OCTOBER TERM, 2001
Syllabus
KELLY v. SOUTH CAROLINA
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA
No. 00-9280. Argued November 26, 200l-Decided January 9,
2002
After convicting petitioner Kelly of murder and related crimes,
a South Carolina jury was asked to determine whether any
aggravating factors had been shown and, if so, to recommend a
sentence of death or life imprisonment. At the sentencing
proceeding, the prosecutor presented testimony that Kelly had made
a knife while in prison and taken part in an escape attempt with
plans to hold a female guard hostage. The prosecutor's
cross-examination of a psychologist brought out evidence of Kelly's
sadism at an early age and his current desires to kill anyone who
irritated him. In his closing argument, the prosecutor spoke of
Kelly as a "dangerous" "bloody" "butcher." Relying on the holding
of Simmons v. South Carolina,
512 U. S. 154-that when
"a capital defendant's future dangerousness is at issue, and the
only sentencing alternative to death ... is life imprisonment
without possibility of parole, due process entitles the defendant
'to inform the jury of [his] parole ineligibility,'" Shafer v.
South Carolina,
532 U.
S. 36, 39-defense counsel requested a jury instruction stating
that Kelly would be ineligible for parole if he received a life
sentence. The trial court refused, saying that the State's evidence
went to Kelly's character and characteristics, not to future
dangerousness. The jury recommended a death sentence. In affirming
the sentence, the State Supreme Court held Simmons inapposite for
two reasons: state law provided the jury with a third sentencing
alternative, and future dangerousness was not at issue.
Held: Kelly was entitled to a jury instruction that he would be
ineligible for parole under a life sentence. The State Supreme
Court's statement that Simmons is inapplicable under South
Carolina's new sentencing scheme because life without the
possibility of parole is not the only legally available sentence
alternative to death mistakes the relationship of Simmons to the
state sentencing scheme. Although a murder defendant facing a
possible death sentence can, under some circumstances, receive a
sentence less than life imprisonment, under the state scheme a jury
now makes a sentencing recommendation only if the jurors find an
aggravating circumstance. When they do make a recommendation, their
only alternatives are death or life without parole. Thus, the state
court's reasoning is not to the point. The court also erred in
ruling that Kelly's future dangerousness is not at issue. The
evidence and argument cited by the court are flatly at odds with
that conclusion. The
247
court saw the evidence as going only to Kelly's behavior in
prison, or to his proclivity to escape from it, and overlooked the
fact that evidence of violent behavior in prison can raise a strong
implication of generalized future dangerousness, Simmons, supra, at
171. A jury hearing evidence of a defendant's propensity for
violence reasonably will conclude that he presents a risk of
violent behavior, whether locked up or free, and whether free as a
fugitive or as a parolee. Evidence of future dangerousness under
Simmons is evidence with a tendency to prove dangerousness in the
future; its relevance to that point does not disappear merely
because it might support other inferences or be described in other
terms. The prosecutor accentuated the clear inference of future
dangerousness raised by the evidence and placed the case within the
four corners of Simmons. Although his characterizations of butchery
went to retribution, that did not make them any the less arguments
that Kelly would be dangerous down the road. Thus was Kelly's jury,
like its predecessor in Simmons, invited to infer "that petitioner
is a vicious predator who would pose a continuing threat to the
community." Simmons, supra, at 176. It is not dispositive that
Kelly's jury did not ask the judge for further instruction on
parole eligibility, whereas the Simmons and Shafer juries did. A
trial judge's duty is to give instructions sufficient to explain
the law, an obligation that exists independently of any question
from the jurors or any other indication of perplexity on their
part. Nor is there any reason to believe that Kelly's jury was
better informed than Simmons's or Shafer's on the matter of parole
eligibility. Pp. 251-258.
343 S. C. 350, 540 S. E. 2d 851, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C.
J., filed a dissenting opinion, in which KENNEDY, J., joined, post,
p. 258. THOMAS, J., filed a dissenting opinion, in which SCALIA,
J., joined, post, p. 262.
David 1. Bruck, by appointment of the Court, 534 U. S. 809,
argued the cause for petitioner. With him on the briefs was Robert
M. Dudek.
S. Creighton Waters, Assistant Attorney General of South
Carolina, argued the cause for respondent. With him on the brief
were Charles M. Condon, Attorney General, John W McIntosh, Chief
Deputy Attorney General, and Donald
J. Zelenka, Assistant
Deputy Attorney General.
248
JUSTICE SOUTER delivered the opinion of the Court.
