994
Blackmun, J., dissenting
a way that the risk of arbitrariness is realized.21 The cases
before us, for example, do not clearly present a situation in which the absence of a mitigator was treated as an aggravator.
Additionally, the Court's opinion says nothing about the constitutional adequacy of California's eligibility process, which subjects a defendant to the death penalty if he is convicted of first-degree murder and the jury finds the existence of one "special circumstance." 22 By creating nearly 20 such special circumstances, California creates an extraordinarily large death pool. Because petitioners mount no challenge to these circumstances, the Court is not called on to determine that they collectively perform sufficient, meaningful narrowing. See Zant v. Stephens, 462 U. S. 862 (1983).
Of particular significance, the Court's consideration of a small slice of one component of the California scheme says nothing about the interaction of the various components— the statutory definition of first-degree murder, the special circumstances, the relevant factors, the statutorily required weighing of aggravating and mitigating factors, and the availability of judicial review, but not appellate proportionality review—and whether their end result satisfies the Eighth Amendment's commands. The Court's treatment today of the relevant factors as "selection factors" alone rests on the
21 Such a challenge would require something more than merely pointing to others who committed similar offenses and did not receive the death penalty, Lewis v. Jeffers, 497 U. S. 764 (1990), but it is not hard to imagine more pronounced erratic outcomes.
22 The special circumstances include premeditated and deliberate murder; felony murder based on nine felonies; the infliction of torture; that the murder was especially heinous, atrocious, or cruel; that the victim was killed because of his race, religion, or ethnic origin; and the identity of the victim, including that he was a peace officer, a federal law enforcement officer, a firefighter, a witness to a crime, a prosecutor or assistant prosecutor, a former or current local, state, or federal judge, or an elected or appointed local, state, or federal official. Cal. Penal Code Ann. § 190.2 (West 1988).
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