546US1
Unit: $U17
[08-22-08 15:50:12] PAGES PGT: OPIN
Cite as: 546 U. S. 212 (2006)
227
Stevens, J., dissenting
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
