OCTOBER TERM, 2000
Syllabus
SHAFER
v. SOUTH CAROLINA
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA No. 00-5250.
Argued January 9, 200l-Decided March 20, 2001
Under recent amendments to South Carolina law, capital jurors
face two questions at the sentencing phase of the trial. They
decide first whether the State has proved beyond a reasonable doubt
the existence of any statutory aggravating circumstance. If the
jury fails to agree unanimously on the presence of a statutory
aggravator, it cannot make a sentencing recommendation. In that
event, the trial judge is charged with sentencing the defendant to
either life imprisonment or a mandatory minimum 30-year prison
term. If, on the other hand, the jury unanimously finds a statutory
aggravator, it then recommends one of two potential sentences-death
or life imprisonment without the possibility of parole. No other
sentencing option is available to the jury.
A South Carolina jury found petitioner Shafer guilty of murder,
armed robbery, and conspiracy. During the trial's sentencing phase,
Shafer's counsel and the prosecutor disagreed on the application of
Simmons v.
South Carolina, 512 U. S. 154, to this
case. This Court held in
Simmons that where 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 requires
that the jury be informed of the defendant's parole ineligibility.
Shafer's counsel maintained that
Simmons required the trial
judge to instruct the jury that under South Carolina law a life
sentence carries no possibility of parole. The prosecutor, in
opposition, urged that no
Simmons instruction was required
because the State did not plan to argue to the jury that Shafer
would be a danger in the future. Shafer's counsel replied that the
State had in fact put future dangerousness at issue by introducing
evidence of a postarrest assault by Shafer and jail rules
violations. The judge refused to charge on parole ineligibility,
stating that future dangerousness had not been argued. The judge
also denied Shafer's counsel leave to read in his closing argument
lines from the controlling statute stating plainly that a life
sentence in South Carolina carries no possibility of parole. After
the prosecution's closing argument, Shafer's counsel renewed his
plea for a life without parole instruction on the ground that the
State had placed future dangerousness at issue by repeating the
statements of an alarmed witness at the crime scene that Shafer and
his accomplices "might come back." The trial judge again denied the
request. Quoting a passage from the relevant
37
statute but not the full text, the judge twice told the jury
that "life imprisonment means until the death of the defendant."
During its sentencing deliberations, the jury asked the judge
whether, and under what circumstances, someone convicted of murder
could become eligible for parole. The judge responded that
"[p]arole eligibility or ineligibility is not for your
consideration." The jury unanimously found beyond a reasonable
doubt the aggravating factor of murder while attempting armed
robbery, and recommended the death penalty, which the judge
imposed.
The South Carolina Supreme Court affirmed. Without considering
whether the prosecutor's evidentiary submissions or closing
argument in fact placed Shafer's future dangerousness at issue, the
court held
Simmons generally inapplicable to the State's
"new sentencing scheme."
Simmons is not triggered, the South
Carolina court said, unless life without parole is the only legally
available sentence alternative to death. Currently, the court
observed, when a capital jury begins its sentencing deliberations,
three alternative sentences are available: (1) death, (2) life
without the possibility of parole, or (3) a mandatory minimum
30-year sentence. Since an alternative to death other than life
without the possibility of parole exists, the court concluded,
Simmons no longer constrains capital sentencing in South
Carolina.
Held:
1. The South Carolina Supreme Court incorrectly interpreted
Simmons when it declared the case inapplicable to South
Carolina's current sentencing scheme. That court's reasoning might
be persuasive if the jury's sentencing discretion actually
encompassed the three choices the court identified: death, life
without the possibility of parole, or a mandatory minimum 30-year
sentence. But, that is not how the State's new scheme works. Under
the law now governing sentencing proceedings, if the jury finds an
aggravating circumstance, it must recommend a sentence, and its
choices are limited to death and life without parole. When the jury
makes the threshold determination whether a statutory aggravator
exists, a tightly circumscribed factual inquiry, none of
Simmons' due process concerns yet arise. At that stage,
there are no "misunderstanding[s]" to avoid, no "false choice[s]"
to guard against. See
Simmons, 512 U. S., at 161 (plurality
opinion). The jury, as aggravating circumstance factfinder,
exercises no sentencing discretion itself. If no aggravator is
found, the judge takes over and has sole authority to impose the
mandatory minimum so heavily relied upon by the State Supreme
Court. It is only when the jury endeavors the moral judgment
whether to impose the death penalty that parole eligibility may
become critical. Correspondingly, it is only at that stage that
Simmons comes
38
Syllabus
into play, a stage at which South Carolina law provides no third
choice, no 30-year mandatory minimum, just death or life without
parole. See
Ramdass v.
Angelone, 530 U. S. 156, 169. Thus,
whenever future dangerousness is at issue in a capital sentencing
proceeding under South Carolina's new scheme, due process requires
that the jury be informed that a life sentence carries no
possibility of parole. Pp. 48-51.
2. South Carolina's other grounds in support of the trial
judge's refusal to give Shafer's requested parole ineligibility
instruction are unavailing. Pp. 52-55.
