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 546US1

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Cite as: 546 U. S. 212 (2006)

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Syllabus permitted the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors. This weighing/non-weighing scheme seems needlessly complex and incapable of providing for the full range of variations. This Court is henceforth guided by the following rule: An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence 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 circumstances. Pp. 216–221. 2. The jury’s consideration of invalid special circumstances in Sand­ ers’ case gave rise to no constitutional violation. In California, the “special circumstances” listed in § 190.2 are the eligibility factors de­ signed to satisfy Furman’s narrowing requirement. If the jury ﬁnds the existence of one of those circumstances, it must “take into account” a separate list of sentencing factors, including § 190.3(a)’s “circumstances of the crime” factor. That factor has the effect of rendering all the speciﬁed factors nonexclusive, thus making California (in this Court’s prior terminology) a non-weighing State. Setting aside the weighing/ non-weighing dichotomy and applying the more direct analysis set out here, two of the four special circumstances were invalidated, but the remaining two are sufﬁcient to satisfy Furman’s narrowing requirement and alone rendered Sanders death eligible. Moreover, all of the facts and circumstances admissible to prove the invalid eligibility factors were also properly adduced as aggravating facts and circumstances under the “circumstances of the crime” sentencing factor. Even if § 190.3(a)’s direction to consider “the existence of any special circum­ stances found to be true” placed special emphasis upon the facts and circumstances relevant to the invalid factors, that impact “cannot fairly be regarded as a constitutional defect in the sentencing process,” Zant, supra, at 889. Pp. 221–225. 373 F. 3d 1054, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., ﬁled a dissenting opinion, in which Souter, J., joined, post, p. 225. Breyer, J., ﬁled a dissenting opinion, in which Ginsburg, J., joined, post, p. 228.

Jane N. Kirkland, Deputy Attorney General of California, argued the cause for petitioner. With her on the briefs were Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant At­ torney General, Mary Jo Graves, Senior Assistant Attorney