546US1
Unit: $U17
[08-22-08 15:50:12] PAGES PGT: OPIN
Cite as: 546 U. S. 212 (2006)
231
Breyer, J., dissenting
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
