dictate. Under either scenario a weight has been added to
death’s side of the scale, and one cannot presume that this
weight made no difference to the jury’s ultimate conclusion.
There are, of course, different weighing systems. If a
jury is told that only those specific aggravating circum

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stances making the defendant eligible for the death penalty
may provide reasons for imposing that penalty, its consider
ation of an invalid factor is obviously more prejudicial than
if the jury is told that it may also consider all of the circum
stances of the crime. The fact that California sentencing
juries may consider these circumstances increases the likeli
hood that their consideration of a subsequently invalidated
aggravating circumstance will be harmless, but it does not
take California out of the “weighing State” category.
The majority, however, has decided to convert the weigh
ing/nonweighing distinction from one focused on the role ag
gravating circumstances play in a jury’s sentencing delibera
tions to one focused on the evidence the jury may consider
during those deliberations. Compare Stringer, 503 U. S., at
229 (explaining that Mississippi is a weighing State because
the jury must weigh aggravating circumstances against miti
gating evidence in choosing whether to impose the death
penalty, while Georgia is a nonweighing State because “ag
gravating factors as such have no specific function in [that]
decision”), with ante, at 220 (“An invalidated sentencing fac
tor (whether an eligibility factor or not) will render the sen
tence unconstitutional by reason of its adding an improper
element to the aggravation scale in the weighing process un
less one of the other sentencing factors enables the sentencer
to give aggravating weight to the same facts and circum
stances” (footnote omitted)). But whether an aggravating
circumstance finding plays a role in the jury’s decision to
impose the death penalty has nothing to do with whether
the jury may separately consider “all the ‘circumstances of
the crime.’ ”
In this case, if the question had been presented to us,
I might well have concluded that the error here was harm
less. See generally Brecht v. Abrahamson, 507 U. S. 619,
638 (1993). But the State has merely asked us to decide
whether California is a weighing State, see Pet. for Cert. i,
and the Court of Appeals correctly decided that the statu

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tory text has unambiguously answered that question.
Cf. § 190.3 (enumerating aggravating and mitigating circum
stances and requiring “the trier of fact [to] impose a sentence
of death if [it] concludes that the aggravating circumstances
outweigh the mitigating circumstances”).
Instead of heeding this plain language, the Court has cho
sen to modify our settled law, ignoring the dual role played
by aggravating circumstances in California’s death penalty
regime. Because this decision is more likely to complicate
than to clarify our capital sentencing jurisprudence, I re
spectfully dissent.
Justice Breyer, with whom Justice Ginsburg joins,
dissenting.
The question before us is whether California’s approach to
imposing the death penalty makes California a “weighing”
or a “nonweighing” State for purposes of determining
whether to apply “harmless-error” review in a certain kind
of death case—namely, a case in which the death sentence
rests in part on an invalid aggravating circumstance. In my
view, it does not matter whether California is a “weighing”
or a “nonweighing” State, as ordinary rules of appellate re
view should apply. A reviewing court must find that the
jury’s consideration of an invalid aggravator was harmless
beyond a reasonable doubt, regardless of the form a State’s
death penalty law takes.
I
To understand my answer, one must fully understand the
question, including the somewhat misleading terminology in
which the question is phrased.
A
Death penalty proceedings take place in two stages. At
the first stage, the jury must determine whether there is
something especially wrongful, i. e., “aggravating,” about the
defendant’s conduct. State statutes typically list these spe

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cific “aggravating” factors, and the jury typically must find
at least one such factor present for the defendant to become
eligible for the death penalty. “By doing so, the jury nar
rows the class of persons eligible for the death penalty ac
cording to an objective legislative definition,” as required by
the Eighth Amendment. Lowenfield v. Phelps, 484 U. S.
231, 244 (1988). If the jury finds that an aggravating factor
is present and the defendant is consequently eligible for the
death penalty, it proceeds to Stage Two. At Stage Two, the
jury (or sometimes the judge) must determine whether to
sentence the defendant to death or to provide a different
sentence (usually, life imprisonment). At this stage, this
Court has said, States divide as to their approach.
Weighing States. Some States tell the jury: “Consider all
the mitigating factors and weigh them against the specific
aggravating factors that you found, at Stage One, made the
defendant eligible for the death penalty. If the aggravating
factors predominate, you must sentence the defendant to
death; otherwise, you may not.” Because the law in these
States tells the jury to weigh only statutory aggravating
factors (typically the same factors considered at Stage One)
against the mitigating factors, this Court has called these
States “weighing States.” This is something of a misnomer
because the jury cannot weigh everything but is instead lim
ited to weighing certain statutorily defined aggravating fac
tors. The Court has identified Mississippi as a classic exam
ple of a weighing State. See Stringer v. Black, 503 U. S.
222, 229 (1992).
Nonweighing States. Other States tell the jury: “Consider
all the mitigating factors and weigh them, not simply against
the statutory aggravating factors you previously found at
Stage One, but against any and all factors you consider ag
gravating.” Because the balance includes all aggravating
factors and not only those on the Stage One eligibility list,
this Court has called such States “nonweighing States.” Al
though it might be clearer to call these States “complete

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weighing” States (for the jury can weigh everything that is
properly admissible), I shall continue to use the traditional
terminology. The Court has identified Georgia as the proto
typical example of a State that has adopted this complete
weighing approach. Ibid.
B
The question in this case arises under the following
circumstances.
(1) At Stage One, a jury found several aggravating factors,
the presence of any one of which would make the defendant
eligible for the death penalty.
(2) At least one of those aggravating factors was an “im
proper” factor, i. e., a factor that the law forbids the jury
from considering as aggravating and that the jury’s use of
which (for this purpose) was later invalidated on appeal.
The sentencing court made a mistake, indeed a mistake of
constitutional dimensions, when it listed the “heinous, atro
cious, or cruel,” Cal. Penal Code Ann. § 190.2(a)(14) (West
Supp. 2005), aggravating factor as one of the several factors
for the jury to consider at Stage One. See Godfrey v. Geor
gia, 446 U. S. 420, 433 (1980) (plurality opinion). But that
mistake did not, in and of itself, forbid application of the
death penalty. After all, the jury also found other listed ag
gravating factors, the presence of any one of which made the
defendant eligible for the death penalty.
(3) All the evidence before the sentencing jury at Stage
Two was properly admitted. The evidence that supported
the improper heinousness factor, for example, also showed
how the crime was committed, and the jury is clearly entitled
to consider it.
Given this outline of the problem, two questions follow.
Question One: Is it possible that the judge’s legal mistake at
Stage One—telling the jury that it could determine that the
“heinous, atrocious, or cruel” aggravator was present—prej
udiced the jury’s decisionmaking at Stage Two? In other
words, could that mistake create harmful error, causing the

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jury to impose a death sentence due to the fact that it was
told to give special weight to its heinousness finding? The
lower courts have read this Court’s opinions to say that in a
nonweighing State the answer must be “no”; but in a weigh
ing State the answer might be “yes.”
Question Two: Given the lower courts’ answer to Question
One, is California a nonweighing State? If so, the reviewing
court can assume, without going further, that the error aris
ing out of the sentencing judge’s having listed an invalid ag
gravator was harmless. Or is California a weighing State?
If so, the reviewing court should have gone further and de
termined whether the error was in fact harmless.
I would answer Question Two by holding that the lower
courts have misunderstood this Court’s answer to Question
One. Despite the Court’s occasional suggestion to the con
trary, the weighing/nonweighing distinction has little to do
with the need to determine whether the error was harmless.
Moreover, given “the ‘acute need’ for reliable decisionmaking
when the death penalty is at issue,” Deck v. Missouri, 544
U. S. 622, 632 (2005), reviewing courts should decide if that
error was harmful, regardless of the form a State’s death
penalty law takes.
II
To distinguish between weighing and nonweighing States
for purposes of determining whether to apply harmless-error
analysis is unrealistic, impractical, and legally unnecessary.
A
Use of the distinction is unrealistic because it is unrelated
to any plausible conception of how a capital sentencing jury
actually reaches its decision. First, consider the kind of
error here at issue. It is not an error about the improper
admission of evidence. See infra, at 239–241. It is an error
about the importance a jury might attach to certain admissi
ble evidence. Using the metaphor of a “thumb on death’s
side of the scale,” we have identified the error as the “possi

