The Mississippi Supreme Court upheld the death sentence imposed on Chandler Clemons even though the jury instruction regarding one of the aggravating factors pressed by the State, that the murder was "especially heinous, atrocious, or cruel," was constitutionally invalid in light of our decision in Maynard v. Cartwright, 486 U.S. 356 (1988). Although we hold that the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review, we vacate the judgment below and remand, because it is unclear whether the Mississippi Supreme Court correctly employed either of these methods.
On the evening of April 17, 1987, petitioner Clemons complained to friends that he needed money and suggested a robbery of a pizza delivery man. Clemons used a pay telephone to order a pizza to be delivered to an apartment complex. He and two others, Calvin and Hay, went to the complex in a car and waited. When the pizza delivery vehicle arrived, Clemons and Hay got out of the car; Clemons carried a shotgun belonging to Hay. Clemons stopped and entered the
The three men eventually went home. Clemons disposed of the shotgun in a hole in his backyard. Calvin, however, later that night related the robbery and shooting incident to his sister's friend, who happened to be a county jailer. The next day Clemons was arrested at his home and later made a videotaped statement in which he admitted being part of the group that robbed Shorter but denied foreknowledge of the robbery plan and denied that he had been the killer. Before trial Clemons also told the Sheriff where he had hidden the gun.
Clemons was indicted for capital murder and, after a change of venue, was tried before a jury. The principal witness against Clemons was Calvin, who had entered into a plea agreement with the State of Mississippi. Clemons was convicted of capital murder and a sentencing hearing was held. At the sentencing hearing, the State presented evidence arguably establishing that two statutory aggravating factors were present in this case: (1) that the murder was committed during the course of a robbery for pecuniary gain and (2) that it was an "especially heinous, atrocious or cruel" killing. Clemons presented testimony from his mother and a psychologist regarding mitigating evidence. The State argued the "especially heinous" factor extensively and with regard to that factor the trial court instructed the jury in the
Clemons appealed his conviction and sentence to the Mississippi Supreme Court, and that court affirmed. 535 So.2d 1354 (1988). After rejecting Clemons' arguments regarding guilt and several of his challenges to the sentencing proceeding, the court addressed the validity of the "especially heinous" aggravating factor even though Clemons had never raised the issue. The court began by noting that our decision in Maynard v. Cartwright, supra, had invalidated Oklahoma's identical "especially heinous, atrocious, or cruel" aggravating circumstance because it was unconstitutionally vague and did not provide sufficient guidance to the jury in deciding whether to impose the death penalty. The court also recognized that we had refused to sustain the death penalty in Maynard, even though valid aggravating circumstances remained, because Oklahoma had no procedure for salvaging death sentences under such circumstances and that we had left the question of the effect of possible constitutional limiting constructions of the "especially heinous" factor to the Oklahoma courts in the first instance.
The Mississippi Supreme Court distinguished this case from Maynard and sustained Clemons' death sentence on the following grounds: (1) in Mississippi there is an established procedure that "when one aggravating circumstance is found
The court then stated that given all of these considerations plus "the brutal and torturous facts surrounding the murder of Arthur Shorter . . . it is inescapable that Maynard v. Cartwright does not dictate the outcome of the case sub judice." Ibid. The court added that "[w]e likewise are of the opinion beyond a reasonable doubt that the jury's verdict would have been the same with or without the `especially heinous, atrocious or cruel' aggravating circumstance." Ibid. Finally, the court conducted its proportionality review. The court noted that it had reviewed the record and stated that "[i]n our opinion . . . the punishment of death is not too great when the aggravating and mitigating circumstances are weighed against each other . . . ." Id., at 1365. Three justices dissented, arguing that the sentence should be vacated and the case remanded to a jury for resentencing with properly defined aggravating factors. We granted certiorari, 491 U.S. 904 (1989).
