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

227

Stevens, J., dissenting

stances making the defendant eligible for the death penalty may provide reasons for imposing that penalty, its consider­ ation of an invalid factor is obviously more prejudicial than if the jury is told that it may also consider all of the circum­ stances of the crime. The fact that California sentencing juries may consider these circumstances increases the likeli­ hood that their consideration of a subsequently invalidated aggravating circumstance will be harmless, but it does not take California out of the “weighing State” category. The majority, however, has decided to convert the weigh­ ing/nonweighing distinction from one focused on the role ag­ gravating circumstances play in a jury’s sentencing delibera­ tions to one focused on the evidence the jury may consider during those deliberations. Compare Stringer, 503 U. S., at 229 (explaining that Mississippi is a weighing State because the jury must weigh aggravating circumstances against miti­ gating evidence in choosing whether to impose the death penalty, while Georgia is a nonweighing State because “ag­ gravating factors as such have no speciﬁc function in [that] decision”), with ante, at 220 (“An invalidated sentencing fac­ tor (whether an eligibility factor or not) will render the sen­ tence 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 circum­ stances” (footnote omitted)). But whether an aggravating circumstance ﬁnding plays a role in the jury’s decision to impose the death penalty has nothing to do with whether the jury may separately consider “all the ‘circumstances of the crime.’ ” In this case, if the question had been presented to us, I might well have concluded that the error here was harm­ less. See generally Brecht v. Abrahamson, 507 U. S. 619, 638 (1993). But the State has merely asked us to decide whether California is a weighing State, see Pet. for Cert. i, and the Court of Appeals correctly decided that the statu­