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bility not only of randomness but also of bias in favor of the
death penalty.” Stringer v. Black, 503 U. S., at 236; see So
chor v. Florida, 504 U. S. 527, 532 (1992) (“Employing an
invalid aggravating factor in the weighing process creates
the possibility of randomness by placing a thumb on death’s
side of the scale, thus creating the risk of treating the de
fendant as more deserving of the death penalty” (internal
quotation marks, citations, and alterations omitted)).
Second, consider why that error could affect a decision to
impose death. If the error causes harm, it is because a jury
has given special weight to its finding of (or the evidence that
shows) the invalid “aggravating factor.” The jury might do
so because the judge or prosecutor led it to believe that state
law attaches particular importance to that factor: Indeed,
why else would the State call that factor an “aggravator”
and/or permit it to render a defendant death eligible? See
Zant v. Stephens, 462 U. S. 862, 888 (1983) (recognizing that
statutory label “arguably might have caused the jury to give
somewhat greater weight to respondent’s prior criminal rec
ord than it otherwise would have given”); see also ante, at
226 (Stevens, J., dissenting) (noting that jury may consider
the aggravating label “a legislative imprimatur on a decision
to impose death and therefore give greater weight to its im
proper heinousness finding . . . ”); Clemons v. Mississippi,
494 U. S. 738, 753, 755 (1990) (noting that the prosecutor
“repeatedly emphasized and argued the ‘especially heinous’
factor during the sentencing hearing” and remanding for
the Mississippi Supreme Court to conduct harmless-error
review).
The risk that the jury will give greater weight at Stage
Two to its Stage One finding of an aggravating factor—a
factor that, it turns out, never should have been found in the
first instance—is significant in a weighing State, for the
judge will explicitly tell the jury to consider that particular
aggravating factor in its decisionmaking process. That risk
may prove significant in a nonweighing State as well, for

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there too the judge may tell the jury to consider that aggra
vating factor in its decisionmaking process.
The only difference between the two kinds of States is
that, in the nonweighing State, the jury can also consider
other aggravating factors (which are usually not enumerated
by statute). Cf. Ga. Code Ann. § 17–10–30(b) (2004) ( judge
or jury “shall consider . . . any mitigating circumstances or
aggravating circumstances otherwise authorized by law and
any of the following statutory aggravating circumstances
which may be supported by the evidence” (emphasis added)).
But the potential for the same kind of constitutional harm
exists in both kinds of States, namely, that the jury will at
tach special weight to that aggravator on the scale, the ag
gravator that the law says should not have been there.
To illustrate this point, consider the following two state
ments. Statement One—The judge tells the jury in a
weighing State: “You can sentence the defendant to death
only if you find one, or more, of the following three aggravat
ing circumstances, X, Y, or Z. If you do, the law requires
you to consider those aggravators and weigh them against
the mitigators.” Statement Two—The judge tells the jury
in a nonweighing State: “You can sentence the defendant to
death only if you find one, or more, of the following three
aggravating circumstances, X, Y, or Z. If you do, the law
permits you to consider all mitigating and aggravating evi
dence, including X, Y, and Z, in reaching your decision.”
What meaningful difference is there between these two
statements? The decisionmaking process of the first jury
and that of the second jury will not differ significantly: Both
juries will weigh the evidence offered in aggravation and the
evidence offered in mitigation. Cf. Brief for Criminal Jus
tice Legal Foundation as Amicus Curiae 4 (“In reality, all
sentencers ‘weigh’ ”). If Statement One amounts to harmful
error because the prosecutor emphasized the importance of
wrongfully listed factor Y, why would Statement Two not
amount to similarly harmful error? In both instances, a

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jury might put special weight upon its previous finding of
factor Y. It is not surprising that commentators have found
unsatisfactory the Court’s efforts to distinguish between the
two statements for harmless-error purposes. See, e. g.,
Steiker & Steiker, Sober Second Thoughts: Reflections on
Two Decades of Constitutional Regulation of Capital Punish
ment, 109 Harv. L. Rev. 355, 386–387 (1995) (“[T]he differ
ent doctrinal approaches to ‘weighing’ and ‘non-weighing’
schemes are difficult to justify given that the sentencer’s de
cisionmaking process is likely to be similar under either
scheme”); Widder, Hanging Life in the Balance: The Su
preme Court and the Metaphor of Weighing in the Penalty
Phase of the Capital Trial, 68 Tulane L. Rev. 1341, 1363–1365
(1994) (arguing that the distinction is largely an “illusion”
that “appears to be derived from a fixation on the literal
meaning of the metaphor of weighing, [which] remains a com
mon means of describing the capital sentencing process even
in decisions of state courts that rely on the non-weighing
status of their statutory schemes to uphold [death] sentences
resting on invalid factors”).
B
The distinction is impractical to administer for it creates
only two paradigms—States that weigh only statutory ag
gravators and States that weigh any and all circumstances
(i. e., statutory and nonstatutory aggravators). Many
States, however, fall somewhere in between the two para
digms. A State, for example, might have a set of aggravat
ing factors making a defendant eligible for the death penalty
and an additional set of sentencing factors (unrelated to the
eligibility determination) designed to channel the jury’s dis
cretion. California is such a State, as it requires the jury to
take into account the eligibility-related aggravating factors
and 11 other sentencing factors—including an omnibus factor
that permits consideration of all of the circumstances of the
crime. Cal. Penal Code Ann. § 190.3 (West 1999). And be