We deal first with petitioner's submission that it is constitutionally impermissible for an appellate court to uphold a death sentence imposed by a jury that has relied in part on an invalid aggravating circumstance. In Zant v. Stephens, 462 U.S. 862 (1983), we determined that in a State like Georgia,
Nothing in the Sixth Amendment as construed by our prior decisions indicates that a defendant's right to a jury trial would be infringed where an appellate court invalidates one of two or more aggravating circumstances found by the jury, but affirms the death sentence after itself finding that the one or more valid remaining aggravating factors outweigh the mitigating evidence. Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court. Cabana v. Bullock, 474 U.S. 376 (1986), held that an appellate court can make the findings required by Enmund v. Florida, 458 U.S. 782 (1982), in the first instance and stated that "[t]he decision whether a particular punishment — even the
To avoid the import of these cases, Clemons argues that under Mississippi law only a jury has the authority to impose a death sentence, see Miss. Code Ann. § 99-19-101 (Supp. 1989), and that he therefore has a liberty interest under the Due Process Clause of the Fourteenth Amendment in having a jury make all determinations relevant to his sentence. He therefore argues that an appellate court cannot reweigh the balance of factors when the jury has found and relied on an invalid aggravating circumstance. Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause, Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality opinion), and we have recognized that when state law creates for a defendant a liberty interest in having a jury make particular findings, speculative appellate findings will not suffice to protect that entitlement for due process purposes. Hicks v. Oklahoma, 447 U.S. 343 (1980). However, these two general propositions do not lead to the result Clemons seeks.
In Hicks v. Oklahoma, sentence had been imposed under an invalid recidivist statute that provided for a mandatory 40-year sentence. The Oklahoma Court of Criminal Appeals
Contrary to the situation in Hicks, the state court in this case, as it had in others, asserted its authority under Mississippi law to decide for itself whether the death sentence was to be affirmed even though one of the two aggravating circumstances on which the jury had relied should not have been, or was improperly, presented to the jury. The court did not consider itself bound in such circumstances to vacate the death sentence and to remand for a new sentencing proceeding before a jury. We have no basis for disputing this interpretation of state law, which was considered by the court below to be distinct from its asserted authority to affirm the sentence on the ground of harmless error, and which plainly means that we must reject Clemons' assertion that he had an unqualified liberty interest under the Due Process Clause to have the jury assess the consequence of the invalidation of one of the aggravating circumstances on which it had been instructed. In this respect, the case is analogous to Cabana v. Bullock, supra, where we specifically rejected a due process challenge based on Hicks because state law created no entitlement to have a jury make findings that an appellate court also could make.
Clemons also submits that appellate courts are unable to fully consider and give effect to the mitigating evidence presented by defendants at the sentencing phase in a capital case and that it therefore violates the Eighth Amendment for an appellate court to undertake to reweigh aggravating and mitigating circumstances in an attempt to salvage the death sentence imposed by a jury. He insists, therefore, that he is entitled to a new sentencing hearing before a jury and that the decision below must be reversed. We are unpersuaded, however, that our cases require this result. Indeed, they point in the opposite direction.
The primary concern in the Eighth Amendment context has been that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime. See, e. g., Spaziano v. Florida, supra, at 460; Zant v. Stephens, 462 U. S., at 879; Eddings v. Oklahoma, 455 U.S. 104, 110-112 (1982); Lockett v. Ohio, 438 U.S. 586, 601-605 (1978) (plurality opinion); Gregg v. Georgia, 428 U.S. 153, 197 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). In scrutinizing death penalty procedures under the Eighth Amendment, the Court has emphasized the "twin objectives" of "measured consistent application and fairness to the accused." Eddings, supra, at 110-111. See also Lockett, supra, at 604 (emphasizing the importance of reliability). Nothing inherent in the process of appellate reweighing is inconsistent with the pursuit of the foregoing objectives.
