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

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Opinion of the Court

tencer’s consideration of an invalid eligibility factor amounts to constitutional error in a non-weighing State in two situa­ tions. First, due process requires a defendant’s death sen­ tence to be set aside if the reason for the invalidity of the eligibility factor is that it “authorizes a jury to draw adverse inferences from conduct that is constitutionally protected,” or that it “attache[s] the ‘aggravating’ label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process,. . . or to conduct that actually should militate in favor of a lesser penalty.” Zant, 462 U. S., at 885. Second, the death sentence must be set aside if the jury’s consideration of the invalidated eligibility factor allowed it to hear evidence that would not otherwise have been before it. See id., at 886; see also Tuggle v. Netherland, 516 U. S. 10, 13–14 (1995) (per curiam).4 This weighing/non-weighing scheme is accurate as far as it goes, but it now seems to us needlessly complex and inca­ pable of providing for the full range of possible variations. For example, the same problem that gave rise to our weighing-State jurisprudence would arise if it were a sen­ tencing factor, and not an eligibility factor, that was later found to be invalid. The weighing process would just as factor does not infect the formal process of deciding whether death is an appropriate penalty,” 503 U. S., at 232, and weighing States, in which “constitutional harmless-error analysis or reweighing at the trial or appel­ late level” is required, ibid. 4 The fact that a sentencer’s consideration of an invalid eligibility factor in a non-weighing State may nonetheless amount to constitutional error explains Tuggle’s characterization of Zant as holding “that a death sen­ tence supported by multiple aggravating circumstances need not always be set aside if one aggravator is found to be invalid,” 516 U. S., at 11 (emphasis added); cf. post, at 239 (Breyer, J., dissenting), as well as our related comment in Clemons that, “[i]n a [non-weighing] State like Georgia,. . . the invalidation of one aggravating circumstance does not necessarily require an appellate court to vacate a death sentence and re­ mand to a jury,” 494 U. S., at 744–745 (emphasis added); cf. post, at 241 (Breyer, J., dissenting).