406
Ginsburg, J., dissenting
the appeals court found those factors duplicative and vague.1 The lower courts' disposition for death, despite the flawed trial proceedings, and this Court's tolerance of the flaws, disregard a most basic guide: "[A]ccurate sentencing information is an indispensable prerequisite to a [jury's] determination of whether a defendant shall live or die." Gregg v. Georgia, 428 U. S. 153, 190 (1976) ( joint opinion of Stewart, Powell, and Stevens, JJ.). That "indispensable prerequisite" was not satisfied in this case. I would reverse and remand so that the life or death decision may be made by an accurately informed trier.
I
After authorizing the federal death penalty for a small category of cases in 1988,2 Congress enacted comprehensive death penalty legislation in 1994. See FDPA, 108 Stat.
1 The Court granted certiorari on three questions as phrased by the United States: " '1. Whether petitioner was entitled to a jury instruction that the jury's failure to agree on a sentencing recommendation automatically would result in a court-imposed sentence of life imprisonment without possibility of release. 2. Whether there is a reasonable likelihood that the jury instructions led the jury to believe that deadlock on the penalty recommendation would automatically result in a court-imposed sentence less severe than life imprisonment. 3. Whether the Court of Appeals correctly held that the submission of invalid nonstatutory aggravating factors was harmless beyond a reasonable doubt.' " 525 U. S. 809 (1998); see also Brief for United States I.
I think it fair and " 'principled,' " ante, at 402, to read the indigent petitioner's arguments on the questions presented with the willingness to overlook "loose drafting" that the Court consistently shows in evaluating the Government's case. See, e. g., ante, at 402; see also ante, at 395-402 (adopting Government's merits brief arguments although those arguments were not mentioned in the Brief in Opposition).
2 The predecessor Anti-Drug Abuse Act of 1988 authorized the death penalty for murder resulting from certain drug-related offenses. See 21 U. S. C. § 848(e). The FDPA states that its procedures apply to "any [federal] offense for which a sentence of death is provided," 18 U. S. C. § 3591(a)(2), but does not repeal the 1988 Act, which differs in some respects. See, e. g., 21 U. S. C. §§ 848(q)(4)-(9) (mandatory appointment of habeas counsel and provision of investigative and expert services).
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