(a) The State's argument that the jury was properly informed of
the law on parole ineligibility by the trial court's instructions
and by defense counsel's own argument is unpersuasive. To support
that contention, the State sets out defense counsel's closing pleas
that, if Shafer's life is spared, he will die in prison after
spending his natural life there, as well as passages from the trial
judge's instructions reiterating that life imprisonment means until
the death of the defendant. Displacement of the longstanding
practice of parole availability remains a relatively recent
development, and common sense indicates that many jurors might not
know whether a life sentence carries with it the possibility of
parole.
Simmons, 512 U. S., at 177-178 (O'CONNOR, J.,
concurring in judgment). Indeed, until two years before Shafer's
trial, South Carolina's law did not categorically preclude parole
for capital defendants sentenced to life imprisonment. Most plainly
contradicting the State's contention, the jury's written request
for further instructions on the question left no doubt about the
jury's failure to gain from defense counsel's closing argument or
the judge's instructions any clear understanding of what a life
sentence means. Cf.,
e. g., id., at 178. The jury's
comprehension was hardly aided by the court's final instruction
declaring that parole eligibility was not for the jury's
consideration. That instruction did nothing to ensure that the jury
was not misled and may well have been taken to mean that parole
was available but that the jury, for some unstated reason,
should be blind to this fact. E. g., id., at 170 (plurality
opinion). Thus, although a life sentence for Shafer would permit no
parole or other release under current state law, this reality was
not conveyed to Shafer's jury by the court's instructions or by the
arguments defense counsel was allowed to make. Pp. 52-54.
(b) The State's contention that no parole ineligibility
instruction was required under
Simmons because the State
never argued that Shafer would pose a future danger to society
presents an issue that is not ripe for this Court's resolution. The
State Supreme Court, in order to rule broadly that
Simmons
no longer governs capital sentencing in the State, apparently
assumed,
arguendo, that future dangerousness had been shown
at Shafer's sentencing proceeding. Because that court did
39
not home in on the question whether the prosecutor's evidentiary
submissions or closing argument in fact placed Shafer's future
dangerousness at issue, the question is left open for the state
court's attention and disposition. Pp. 54-55.
340 S. C. 291, 531 S. E. 2d 524, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, SOUTER, and
BREYER, JJ., joined. SCALIA, J.,
post, p. 55, and THOMAS,
J.,
post, p. 55, filed dissenting opinions.
David 1.
Bruck, by appointment of the Court, 531
U. S. 1009, argued the cause for petitioner. With him on the briefs
was
William N.
Nettles.
Donald J.
Zelenka, Assistant Deputy Attorney
General of South Carolina, argued the cause for respondent. With
him on the brief were
Charlie Condon, Attorney General,
John W McIntosh, Chief Deputy Attorney General, and S.
Creighton Waters, Assistant Attorney General. *
JUSTICE GINSBURG delivered the opinion of the Court. This case
concerns the right of a defendant in a capital case to inform the
jury that, under the governing state law, he would not be eligible
for parole in the event that the jury sentences him to life
imprisonment. In
Simmons v.
South Carolina, 512 U. S. 154 (1994),
this Court held that where 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."
Ramdass v.
Angelone, 530
U. S. 156, 165 (2000) (plurality opinion) (describing
Simmons' premise and plurality opinion). The case we now
confront involves a death sentence returned by a jury instructed
both that "life imprison-
*Sheri Lynn Johnson and
John H. Blume filed a
brief for the Cornell Death Penalty Project as
amicus
curiae.
40
ment means until death of the offender," and that "[p]arole
eligibility or ineligibility is not for your consideration." 340 S.
C. 291, 297, 531 S. E. 2d 524, 527 (2000). It presents the question
whether the South Carolina Supreme Court misread our precedent when
it declared
Simmons inapplicable to South Carolina's current
sentencing scheme. We hold that South Carolina's Supreme Court
incorrectly limited
Simmons and therefore reverse that
court's judgment.
I
In April 1997, in the course of an attempted robbery in Union
County, South Carolina, then-18-year-old Wesley Aaron Shafer, Jr.,
shot and killed a convenience store cashier. A grand jury indicted
Shafer on charges of murder, attempted armed robbery, and criminal
conspiracy. App. 2-4. Prior to trial, the prosecutor notified
Shafer that the State would seek the death penalty for the murder.
App. 4-5. In that pursuit, the prosecutor further informed Shafer,
the State would present evidence of Shafer's "prior bad acts," as
well as his "propensity for [future] violence and unlawful
conduct." App. 6, 8.
Under South Carolina law, juries in capital cases consider guilt
and sentencing in separate proceedings. S. C. Code Ann. §§
16-3-20(A), (B) (2000 Cum. Supp.). In the initial (guilt phase)
proceeding, the jury found Shafer guilty on all three charges.
Governing the sentencing proceeding, South Carolina law instructs:
"[T]he jury ... shall hear additional evidence in extenuation,
mitigation, or aggravation of the punishment .... The State, the
defendant, and his counsel are permitted to present arguments for
or against the sentence to be imposed." § 16-3-20(B).
Under amendments effective January 1, 1996, South Carolina
capital jurors face two questions at sentencing. They decide first
whether the State has proved beyond a reasonable doubt the
existence of any statutory aggravating circumstance. If the jury
fails to agree unanimously on
41
the presence of a statutory aggravator, "it shall not make a
sentencing recommendation." § 16-3-20(C). "[T]he trial judge," in
that event, "shall sentence the defendant to either life
imprisonment or a mandatory minimum term of imprisonment for thirty
years."