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cause many States collapse Stage One (eligibility) and Stage
Two (sentence selection) into a single proceeding in which
the jury hears all of the evidence at the same time, those
States permit the prosecution to introduce and argue any
relevant evidence, including evidence related to the statutory
aggravators. Indeed, one State the Court has characterized
as a weighing State (Mississippi) and one State the Court
has characterized as a nonweighing State (Virginia) both fall
into this intermediate category. Miss. Code Ann. § 99–19–
101 (1973–2000); Va. Code Ann. § 19.2–264.4(B) (Lexis 2004).
Efforts to classify these varied schemes, for purposes of
applying harmless-error analysis, produce much legal heat
while casting little light.
C
Our precedents, read in detail, do not require us to main
tain this unrealistic and impractical distinction. The Court
has discussed the matter in three key cases. In the first
case, Zant v. Stephens, the Court considered an error that
arose in Georgia, a nonweighing State. The Georgia Su
preme Court had held that one of several statutory aggravat
ing circumstances found by the jury—that the defendant had
a “ ‘substantial history of serious assaultive criminal convic
tions’ ”—was unconstitutionally vague. 462 U. S., at 867,
and n. 5. The jury, however, had also found other aggrava
tors present, so the defendant remained eligible for death.
The Georgia Supreme Court concluded that the sentencing
court’s instruction on the unconstitutional factor, though er
roneous, “had ‘an inconsequential impact on the jury’s deci
sion regarding the death penalty.’ ” Id., at 889 (quoting
Zant v. Stephens, 250 Ga. 97, 100, 297 S. E. 2d 1, 4 (1982)).
This Court agreed with the Georgia Supreme Court’s con
clusion. The Court conceded that the label—“aggravating
circumstance”—created the risk that the jury might place
too much weight on the evidence that showed that aggrava
tor. Indeed, it said that the statutory label “ ‘aggravating
circumstance[s]’ ” might “arguably . . . have caused the jury

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to give somewhat greater weight to respondent’s prior crim
inal record than it otherwise would have given.” 462 U. S.,
at 888. But the Court concluded that, under the circum
stances, the error was harmless. For one thing, Georgia’s
statute permitted the jury to consider more than just the
specific aggravators related to Stage One. See id., at 886.
For another thing, the trial court’s “instructions did not place
particular emphasis on the role of statutory aggravating
circumstances in the jury’s ultimate decision.” Id., at
889 (citation omitted). In fact, it specifically told the jury
to “ ‘consider all facts and circumstances presented in ex
t[e]nuation . . . , mitigation and aggravation.’ ” Ibid. Fi
nally, there was no indication at all that either the judge or
the prosecutor tried to single out the erroneous aggravator
for special weight. Because under the circumstances there
was no real harm, the Court concluded that “any possible
impact cannot fairly be regarded as a constitutional defect in
the sentencing process.” Ibid.
The Court in Zant did not say that the jury’s consideration
of an improper aggravator is never harmless in a State like
Georgia. It did say that the jury’s consideration of the im
proper aggravator was harmless under the circumstances of
that case. And the Court’s detailed discussion of the jury
instructions is inconsistent with a rule of law that would re
quire an automatic conclusion of “harmless error” in States
with death penalty laws like Georgia’s. See id., at 888–889,
and n. 25; see also id., at 891 (“Under Georgia’s sentencing
scheme, and under the trial judge’s instructions in this case,
no suggestion is made that the presence of more than one
aggravating circumstance should be given special weight”
(emphasis added)).
The dissent in Zant also clearly understood the principal
opinion to have conducted a harmless-error analysis. Id., at
904–905 (opinion of Marshall, J., joined by Brennan, J.). And
the Court repeated this same understanding in a case de
cided only two weeks later. Barclay v. Florida, 463 U. S.
939, 951, n. 8 (1983) (plurality opinion) (upholding death sen