Last Term, we reiterated the holding of Simmons v. South
Carolina,
512 U. S.
154 (1994), that when "a capital defendant's future
dangerousness is at issue, and the only sentencing alternative to
death available to the jury is life imprisonment without
possibility of parole, due process entitles the defendant 'to
inform the jury of [his] parole ineligibility, either by a jury
instruction or in arguments by counsel.'" Shafer v. South Carolina,
532 U. S. 36, 39
(2001) (quoting Ramdass v. Angelone,
530 U. S. 156, 165 (2000)
(plurality opinion)). In this case, the Supreme Court of South
Carolina held Simmons inapposite for two reasons: state law
provided the jury with a third sentencing alternative, and future
dangerousness was not at issue. Each reason was error.
I
In 1996, the State of South Carolina indicted petitioner William
Kelly for an extraordinarily brutal murder, kidnaping, and armed
robbery, and for possession of a knife during the commission of a
violent crime. The jury convicted Kelly on all charges.
The trial then proceeded to a separate sentencing phase calling
for the jury to determine whether any aggravating factor had been
shown and, if so, to choose between recommendations of death or
life imprisonment. The prosecutor began by telling the jurors that
"I hope you never in your lives again have to experience what you
are experiencing right now. Being some thirty feet away from such a
person. Murderer." App. 64. He went on to present testimony that
while in prison, Kelly had made a knife (or shank) and had taken
part in an escape attempt, even to the point of planning to draw a
female guard into his cell where he would hold her hostage. See
id., at 129-132, 140-141. The prosecutor's cross-examination
of a psychologist brought out evi-
249
dence of Kelly's sadism at an early age, see
id., at 218,
and his inclination to kill anyone who rubbed him the wrong way,
see
id., at 195.
After presentation of this evidence but before closing
arguments, Kelly's counsel relied on Simmons in requesting the
judge to instruct the jurors that if Kelly received a sentence of
life imprisonment, he would be ineligible for parole. The
instruction she sought was a near-verbatim excerpt of S. C. Code
Ann. § 16-3-20 (2000 Cum. Supp.):
"'[L]ife imprisonment' means imprisonment until the death of the
offender. No person sentenced to life imprisonment is eligible for
parole, community supervision, or any early release program, nor is
the person eligible to receive any work credits, education credits,
good conduct credits, or any other credits that would reduce the
mandatory life imprisonment required by law." 343 S. C. 350, 360,
540 S. E. 2d 851, 856 (2001).
The prosecutor objected that "I'm not going to argue future
dangerous [ness]. So that takes it out of Simmons anyhow." App.
245. The defense responded that "the State ha[d] already raised
future dangerousness" through presentation of sentencing phase
evidence, "calling correctional officers to testify to an escape
attempt, to testify to the fact that [Kelly] had possession of a
shank, by calling inmates who testified to [Kelly's] behavior in
the jail ... [and] his plan to take a female guard hostage." Ibid.
Defense counsel argued that the State's cross-examination of the
psychologist reinforced the other evidentiary indications of
Kelly's future dangerousness. Id., at 245-246. The trial court
denied the requested instruction, saying that the State's evidence
went to Kelly's character and characteristics, not to future
dangerousness. Id., at 249.
The sentencing proceeding then closed with arguments in which
the prosecutor spoke of Kelly as "the butcher of Bates-
250
burg," "Bloody Billy," and "Billy the Kid." Id., at 267-268. The
prosecutor told the jurors that "[Kelly] doesn't have any mental
illness. He's intelligent .... He's quick-witted. Doesn't that make
somebody a little more dangerous-"
id., at 269. Defense
counsel interrupted the prosecutor in midsentence with an
objection, presumably for raising Kelly's future dangerousness. The
prosecutor nonetheless went on immediately, "-for this lady, this
crime on January the 5th, doesn't that make him more unpredictable
for [the victim] Shirley Shealy." Ibid. Kelly's counsel did not
renew her objection, and the trial court never ruled on the
objection entered.1 The prosecutor continued that "murderers will
be murderers. And he is the cold-blooded one right over there."
Id., at 272.
After the closing arguments, the trial judge instructed the jury
that in choosing between recommendations of death and life
imprisonment, it should consider the possible presence of five
statutory aggravating circumstances, and three possible statutory
mitigating circumstances. The judge explained "that the terms 'life
imprisonment' and 'death sentence' are to be understood in this
ordinary and plain meaning." Id., at 289. But, in accordance with
the earlier ruling, the court did not say that under South Carolina
law, a convicted murderer sentenced to life imprisonment was
ineligible for parole, nor did the court instruct that Kelly's
future dangerousness was not in issue. At the end of the charge,
Kelly's counsel renewed her objection to the court's refusal to
give her requested Simmons instruction or, in the alternative, to
inform the jury that the State had stipulated that future
dangerousness was not in issue in the case. App. 304.