Ibid.; see § 16-3-20(B). If, on the other hand, the
jury unanimously finds a statutory aggravator, it then recommends
one of two potential sentencesdeath or life imprisonment without
the possibility of parole. §§ 16-3-20(A), (B). No sentencing option
other than death or life without parole is available to the
jury.
During the sentencing proceeding in Shafer's case, the State
introduced evidence of his criminal record, past aggressive
conduct, probation violations, and misbehavior in prison. The State
urged the statutory aggravating circumstance that Shafer had
committed the murder in the course of an attempted robbery while
armed with a deadly weapon. See § 16-3-20(C)(a)(1)(d). The defense
presented evidence of Shafer's abusive childhood and mental
problems.
Near the completion of the parties' sentencing presentations,
the trial judge conducted an
in camera hearing on jury
instructions. Shafer's counsel maintained that due process, and our
decision in
Simmons v.
South Carolina, 512 U. S. 154 (1994),
required the judge to instruct that under South Carolina law a life
sentence carries no possibility of parole. The prosecutor, in
opposition, urged that Shafer was not entitled to a
Simmons
instruction because "the State has not argued at any point ... that
he would be a danger to anybody in the future, nor will we argue
[that] in our closing argument .... " App. 161. Shafer's counsel
replied: "The State cannot introduce evidence of future
dangerousness, and then say we are not going to argue it and
[thereby avoid] a charge on the law .... They have introduced
[evidence of a] post arrest assault, [and] post arrest violations
of the rules of the jail .... If you put a jailer on to say that
[Shafer] is charged with assault ... on [the jailer], that is
future dangerousness." App. 162. Ruling that "the matter of
parole
42
ineligibility will not be charged," the trial judge stated: "I
find that future dangerousness [was] not argued[;] if it's argued
[in the prosecutor's closing], it may become different."
App.164.
Unsuccessful in his effort to gain a court instruction on parole
ineligibility, Shafer's counsel sought permission to impart the
information to the jury himself. He sought leave to read in his
closing argument lines from the controlling statute, § 16-3-20(A),
stating plainly that a life sentence in South Carolina carries no
possibility of parole. App. 164165.1 In accord with the State's
motion "to prevent the defense from arguing in their closing
argument anything to the effect that [Shafer] will never get out of
prison," App. 161, the judge denied the defense permission to read
the statute's text to the jury. App. 165.
1 Section 16-3-20(A) reads: "A person who is convicted of or
pleads guilty to murder must be punished by death, by imprisonment
for life, or by a mandatory minimum term of imprisonment for thirty
years. If the State seeks the death penalty and a statutory
aggravating circumstance is found beyond a reasonable doubt
pursuant to subsections (B) and (C), and a recommendation of death
is not made, the trial judge must impose a sentence of life
imprisonment. For purposes of this section, 'life imprisonment'
means until death of the offender. No person sentenced to life
imprisonment pursuant to this section 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 this section. No person
sentenced to a mandatory minimum term of imprisonment for thirty
years pursuant to this section is eligible for parole 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 minimum term of
imprisonment for thirty years required by this section .... When
the Governor commutes a sentence of death to life imprisonment
under the provisions of Section 14 of Article IV of the
Constitution of South Carolina, 1895, the commutee is not eligible
for parole, community supervision, or any early release program,
nor is the person eligible to receive any work credits, good
conduct credits, education credits, or any other credits that would
reduce the mandatory imprisonment required by this subsection."
43
After the prosecution's closing argument, and out of the
presence of the jury, Shafer's counsel renewed his plea for "a life
without parole charge." App. 188. He referred to his earlier
submissions and urged, in addition, that the State had placed
future dangerousness at issue during closing argument by repeating
the words of an alarmed witness at the crime scene: "[T]hey [Shafer
and his two accomplices] might come back, they might come back."
App. 188. The trial judge denied the request. The judge "admit[ted
he] had some concern [as to whether the State's] argument ... had
crossed the line," but in the end he found "that it comes close,
but did not." App. 191-192.
Instructing the jury, the judge explained:
"If you do not unanimously find the existence of the aggravating
circumstance as set forth on the form [murder during the commission
of an attempted armed robbery], you do not need to go any
further.
"If you find unanimously the existence of a statutory
aggravating circumstance ... you will go further and continue your
deliberations.
"Once you have unanimously found and signed as to the presence
of an aggravated circumstance, you then further deliberate, and
determine whether or not Wesley Aaron Shafer should be sentence[d]
to life imprisonment or death." App. 202.
The judge twice told the jury, quoting words from § 16-320(A),
that "life imprisonment means until the death of the defendant."
App. 201; see App. 209. In line with his prior rulings, the judge
did not instruct that a life sentence, if recommended by the jury,
would be without parole. In the concluding portion of his charge,
he told the jury that "the sentence you send to me by way of a
recommendation will in fact be the sentence that the court imposes
on the defendant." App. 215. After the judge instructed the jury,
the defense once more renewed its "objection to the statutory
44
language [on parole ineligibility] not being charged," App. 221,
and the judge again overruled the objection, App. 222.
