Cite as: 505 U. S. 333 (1992)
Stevens, J., concurring in judgment
ference between the guided-discretion regime upheld in Gregg v. Georgia and the mandatory death-sentence regime invalidated in Roberts v. Louisiana, 428 U. S. 325 (1976). The Roberts scheme was constitutionally infirm because it left no room for individualized moral judgments, because it failed to provide the sentencer with a "meaningful opportunity [to] conside[r the] mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender." Id., at 333-334 (opinion of Stewart, Powell, and Stevens, JJ.). The Court's definition of "innocence of the death sentence" is like the statutory scheme in Roberts: It focuses solely on whether the defendant is in a class eligible for the death penalty and disregards the equally important question whether " 'death is the appropriate punishment in [the defendant's] specific case.' " Zant v. Stephens, 462 U. S., at 885 (quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976)).2
The Court's definition of "innocent of the death sentence" is flawed in a second, related way. The Court's analysis not only neglects errors that preclude a sentencer's consideration of mitigating factors; it also focuses too narrowly on eligibility. The Court requires a defendant to call into question all of the aggravating factors found by the sentencer and thereby show himself ineligible for the death penalty.
2 The Court rejects the argument that federal courts should also consider mitigating evidence because consideration of such evidence involves the "far more difficult task [of] assess[ing] how jurors would have reacted to additional showings." Ante, at 346. I see no such difference between consideration of aggravating and mitigating circumstances; both require the federal courts to reconsider and anticipate a sentencer's decision: By the Court's own standard federal courts must determine whether a "reasonable juror would have found" certain facts. Thus, the Court's reason for barring federal courts from considering mitigating circumstances applies equally to the standard that it endorses. Its exclusion of mitigating evidence from consideration is therefore wholly arbitrary.
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