We see no reason to believe that careful appellate weighing of aggravating against mitigating circumstances in cases such as this would not produce "measured consistent application" of the death penalty or in any way be unfair to the defendant. It is a routine task of appellate courts to decide whether the
This is surely the import of Cabana v. Bullock, 474 U.S. 376 (1986), which held that a state appellate court could make the finding that Enmund v. Florida, 458 U.S. 782 (1982), required for the imposition of the death penalty, i. e. whether the defendant had killed, attempted to kill, or intended to kill. Wainwright v. Goode, 464 U.S. 78 (1983) (per curiam), is likewise instructive. There, a Florida trial judge relied on an allegedly impermissible aggravating circumstance ("future dangerousness") in imposing a death sentence on Goode. The Florida Supreme Court conducted an independent review of the record, reweighed the mitigating and aggravating factors, and concluded that the death penalty was warranted. In a federal habeas proceeding, Goode then successfully challenged
We accordingly see nothing in appellate weighing or reweighing of the aggravating and mitigating circumstances that is at odds with contemporary standards of fairness or that is inherently unreliable and likely to result in arbitrary imposition of the death sentence. Nor are we impressed with the claim that without written jury findings concerning mitigating circumstances, appellate courts cannot perform their proper role. In Spaziano and Proffitt, we upheld the Florida death penalty scheme permitting a trial judge to override a jury's recommendation of life even though there were no written jury findings. An appellate court also is able adequately to evaluate any evidence relating to mitigating factors without the assistance of written jury findings.
Clemons argues that even if appellate reweighing is permissible, the Mississippi Supreme Court did not actually reweigh the evidence in this case and instead simply held that
We find the opinion below unclear with respect to whether the Mississippi Supreme Court did perform a weighing function, either by disregarding entirely the "especially heinous" factor and weighing only the remaining aggravating circumstance against the mitigating evidence, or by including in the balance the "especially heinous" factor as narrowed by its prior decisions and embraced in this case. At one point the court recites the proper limiting construction of the "especially heinous" aggravating factor, 535 So. 2d, at 1363, and at times the court's opinion seems to indicate that the court was reweighing the mitigating circumstances and both aggravating factors by applying the proper definition to the "especially heinous" factor. For example, at one point the court refers to the "brutal and torturous facts" surrounding Shorter's murder and elsewhere states that "the punishment of death is not too great when the aggravating and mitigating circumstances are weighed against each other." Id., at 1364, 1365. At other times, however, the opinion indicates that the court may have been employing the other approach and disregarding the "especially heinous" factor entirely. "[T]his Court (Mississippi) has held and established unequivocally through the years that when one aggravating circumstance is found to be invalid or unsupported by the evidence, a remaining valid aggravating circumstance will nonetheless support the death penalty verdict." Id., at 1362.
In addition, although the latter statement does not necessarily indicate that no reweighing was undertaken, the court's statement can be read as a rule authorizing or requiring affirmance of a death sentence so long as there remains at least one valid aggravating circumstance. If that is what the
Even if under Mississippi law, the weighing of aggravating and mitigating circumstances were not an appellate, but a jury, function, it was open to the Mississippi Supreme Court to find that the error which occurred during the sentencing proceeding was harmless. See, e. g., Satterwhite v. Texas, 486 U.S. 249 (1988). As the plurality in Barclay v. Florida, supra, opined, the Florida Supreme Court could apply harmless-error analysis when reviewing a death sentence imposed by a trial judge who relied on an aggravating circumstance not available for his consideration under Florida law:
Clemons argues, however, that the Mississippi Supreme Court incorrectly applied the harmless-error rule, that the court acted arbitrarily in applying it to his case when it refused to do so in a similar case, and that the State failed to prove beyond a reasonable doubt that any error was harmless.
