Cite as: 527 U. S. 373 (1999)
Ginsburg, J., dissenting
The Court, in common with the Fifth Circuit and the Solicitor General, insists it was just as likely that jurors not supporting death could have persuaded death-prone jurors to give way and vote for a life sentence. See ante, at 394; 132 F. 3d, at 246; Brief for United States 22. I would demur (say so what) to that position. It should suffice that the potential to confuse existed, i. e., that the instructions could have tilted the jury toward death. The instructions "introduce[d] a level of uncertainty and unreliability into the fact-finding process that cannot be tolerated in a capital case." Beck v. Alabama, 447 U. S. 625, 643 (1980). "Capital sentencing should not be . . . a game of 'chicken,' in which life or death turns on the . . . happenstance of whether the particular 'life' jurors or 'death' jurors in each case will be the first to give in, in order to avoid a perceived third sentencing outcome unacceptable to either set of jurors." Reply Brief 7-8, n. 11.
B
The Fifth Circuit held that the District Court was not obliged to tell the jury that Jones's default penalty was life without possibility of release in part because the appeals court viewed that instruction as "substantively [in]correct." 132 F. 3d, at 242.20 As the Fifth Circuit comprehended the law, if the jury deadlocked, "a second sentencing hearing
(L. Hand, J.) (while many defects in jury deliberation do not require reversal, "this has . . . nothing to do with what evidence shall be competent to prove the facts when the facts do require the verdict to be set aside, as concededly some facts do").
20 Misinformation, not the District Court's failure to repeat the unanimity requirement each time it mentioned the jury's sentencing options, or to advise on the consequences of a deadlocked jury, is the harmful error at the heart of Jones's case. I therefore see no cause to dispute that "the Eighth Amendment does not require that the jury be instructed as to the consequences of their failure to agree." Ante, at 381. In my judgment, however, the court was obliged, in this life or death case, to make clear to the jury that Jones's minimum sentence was life without possibility of release.
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