Cite as: 536 U. S. 584 (2002)
O'Connor, J., dissenting
is now likely to challenge his or her death sentence. I believe many of these challenges will ultimately be unsuccessful, either because the prisoners will be unable to satisfy the standards of harmless error or plain error review, or because, having completed their direct appeals, they will be barred from taking advantage of today's holding on federal collateral review. See 28 U. S. C. §§ 2244(b)(2)(A), 2254(d)(1); Teague v. Lane, 489 U. S. 288 (1989). Nonetheless, the need to evaluate these claims will greatly burden the courts in these five States. In addition, I fear that the prisoners on death row in Alabama, Delaware, Florida, and Indiana, which the Court identifies as having hybrid sentencing schemes in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determination, see ante, at 608, n. 6, may also seize on today's decision to challenge their sentences. There are 629 prisoners on death row in these States. Criminal Justice Project, supra.
By expanding on Apprendi, the Court today exacerbates the harm done in that case. Consistent with my dissent, I would overrule Apprendi rather than Walton.
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