Three hours and twenty-five minutes into its sentencing
deliberations, the jury sent a note to the trial judge containing
two questions:
"1) Is there any remote chance for someone convicted of murder
to become elig[i]ble for parole?
"2) Under what conditions would someone convicted for murder be
elig[i]ble." App. 253.
Shafer's counsel urged the court to read to the jury the
following portion of § 16-3-20(A):
"If the State seeks the death penalty and a statutory
aggravating circumstance is found beyond a reasonable doubt ... and
a recommendation of death is not made, the trial judge must impose
a sentence of life imprisonment. For purposes of this section,
'life imprisonment' means until death of the offender. No
person sentenced to life imprisonment pursuant to this section 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 this
section." App. 226 (emphasis added).
He argued that the court's charge, which partially quoted from §
16-3-20 (above in italics), but omitted the provision's concluding
sentence (above in boldface), had left the jurors confused about
Shafer's parole eligibility. App. 226. The State adhered to its
position that "the jury should not be informed as to any parole
eligibility." App. 223. South Carolina law, the prosecutor
insisted, required the judge to "instruct the jury that it shall
not consider parole eligibility in reaching its decision, and that
the term life imprisonment and a death sentence should be
understood in their ordinary and plain meaning." App.223-224.
45
The trial judge decided "not ... to charge the jury about parole
ineligibility," App. 229, and informed counsel that he would
instruct:
"Your consideration is restricted to what sentence to recommend.
I will, as trial judge, impose the sentence you recommend. Section
16-3-20 of the South Carolina Code of Laws provides that for the
purpose of this section life imprisonment means until the death of
the offender. Parole eligibility is not for your consideration."
App. 236.
Shafer's counsel asked the judge "to take off the language of
parole eligibility." App. 236. The statement that "parole
eligibility is not to be considered by [the jury]," counsel argued,
"impl[ies] that it is available." App. 236; see App. 239 (Shafer's
counsel reiterated: "[I]f you tell them they can't consider parole
eligibility ... that certainly implies that he may be
eligible.").
Following counsels' arguments, and nearly an hour after the jury
tendered its questions, the trial judge instructed:
"Section 16-3-20 of our Code of Laws as applies to this case in
the process we're in, states that, quote, for the purposes of this
section life imprisonment means until the death of the offender,
end quote.
"Parole eligibility or ineligibility is not for your con-
sideration." App. 240.
The jury returned some 80 minutes later. It unanimously found
beyond a reasonable doubt the aggravating factor of murder while
attempting armed robbery, and recommended the death penalty. App.
242-243. The jury was polled, and each member indicated his or her
assent to the aggravated circumstance finding and to the death
penalty recommendation. App. 243-248. Defense counsel asked that
the jury be polled on "the specific question as to whether parole
eligibility, their belief therein, gave rise to the verdict," and
"whether juror number 233 who works for probation and pa-
46
role, expressed personal knowledge in the jury's deliberation
outside of the evidence and the law given." App. 248. The judge
denied both requests and imposed the death sentence. App. 248,
251.2
Shafer appealed his death sentence to the South Carolina Supreme
Court. Noting our decision in
Simmons, the South Carolina
Supreme Court acknowledged that "[w]hen the State places the
defendant's future dangerousness at issue and the only available
alternative sentence to the death penalty is life imprisonment
without parole, due process entitles the defendant to inform the
jury he is parole ineligible." 340 S. C., at 297-298, 531 S. E. 2d,
at 528. Without considering whether the prosecutor's evidentiary
submissions or closing argument in fact placed Shafer's future
dangerousness at issue, the court held
Simmons generally
inapplicable to South Carolina's "new sentencing scheme." Under
that scheme, life without the possibility of parole and death are
not the only authorized sentences, the court said, for there is a
third potential sentence, "a mandatory minimum thirty year
sentence." 340 S. C., at 298, 531 S. E. 2d, at 528 (citing
State v.
Starnes, 340 S. C. 312, 531 S. E. 2d 907
(2000) (decided the same day as
Shafer)).3
2 The judge also sentenced Shafer to consecutive terms of 20
years in prison for the attempted armed robbery and 5 years in
prison for the criminal conspiracy. App.251-252.
3 South Carolina's "new" sentencing scheme changed the
punishments available for a capital murder conviction that did not
result in a death sentence. The capital sentencing law in effect at
the time we decided
Simmons read: "A person who is convicted
of or pleads guilty to murder must be punished by death or by
imprisonment for life and is not eligible for parole until the
service of twenty years; provided, however, that when the State
seeks the death penalty and an aggravating circumstance is
specifically found beyond a reasonable doubt ... , and a
recommendation of death is not made, the court must impose a
sentence of life imprisonment without eligibility for parole until
the service of thirty years." S. C. Code Ann. § 16-3-20(A) (Supp.
1993). What made Simmons parole ineligible was the provision
stating: "The board must not grant parole nor is parole authorized
to any prisoner serving a sentence for a second or subsequent
conviction, following a separate sentencing for a prior conviction,
for vio-
47
Shafer had urged that a
Simmons instruction was warranted
under the new sentencing scheme, for when the jury serves as
sentencer, i.
e., when it finds a statutory aggravating
circumstance, sentencing discretion is limited to death or life
without the possibility of parole. See 340 S. C., at 298, 531 S. E.