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tence and concluding that “we need not apply the type of
federal harmless-error analysis that was necessary in Zant”).
The second case, Clemons v. Mississippi, involved a
weighing State, Mississippi. The Mississippi Supreme
Court upheld the petitioner’s death sentence “even though
the jury instruction regarding one of the aggravating factors
pressed by the State, that the murder was ‘especially hei
nous, atrocious, or cruel,’ was constitutionally invalid.” 494
U. S., at 741. Finding it unclear whether the state court re
weighed the aggravating and mitigating evidence or con
ducted harmless-error review, the Court vacated and re
manded to the Mississippi Supreme Court to conduct either
procedure (or to remand to a sentencing jury) in the first
instance. Id., at 754.
As far as the Court’s “harmless-error” analysis reveals,
the reason the Court remanded—the reason it thought the
error might not be harmless—had nothing to do with the fact
that Mississippi was a so-called weighing State. Cf. ante, at
218–219, n. 3. Rather, the Court thought the error might
be harmful because “the State repeatedly emphasized and
argued the ‘especially heinous’ factor during the sentencing
hearing,” in stark contrast to the “little emphasis” it gave to
the other valid aggravator found by the jury. 494 U. S., at
753. The Court concluded that, “[u]nder these circum
stances, it would require a detailed explanation based on the
record for us possibly to agree that the error in giving the
invalid ‘especially heinous’ instruction was harmless.” Id.,
at 753–754.
The third case, Stringer v. Black, presented a different
kind of question: For the purposes of Teague v. Lane, 489
U. S. 288 (1989), does the rule that a vague aggravating cir
cumstance violates the Eighth Amendment apply to a weigh
ing State like Mississippi in the same way it applies to a
nonweighing State like Georgia? The Court answered this
question “yes.” In so doing, it described the difference be
tween Mississippi’s system and Georgia’s system as follows:

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“In a nonweighing State, so long as the sentencing body
finds at least one valid aggravating factor, the fact that
it also finds an invalid aggravating factor does not in
fect the formal process of deciding whether death is an
appropriate penalty. Assuming a determination by
the state appellate court that the invalid factor would
not have made a difference to the jury’s determination,
there is no constitutional violation resulting from the
introduction of the invalid factor in an earlier stage of
the proceedings. But when the sentencing body is told
to weigh an invalid factor in its decision, a reviewing
court may not assume it would have made no difference
if the thumb had been removed from death’s side of the
scale. When the weighing process itself has been
skewed, only constitutional harmless-error analysis or
reweighing at the trial or appellate level suffices to
guarantee that the defendant received an individualized
sentence.” 503 U. S., at 232 (emphasis added).
The first sentence in this statement is the first and only
suggestion in our cases that the submission of a vague aggra
vating circumstance to a jury can never result in constitu
tional error in a nonweighing State. Indeed, the term “non
weighing State,” and the significance attached to it, does not
appear in the Court’s jurisprudence prior to Stringer. The
second sentence in the statement is less categorical than the
first. It suggests that a state appellate court would have to
make some form of a harmless-error inquiry to satisfy itself
that the invalidated factor “would not have made a difference
to the jury’s determination” before it could conclude that
there was “no constitutional violation.” Ibid. Given this
errant language in Stringer, I agree that it is “[n]ot surpris
in[g]” that the lower courts have since operated under the
assumption “that different rules apply to weighing and non
weighing States,” and that harmless-error review is neces
sary only in the former. Ante, at 218, n. 3. My point is
simply that such an assumption is unfounded based on our

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prior cases. And regardless of the lower courts’ interpreta
tion of our precedents, I think it more important that our
own decisions have not repeated Stringer’s characterization
of those precedents. See, e. g., Tuggle v. Netherland, 516
U. S. 10, 11 (1995) (per curiam) (characterizing Zant as hold
ing “that a death sentence supported by multiple aggravat
ing circumstances need not always be set aside if one aggra
vator is found to be invalid” (emphasis added)).
For the reasons stated in Parts II–A and II–B, supra,
I would not take a single ambiguous sentence of dicta and
derive from it a rule of law that is unjustified and that, in
cases where the error is in fact harmful, would deprive a
defendant of a fair and reliable sentencing proceeding.
III
The upshot is that I would require a reviewing court to
examine whether the jury’s consideration of an unconstitu
tional aggravating factor was harmful, regardless of whether
the State is a weighing State or a nonweighing State. I
would hold that the fact that a State is a nonweighing State
may make the possibility of harmful error less likely, but it
does not excuse a reviewing court from ensuring that the
error was in fact harmless. Our cases in this area do not
require a different result.
IV
The Court reaches a somewhat similar conclusion. It, too,
would abolish (or at least diminish the importance of) the
weighing/nonweighing distinction for purposes of harmless
error analysis. But then, surprisingly, it also diminishes the
need to conduct any harmless-error review at all. If all the
evidence was properly admitted and if the jury can use that
evidence when it considers other aggravating factors, any
error, the Court announces, must be harmless. See ante, at
220 (holding that when “one of the other sentencing factors
enables the sentencer to give aggravating weight to the
same facts and circumstances” that underlie the invalidated