1 Although the State Supreme Court referred to this portion of
the prosecutor's argument, it did not indicate that defense counsel
had objected between the prosecutor's description of Kelly as
"dangerous" and his subsequent characterization of Kelly as
dangerous to the victim. 343 S. C. 350, 360, 540 S. E. 2d 851, 856
(2001).
251
After deliberating for 43 minutes, the jury found five statutory
aggravating circumstances beyond a reasonable doubt and returned a
recommendation of death,
id., at 305-307, to which the trial
court acceded.
On appeal to the Supreme Court of South Carolina, Kelly assigned
error to the trial court's refusal to instruct that he would be
ineligible for parole under a life sentence. The State Supreme
Court ruled otherwise and gave two alternative grounds for
affirming the sentence. First, it followed the trial court in
saying that the State's evidence at sentencing did not raise future
dangerousness and so did not trigger Simmons: "[WJe agree with the
trial court that the State's evidence at sentencing did not
implicate future dangerousness .... In our opinion, the evidence
presented by the State in the penalty phase was designed to show
that Kelly would not adapt to prison life .... " 343 S.
C.,
at 362, 540 S. E. 2d, at 857. Second, relying on its own ruling in
State v. Shafer, 340 S. C. 291, 531 S. E. 2d 524 (2000), rev'd,
Shafer v. South Carolina,
532 U. S. 36 (2001), the
state court held that Simmons had no application to the sentencing
regime in place at Kelly's trial. 343 S.
C., at 364, 540 S.
E. 2d, at 858. The State Supreme Court committed error on each
point. We granted certiorari, 533 U. S. 928 (2001), and now
reverse.
II
We take the State Supreme Court's reasons out of order, for the
second one can be answered with little more than citation to
Shafer, in which we reversed a South Carolina judgment last Term.
The state court said that "Simmons is inapplicable under [South
Carolina's] new sentencing scheme because life without the
possibility of parole is not the only legally available sentence
alternative to death." 343 S.
C., at 364, 540 S. E. 2d, at
858. That statement mistakes the relationship of Simmons to the
state sentencing scheme. It is true that a defendant charged with
murder carrying the
252
possibility of a death sentence can, under some circumstances,
receive a sentence less than life imprisonment. But, as we
explained in Shafer, under the South Carolina sentencing scheme a
jury now makes a sentencing recommendation only if the jurors find
the existence of an aggravating circumstance. When they do make a
recommendation, their only alternatives are death or life without
parole. 532 U. S., at 49-50.2 We therefore hold, as we did in
Shafer, that the state court's reasoning is not to the point.
The State Supreme Court's first ground, that Kelly's future
dangerousness was not "at issue," is unsupportable on the record
before us. It is not that the state court failed to pose the legal
issue accurately, for in considering the applicability of Simmons
it asked whether Kelly's future dangerousness was "a logical
inference from the evidence," or was "injected into the case
through the State's closing argument." 343 S. C., at 363, 540 S. E.
2d, at 857; see also Shafer, supra, at 54-55 (whether prosecutor's
evidence or argument placed future dangerousness in issue);
Simmons, 512 U. S., at 165, 171 (plurality opinion) (future
dangerousness in issue because "State raised the specter of ...
future dangerousness generally" and "advanc[ed] generalized
arguments regarding the [same]");
id., at 174 (GINSBURG, J.,
concurring);
id., at 177 (O'CONNOR, J., concurring in
judgment). The error, rather,
2 Under South Carolina law, capital jurors first must decide
whether the State has proven the existence of any statutory
aggravating circumstance beyond a reasonable doubt. If the jury
cannot agree unanimously on the presence of such a circumstance, it
cannot make a sentencing recommendation; the judge is then charged
with sentencing the defendant either to life imprisonment without
parole or to a prison term of at least 30 years. S. C. Code Ann. §§
16-3-20(B),
(C) (2000 Cum. Supp.);
State v.
Starnes, 340 S. C. 312, 328, 531 S. E. 2d 907, 916 (2000).
But, if the jury does unanimously find a statutory aggravating
circumstance, it recommends one of two possible sentences: death or
life imprisonment without the possibility of parole. §§ 16-3-20(A),
(B). The jury has no other sentencing option.
253
was on the facts: the evidence and argument cited by the state
court are flatly at odds with the view that "future dangerousness
was not an issue in this case." 343 S.
C., at 363, 540 S. E.
2d, at 857.
