546US1
Unit: $U17
[08-22-08 15:50:12] PAGES PGT: OPIN
Cite as: 546 U. S. 212 (2006)
237
Breyer, J., dissenting
tence and concluding that “we need not apply the type of federal harmless-error analysis that was necessary in Zant”). 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 hei nous, atrocious, or cruel,’ was constitutionally invalid.” 494 U. S., at 741. Finding it unclear whether the state court re weighed the aggravating and mitigating evidence or con ducted harmless-error review, the Court vacated and re manded 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 circum stances, 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 cir cumstance violates the Eighth Amendment apply to a weigh ing State like Mississippi in the same way it applies to a nonweighing State like Georgia? The Court answered this question “yes.” In so doing, it described the difference be tween Mississippi’s system and Georgia’s system as follows:
