Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In response to the Supreme Court’s 1976 decisions on the death penalty,1 most states narrowed sentencing authority discretion to impose the death penalty by enacting statutes spelling out “aggravating” circumstances and requiring that at least one such aggravating circumstance be found before the death penalty is imposed. The Court has required that the standards be relatively precise and instructive so as to minimize the risk of arbitrary and capricious action by the sentencer. Thus, in Godfrey v. Georgia, the Court invalidated a capital sentence based upon a jury finding that the murder was “outrageously or wantonly vile, horrible, and inhuman,” reasoning that “a person of ordinary sensibility could fairly [so] characterize almost every murder.” 2 Similarly, in Maynard v. Cartwright, the Court held an “especially heinous, atrocious, or cruel” aggravating circumstance to be unconstitutionally vague.3 The “especially heinous, cruel, or depraved” standard is cured, however, by a narrowing interpretation requiring a finding of infliction of mental anguish or physical abuse before the victim’s death.4

The proscription against a mandatory death penalty has also received elaboration. The Court invalidated statutes making death the mandatory sentence for persons convicted of first degree murder of a police officer,5 and for prison inmates convicted of murder while serving a life sentence without possibility of parole.6 Flaws related to those attributed to mandatory sentencing statutes were found in a state’s structuring of its capital system to deny the jury the option of convicting on a lesser included offense, when doing so would be justified by the evidence.7 Because the jury had to choose between conviction or acquittal, the statute created the risk that the jury would convict because it felt the defendant deserved to be punished or acquit because it believed death was too severe for the particular crime, when at that stage the jury should concentrate on determining whether the prosecution had proved defendant’s guilt beyond a reasonable doubt.8

The overarching principle of Furman v. Georgia9 and of the Gregg v. Georgia series of cases10 was that the jury should not be “without guidance or direction” in deciding whether a convicted defendant should live or die. The jury’s attention was statutorily “directed to the specific circumstances of the crime . . . and on the characteristics of the person who committed the crime.” 11 As such, discretion was channeled and rationalized. But, in Lockett v. Ohio,12 a Court plurality determined that a state law was invalid because it prevented the sentencer from giving weight to any mitigating factors other than those specified in the law. In other words, the jury’s discretion was curbed too much. The Lockett Court stated:

Similarly, in Woodson v. North Carolina, a three-Justice plurality viewed North Carolina’s mandatory death sentence for persons convicted of first degree murder as invalid because it failed “to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant.” 14 Lockett and Woodson have since been endorsed by a Court majority.15 Thus, a great measure of discretion was again accorded the sentencing authority, be it judge or jury, subject only to the consideration that the legislature must prescribe aggravating factors.16

The Court has explained this apparent contradiction as recognizing that “individual culpability is not always measured by the category of crime committed,” 17 and an attempt to pursue the “twin objectives” of “measured, consistent application” of the death penalty and “fairness to the accused.” 18 The requirement that aggravating circumstances be spelled out by statute serves a narrowing purpose that helps consistency of application; absence of restrictions on mitigating evidence helps promote fairness to the accused through an “individualized” consideration of the defendant’s circumstances. In the Court’s words, statutory aggravating circumstances “play a constitutionally necessary function at the stage of legislative definition [by] circumscribing the class of persons eligible for the death penalty,” 19 while consideration of all mitigating evidence requires focus on “the character and record of the individual offender and the circumstances of the particular offense” consistent with “the fundamental respect for humanity underlying the Eighth Amendment.” 20 As long as the defendant’s crime falls within the statutorily narrowed class, the jury may then conduct “an individualized determination on the basis of the character of the individual and the circumstances of the crime.” 21

The Court has given states greater leeway in fashioning procedural rules that have the effect of controlling how juries may use mitigating evidence that must be admitted and considered.22 States may also cure some constitutional errors on appeal through operation of “harmless error” rules and reweighing of evidence by the appellate court.23 Also, the Court has constrained the use of federal habeas corpus to review state court judgments. As a result, the Court recognized a significant degree of state autonomy in capital sentencing in spite of its rulings on substantive Eighth Amendment law.24