The court acknowledged the prosecutor's "[e]vidence that Kelly
took part in escape attempts and carried a shank,"
id., at
362, 540 S. E. 2d, at 857, and that "he had been caught carrying a
weapon and planning or participating in escape attempts," ibid. The
court concluded, however, that this evidence was not the sort
contemplated by Simmons, that is, evidence demonstrating future
danger "'if released from prison.'" 343 S.
C., at 362, n. 8,
540 S. E. 2d, at 857, n. 8 (quoting Simmons, supra, at 163)
(emphasis added by state court). The court saw the evidence as
going only to Kelly's likely behavior in prison, or to his
proclivity to escape from it; the state court said that Kelly was
allowed to rebut this evidence of his inability to adapt to prison
life, but that explaining parole ineligibility would do nothing to
rebut evidence that Kelly was an escape risk. 343 S.
C., at
362-363, 540 S. E. 2d, at 857.
Even if we confine the evidentiary consideration to the evidence
discussed by the State Supreme Court, the court's conclusion cannot
be accepted. To the extent that it thought that "[e]vidence that
Kelly took part in escape attempts and carried a shank ... is not
the type of future dangerousness evidence contemplated by Simmons,"
id., at 362, 540 S. E. 2d, at 857, it overlooked that evidence of
violent behavior in prison can raise a strong implication of
"generalized ... future dangerousness." Simmons, supra, at 171.
(And, of course, the state court's reasoning says nothing about the
evidence of the crime, or of Kelly's sadism generally, and his
mercurial thirst for vengeance.) A jury hearing evidence of a
defendant's demonstrated propensity for violence reasonably will
conclude that he presents a risk of violent behavior,
254
whether locked up or free, and whether free as a fugitive or as
a parolee.3
The fallacy of the State Supreme Court's attempt to portray the
thrust of the evidence as so unrealistically limited harks back to
a comparable mistake by the trial judge, who spoke of the evidence
as going, not to future dangerousness, but "to [Kelly's] character
and characteristics." App. 249. The error in trying to distinguish
Simmons this way lies in failing to recognize that evidence of
dangerous "character" may show "characteristic" future
dangerousness, as it did here. This, indeed, is the fault of the
State's more general argument before us, that evidence of future
dangerousness counts under Simmons only when the State
"introduc[es] evidence for which there is no other possible
inference but future dangerousness to society." Brief for
Respondent 27 (emphasis in original). Evidence of future
dangerousness under Simmons is evidence with a tendency to prove
dangerousness in the future; its relevance to that point does not
disappear merely because it might support other inferences or be
described in other terms.4
3 THE CHIEF JUSTICE'S dissent correctly notes that a required
instruction on parole eligibility does not bar a prosecutor from
arguing dangerousness in prison as a ground for choosing the death
penalty. See post, at 261. The plurality acknowledged this
possibility in Simmons v. South Carolina,
512 U. S. 154, 165, n. 5
(1994) ("[T]he fact that a defendant is parole ineligible does not
prevent the State from arguing that the defendant poses a future
danger"); see also
id., at 177 (O'CONNOR, J., concurring in
judgment) (when the defendant "bring[s] his parole ineligibility to
the jury's attention" "the prosecution is free to argue that the
defendant would be dangerous in prison"). But the plurality also
recognized that even if a "State [were] free to argue that the
defendant will pose a danger to others in prison,"
id., at
165, n. 5, the State was not free to "mislead the jury by
concealing accurate information about the defendant's parole
ineligibility,"
ibid.
4 As THE CHIEF JUSTICE says, see post, at 261 (dissenting
opinion), it may well be that the evidence in a substantial
proportion, if not all, capital cases will show a defendant likely
to be dangerous in the future. See Simmons, supra, at 163
(plurality opinion) (noting that "prosecutors in South Carolina,
like those in other States that impose the death penalty,
255
The prosecutor accentuated the clear implication of future
dangerousness raised by the evidence and placed the case within the
four corners of Simmons. He had already expressed his hope that the
jurors would "never in [their] lives again have to experience ...
[b]eing some thirty feet away from such a person" as Kelly. App.
64. The State Supreme Court made no mention of this, despite its
thrust: since the jurors were unlikely to be spending any time in
prison, they would end up 30 feet away from the likes of Kelly only
if he got out of prison, as he might if parole were possible. The
argument thus echoed the one made in Simmons itself, that the
imposition of the death penalty was an act of "selfdefense." Both
statements "implied that petitioner would be let out eventually if
the jury did not recommend a death sentence." 512 U. S., at 178
(O'CONNOR, J., concurring in judgment) (emphasis in original).
