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BROWN v. SANDERS Opinion of the Court

clearly have been prima facie “skewed,” and skewed for the same basic reason: The sentencer might have given weight to a statutorily or constitutionally invalid aggravator.5 And the prima facie skewing could in appropriate cases be shown to be illusory for the same reason that separates weighing States from non-weighing States: One of the other aggravat­ ing factors, usually an omnibus factor but conceivably an­ other one, made it entirely proper for the jury to consider as aggravating the facts and circumstances underlying the invalidated factor. We think it will clarify the analysis, and simplify the sentence-invalidating factors we have hitherto applied to non-weighing States, see supra, at 218–219, if we are hence­ forth 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 im­ proper element to the aggravation scale in the weighing process 6 unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. This test is not, as Justice Breyer describes it, “an in­ quiry based solely on the admissibility of the underlying evi­ dence.” Post, at 241 (dissenting opinion). If the presence 5 This very problem may have been present in Stringer v. Black, supra. There, although the Mississippi courts invalidated an aggravating circum­ stance—whether the murder was “especially heinous, atrocious, or cruel,” Miss. Code Ann. § 99–19–101(5)(h) (1993 Cum. Supp.)—that was not one of the speciﬁed eligibility factors, see § 97–3–19(2) (1994), we nonetheless treated Mississippi as a weighing State. Since, however, Mississippi law provided that the jury could not impose a death sentence unless it found the existence of at least one statutory aggravating factor, see § 99–19– 101(3)(b) (1993 Cum. Supp.), it could be argued that the additional aggra­ vating factors were converted into de facto eligibility factors. 6 There may be other distortions caused by the invalidated factor beyond the mere addition of an improper aggravating element. For example, what the jury was instructed to consider as an aggravating factor might have “actually. . . militate[d] in favor of a lesser penalty,” Zant, supra, at 885. See supra, at 219.