2d, at 528. The South Carolina Supreme Court read
Simmons
differently. In its view,
"Simmons requires the trial judge
instruct the jury the defendant is parole ineligible only if no
other sentence than death, other than life without the possibility
of parole, is
legally available to the defendant." 340 S.
C., at 298, 531 S. E. 2d, at 528 (emphasis in original) (citing
Simmons, 512 U. S., at 178 (O'CONNOR, J., concurring in
judgment)). "At the time [Shafer's] jury began its deliberations,"
the court observed, "three alternative sentences were available";
"[s]ince one of these alternatives to death was not life without
the possibility of parole," the court concluded,
"Simmons
was inapplicable." 340 S. C., at 299, 531 S. E. 2d, at 528.
Chief Justice Finney dissented. "[T]he overriding principle to
be drawn from
[Simmons]," he stated, "is that due process is
violated when a jury's speculative misunderstanding about a capital
defendant's parole eligibility is allowed to go uncorrected."
Id., at 310, 531 S. E. 2d, at 534. Due process mandates
reversal here, he concluded, because "the jury's inquiry prompted a
misleading response which suggested parole was a possibility."
Ibid. Moreover, Chief Justice Finney added, when "a capital
jury inquires about parole," id., at 310, n. 2, 531 S. E. 2d, at
534, n. 2, even if the question "is simply one of policy, as the
majority suggests [it is], then why not adopt a policy which gives
the jurors the simpl[e] truth: no parole."
Id., at 311, 531
S. E. 2d, at 534.
lent crimes .... " §24-21-640. This latter provision has not
been amended; however, it did not apply to Shafer. Here, we
consider whether South Carolina's wholesale elimination of parole
for capital defendants sentenced to life in prison, see S. C. Code
Ann. § 16-3-20 (2000 Cum. Supp.), described
supra, at 40-41,
requires a
Simmons instruction in all South Carolina capital
cases in which future dangerousness is "at issue."
48
We granted certiorari, 530 U. S. 1306 (2000), to determine
whether the South Carolina Supreme Court properly held
Simmons inapplicable to the State's current sentencing
regime. We conclude that South Carolina's Supreme Court
misinterpreted
Simmons, and we therefore reverse that
court's judgment.
II
South Carolina has consistently refused to inform the jury of a
capital defendant's parole eligibility status.4 We first confronted
this practice in
Simmons. The South Carolina sentencing
scheme then in effect, S. C. Code Ann. §§ 16-320(A) and 24-21-610
(Supp. 1993), did not categorically preclude parole for capital
defendants sentenced to life imprisonment, see
supra, at
46-47, n. 3. Simmons, however, was parole ineligible under that
scheme because of prior convictions for crimes of violence. See §
24-21-640;
Simmons, 512 U. S., at 156 (plurality opinion);
id., at 176 (O'CONNOR, J., concurring in judgment). Simmons' jury,
in a note to the judge during the penalty phase deliberations,
asked: "Does the imposition of a life sentence carry with it the
possibility of parole?"
Id., at 160 (plurality opinion).
Over defense counsel's objection, the trial judge in
Simmons
instructed:
"Do not consider parole or parole eligibility [in reaching
your
4 At the time we decided
Simmons v.
South
Carolina, 512 U.
S. 154 (1994), South Carolina was one of only three
States-Pennsylvania and Virginia were the others-that "ha[d] a
life-without-parole sentencing alternative to capital punishment
for some or all convicted murderers but refuse[d] to inform
sentencing juries of th[at] fact."
Id., at 168, n. 8. Since
Simmons, Virginia has abandoned this practice.
Yarbrough v.
Commonwealth, 258 Va. 347, 374, 519 S.
E. 2d 602, 616 (1999) ("[W]e hold that in the penalty-determination
phase of a trial where the defendant has been convicted of capital
murder, in response to a proffer of a proper instruction from the
defendant prior to submitting the issue of penaltydetermination to
the jury or where the defendant asks for such an instruction
following an inquiry from the jury during deliberations, the trial
court shall instruct the jury that the words 'imprisonment for
life' mean 'imprisonment for life without possibility of parole.'
").
49
verdict]. That is not a proper issue for your consideration."
Ibid. After receiving this response from the court, Simmons'
jury returned a sentence of death, which Simmons unsuccessfully
sought to overturn on appeal to the South Carolina Supreme Court.
Id., at 160-161.
Mindful of the "longstanding practice of parole availability,"
id., at 177 (O'CONNOR, J.), we recognized that Simmons' jury,
charged to chose between death and life imprisonment, may have been
misled. Given no clear definition of "life imprisonment" and told
not to consider parole eligibility, that jury "reasonably may have
believed that [Simmons] could be released on parole if he were not
executed."
Id., at 161 (plurality opinion); see id., at
177-178 (O'CONNOR, J.). It did not comport with due process, we
held, for the State to "secur[e] a death sentence on the ground, at
least in part, of [defendant's] future dangerousness, while at the
same time concealing from the sentencing jury the true meaning of
its [only] noncapital sentencing alternative, namely, that life
imprisonment meant life without parole."