And there was more. The state court to be sure considered the
prosecutor's comparison of Kelly to a notorious serial killer,
variously calling him a "dangerous" "bloody" "butcher." The court
nonetheless thought it could somehow cordon off these statements as
raising nothing more than a call for retribution. 343 S.
C.,
at 363, 540 S. E. 2d, at 857. But the import of the argument simply
cannot be compartmentalized this way. Characterizations of butchery
did go to retribution, but that did not make them any the less
arguments that Kelly would be dangerous down the road.5 They
frequently emphasize a defendant's future dangerousness in their
evidence and argument at the sentencing phase"). But this is not an
issue here, nor is there an issue about a defendant's entitlement
to instruction on a parole ineligibility law when the State's
evidence shows future dangerousness but the prosecutor does not
argue it. The only questions in this case are whether the evidence
presented and the argument made at Kelly's trial placed future
dangerousness at issue. The answer to each question is yes, and we
need go no further than Simmons in our discussion.
5 Nor, as the State Supreme Court thought, was evidence,
elicited by the prosecution, that Kelly "took part in escape
attempts," 343 S.
C., at 362, 540 S. E. 2d, at 857, somehow
distinct from indications of dangerousness. It is true that
evidence of propensity to escape does not necessarily
256
complemented the prosecutor's submissions that Kelly was "more
frightening than a serial killer," App. 260, and that "murderers
will be murderers,"
id., at 272.6 Thus was Kelly's jury,
like its predecessor in Simmons, invited to infer "that petitioner
is a vicious predator who would pose a continuing threat to the
community." Simmons, supra, at 176 (O'CONNOR, J., concurring in
judgment).
Perhaps because this is so undeniable, the State in its argument
before us takes a tack never pursued by the state court, in
claiming there was no need for instruction on parole ineligibility,
because "there is nothing whatsoever to indicate that the jurors
were concerned at all with the possibility of [Kelly's] future
release when they decided death was appropriate." Brief for
Respondent 47. But it cannot matter that Kelly's jury did not ask
the judge for further instruction on parole eligibility, whereas
the Simmons and Shafer juries did. See Shafer, 532 U. S., at 44;
Simmons, supra, at 160. A trial judge's duty is to give
instructions sufficient to explain the law, an obligation that
exists independently of any question from the jurors or any other
indication of perplexity on their part. Cf. C. Wright, Federal
Practice and Procedure § 485, p. 375 (3d ed. 2000) ("It is the duty
of the trial judge to charge the jury on all essential questions of
law, whether requested or not"). Time after time appellate courts
have found jury instructions to be insufficiently clear without any
record that the jury manifested its confusion; one need look no
further than Penry v. Johnson,
532 U. S. 782 (2001), for
a recent example. While the jurors' questions in Simmons and Shafer
confirmed the inadequacy of the charges in those cases, in each
case it was independently
put future dangerousness at issue, but here, the prosecution
proffered evidence of at least one violent escape attempt. The
evidence of Kelly's plan to take a female guard hostage with a
shank underscored a propensity for violence in addition to a
predilection to escape.
6 The latter statement, in fact, speaks not to Kelly's past
conduct, but to his future deportment.
257
significant that "[d]isplacement of 'the longstanding practice
of parole availability' remains a relatively recent development [in
South Carolina], and 'common sense tells us that many jurors might
not know whether a life sentence carries with it the possibility of
parole.'" 532 U. S., at 52 (quoting Simmons, supra, at 177-178
(O'CONNOR, J., concurring in judgment)).7
Nor is there any reason to believe that Kelly's jury was better
informed than Simmons's or Shafer's on the matter of parole
eligibility. The State, to be sure, emphasizes defense counsel's
opening statement that the jury's recommendation would be "the
sentence actually imposed and the sentence that will actually be
carried out," Record 1660, as well as counsel's closing, which
stressed that Kelly would be in prison for the rest of his life and
would "never see the light of daylight again,"
id., at 2060.
The State stresses that the judge told the jury that the terms
"life imprisonment" and "death sentence" should be understood in
their plain and ordinary meanings. App.289.
But the same things could be said of Shafer, where we explicitly
noted defense counsel's statement to the jury that Shafer would"
'die in prison' after 'spend[ing] his natural life there,'" as well
as the trial judge's instructions that "'life imprisonment means
until the death of the defendant.'" 532 U. S., at 52 (emphasis
deleted). We found these statements inadequate to convey a clear
understanding of Shafer's parole ineligibility,
id., at
53-54,8 and Kelly, no less than Shafer, was entitled to his
requested jury instruction.
7Whether this history of penology should suffice to require a
Simmons instruction regardless of the details of evidence and
argument going to future dangerousness is a question not raised by
this case, in which evidence and argument did place dangerousness
in issue.
8 If Kelly's counsel had read the law verbatim to the jury with
the judge's manifest approval, that might have sufficed, but the
State does not claim that defense counsel had any such opportunity,
and conceded at oral argument that it is "very unlikely" that the
trial judge would have permit-
258
The judgment of the Supreme Court of South Carolina is reversed,
and the case is remanded for proceedings not inconsistent with this
opinion.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE KENNEDY joins,
dissenting.
In Simmons v. South Carolina,
512 U. S. 154 (1994),
the
prevailing opinion said:
"In a State in which parole is available, the Constitution does
not require (or preclude) jury consideration of that fact.
Likewise, if the prosecution does not argue future dangerousness,
the State may appropriately decide that parole is not a proper
issue for the jury's consideration even if the only alternative
sentence to death is life imprisonment without possibility of
parole.
"When the State seeks to show the defendant's future
dangerousness, however, the fact that he will never be released
from prison will often be the only way that a violent criminal can
successfully rebut the State's case .... And despite our general
deference to state decisions regarding what the jury should be told
about sentencing, I agree that due process requires that the
defendant be allowed to do so in cases in which the only available
alternative sentence to death is life imprisonment without
possibility of parole and the prosecution argues that the defendant
will pose a threat to society in the future." Id., at 176-177
(O'CONNOR, J., concurring in judgment).
But today, while purporting to merely "apply" Simmons, the Court
converts a tenable due process holding into a "truth in sentencing"
doctrine which may be desirable policy, but
ted defense counsel to read to the jury the relevant section of
the South Carolina Code. See Tr. of Oral Arg. 51.
259
has almost no connection with the due process rationale of
Simmons.
In some States-Texas, for example, see Tex. Crim. Proc.
Code Ann. §§ 37.071(b) and (g) (2001)-"future dangerousness" is
itself a ground for imposing the death penalty in a capital case.
In California v. Ramos,
463 U. S. 992 (1983), we
held that such a system was consistent with the Eighth Amendment.
But South Carolina's capital punishment system does not work that
way. There are 11 statutory aggravating factors which may be found
by the jury that must be weighed against mitigating factors. * See
S. C. Code Ann.
*The statutory aggravating factors are:
"(1) The murder was committed while in the commission of the
follow-
ing crimes or acts:
"(a) criminal sexual conduct in any degree; "(b) kidnapping;
"(c) burglary in any degree;
"(d) robbery while armed with a deadly weapon; "(e) larceny with
use of a deadly weapon;
"(f) killing by poison;
"(g) drug trafficking as defined in Section 44-53-370(e),
44-53-375(B),
44-53-440, or 44-53-445; "(h) physical torture; or
"(i) dismemberment of a person.
"(2) The murder was committed by a person with a prior
conviction for murder.
"(3) The offender by his act of murder knowingly created a great
risk of death to more than one person in a public place by means of
a weapon or device which normally would be hazardous to the lives
of more than one person.
"(4) The offender committed the murder for himself or another
for the purpose of receiving money or a thing of monetary
value.
"(5) The murder of a judicial officer, former judicial officer,
solicitor, former solicitor, or other officer of the court during
or because of the exercise of his official duty.
"(6) The offender caused or directed another to commit murder or
committed murder as an agent or employee of another person.
"(7) The murder of a federal, state, or local law enforcement
officer, peace officer or former peace officer, corrections
employee or former cor-
260
§ 16-3-20(C) (2001). At the sentencing phase of petitioner's
trial, the State argued, and the jury found, the statutory
aggravators that the murder was committed while in the commission
of: kidnaping; burglary; robbery while armed with a deadly weapon;
larceny with use of a deadly weapon; and physical torture. Once a
South Carolina jury has found the necessary aggravators, it may
consider future dangerousness in determining what sentence to
impose.
In the present case, the prosecutor did not argue future
dangerousness-as he did in Simmons-in any meaningful sense of that
term. But the Court says that he need not, in order for the
defendant to invoke Simmons; it is enough if evidence introduced to
prove other elements of the case has a tendency to prove future
dangerousness as well. Gone is the due process basis for the
rule-that where the State argues that the defendant will be
dangerous in the future, the defendant is entitled to inform the
jury by way of rebuttal that he will be in prison for life. Thus,
the Simmons rule is invoked, not in reference to any contention
made by the State, but only by the existence of evidence from which
a jury might infer future dangerousness. And evidence there will
surely be in a case such as the present one, correctly described by
the Court as "an extraordinarily brutal murder." Ante, at 248.
rections employee, or fireman or former fireman during or
because of the performance of his official duties.