While maintaining the Lockett requirement that sentencers be allowed to consider all mitigating evidence,25 the Court has upheld state statutes that control the relative weight that the sentencer may accord to aggravating and mitigating evidence.26 In Blystone v. Pennsylvania, the Court stated: “The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence” 27 ; there is no additional requirement that the jury be allowed to weigh the severity of an aggravating circumstance in the absence of any mitigating factor.28 The legislature may specify the consequences of the jury’s finding an aggravating circumstance; it may mandate that a death sentence be imposed if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance,29 or if the jury finds that aggravating circumstances outweigh mitigating circumstances.30 And a court may instruct that the jury “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling,” because in essence the instruction merely cautions the jury not to base its decision “on factors not presented at the trial.” 31 However, a jury instruction that can be interpreted as requiring jury unanimity on the existence of each mitigating factor before that factor may be weighed against aggravating factors is invalid as it allows one juror to veto consideration of any and all mitigating factors. Instead, each juror must be allowed to give effect to what he or she believes to be established mitigating evidence.32 Due process is also a consideration; if the state argues for the death penalty based on the defendant’s future dangerousness, due process requires that the jury be informed if the alternative to a death sentence is a life sentence without possibility of parole.33

One issue the Court had to consider was how a death sentence is impacted if an “eligibility factor” (a factor making the defendant eligible for the death penalty) or an “aggravating factor” (a factor to be weighed against mitigating factors in determining whether a defendant who is eligible for the death penalty should receive it) is found invalid. In Brown v. Sanders, the Court announced “An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” 34

Appellate review under a harmless error standard can preserve a death sentence based in part on a jury’s consideration of an aggravating factor later found to be invalid,35 or on a trial judge’s consideration of improper aggravating circumstances.36 In each case, the sentencing authority had found other aggravating circumstances justifying imposing capital punishment. For instance, in Zant, evidence relating to the invalid factor was nonetheless admissible on another basis.37 Even in states that require the jury to weigh statutory aggravating and mitigating circumstances (and even in the absence of written findings by the jury), the appellate court may preserve a death penalty through harmless error review or through reweighing the aggravating and mitigating evidence.38 By contrast, where there is a possibility that the jury’s reliance on a “totally irrelevant” factor (defendant had served time pursuant to an invalid conviction subsequently vacated) may have been decisive in balancing aggravating and mitigating factors, a death sentence may not stand notwithstanding the presence of other aggravating factors.39

In Oregon v. Guzek, the Court could “find nothing in the Eighth or Fourteenth Amendments that provides a capital defendant a right to introduce,” at sentencing, new evidence, available to him at the time of trial, “that shows he was not present at the scene of the crime.” 40 The Guzek Court observed that although “the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death,” such evidence is a traditional concern of sentencing because it tends to show “how, not whether,” the defendant committed the crime.41 Alibi evidence, by contrast, concerns “whether the defendant committed the basic crime,” and “thereby attacks a previously determined matter in a proceeding [i.e., sentencing] at which, in principle, that matter is not at issue.” 42

The Court’s focus on the character and culpability of the defendant led the Court, initially, to hold that the Eighth Amendment “prohibits a capital sentencing jury from considering victim impact evidence” that does not “relate directly to the circumstances of the crime.” 43 Four years later, the Court largely overruled44 these decisions, however, holding that the Eighth Amendment does allow the jury to consider “'victim impact’ evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.” 45 The Court reasoned that the admissibility of victim impact evidence was necessary to restore balance to capital sentencing. In the Court’s view, exclusion of such evidence “unfairly weighted the scales in a capital trial” because there are no corresponding limits on “relevant mitigating evidence a capital defendant may introduce concerning his own circumstances.” 46

Footnotes

1

Gregg v. Georgia, 428 U.S. 153 (1976) (upholding a statute providing for a bifurcated proceeding separating guilt and sentencing phases, requiring the jury to find at least one of ten statutory aggravating factors before imposing death, and providing for review of death sentences by the Georgia Supreme Court); Proffitt v. Florida, 428 U.S. 242 (1976) (a statute generally similar to Georgia’s, with the exception that the trial judge, rather than the jury, was directed to weigh statutory aggravating factors against statutory mitigating factors); Jurek v. Texas, 428 U.S. 262 (1976) (a statute construed as narrowing the death-eligible class of cases, and lumping mitigating factors into consideration of dangerousness); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976) (both mandating the death penalty for first degree murder).