Id., at 162
(plurality opinion); see id., at 178 (O'CONNOR, J.) ("Where the
State puts the defendant's future dangerousness in issue, and the
only available alternative sentence to death is life imprisonment
without possibility of parole, due process entitles the defendant
to inform the capital sentencing jury-by either argument or
instruction-that he is parole ineligible.").
As earlier stated, see
supra, at 46-47, the South
Carolina Supreme Court held
Simmons "inapplicable under the
[State's] new sentencing scheme," 340 S. C., at 298, 531 S. E. 2d,
at 528.
Simmons is not triggered, the South Carolina court
said, unless life without parole is "the only legally available
sentence alternative to death." 340 S. C., at 298, 531 S. E. 2d, at
528. Currently, the court observed, when a capital case jury begins
its sentencing deliberations, three alternative sentences are
available: "1) death, 2) life without the possibility of parole, or
3) a mandatory minimum thirty year sentence."
Ibid. "Since
one of these alternatives to
50
death [is] not life without the possibility of parole," the
court concluded,
Simmons no longer constrains capital
sentencing in South Carolina. 340 S. C., at 299, 531 S. E. 2d, at
528.
This reasoning might be persuasive if the jury's sentencing
discretion encompassed the three choices the South Carolina court
identified. But, that is not how the State's new scheme works. See
supra, at 40-41. Under the law now governing, in any case in
which the jury does not unanimously find a statutory aggravator,
death is not a permissible sentence and
Simmons has no
relevance. In such a case, the judge alone becomes the sentencer.
S. C. Code Ann. § 16-3-20(C) (2000 Cum. Supp.). Only if the jury
finds an aggravating circumstance does it decide on the sentence.
Ibid. And when it makes that decision, as was the case in
Simmons, only two sentences are legally available under
South Carolina law: death or life without the possibility of
parole. § 16-3-20(C).
The South Carolina Supreme Court was no doubt correct to this
extent: At the time the trial judge instructed the jury in Shafer's
case, it was indeed possible that Shafer would receive a sentence
other than death or life without the possibility of parole. That is
so because South Carolina, in line with other States, gives capital
juries, at the penalty phase, discrete and sequential functions.
Initially, capital juries serve as factfinders in determining
whether an alleged aggravating circumstance exists. Once that
factual threshold is passed, the jurors exercise discretion in
determining the punishment that ought to be imposed. The trial
judge in Shafer's case recognized the critical difference in the
two functions. He charged that "[a] statutory aggravating
circumstance is a fact, an incident, a detail or an occurrence,"
the existence of which must be found beyond a reasonable doubt.
App. 203. Turning to the sentencing choice, he referred to
considerations of "fairness and mercy," and the defendant's "moral
culpability." App. 204. He also instructed
51
that the jury was free to decide "whether ... for any reason or
no reason at all Mr. Shafer should be sentenced to life
imprisonment rather than to death." App.203.
In sum, when the jury determines the existence of a statutory
aggravator, a tightly circumscribed factual inquiry, none of
Simmons' due process concerns arise. There are no
"misunderstanding[sJ" to avoid, no "false choice[sJ" to guard
against. See
Simmons, 512 U. S., at 161 (plurality opinion).
The jury, as aggravating circumstance factfinder, exercises no
sentencing discretion itself. If no aggravator is found, the judge
takes over and has sole authority to impose the mandatory minimum
so heavily relied upon by the South Carolina Supreme Court. See
supra, at 46-47,49-50. It is only when the jury endeavors
the moral judgment whether to impose the death penalty that parole
eligibility may become critical. Correspondingly, it is only at
that stage that
Simmons comes into play, a stage at which
South Carolina law provides no third choice, no 30-year mandatory
minimum, just death or life without parole. See
Ramdass, 530
U. S., at 169
(Simmons applies where "as a legal matter,
there is no possibility of parole if the
jury decides the
appropriate sentence is life in prison." (emphasis added)).5 We
therefore hold that whenever future dangerousness is at issue in a
capital sentencing proceeding under South Carolina's new scheme,
due process requires that the jury be informed that a life sentence
carries no possibility of parole.
5 Tellingly, the State acknowledged at oral argument that if
future dangerousness was a factor, and the jury first reported
finding an aggravator before going on to its sentencing
recommendation, a
Simmons charge would at that point be
required. Tr. of Oral Arg. 32. We see no significant difference
between that situation and the one presented here. Nor does JUSTICE
THOMAS' dissent in this case plausibly urge any such distinction.
See
post, at 56-58. If the jurors should be told life means
no parole in the hypothesized bifurcated sentencing proceeding,
they should be equally well informed in the actual uninterrupted
proceeding.
52
III
South Carolina offers two other grounds in support of the trial
judge's refusal to give Shafer's requested parole ineligibility
instruction. First, the State argues that the jury was properly
informed of the law on parole ineligibility by the trial court's
instructions and by defense counsel's own argument. Second, the
State contends that no parole ineligibility instruction was
required under
Simmons because the State never argued Shafer
would pose a future danger to society. We now turn to those
arguments.