With regard to harmless error, the Mississippi Supreme Court made only the following statement: "We likewise are of the opinion beyond a reasonable doubt that the jury's verdict would have been the same with or without the `especially heinous, atrocious or cruel' aggravating circumstance." 535 So. 2d, at 1364. Although the court applied the proper "beyond a reasonable doubt" standard, see Chapman v. California, 386 U.S. 18, 24 (1967), its cryptic holding suggests that it was beyond reasonable doubt that the sentence would have been the same even if there had been no "especially heinous" instruction at all and only the aggravating circumstance that the murder was committed in the course of a robbery for pecuniary gain was to be balanced against the mitigating circumstances. We agree that it would be permissible to approach the harmless-error question in this fashion, but if this is the course the court took, its ultimate conclusion is very difficult to accept. As Clemons points out, the State repeatedly emphasized and argued the "especially heinous" factor during the sentencing hearing. The State placed little emphasis on the "robbery for pecuniary gain" factor. Under these circumstances, it would require a detailed explanation based on the record for us possibly to agree that the error
It is perhaps possible, however, that the Mississippi Supreme Court intended to ask whether beyond reasonable doubt the result would have been the same had the especially heinous aggravating circumstance been properly defined in the jury instructions; and perhaps on this basis it could have determined that the failure to instruct properly was harmless error. Because we cannot be sure which course was followed in Clemons' case, however, we vacate the judgment insofar as it rested on harmless error and remand for further proceedings.
Nothing in this opinion is intended to convey the impression that state appellate courts are required to or necessarily should engage in reweighing or harmless-error analysis when errors have occurred in a capital sentencing proceeding. Our holding is only that such procedures are constitutionally permissible. In some situations, a state appellate court may conclude that peculiarities in a case make appellate reweighing or harmless-error analysis extremely speculative or impossible. We have previously noted that appellate courts may face certain difficulties in determining sentencing questions in the first instance. See Caldwell v. Mississippi, 472 U.S. 320, 330-331 (1985). Nevertheless, that decision is for state appellate courts, including the Mississippi Supreme Court in this case, to make.
For the foregoing reasons the judgment of the Mississippi Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
JUSTICE BRENNAN, concurring in part and dissenting in part.
I concur in the Court's holding that the judgment of the Mississippi Supreme Court must be vacated. I join JUSTICE BLACKMUN'S separate opinion, however, rejecting the suggestion that a state court can save a death sentence by "reweighing" aggravating and mitigating circumstances. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, concurring in part and dissenting in part.
I agree that Mississippi's "especially heinous, atrocious or cruel" aggravating circumstance provided insufficient guidance to the sentencing jury,
In Godfrey v. Georgia, 446 U.S. 420 (1980), this Court considered Georgia's "outrageously or wantonly vile, horrible or inhuman" aggravating circumstance. The plurality stated: "There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as `outrageously or wantonly vile, horrible and inhuman.' " Id., at 428-429. In Maynard v. Cartwright, 486 U.S. 356 (1988), we noted that "the language of the Oklahoma aggravating circumstance at issue — `especially heinous, atrocious, or
In the present case, the Mississippi Supreme Court sought to distinguish Maynard by pointing to a "limiting construction" adopted in Coleman v. State, 378 So.2d 640 (Miss. 1979): " ` "What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim." ' " 535 So.2d 1354, 1363 (1988) (quoting Coleman, 378 So. 2d, at 648, which in turn quoted Spinkellink v. Wainwright, 578 F.2d 582, 611 (CA5 1978), cert. denied, 440 U.S. 976 (1979)). When one reads the Coleman opinion, however, it is apparent that it did not establish a "limiting construction" at all. The Mississippi court, at the page cited, further quoted:
The Coleman court argued, in other words, that a sentencing jury could be expected to interpret the words "especially heinous, atrocious or cruel" as signifying "the conscienceless or pitiless crime which is unnecessarily torturous to the victim." Coleman did not seek to clarify this aggravating circumstance. Rather, the court argued that no clarification
In this case, as in the vast majority of Mississippi cases in which this aggravating circumstance has been submitted, the jury was given no guidance beyond the statutory language. The Mississippi Supreme Court frequently has held that the phrase "especially heinous, atrocious or cruel" is readily comprehensible to the average juror and that no further instruction is necessary.
