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BROWN v. SANDERS Opinion of the Court

ized death sentence.” 373 F. 3d, at 1064. We granted cer­ tiorari. 544 U. S. 947 (2005). II Since Furman v. Georgia, 408 U. S. 238 (1972) (per cu­ riam), we have required States to limit the class of mur­ derers to which the death penalty may be applied. This narrowing requirement is usually met when the trier of fact ﬁnds at least one statutorily deﬁned eligibility factor at either the guilt or penalty phase. See Tuilaepa v. Califor­ nia, 512 U. S. 967, 971–972 (1994).2 Once the narrowing re­ quirement has been satisﬁed, the sentencer is called upon to determine whether a defendant thus found eligible for the death penalty should in fact receive it. Most States channel this function by specifying the aggravating factors (some­ times identical to the eligibility factors) that are to be weighed against mitigating considerations. The issue in the line of cases we confront here is what happens when the sen­ tencer imposes the death penalty after at least one valid eli­ gibility factor has been found, but under a scheme in which an eligibility factor or a speciﬁed aggravating factor is later held to be invalid. To answer that question, our jurisprudence has distin­ guished between so-called weighing and non-weighing States. The terminology is somewhat misleading, since we have held that in all capital cases the sentencer must be allowed to weigh the facts and circumstances that arguably 2

Our cases have frequently employed the terms “aggravating circum­ stance” or “aggravating factor” to refer to those statutory factors which determine death eligibility in satisfaction of Furman’s narrowing require­ ment. See, e. g., Tuilaepa v. California, 512 U. S., at 972. This terminol­ ogy becomes confusing when, as in this case, a State employs the term “aggravating circumstance” to refer to factors that play a different role, determining which defendants eligible for the death penalty will actually receive that penalty. See Cal. Penal Code Ann. § 190.3 (West 1999). To avoid confusion, this opinion will use the term “eligibility factor” to de­ scribe a factor that performs the constitutional narrowing function.