A
"Even if this Court finds
Simmons was triggered," the
State urges, "the defense's closing argument and the judge's charge
fulfilled the requirements of
Simmons." Brief for Respondent
38. To support that contention, the State sets out defense
counsel's closing pleas that, if Shafer's life is spared, he will
"die in prison" after
"spend[ing] his natural life
there." Id., at 39. Next, the State recites passages from the
trial judge's instructions reiterating that "life imprisonment
means until the death of the defendant."
Id., at 40.
The South Carolina Supreme Court, we note, never suggested that
counsel's arguments or the trial judge's instructions satisfied
Simmons. That court simply held
Simmons inapplicable
under the State's new sentencing scheme. 340 S. C., at 298, 531 S.
E. 2d, at 528. We do not find the State's position persuasive.
Displacement of "the longstanding practice of parole availability"
remains a relatively recent development, and "common sense tells us
that many jurors might not know whether a life sentence carries
with it the possibility of parole."
Simmons, 512 U. S., at
177-178 (O'CONNOR, J.). South Carolina's situation is illustrative.
Until two years before Shafer's trial, as we earlier noted, the
State's law did not categorically preclude parole for capital
53
defendants sentenced to life imprisonment. See
supra, at
46-47, n. 3, and 48.
Most plainly contradicting the State's contention, Shafer's jury
left no doubt about its failure to gain from defense counsel's
closing argument or the judge's instructions any clear
understanding of what a life sentence means. The jurors sought
further instruction, asking: "Is there any remote chance for
someone convicted of murder to become elig[i]ble for parole?" App.
253; cf.
Simmons, 512 U. S., at 178 (O'CONNOR, J.) ("that
the jury in this case felt compelled to ask whether parole was
available shows that the jurors did not know whether or not a
life-sentenced defendant will be released from prison").6
The jury's comprehension was hardly aided by the court's final
instruction: "Parole eligibility or ineligibility is not for your
consideration." App. 240. That instruction did nothing to ensure
that the jury was not misled and may well have been taken to mean
"that parole
was available but that the jury, for some
unstated reason, should be blind to this fact."
Simmons, 512
U. S., at 170 (plurality opinion); see 340 S. C., at 310, 531 S. E.
2d, at 534 (Finney, C. J., dissenting) ("[T]he jury's inquiry
prompted a misleading response which suggested parole was a
possibility.");
State v.
Kelly, 343 S. C. 342, 375,
540 S. E. 2d 851, 863-864 (2001) (Pleicones, J., dissenting in
part, concurring in part) ("Without the knowledge that, if
aggravators are found, a life sentence is not subject to being
reduced by parole, or any other method of early release, the jury
is likely to speculate unnecessarily on the possibility of early
release, and impose a sentence of death
6 Animating JUSTICE THOMAS' dissent is the conviction that the
limited information defense counsel was allowed to convey and the
judge's charge "left no room for speculation by the jury."
Post, at 57. The full record scarcely supports, and we do
not share, that conviction. Cf. 340 S. C. 291, 310-311, 531 S. E.
2d 524, 534 (2000) (Finney, C. J., dissenting) ("the jury's inquiry
prompted a misleading response" that did not reveal the "simpl[e]
truth").
54
based upon 'fear rather than reason.'" (quoting
Yarbrough
v.
Commonwealth, 258 Va. 347, 369, 519 S. E. 2d 602, 613
(1999))).
In sum, a life sentence for Shafer would permit no "parole,
community supervision, ... early release program, ... or any other
credits that would reduce the mandatory life imprisonment," S. C.
Code Ann. § 16-3-20(A) (2000 Cum. Supp.) (set out
supra, at
42, n. 1); this reality was not conveyed to Shafer's jury by the
court's instructions or by the arguments defense counsel was
allowed to make.
B
Ultimately, the State maintains that "[t]he prosecution did not
argue future dangerousness," so the predicate for a
Simmons
charge is not present here. Brief for Respondent 42. That issue is
not ripe for our resolution.
In the trial court, the prosecutor and defense counsel differed
on what it takes to place future dangerousness "at issue." The
prosecutor suggested that the State must formally
argue
future dangerousness. App. 161. Defense counsel urged that once the
prosecutor
introduces evidence showing future dangerousness,
the State cannot avoid a
Simmons charge by saying the point
was not argued or calling the evidence by another name. See App.
161-162.
As earlier recounted, the trial judge determined that future
dangerousness was not at issue, but acknowledged, at one point,
that the prosecutor had come close to crossing the line. See
supra, at 41-42, 43. The South Carolina Supreme Court, in
order to rule broadly that
Simmons no longer governs capital
sentencing in the State, apparently assumed,
arguendo, that
future dangerousness had been shown at Shafer's sentencing
proceeding. See
supra, at 46-47; cf.
Kelly, 343 S.
C., at 363, 540 S. E. 2d, at 857 (recognizing that future
dangerousness is an issue when it is "a logical inference from the
evidence" or was "injected into the case through the State's
closing argument"). Because the South
55
Carolina Supreme Court did not home in on the question whether
the prosecutor's evidentiary submissions or closing argument in
fact placed Shafer's future dangerousness at issue, we leave that
question open for the state court's attention and disposition.
***
For the reasons stated, the judgment of the South Carolina
Supreme Court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE SCALIA, dissenting.
While I concede that to day's judgment is a logical extension of
Simmons v.
