Cite as: 527 U. S. 373 (1999)
Ginsburg, J., dissenting
no doubt that the jury would have reached the same conclusion had the aggravators been precisely defined in writing.
* * *
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Ginsburg, with whom Justice Stevens and Justice Souter join, and with whom Justice Breyer joins as to Parts I, II, III, and V, dissenting.
The Federal Death Penalty Act of 1994 (FDPA), 18 U. S. C. §§ 3591-3598 (1994 ed. and Supp. III), establishes a complex regime applicable when the Government seeks the ultimate penalty for a defendant found guilty of an offense potentially punishable by death. This case is pathmarking, for it is the first application of the FDPA. Two questions, as I comprehend petitioner's core objections, warrant prime attention.
First, when Congress specifies only two sentencing options for an offense, death or life without possibility of release, must the jury be told exactly that? Or, can a death decision stand despite misleading trial court "lesser sentence" instructions, specifically, instructions open to the construction that lack of a unanimous jury vote for either life or death would allow the judge to impose a sentence less severe than life in prison? Second, when the jury is unable to agree on a unanimous recommendation in a case in which death or life without possibility of release are the only sentencing options, must the judge then impose the life sentence? Or, is the judge required or permitted to impanel a second jury to make the life or death decision?
The Court of Appeals for the Fifth Circuit confronted these two questions and resolved both for the prosecution. The Fifth Circuit also tolerated the trial court's submission of two nonstatutory aggravating factors to the jury, although
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