Page:United States Reports 546.pdf/443

 546US1

232

Unit: $U17

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

BROWN v. SANDERS Breyer, J., dissenting

bility not only of randomness but also of bias in favor of the death penalty.” Stringer v. Black, 503 U. S., at 236; see So­ chor v. Florida, 504 U. S. 527, 532 (1992) (“Employing an invalid aggravating factor in the weighing process creates the possibility of randomness by placing a thumb on death’s side of the scale, thus creating the risk of treating the de­ fendant as more deserving of the death penalty” (internal quotation marks, citations, and alterations omitted)). Second, consider why that error could affect a decision to impose death. If the error causes harm, it is because a jury has given special weight to its ﬁnding of (or the evidence that shows) the invalid “aggravating factor.” The jury might do so because the judge or prosecutor led it to believe that state law attaches particular importance to that factor: Indeed, why else would the State call that factor an “aggravator” and/or permit it to render a defendant death eligible? See Zant v. Stephens, 462 U. S. 862, 888 (1983) (recognizing that statutory label “arguably might have caused the jury to give somewhat greater weight to respondent’s prior criminal rec­ ord than it otherwise would have given”); see also ante, at 226 (Stevens, J., dissenting) (noting that jury may consider the aggravating label “a legislative imprimatur on a decision to impose death and therefore give greater weight to its im­ proper heinousness ﬁnding . . . ”); Clemons v. Mississippi, 494 U. S. 738, 753, 755 (1990) (noting that the prosecutor “repeatedly emphasized and argued the ‘especially heinous’ factor during the sentencing hearing” and remanding for the Mississippi Supreme Court to conduct harmless-error review). The risk that the jury will give greater weight at Stage Two to its Stage One ﬁnding of an aggravating factor—a factor that, it turns out, never should have been found in the ﬁrst instance—is signiﬁcant in a weighing State, for the judge will explicitly tell the jury to consider that particular aggravating factor in its decisionmaking process. That risk may prove signiﬁcant in a nonweighing State as well, for