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Cite as: 546 U. S. 212 (2006)
229
Breyer, J., dissenting
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