South Carolina, 512 U. S. 154 (1994), I
am more attached to the logic of the Constitution, whose Due
Process Clause was understood as an embodiment of common-law
tradition, rather than as authority for federal courts to
promulgate wise national rules of criminal procedure.
As I pointed out in
Simmons, that common-law tradition
does not contain special jury-instruction requirements for capital
cases. Today's decision is the second page of the "whole new
chapter" of our improvised "'death-is-different' jurisprudence"
that
Simmons began.
Id., at 185 (SCALIA, J.,
dissenting). The third page (or the fourth or fifth) will be the
(logical-enough) extension of this novel requirement to cases in
which the jury did
not inquire into the possibility of
parole. Providing such information may well be a good idea (though
it will sometimes harm rather than help the defendant's case)-and
many States have indeed required it. See App. B to Brief for
Petitioner. The Constitution, however, does not. I would limit
Simmons to its facts.
JUSTICE THOMAS, dissenting.
For better or, as I believe, worse, the majority's decision in
this case is the logical next step after
Simmons v.
South
56
Carolina, 512 U. S. 154 (1994).
Now, whenever future dangerousness is placed at issue and the
jury's potential sentencing choice is between life without parole
and death, the trial court must instruct the jury on the
impossibility of release even if there is an alternative sentence
available to the court under which the defendant could be released.
However, even accepting that sentencing courts in South Carolina
must now permit the jury to learn about the impossibility of parole
when life imprisonment is a sentencing possibility, I believe that
the court's instructions and the arguments made by counsel in
Shafer's case were sufficient to inform the jury of what "life
imprisonment" meant for Shafer. I therefore respectfully
dissent.
In
Simmons, a majority of this Court was concerned that
the jury in Simmons' trial reasonably could have believed that, if
he were sentenced to life, he would be eligible for parole. See
id., at 161 (plurality opinion); id., at 177-178 (O'CONNOR, J.,
concurring in judgment). Therefore, Simmons' defense to future
dangerousness-that because he sexually assaulted only elderly
women, he would pose no danger to fellow inmates, see id., at 157
(plurality opinion)-would not have been effective. To correct the
jury's possible misunderstanding of the availability of parole,
Simmons requested several jury instructions, including one that
would explain that, if he were sentenced to life imprisonment, "'he
actually w[ould] be sentenced to imprisonment in the state
penitentiary for the balance of his natural life.' "
Id., at
160. The trial court rejected this instruction and instead
ambiguously informed the jury that the term life imprisonment is to
be understood according to its" 'plain and ordinary meaning,'"
which did "nothing to dispel the misunderstanding reasonable jurors
may have about the way in which any particular State defines 'life
imprisonment.'''
Id., at 169-170.
In this case, by contrast, the judge repeatedly explained that
"life imprisonment means until the death of the defendant." App.
201. The judge defined "life imprisonment" as
57
"incarceration of the defendant until his death," id., at 209,
and informed the jury that, if it chose the punishment of life
imprisonment, the verdict form would read "'We, the jury ...
unanimously recommend that the defendant, Wesley Aaron Shafer, be
imprisoned in the state penitentiary for the balance of his natural
life.' "
Id., at 213-214. Emphasizing this very point,
Shafer's counsel argued to the jury that Shafer would never leave
prison if he received a life sentence. See id., at 192 ("The
question is will the State execute him or will he just die in
prison"); id., at 194 ("putting a 19 year old in prison until he is
dead" and "you can put him some place until he is dead"); id., at
198 ("When they say give [him] life, he's not going home .... I'm
just asking for the smallest amount of mercy it takes to make a
man, a child spend the rest of his life in prison").
Given these explanations of what life imprisonment means, which
left no room for speculation by the jury, I can only infer that the
jury's questions regarding parole referred not to Shafer's parole
eligibility in the event the jury sentenced Shafer to life, but
rather to his parole eligibility in the event it did not sentence
him at all. In fact, both of the jury's questions referred only to
parole eligibility of someone "convicted of murder," id., at
239-240 (" '[I]s there any remote chance that someone convicted of
murder could become eligible for parole' "); id., at 240 ("
'[U]nder what conditions would someone convicted for murder be
eligible [for parole]' "), rather than parole eligibility of
someone
sentenced to life imprisonment. Under South Carolina
law, if the jury does not find an aggravating circumstance, someone
convicted of murder could be sentenced to a term of 30 years'
imprisonment or greater. See S. C. Code Ann. § 16-3-20(C) (2000
Cum. Supp.). If the jury thought Shafer's release from prison was a
possibility in the event the judge sentenced him, they would have
been correct. To be sure, under South Carolina's sentencing scheme,
the jury did not need to know what sentencing options were
available to the judge in the
58
event the jury did not find an aggravating circumstance. But
that is precisely why the trial court's answers were appropriate.
It explained what "life" meant for purposes of the
jury's
sentencing option, and then added that "[p]arole eligibility or
ineligibility is not for your consideration." App.240.
The majority appears to believe that it could develop jury
instructions that are more precise than those offered to Shafer's
jury. It may well be right. But it is not this Court's role to
micromanage state sentencing proceedings or to develop model jury
instructions. I would decline to interfere further with matters
that the Constitution leaves to the States.
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