As stated above, however, I dissent from the majority's gratuitous suggestion that on remand the Mississippi Supreme Court itself may reweigh aggravating and mitigating circumstances and thereby salvage petitioner's death sentence. That portion of the Court's discussion is a pure and simple advisory opinion, something I thought this Court avoided and was disinclined to issue. See Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983); Bayard v. Lombard, 9 How. 530, 548-549 (1850). The majority recognizes, as it must, that the Mississippi Supreme Court has given no clear indication that it intends to reweigh or that under state law it has the power to do so. The Court's determination that reweighing is constitutional has no bearing upon our conclusion, which is to vacate the Mississippi judgment and remand the case for further proceedings in the state courts. Rather than awaiting, and then reviewing, the decisions of other tribunals, the Court today assumes that its role is to offer helpful suggestions to state courts seeking to expedite the capital sentencing process. Of course the Court's discussion of reweighing may have an effect on the form that the state proceedings will take. But the impropriety of an advisory opinion is not eliminated by the possibility that the state court will act upon the advice.
In my view, the majority's discussion of the reweighing issue is sadly flawed. If a jury's verdict rests in part upon a constitutionally impermissible aggravating factor, and the State's appellate court upholds the death sentence based upon its own reweighing of legitimate aggravating and mitigating circumstances, the appellate court, in any real sense, has not approved or affirmed the verdict of the jury. Rather, the reviewing court in that situation has assumed for itself the role of sentencer. The logical implication of the majority's approach is that no trial-level sentencing procedure need be conducted at all. Instead, the record of a capital trial (including a sentencing hearing conducted before a
The Court's approval of appellate sentencing finds little basis in our precedents. The majority relies principally on three of this Court's capital sentencing decisions. Two of these cases seem to me to be inapposite; the third, while lending frail support to the majority's conclusion, is distinguishable in its really crucial aspects.
Cabana v. Bullock, 474 U.S. 376 (1986), is the only case that possibly provides theoretical support for the majority's position. In the end, however, I believe that the Court's opinion today goes significantly beyond the result reached in Bullock. In that case a bare majority of the Court held that the finding required by Enmund v. Florida, 458 U.S. 782 (1982) — that the defendant killed, attempted to kill, or intended that a killing occur — could be made in the first instance by a state supreme court, and that the state court's finding would be entitled to a presumption of correctness on federal habeas review. The Court noted, however, that there are significant limitations on the appellate court's ability to make the findings required by Enmund:
Bullock, it seems to me, stands only for the proposition that an appellate court may make Enmund findings based on a "summary judgment" standard, viewing the evidence in the light most favorable to the defendant. This Court in that case did not hold that an appellate court may make Enmund findings that turn on disputed issues of fact. And it certainly did not hold that an appellate court may assess the weight of mitigating evidence without observing the defendant and his witnesses.
The Court's reliance on Wainwright v. Goode, 464 U.S. 78 (1983), is misplaced. The trial error alleged in Goode — reliance on a "future dangerousness" aggravating circumstance — was an error of state law only. This Court has said that the Constitution does not forbid consideration of future dangerousness as a factor in capital sentencing, see Jurek v. Texas, 428 U.S. 262 (1976); insofar as the Eighth Amendment is concerned, Goode had received an error-free sentencing procedure at the trial level. The Florida Supreme Court's independent reweighing of aggravating and mitigating factors, this Court held, was sufficient to ensure that state law was not applied in so haphazard a fashion as to produce "an arbitrary or freakish sentence forbidden by the Eighth Amendment." 464 U. S., at 87. Goode supports only the unremarkable proposition that errors of state law are not ordinarily the concern of federal courts, see id., at 86 (citing Barclay v. Florida, 463 U.S. 939, 957-958 (1983) (plurality opinion)), and that state appellate courts are given broad latitude in their review of state-law claims. The decision does not support the majority's conclusion that a state supreme court itself may impose a capital sentence in a case
The Court also states that in Spaziano v. Florida, 468 U.S. 447 (1984), "we upheld the Florida death penalty scheme permitting a trial judge to override a jury's recommendation of life even though there were no written jury findings." Ante, at 750. But our conclusion in Spaziano — that evidence relevant to the capital sentencing decision can be adequately assessed by a trial judge who has witnessed the testimony — is irrelevant to the question whether such an assessment can be made on the basis of a cold record. The majority's immediately following and conclusory assertion that "[a]n appellate court also is able adequately to evaluate any evidence relating to mitigating factors without the assistance of written jury findings" simply emerges from nowhere.
