408
Ginsburg, J., dissenting
Second, the jury decides which, if any, of the Government-proposed aggravating factors, statutory and nonstatutory, were proved beyond a reasonable doubt. See § 3593(d).7 Third, if the jury finds at least one of the statutory aggravators proposed by the Government, the jury then determines whether the aggravating factors "sufficiently outweigh" the mitigating factors to warrant a death sentence, or, absent mitigating factors, whether the aggravators alone warrant that sentence. § 3593(e). The mitigating factors, seven statutory and any others tending against the death sentence, are individually determined by each juror; unlike aggravating factors, on which the jury must unanimously agree under a "beyond a reasonable doubt" standard, a mitigating factor may be considered in the jury's weighing process if any one juror finds the factor proved by a "preponderance of the evidence." See §§ 3592(a), (c), 3593(d). The weighing is not numeric; the perceived significance, not the number, of aggravating and mitigating factors determines the decision.8
II
Louis Jones, Jr.'s crime was atrocious; its commission followed Jones's precipitous decline in fortune and self-governance on termination of his 22-year Army career. On February 18, 1995, Jones forcibly abducted Private Tracie
connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or
"(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act."
7 The FDPA lists 16 aggravating factors for homicide and allows the jury to "consider whether any other aggravating factor for which notice has been given [by the Government] exists." 18 U. S. C. § 3592(c). Nonstatu-tory aggravators "may include factors concerning the effect of the offense on the victim and the victim's family." § 3593(a).
8 See Little, supra, at 397 ("[Weighing] requires qualitative, not quantitative, evaluation." (internal quotation marks omitted)).
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