"(8) The murder of a family member of an official listed in
subitems (5) and (7) above with the intent to impede or retaliate
against the official. 'Family member' means a spouse, parent,
brother, sister, child, or person to whom the official stands in
the place of a parent or a person living in the official's
household and related to him by blood or marriage.
"(9) Two or more persons were murdered by the defendant by one
act or pursuant to one scheme or course of conduct.
"(10) The murder of a child eleven years of age or under.
"(11) The murder of a witness or potential witness committed at
any time during the criminal process for the purpose of impeding or
deterring prosecution of any crime." S. C. Code Ann. §
16-3-20(C) (2001).
261
That to day's decision departs from Simmons is evident from the
Court's rejection of the South Carolina Supreme Court's distinction
between evidence regarding danger to fellow inmates and evidence
regarding danger to society at large. Simmons itself recognized
this distinction. Immediately after holding that the defendant
should be allowed to show that "he never would be released on
parole and thus, in his view, would not pose a future danger to
society," 512 U. S., at 165 (emphasis added), Simmons noted that
"[t]he State is free to argue that the defendant will pose a danger
to others in prison and that executing him is the only means of
eliminating the threat to the safety of other inmates or prison
staff,"
id., at 165, n. 5. See also
id., at 177
(O'CONNOR, J., concurring in judgment) (noting that where a parole
ineligibility instruction is given, "the prosecution is free to
argue that the defendant would be dangerous in prison"). This makes
eminent good sense, for when the State argues that the defendant
poses a threat to his cellmates or prison guards, it is no answer
to say that he never will be released from prison.
But the test is no longer whether the State argues future
dangerousness to society; the test is now whether evidence was
introduced at trial that raises an "implication" of future
dangerousness to society. Ante, at 253. It is difficult to envision
a capital sentencing hearing where the State presents no evidence
from which a juror might make such an inference. I would hazard a
guess that many jurors found the sheer brutality of this
crime-petitioner bound the hands of the victim (who was six months
pregnant) behind her back, stabbed her over 30 times, slit her
throat from ear to ear, and left dollar bills fastened to her
bloodied body-indicative of petitioner's future threat to society.
Yet all of this evidence was introduced not to prove future
dangerousness, but to prove other elements required by South
Carolina law, including the statutory aggravating factor that the
murder was committed while in the commission of physical
torture.
262
To be sure, the prosecutor's arguments about the details of the
murder, as well as the violent episodes in prison, demonstrated
petitioner's evil character. Yet if this were what Simmons intended
with the phrase "future dangerousness," it would have held that the
Constitution always required an instruction about parole
ineligibility. It plainly did not.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.
THE CHIEF JUSTICE, in dissent, concludes that, with the Court's
opinion, "[g]one is the due process basis for the [Simmons]
rule-that where the State argues that the defendant will be
dangerous in the future, the defendant is entitled to inform the
jury by way of rebuttal that he will be in prison for life." Ante,
at 260. I write separately because I continue to believe that there
never was a "basis for such a pronouncement." Simmons v. South
Carolina,
512 U. S.
154, 178 (1994) (SCALIA, J., dissenting). Indeed, the decision
today merely solidifies my belief that the Court was wrong, in the
first instance, to hold that the Due Process Clause requires the
States to permit a capital defendant to inform the jury that he is
parole ineligible in cases where the prosecutor argues future
dangerousness.
While we were informed in Simmons that the Court's intent was to
create a requirement that would apply in only a limited number of
cases, to day's sweeping rule was an entirely foreseeable
consequence of Simmons. See id., at 183. The decisive opinion 1
noted that "if the prosecution does not argue future dangerousness,
the State may appropriately decide that parole is not a proper
issue for the jury's consider-
IJustice Blackmun's plurality opinion in Simmons was joined by
three Members of the Court. JUSTICE O'CONNOR, joined by THE CHIEF
JusTICE and JUSTICE KENNEDY, provided the necessary votes to
sustain the judgment. Concurring in the judgment, JUSTICE O'CONNOR
therefore wrote the decisive opinion. See O'Dell v. Netherland,
521 U. S. 151,
158159 (1997).
263
ation even if the only alternative sentence to death is life
imprisonment without possibility of parole." Id., at 176-177
(O'CONNOR, J., concurring in judgment). One might think from this
language that the Court meant to preserve in most cases the State's
role in determining whether to instruct a jury regarding a
defendant's eligibility for parole. But the decisive opinion
seriously diminished the State's discretion in this area, holding
that due process requires that "[w]hen the State seeks to show the
defendant's future dangerousness ... the defendant should be
allowed to bring his parole ineligibility to the jury's attention."