2

Godfrey v. Georgia, 446 U.S. 420, 428–29 (1980) (plurality opinion).

3

Maynard v. Cartwright, 486 U.S. 356, 363–64 (1988). But see Tuilaepa v. California, 512 U.S. 967 (1994) (holding that permitting capital juries to consider the circumstances of the crime, the defendant’s prior criminal activity, and the age of the defendant, without further guidance, is not unconstitutionally vague).

4

Walton v. Arizona, 497 U.S. 639 (1990). Accord, Lewis v. Jeffers, 497 U.S. 764 (1990). See also Gregg v. Georgia, 428 U.S. 153, 201 (1976) (upholding full statutory circumstance of “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim” ); Proffitt v. Florida, 428 U.S. 242, 255 (1976) (upholding “especially heinous, atrocious or cruel” aggravating circumstance as interpreted to include only “the conscienceless or pitiless crime which is unnecessarily torturous to the victim” ); Sochor v. Florida, 504 U.S. 527 (1992) (impermissible vagueness of “heinousness” factor cured by narrowing interpretation including strangulation of a conscious victim); Arave v. Creech, 507 U.S. 463 (1993) (consistent application of narrowing construction of phrase “exhibited utter disregard for human life” to require that the defendant be a “cold-blooded, pitiless slayer” cures vagueness); Bell v. Cone, 543 U.S. 447 (2005) (presumption that state supreme court applied a narrowing construction because it had done so numerous times).

5

Roberts v. Louisiana, 431 U.S. 633 (1977) (per curiam) (involving a different defendant from the first Roberts v. Louisiana case, 428 U.S. 325 (1976).

6

Sumner v. Shuman, 483 U.S. 66 (1987).

7

Beck v. Alabama, 447 U.S. 625 (1980). The statute made the guilt determination “depend . . . on the jury’s feelings as to whether or not the defendant deserves the death penalty, without giving the jury any standards to guide its decision on this issue.” Id. at 640. Cf. Hopper v. Evans, 456 U.S. 605 (1982). No such constitutional infirmity is present, however, if failure to instruct on lesser included offenses is due to the defendant’s refusal to waive the statute of limitations for those lesser offenses. Spaziano v. Florida, 468 U.S. 447 (1984). See Hopkins v. Reeves, 524 U.S. 88 (1998) (defendant charged with felony murder did not have right to instruction as to second degree murder or manslaughter, where Nebraska traditionally did not consider these lesser included offenses). See also Schad v. Arizona, 501 U.S. 624 (1991) (first degree murder defendant, who received instruction on lesser included offense of second degree murder, was not entitled to a jury instruction on the lesser included offense of robbery). In Schad the Court also upheld Arizona’s characterization of first degree murder as a single crime encompassing two alternatives, premeditated murder and felony murder, and not requiring jury agreement on which alternative had occurred.

8

Also impermissible as distorting a jury’s role are prosecutor’s comments or jury instructions that mislead a jury as to its primary responsibility for deciding whether to impose the death penalty. Compare Caldwell v. Mississippi, 472 U.S. 320 (1985) (jury’s responsibility is undermined by court-sanctioned remarks by prosecutor that jury’s decision is not final, but is subject to appellate review) with California v. Ramos, 463 U.S. 992 (1983) (jury responsibility not undermined by instruction that governor has power to reduce sentence of life imprisonment without parole). See also Lowenfield v. Phelps, 484 U.S. 231 (1988) (poll of jury and supplemental jury instruction on obligation to consult and attempt to reach a verdict was not unduly coercive on death sentence issue, even though consequence of failing to reach a verdict was automatic imposition of life sentence without parole); Romano v. Oklahoma, 512 U.S. 1 (1994) (imposition of death penalty after introduction of evidence that defendant had been sentenced to death previously did not diminish the jury’s sense of responsibility so as to violate the Eighth Amendment); Jones v. United States, 527 U.S. 373 (1999) (court’s refusal to instruct the jury on the consequences of deadlock did not violate Eighth Amendment, even though court’s actual instruction was misleading as to range of possible sentences).