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240 BROWN v. SANDERS
Breyer, J., dissenting
aggravating factor, a reviewing court need not apply
harmless-error review).
Common sense suggests, however, and this Court has ex
plicitly held, that the problem before us is not a problem of
the admissibility of certain evidence. It is a problem of the
emphasis given to that evidence by the State or the trial
court. If that improper emphasis is strong enough, it can
wrongly place a “thumb on death’s side of the scale” at Stage
Two (sentencing). That is what the Court said in Stringer,
that is what the Court necessarily implied in Zant, and that
is what the Court held in Clemons. I believe the Court is
right to depart from the implication of an errant sentence in
Stringer. But it is wrong to depart without explanation
from Clemons’ unanimous holding—a holding that at least
two Members of this Court have explicitly recognized as
such. See Pensinger v. California, 502 U. S. 930, 931 (1991)
(O’Connor, J., joined by Kennedy, J., dissenting from denial
of certiorari) (noting that the “ ‘especially heinous’ instruc
tion did not change the mix of evidence presented to the jury
in [Clemons]” and “that fact alone did not support a finding
of harmlessness”).
The Court cannot reconcile its holding with Clemons.
That opinion makes clear that the issue is one of emphasis,
not of evidence. Indeed, the Court explicitly disavowed the
suggestion that Mississippi’s “reliance on the ‘especially hei
nous’ factor led to the introduction of any evidence that was
not otherwise admissible in either the guilt or sentencing
phases of the proceeding. All of the circumstances sur
rounding the murder already had been aired during the guilt
phase of the trial and a jury clearly is entitled to consider
such evidence in imposing [the] sentence.” 494 U. S., at 754–
755, n. 5. And the entire Court agreed that the potentially
improper emphasis consisted of the fact that “the State re
peatedly emphasized and argued the ‘especially heinous’ fac
tor during the sentencing hearing,” while placing “little em

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241 Cite as: 546 U. S. 212 (2006)
Breyer, J., dissenting
phasis” on the sole valid aggravator of robbery for pecuniary
gain. Id., at 753–754; see also id., at 773, n. 23 (Blackmun, J.,
joined by Brennan, Marshall, and Stevens, JJ., concurring in
part and dissenting in part).
The Court’s only answer is to assert that “Clemons main
tains the distinction envisioned in Zant.” Ante, at 218, n. 3
(citing Clemons, supra, at 745). But Clemons did no such
thing. Although the Court did observe the differences be
tween the statutory schemes of Georgia and Mississippi,
it certainly did not, as the Court claims, suggest that
harmless-error analysis should never be conducted in the for
mer and always be conducted in the latter. Rather, the
Court made the unremarkable statement that “[i]n a State
like Georgia, where aggravating circumstances serve only to
make a defendant eligible for the death penalty and not to
determine the punishment, the invalidation of one aggravat
ing circumstance does not necessarily require an appellate
court to vacate a death sentence and remand to a jury.”
Clemons, supra, at 744–745 (emphasis added). Of course,
the implication of the qualifier “necessarily” is that, in some
cases, a jury’s consideration of an invalidated aggravating
circumstance might require that a death sentence be va
cated, even “[i]n a State like Georgia.”
In sum, an inquiry based solely on the admissibility of the
underlying evidence is inconsistent with our previous cases.
And as explained above, see supra, at 231–234, the potential
for a tilting of the scales toward death is present even in
those States (like Georgia and Virginia) that permit a jury
to consider all of the circumstances of the crime.
V
It may well be that the errors at issue in this case were
harmless. The State of California did not ask us to consider
the Ninth Circuit’s contrary view, and I have not done so.
Given the fact that I (like the Court in this respect) would

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abolish the weighing/nonweighing distinction, and in light of
the explanation of the kind of error at issue, I would remand
this case and require the Ninth Circuit to reconsider its en
tire decision in light of the considerations I have described.