Id., at 177 (emphasis added).2 Applying this rule, the Court
concluded that the prosecution "put [Simmons'] future dangerousness
in issue" and that due process required that the instruction be
given. Id., at 177-178.
After Simmons, we were left with a due process requirement that
hinged on a factual inquiry as to whether the State somehow
"show[ed] the defendant's future dangerousness," "argue[d] future
dangerousness, " or "put ... future dangerousness in issue." Id.,
at 176-177. Given such an imprecise standard, it is not at all
surprising that the Court today easily fits the State's argument
during Kelly's proceedings into the universe of arguments that
trigger the Simmons requirement. But the Court goes even further.
In making this factual judgment, the Court dilutes the Simmons
test, now requiring that a parole ineligibility instruction be
given where the prosecution makes arguments that have a "tendency
to prove dangerousness in the future." Ante, at 254 (emphasis
added).
This expansion is not surprising when one considers that in
Simmons the Court applied its own rule loosely. Placed
2 The plurality opinion used broader language, stating that due
process requires the instruction when the "prosecution allude[s]"
to the defendant's future dangerousness or "advanc[es] generalized
arguments regarding the defendant's future dangerousness." Simmons
v. South Carolina, 512 U. S., at 164, 171.
264
in context, the prosecutor there neither "emphasiz[ed] future
dangerousness as a crucial factor" nor even mentioned "future
dangerousness outside of prison." 512 U. S., at 181 (SCALIA, J.,
dissenting).3 Thus, while I agree with THE CHIEF JUSTICE that the
prosecutor here did not argue future dangerousness, an effort to
distinguish this case from Simmons amounts to hairsplitting,
demonstrating that the Court's inability to construct a limited
rule inhered in Simmons itself. Today, the Court acknowledges that
"the evidence in a substantial proportion, if not all, capital
cases will show a defendant likely to be dangerous in the future."
Ante, at 254, n. 4. "All" is the more accurate alternative, given
that our capital jurisprudence has held that routine murder does
not qualify, but only a more narrowly circumscribed class of crimes
such as those that "reflec[t] a consciousness materially more
'depraved' than that of any person guilty of murder," Godfrey v.
Georgia,
446 U. S.
420, 433 (1980) (plurality opinion). See also Lowenfield v.
Phelps,
484 U. S.
231, 246 (1988) ("Here, the 'narrowing function' was performed
by the jury at the guilt phase when it found defendant guilty of
three counts of murder under the provision that 'the offender has a
specific intent to kill or to inflict great bodily harm upon more
than one person' "). It is hard
3 Turning to the statements upon which the Simmons plurality and
concUlTing opinions relied, JUSTICE SCALIA noted that the
prosecutor's comment concerning "'what to do with [petitioner] now
that he is in our midst' ... was not made (as they imply) in the
course of an argument about future dangerousness, but was a
response to petitioner's mitigating evidence." Id., at 181-182.
Similarly, "the prosecutor's comment that the jury's verdict would
be an 'act of self-defense' ... came at the end of admonition of
the jury to avoid emotional responses and enter a rational
verdict." Id., at 182. As JUSTICE SCALIA indicates, the reference
"obviously alluded, neither to defense of the jurors' own persons,
nor specifically to defense of persons outside the prison walls,
but to defense of all members of society against this individual,
wherever he or they might be .... [T]he prosecutor did not invite
the jury to believe that petitioner would be eligible for parole-he
did not mislead the jury." Ibid.
265
to imagine how, for example, the depravity of mind that such a
crime displays will not always have a "tendency" to show future
dangerousness. And it is of little comfort that today's opinion
technically requires not merely evidence with this tendency, but
argument by the prosecutor, ante, at 254255, n. 4. When does a
prosecutor not argue the evidence, and when will argument regarding
depravity not also constitute argument showing dangerousness? Thus,
today the Court eviscerates the recognition in the Simmons'
decisive opinion that "[t]he decision whether or not to inform the
jury of the possibility of early release is generally left to the
States." 512 U. S., at 176 (O'CONNOR, J., concurring in
judgment).
Today's decision allows the Court to meddle further in a State's
sentencing proceedings under the guise that the Constitution
requires us to do so. I continue to believe, without qualification,
that "it is not this Court's role to micromanage state sentencing
proceedings." Shafer v. South Carolina,
532 U. S. 36, 58 (2001)
(THOMAS, J., dissenting). As a matter of policy, it may be
preferable for a trial court to give such an instruction, but these
are "matters that the Constitution leaves to the States." Ibid.
For these reasons, I respectfully dissent.
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