Indeed, the Court's reliance on Spaziano — reflecting an implicit assumption that trial and appellate judges somehow are interchangeable — is symptomatic of the confusion that seems to me to characterize the majority opinion. To support its conclusion that appellate reweighing is permissible, the majority notes: "It is a routine task of appellate courts to decide whether the evidence supports a jury verdict and in capital cases in `weighing' States, to consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed. . . . [A] similar process of weighing aggravating and mitigating evidence is involved in an appellate court's proportionality review." Ante, at 748-749. The majority thus equates the reviewing function of an appellate court with the trial judge's initial assessment of the evidence. In fact, however, both this Court and the Supreme Court of Mississippi repeatedly have emphasized that appellate courts are institutionally incapable of fulfilling the distinct functions performed by trial judges and juries.
As noted earlier, the Mississippi Supreme Court never has held that the evidence failed to support a jury's finding that a particular murder was "especially heinous, atrocious or cruel." The court is required to undertake a proportionality review whenever it affirms a sentence of death, but on only one occasion has a capital sentence been invalidated solely on the ground that it was disproportionate to the offense.
Like the Mississippi Supreme Court, this Court, too, has emphasized that trial and appellate tribunals respectively perform distinct functions. In explaining the requirement that courts of appeals must defer to district court findings of fact unless these findings are clearly erroneous, it has noted that "only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
In a variety of contexts, moreover, this Court has attached constitutional significance to an individual's interest in presenting his case directly to the finder of fact. In Rock v. Arkansas, 483 U.S. 44, 51, n. 8 (1987), we noted that "there [is] no longer any doubt that the right to be heard, which is so essential to due process in an adversary system of adjudication, [can] be vindicated only by affording a defendant an opportunity to testify before the factfinder." We have recognized that the Confrontation Clause serves to afford a criminal defendant the privilege "of compelling [the witness] to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S. 237, 242-243 (1895). Outside the criminal context, the Court has held that termination of benefits under the Aid to Families with Dependent Children program must be preceded by a hearing, since "[p]articularly where credibility and veracity are at
In part, therefore, the impropriety of appellate sentencing rests on the appellate court's diminished ability to act as a factfinder. But I think there is more to it than that. An appellate court is ill suited to undertake the task of capital sentencing, not simply because of its general deficiencies as a factfinder, or because the costs of erroneous factfinding are so high, but also because the capital sentencing decision by its very nature is peculiarly likely to turn on considerations that cannot adequately be conveyed through the medium of a written record. In Caldwell v. Mississippi, 472 U.S. 320 (1985), this Court emphasized that
The petitioner in this case, for example, argued that his remorse for the crime constituted a mitigating factor. It would verge on the surrealistic to suggest that Chandler Clemons' right to present that contention would be adequately protected by an appellate court's consideration of the written transcript of his testimony. More than any other decision known to our law, the decision whether to impose the death penalty involves an assessment of the defendant himself, not simply a determination as to the facts surrounding a particular event. And an adequate assessment of the defendant — a procedure which recognizes the "need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual," Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion) — surely requires a sentencer who confronts him in the flesh. I therefore conclude that a capital defendant's right to present mitigating evidence cannot be fully realized if that evidence can be submitted only through the medium of a paper record. I also believe that, if a sentence of death is to be imposed, it should be pronounced by a decisionmaker who will look upon the
By now it is settled law that "the penalty of death is qualitatively different" from any other sentence, Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion), and that "this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed," Lockett v. Ohio, 438 U. S., at 604 (plurality opinion). Our Eighth Amendment jurisprudence reflects the conviction that state procedures that satisfy constitutional requirements in the general run of criminal prosecutions may nevertheless be inadequate when a defendant's life is at stake. Against this backdrop, I find extraordinary the majority's eagerness to approve a capital sentencing procedure that the Mississippi Supreme Court has shown no clear inclination to adopt,
A brief of amici curiae urging affirmance was filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Senior Assistant Attorney General, and Ronald S. Matthias and Dane R. Gillette, Deputy Attorneys General, Don Siegelman, Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, Duane Woodard, Attorney General of Colorado, John J. Kelly, Chief State's Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, James T. Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Frederic J. Cowan, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, William L. Webster, Attorney General of Missouri, Brian McKay, Attorney General of Nevada, Peter N. Perretti, Jr., Attorney General of New Jersey, Hal Stratton, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Anthony J. Celebrezze, Jr., Attorney General of Ohio, T. Travis Medlock, Attorney General of South Carolina, Roger A. Tellinghuisen, Attorney General of South Dakota, Charles W. Burson, Attorney General of Tennessee, Mary Sue Terry, Attorney General of Virginia, R. Paul Van Dam, Attorney General of Utah, and Joseph B. Meyer, Attorney General of Wyoming.
