BROWN, WARDEN v. SANDERS
No. 04-980
SUPREME COURT OF THE UNITED STATES
Argued October 11, 2005—Decided January 11, 2006
546 U.S. 212
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 Attorney General, Mary Jo Graves, Senior Assistant Attorney
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 unconstitutional 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 robbery, 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
On direct appeal, the California Supreme Court declared invalid two of the four special circumstances found by the
Sanders then filed a petition for a writ of habeas corpus pursuant to
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 circumstances because it was upholding other special circumstances.” Id., at 1064 (citations omitted). Finding California 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 finding the jury‘s use of the invalid special circumstances to have been harmless beyond a reasonable doubt or by independently reweighing the sentencing factors under
II
Since Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), we have required States to limit the class of murderers 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. California, 512 U. S. 967, 971-972 (1994).2 Once the narrowing requirement 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 (sometimes 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 sentencer imposes the death penalty after at least one valid eligibility 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 distinguished 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
By contrast, in a non-weighing State—a State that permitted 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 factors 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
This weighing/non-weighing scheme is accurate as far as it goes, but it now seems to us needlessly complex and incapable 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 sentencing factor, and not an eligibility factor, that was later found to be invalid. The weighing process would just as
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 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 process6 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 inquiry based solely on the admissibility of the underlying evidence.” Post, at 241 (dissenting opinion). If the presence
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
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] prevented 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 inaccurate. The “circumstances of the crime” factor can hardly be called “discrete.” It has the effect of rendering all the specified 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 existence of any special circumstances [eligibility factors] found to be true,”
More specifically, Sanders’ jury found four special circumstances to be true: that “[t]he murder was committed while the defendant was engaged in . . . Robbery,”
As the California Supreme Court noted, however, “the jury properly considered two special circumstances [eligibility factors] (robbery-murder and witness-killing).” 51 Cal.
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 circumstances [eligibility factors] found to be true.”
* * *
Because the jury‘s consideration of the invalid “special circumstances” gave rise to no constitutional violation, the Court of Appeals erred in ordering habeas relief. The judgment 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 distinction 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 penalty. 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 considered 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 aggravating circumstances has the same legal significance as a finding
There are, of course, different weighing systems. If a jury is told that only those specific aggravating circum-
The majority, however, has decided to convert the weighing/nonweighing distinction from one focused on the role aggravating circumstances play in a jury‘s sentencing deliberations 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 mitigating evidence in choosing whether to impose the death penalty, while Georgia is a nonweighing State because “aggravating factors as such have no specific function in [that] decision“), with ante, at 220 (“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 unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances” (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 harmless. 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-
Instead of heeding this plain language, the Court has chosen 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 respectfully 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 review 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-
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 limited to weighing certain statutorily defined aggravating factors. The Court has identified Mississippi as a classic example 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 aggravating.” 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.” Although it might be clearer to call these States “complete
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 “improper” 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, atrocious, or cruel,”
(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—prejudiced the jury‘s decisionmaking at Stage Two? In other words, could that mistake create harmful error, causing the
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 arising out of the sentencing judge‘s having listed an invalid aggravator was harmless. Or is California a weighing State? If so, the reviewing court should have gone further and determined 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 contrary, 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 admissible evidence. Using the metaphor of a “thumb on death‘s side of the scale,” we have identified the error as the “possi-
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 record 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 improper 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
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.
To illustrate this point, consider the following two statements. 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 aggravating 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 evidence, 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 Justice 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
B
The distinction is impractical to administer for it creates only two paradigms—States that weigh only statutory aggravators and States that weigh any and all circumstances (i. e., statutory and nonstatutory aggravators). Many States, however, fall somewhere in between the two paradigms. A State, for example, might have a set of aggravating 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 discretion. 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.
C
Our precedents, read in detail, do not require us to maintain 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 Supreme Court had held that one of several statutory aggravating circumstances found by the jury—that the defendant had a “‘substantial history of serious assaultive criminal convictions‘“—was unconstitutionally vague. 462 U. S., at 867, and n. 5. The jury, however, had also found other aggravators present, so the defendant remained eligible for death. The Georgia Supreme Court concluded that the sentencing court‘s instruction on the unconstitutional factor, though erroneous, “had ‘an inconsequential impact on the jury‘s decision 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 conclusion. 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 aggravator. Indeed, it said that the statutory label “aggravating circumstance[s]” might “arguably . . . have caused the jury
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 improper 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 require 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 decided only two weeks later. Barclay v. Florida, 463 U. S. 939, 951, n. 8 (1983) (plurality opinion) (upholding death sen
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 heinous, atrocious, or cruel,’ was constitutionally invalid.” 494 U. S., at 741. Finding it unclear whether the state court reweighed the aggravating and mitigating evidence or conducted harmless-error review, the Court vacated and remanded 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 circumstances, 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 circumstance violates the
“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 infect 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 aggravating circumstance to a jury can never result in constitutional error in a nonweighing State. Indeed, the term “nonweighing 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 surprisin[g]” that the lower courts have since operated under the assumption “that different rules apply to weighing and nonweighing States,” and that harmless-error review is necessary only in the former. Ante, at 218, n. 3. My point is simply that such an assumption is unfounded based on our
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 unconstitutional 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
Common sense suggests, however, and this Court has explicitly 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’ instruction 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 heinous’ 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 surrounding 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 repeatedly emphasized and argued the ‘especially heinous’ factor during the sentencing hearing,” while placing “little em
The Court‘s only answer is to assert that ”Clemons maintains 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 between 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 former 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 aggravating 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 vacated, 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
Notes
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 impact on the jury‘s decision regarding the death penalty,” id., at 889 (internal 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 respondent‘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 distinction). On the latter question, Clemons maintains the distinction envisioned 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
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 appellate level” is required, ibid.