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BROWN v. SANDERS Breyer, J., dissenting
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