Given that two aggravating factors had been invalidated and inadmissible evidence had been presented to the jury, it was not unreasonable for the Mississippi Supreme Court to conclude that it could not conduct the harmless-error inquiry or adequately reweigh the mitigating factors and aggravating circumstances in Johnson. By contrast, in this case there is no serious suggestion that the State's reliance on the "especially heinous" factor led to the introduction of any evidence that was not otherwise admissible in either the guilt or sentencing phases of the proceeding. All of the circumstances surrounding the murder already had been aired during the guilt phase of the trial and a jury clearly is entitled to consider such evidence in imposing sentence. A state appellate court's decision to conduct harmless-error analysis or to reweigh aggravating and mitigating factors rather than remand to the sentencing jury violates the Constitution only if the decision is made arbitrarily. We cannot say that the Mississippi Supreme Court's refusal to remand in this case was rendered arbitrary by its decision to remand in Johnson.
The Court argues that reweighing in this case would not be inconsistent with the result in Johnson, since Johnson's jury relied on two invalid aggravating factors and was exposed to inadmissible evidence. See ante, at 759, n. 5. These distinctions would surely affect the Mississippi Supreme Court's ability to review for harmless error: the more deeply tainted the jury's verdict, the more difficult it is to say with assurance what the verdict would have been had the taint been eliminated. But the Mississippi Supreme Court's ability to reweigh valid aggravating factors against mitigating evidence (without consideration of improperly admitted evidence) should not be affected by the number of invalid aggravating circumstances originally submitted.
It would be the rare case, however, in which it could truly be said beyond a reasonable doubt that a sentencing decision would have been the same in the absence of an invalid aggravating circumstance. Harmless-error analysis would be especially problematic (if not impossible) in Mississippi, where the jury is not required to make written findings concerning mitigating circumstances, and where the jury need not impose a death sentence even if aggravating factors outweigh those in mitigation. It is clear to me that the error in the present case could not be deemed harmless beyond a reasonable doubt. As the majority notes, ante, at 753-754, the prosecutor's emphasis on the "especially heinous, atrocious or cruel" aggravating circumstance makes it difficult to say with any assurance that the jury's sentence would have been the same had "robbery for pecuniary gain" been the only aggravating factor. Nor could it be said beyond a reasonable doubt that the jury would have considered the murder to be "especially heinous, atrocious or cruel" had it been informed of the Mississippi Supreme Court's "limiting construction." Though the victim did not die instantaneously, there is no evidence of prolonged physical suffering; there is no evidence that petitioner intended the victim to suffer; and there is no finding that petitioner was the triggerman. In arguing for this aggravating circumstance, the prosecutor relied in part on the physical pain suffered by the victim, but also stressed the victim's youth and industriousness — characteristics that have nothing to do with the Coleman definition. See 7 Record 1192-1193. (In another portion of his closing argument, the prosecutor emphasized the admonition in Numbers 35:9-34 that "[t]he murderer shall surely be put to death." 7 Record 1196-1198.) I do not believe that it can be said with any assurance that the jury would have found this aggravating factor had it been properly instructed.