9

408 U.S. 238 (1972).

10

Gregg v. Georgia, 428 U.S. 153 (1976) (upholding a statute providing for a bifurcated proceeding separating guilt and sentencing phases, requiring the jury to find at least one of ten statutory aggravating factors before imposing death, and providing for review of death sentences by the Georgia Supreme Court); Proffitt v. Florida, 428 U.S. 242 (1976) (a statute generally similar to Georgia’s, with the exception that the trial judge, rather than the jury, was directed to weigh statutory aggravating factors against statutory mitigating factors); Jurek v. Texas, 428 U.S. 262 (1976) (a statute construed as narrowing the death-eligible class of cases, and lumping mitigating factors into consideration of dangerousness); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976) (both mandating the death penalty for first degree murder).

11

Gregg v. Georgia, 428 U.S. 153, 197–98 (1976) (plurality).

12

438 U.S. 586 (1978). The plurality opinion by Chief Justice Warren Burger was joined by Justices Potter Stewart, Lewis Powell, and John Paul Stevens. Justices Harry Blackmun, Thurgood Marshall, and Byron White concurred in the result on separate and conflicting grounds. Id. at 613, 619, 621. Justice William Rehnquist dissented. Id. at 628.

13

438 U.S. at 604. Although, under the Eighth and Fourteenth Amendments, the state must bear the burden “to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.” Walton v. Arizona, 497 U.S. 639, 650 (1990) (plurality). A fortiori, a statute “may direct imposition of the death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise.” Kansas v. Marsh, 548 U.S. 163, 173 (2006).

14

Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (opinion of Stewart, J., joined by Powell and Stevens, JJ.). Accord, Roberts v. Louisiana, 428 U.S. 325 (1976) (statute mandating death penalty for five categories of homicide constituting first degree murder).

15

Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (adopting Lockett); Sumner v. Shuman, 483 U.S. 66 (1987) (adopting Woodson). The majority in Eddings was composed of Justices Lewis Powell, William Brennan, Thurgood Marshall, John Paul Stevens, and Sandra Day O’Connor; Chief Justice Warren Burger and Justices Byron White, Harry Blackmun, and William Rehnquist dissented. The Shuman majority was composed of Justices Harry Blackmun, William Brennan, Thurgood Marshall, Lewis Powell, John Paul Stevens, and Sandra Day O’Connor; dissenting were Justices Byron White and Antonin Scalia and Chief Justice William Rehnquist. Woodson and the first Roberts v. Louisiana had earlier been followed in the second Roberts v. Louisiana, 431 U.S. 633 (1977), a per curiam opinion from which Chief Justice Warren Burger, and Justices Harry Blackmun, Byron White, and William Rehnquist dissented.

16

Justice Byron White, dissenting in Lockett from the Court’s holding on consideration of mitigating factors, wrote that he “greatly fear[ed] that the effect of the Court’s decision today will be to compel constitutionally a restoration of the state of affairs at the time Furman was decided, where the death penalty is imposed so erratically and the threat of execution is so attenuated for even the most atrocious murders that ‘its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.’” 438 U.S. at 623. More recently, Justice Antonin Scalia voiced similar misgivings. “Shortly after introducing our doctrine requiring constraints on the sentencer’s discretion to ‘impose’ the death penalty, the Court began developing a doctrine forbidding constraints on the sentencer’s discretion to 'decline to impose’ it. This second doctrine—counterdoctrine would be a better word—has completely exploded whatever coherence the notion of ‘guided discretion’ once had. . . . In short, the practice which in Furman had been described as the discretion to sentence to death and pronounced constitutionally prohibited, was in Woodson and Lockett renamed the discretion not to sentence to death and pronounced constitutionally required.” Walton v. Arizona, 497 U.S. 639, 661, 662 (1990) (concurring in the judgment). For a critique of these criticisms of Lockett, see Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L. Rev. 1147 (1991).

17

Roberts v. Louisiana, 428 U.S. 325, 333 (1976) (plurality opinion of Justices Potter Stewart, Lewis Powell, and John Paul Stevens) (quoting Furman v. Georgia, 408 U.S. 238, 402 (1972) (Burger, C.J., dissenting)).

18

Eddings v. Oklahoma, 455 U.S. 104, 110–11 (1982).

