It does raise the question of what is the point of having bifurcated capital murder trials if the sentencer is effectively able to do as he pleases. Alabama's wholly advisory system renders Gregg toothless even if a semi-plausible academic argument can be made to reconcile them. It might not be an issue were there not to be an appearance of arbitrariness fuelled, say Sotomayor and Breyer, by the trial judges' electoral concerns.
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