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[08-22-08 15:50:12] PAGES PGT: OPIN

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

217

Opinion of the Court

justify a death sentence against the defendant’s mitigating evidence. See, e. g., Eddings v. Oklahoma, 455 U. S. 104, 110 (1982). The terminology was adopted, moreover, relatively early in the development of our death-penalty jurisprudence, when we were perhaps unaware of the great variety of forms that state capital-sentencing legislation would ultimately take. We identiﬁed as “weighing State[s]” those in which the only aggravating factors permitted to be considered by the sentencer were the speciﬁed eligibility factors. See, e. g., Parker v. Dugger, 498 U. S. 308, 313, 318–319 (1991) (cit­ ing Fla. Stat. § 921.141(3)(b) (1985)); Richmond v. Lewis, 506 U. S. 40, 47 (1992) (quoting Ariz. Rev. Stat. Ann. § 13–703(E) (1989)). Since the eligibility factors by deﬁnition identiﬁed distinct and particular aggravating features, if one of them was invalid the jury could not consider the facts and circum­ stances relevant to that factor as aggravating in some other capacity—for example, as relevant to an omnibus “circum­ stances of the crime” sentencing factor such as the one in the present case. In a weighing State, therefore, the sen­ tencer’s consideration of an invalid eligibility factor neces­ sarily skewed its balancing of aggravators with mitigators, Stringer, 503 U. S., at 232, and required reversal of the sen­ tence (unless a state appellate court determined the error was harmless or reweighed the mitigating evidence against the valid aggravating factors), ibid. By contrast, in a non-weighing State—a State that permit­ ted the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors—this automatic skewing would not necessarily occur. It would never occur if the aggravating factors were entirely different from the eligibility factors. Nor would it occur if the aggravating fac­ tors added to the eligibility factors a category (such as an omnibus “circumstances of the crime” factor, which is quite common) that would allow the very facts and circumstances relevant to the invalidated eligibility factor to be weighed