19

Zant v. Stephens, 462 U.S. 862, 878 (1983). This narrowing function may be served at the sentencing phase or at the guilt phase; the fact that an aggravating circumstance justifying capital punishment duplicates an element of the offense of first degree murder does not render the procedure invalid. Lowenfield v. Phelps, 484 U.S. 231 (1988).

20

Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)).

21

Zant v. Stephens, 462 U.S. 862, 879 (1983).

22

See, e.g., Johnson v. Texas, 509 U.S. 350 (1993) (consideration of youth as a mitigating factor may be limited to jury estimation of probability that defendant would commit future acts of violence).

23

Richmond v. Lewis, 506 U.S. 40 (1992) (no cure of trial court’s use of invalid aggravating factor where appellate court fails to reweigh mitigating and aggravating factors).

24

As such, the Court has opined that it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing proceedings.” See Romano v. Oklahoma, 512 U.S. 1, 11–12 (1994). Instead, the test for a constitutional violation attributable to evidence improperly admitted at a capital sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” Id. at 12. As a consequence, the Court found nothing constitutionally impermissible with a state having joint sentencing proceedings for two defendants whose underlying conviction arose from the same single chain of events. See Kansas v. Carr, 577 U.S. 108, 123 (2016) (rejecting the argument that joinder of two defendants was fundamentally unfair because evidence that one defendant unduly influenced another defendant’s conduct may have “infected” the jury’s decision making). Indeed, the Court approvingly noted that joint proceedings before a single jury for defendants that commit the same crimes are “not only permissible but are often preferable” in order to avoid the “wanto[n] and freakis[h]” imposition of the death sentence. See id. at 646 (citing Gregg v. Georgia, 428 U.S. 153, 206–07 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.)).

25

See, e.g., Hitchcock v. Dugger, 481 U.S. 393 (1987) (instruction limiting jury to consideration of mitigating factors specifically enumerated in statute is invalid); Penry v. Lynaugh, 492 U.S. 302 (1989) (holding that a sentencing jury must be permitted to consider the defendant’s mitigating evidence concerning his intellectual disability and history of childhood abuse separately from its findings on the defendant’s personal culpability, future dangerousness, and the reasonableness of the defendant’s response to a victim’s provocation.); Skipper v. South Carolina, 476 U.S. 1 (1986) (exclusion of evidence of defendant’s good conduct in jail denied defendant his Lockett right to introduce all mitigating evidence); Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) (holding that a sentencing jury must be permitted to consider the defendant’s mitigating evidence concerning his intellectual disability and history of childhood abuse separately from its findings on the defendant’s personal culpability, future dangerousness, and the reasonableness of the defendant’s response to a victim’s provocation); Brewer v. Quarterman, 550 U.S. 286 (2007) (same). But cf. Franklin v. Lynaugh, 487 U.S. 164 (1988) (consideration of defendant’s character as revealed by jail behavior may be limited to context of assessment of future dangerousness).

26

“Neither [Lockett nor Eddings] establishes the weight which must be given to any particular mitigating evidence, or the manner in which it must be considered; they simply condemn any procedure in which such evidence has no weight at all.” Barclay v. Florida, 463 U.S. 939, 961 n.2 (1983) (Stevens, J., concurring in judgment).

27

Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990).

28

Id.

29

Id.

30

Boyde v. California, 494 U.S. 370 (1990). A court is not required to give a jury instruction expressly directing the jury to consider mitigating circumstance, as long as the instruction actually given affords the jury the discretion to take such evidence into consideration. Buchanan v. Angelone, 522 U.S. 269 (1998). In this vein, the Court has held that capital sentencing courts are not obliged to inform the jury affirmatively that mitigating circumstances lack the need for proof beyond a reasonable doubt. See Kansas v. Carr, 136 S. Ct. 633, 642–43 (2016) (noting that ambiguity in capital sentencing instructions gives rise to constitutional error only if there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents consideration of constitutionally relevant evidence). By the same token, a court did not offend the Constitution by directing the jury’s attention to a specific paragraph of a constitutionally sufficient instruction in response to the jury’s question about proper construction of mitigating circumstances. Weeks v. Angelone, 528 U.S. 225 (2000). Nor did a court offend the Constitution by instructing the jury to consider “[a]ny other circumstance of the crime which extenuates the gravity of the crime,” without specifying that such circumstance need not be a circumstance of the crime, but could include “some likelihood of future good conduct.” Ayers v. Belmontes, 549 U.S. 7, 10, 15 (2006). This was because the jurors had heard “extensive forward-looking evidence,” and it was improbable that they would believe themselves barred from considering it. Id. at 16.

