Page:United States Reports 546.pdf/444

 546US1

Unit: $U17

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

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

233

Breyer, J., dissenting

there too the judge may tell the jury to consider that aggra­ vating factor in its decisionmaking process. The only difference between the two kinds of States is that, in the nonweighing State, the jury can also consider other aggravating factors (which are usually not enumerated by statute). Cf. Ga. Code Ann. § 17–10–30(b) (2004) ( judge or jury “shall consider . . . any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence” (emphasis added)). But the potential for the same kind of constitutional harm exists in both kinds of States, namely, that the jury will at­ tach special weight to that aggravator on the scale, the ag­ gravator that the law says should not have been there. To illustrate this point, consider the following two state­ ments. Statement One—The judge tells the jury in a weighing State: “You can sentence the defendant to death only if you ﬁnd one, or more, of the following three aggravat­ ing circumstances, X, Y, or Z. If you do, the law requires you to consider those aggravators and weigh them against the mitigators.” Statement Two—The judge tells the jury in a nonweighing State: “You can sentence the defendant to death only if you ﬁnd one, or more, of the following three aggravating circumstances, X, Y, or Z. If you do, the law permits you to consider all mitigating and aggravating evi­ dence, including X, Y, and Z, in reaching your decision.” What meaningful difference is there between these two statements? The decisionmaking process of the ﬁrst jury and that of the second jury will not differ signiﬁcantly: Both juries will weigh the evidence offered in aggravation and the evidence offered in mitigation. Cf. Brief for Criminal Jus­ tice Legal Foundation as Amicus Curiae 4 (“In reality, all sentencers ‘weigh’ ”). If Statement One amounts to harmful error because the prosecutor emphasized the importance of wrongfully listed factor Y, why would Statement Two not amount to similarly harmful error? In both instances, a