31

California v. Brown, 479 U.S. 538, 543 (1987).

32

Mills v. Maryland, 486 U.S. 367 (1988); McKoy v. North Carolina, 494 U.S. 433 (1990). Compare Smith v. Spisak, 558 U.S. 139, 143–49 (2010) (distinguishing jury instructions in Mills from instructions directing each juror to independently assess any mitigating factors before jury as a whole balanced the weight of mitigating evidence against each aggravating factor, with unanimity required before balance in favor of an aggravating factor may be found).

33

Simmons v. South Carolina, 512 U.S. 154 (1994). See also Lynch v. Arizona, 136 S. Ct. 1818, 1820 (2016) (holding that the possibility of clemency and the potential for future “legislative reform” does not justify a departure from the rule of Simmons); Kelly v. South Carolina, 534 U.S. 246, 252 (2002) (concluding that a prosecutor need not express an intent to rely on future dangerousness; logical inferences may be drawn); Shafer v. South Carolina, 532 U.S. 36, 40 (2001) (holding that an amended South Carolina law still runs afoul of Simmons).

34

546 U.S. 212, 220 (2006). In some states, “the only aggravating factors permitted to be considered by the sentencer [are] the specified eligibility factors.” Id. at 217. These are known as weighing states; non-weighing states, by contrast, are those that permit “the sentencer to consider aggravating factors different from, or in addition to, the eligibility factors.” Id. Prior to Brown v. Sanders, in weighing states, the Court deemed “the sentencer’s consideration of an invalid eligibility factor” to require “reversal of the sentence (unless a state appellate court determined the error was harmless or reweighed the mitigating evidence against the valid aggravating factors).” Id.

35

Zant v. Stephens, 462 U.S. 862 (1983).

36

Barclay v. Florida, 463 U.S. 939 (1983).

37

In Eighth Amendment cases as in other contexts involving harmless constitutional error, the court must find that error was “'harmless beyond a reasonable doubt in that it did not contribute to the [sentence] obtained.’” Sochor v. Florida, 504 U.S. 527, 540 (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Thus, where psychiatric testimony was introduced regarding an invalid statutory aggravating circumstance, and where the defendant was not provided the assistance of an independent psychiatrist in order to develop rebuttal testimony, the lack of rebuttal testimony might have affected how the jury evaluated another aggravating factor. Consequently, the reviewing court erred in reinstating a death sentence based on this other valid aggravating factor. Tuggle v. Netherland, 516 U.S. 10 (1995).

38

See Clemons v. Mississippi, 494 U.S. 738, 741 (1990) (authorizing appellate reassessment of a death sentence on an improper aggravating circumstance); see also McKinney v. Arizona, 140 S. Ct. 702, 706–07 (2020) (extending Clemons review so that a reassessment could occur when a trial court improperly ignored a mitigating circumstance).

39

Johnson v. Mississippi, 486 U.S. 578 (1988).

40

546 U.S. 517, 523 (2006).

41

546 U.S. at 524, 526 (Court’s emphasis deleted in part).

42

546 U.S. at 526.

43

See Booth v. Maryland, 482 U.S. 496, 501–02 (1987); see also South Carolina v. Gathers, 490 U.S. 805, 811 (1989) (concluding that Booth extended to a prosecutor’s statements about a victim’s personal qualities).

44

The Court has refrained from overturning Booth's holding that the admission of a victim’s family members’ characterizations and opinions about the “underlying crime, the defendant, and the appropriate sentence” violate the Eighth Amendment. See Bosse v. Oklahoma, 137 S. Ct. 1, 1 (2016) (per curiam). Instead, the Court has overruled Booth's central holding that “evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are inadmissible at a capital sentencing hearing.” See Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991).

45

See Payne, 501 U.S. at 817.

46

Id. at 822.