OCTOBER TERM, 1993
Syllabus
SIMMONS
v. SOUTH CAROLINA
CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA No. 92-9059.
Argued January 18, 1994-Decided June 17, 1994
During the penalty phase of petitioner's South Carolina trial,
the State argued that his future dangerousness was a factor for the
jury to consider when deciding whether to sentence him to death or
life imprisonment for the murder of an elderly woman. In rebuttal,
petitioner presented evidence that his future dangerousness was
limited to elderly women and thus there was no reason to expect
violent acts from him in prison. However, the court refused to give
the jury his proposed instruction that under state law he was
ineligible for parole. When asked by the jury whether life
imprisonment carried with it the possibility of parole, the court
instructed the jury not to consider parole in reaching its verdict
and that the terms life imprisonment and death sentence were to be
understood to have their plain and ordinary meaning. The jury
returned a death sentence. On appeal, the State Supreme Court
concluded that regardless of whether a trial court's refusal to
inform a sentencing jury about a defendant's parole ineligibility
might ever be error, the instruction given to petitioner's jury
satisfied in substance his request for a charge on such
ineligibility.
Held: The judgment is reversed, and the case is remanded.
310 S. C. 439, 427 S. E. 2d 175, reversed and remanded.
JUSTICE BLACKMUN, joined by JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE GINSBURG, concluded:
1. Where a defendant's future dangerousness is at issue, and
state law prohibits his release on parole, due process requires
that the sentencing jury be informed that the defendant is parole
ineligible. An individual cannot be executed on the basis of
information which he had no opportunity to deny or explain.
Gardner v.
Florida, 430 U. S. 349, 362.
Petitioner's jury reasonably may have believed that he could be
released on parole if he were not executed. To the extent that this
misunderstanding pervaded its deliberations, it had the effect of
creating a false choice between sentencing him to death and
sentencing him to a limited period of incarceration. The trial
court's refusal to apprise the jury of information so crucial to
its determination, particularly when the State alluded to the
defendant's future dangerousness in its argument, cannot be
reconciled with this Court's well-established precedents
interpreting the Due Process Clause. See,
e. g., Skipper v.
South Carolina, 476 U. S. 1. pp.
161-169.
155
2. The trial court's instruction that life imprisonment was to
be understood in its plain and ordinary meaning did not satisfy
petitioner's request for a parole ineligibility charge, since it
did nothing to dispel the misunderstanding reasonable jurors may
have about the way in which any particular State defines "life
imprisonment." Pp. 169-171.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE and JUSTICE
KENNEDY, concluded that where the State puts a 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 sentencing jury-either
by argument or instruction-that he is parole ineligible. If the
prosecution does not argue future dangerousness, a 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 the possibility of parole. Here, the
trial court's instruction did not satisfy petitioner's request for
a parole ineligibility charge, since the rejection of parole is a
recent development displacing the longstanding practice of parole
availability, and since common sense dictates that many jurors
might not know whether a life sentence carries with it the
possibility of parole. pp. 175-178.
BLACKMUN, J., announced the judgment of the Court and delivered
an opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.
SOUTER, J., filed a concurring opinion, in which STEVENS, J.,
joined,
post, p. 172. GINSBURG, J., filed a concurring
opinion,
post, p. 174. O'CONNOR, J., filed an opinion
concurring in the judgment, in which REHNQUIST, C. J., and KENNEDY,
J., joined,
post, p. 175. SCALIA, J., filed a dissenting
opinion, in which THOMAS, J., joined,
post, p. 178.
David 1.
Bruck, by appointment of the Court, 510
U. S. 942, argued the cause for petitioner. With him on the briefs
was
M. Anne Pearce.
Richard A. Harpootlian argued the cause for
respondent.
With him on the brief were
T. Travis Medlock, Attorney
General of South Carolina, and
Donald J.
Zelenka,
Chief Deputy Attorney General. *
* A brief of
amici curiae urging affirmance was filed for
the State of Idaho et al. by
Larry EchoHawk, Attorney
General of Idaho, and
Lynn E. Thomas, Solicitor General,
Grant Woods, Attorney General of Arizona,
Daniel E.
Lungren, Attorney General of California,
John M. Bailey,
Chief State's Attorney of Connecticut,
Roland Burris,
Attorney General of Illi-
156
Opinion of BLACKMUN, J.
JUSTICE BLACKMUN announced the judgment of the Court and
delivered an opinion, in which JUSTICE STEVENS, JUSTICE SOUTER, and
JUSTICE GINSBURG join.
This case presents the question whether the Due Process Clause
of the Fourteenth Amendment was violated by the refusal of a state
trial court to instruct the jury in the penalty phase of a capital
trial that under state law the defendant was ineligible for parole.
We hold that where the defendant's future dangerousness is at
issue, and state law prohibits the defendant's release on parole,
due process requires that the sentencing jury be informed that the
defendant is parole ineligible.
I A
In July 1990, petitioner beat to death an elderly woman, Josie
Lamb, in her home in Columbia, South Carolina. The week before
petitioner's capital murder trial was scheduled to begin, he
pleaded guilty to first-degree burglary and two counts of criminal
sexual conduct in connection with two prior assaults on elderly
women. Petitioner's guilty pleas resulted in convictions for
violent offenses, and those convictions rendered petitioner
ineligible for parole if convicted of any subsequent violent-crime
offense. S. C. Code Ann. § 24-21-640 (Supp. 1993).
Prior to jury selection, the prosecution advised the trial judge
that the State "[o]bviously [was] going to ask you to exclude any
mention of parole throughout this trial." App. 2. Over defense
counsel's objection, the trial court granted the prosecution's
motion for an order barring the
nois,
Chris Gorman, Attorney General of Kentucky,
Richard P. Ieyoub, Attorney General of Louisiana,
Joseph
P. Mazurek, Attorney General of Montana,
Fred DeVesa,
Attorney General of New Jersey,
Michael E. Easley, Attorney
General of North Carolina,
Mark Barnett, Attorney General of
South Dakota, and
Dan Morales, Attorney General of
Texas.
William C.
Pelster filed a brief for Donna L.
Markle et al. as
amici curiae.
157
defense from asking any question during
voir dire
regarding parole. Under the court's order, defense counsel was
forbidden even to mention the subject of parole, and expressly was
prohibited from questioning prospective jurors as to whether they
understood the meaning of a "life" sentence under South Carolina
law.1 After a 3-day trial, petitioner was convicted of the murder
of Ms. Lamb.
During the penalty phase, the defense brought forward mitigating
evidence tending to show that petitioner's violent behavior
reflected serious mental disorders that stemmed from years of
neglect and extreme sexual and physical abuse petitioner endured as
an adolescent. While there was some disagreement among witnesses
regarding the extent to which petitioner's mental condition
properly could be deemed a "disorder," witnesses for both the
defense and the prosecution agreed that petitioner posed a
continuing danger to elderly women.
In its closing argument the prosecution argued that petitioner's
future dangerousness was a factor for the jury to consider when
fixing the appropriate punishment. The question for the jury, said
the prosecution, was "what to do with [petitioner] now that he is
in our midst."
Id., at 110. The prosecution further urged
that a verdict for death would be "a response of society to someone
who is a threat. Your verdict will be an act of self-defense."
Ibid.
Petitioner sought to rebut the prosecution's generalized
argument of future dangerousness by presenting evidence that, due
to his unique psychological problems, his dangerousness was limited
to elderly women, and that there was no reason to expect further
acts of violence once he was isolated in a prison setting. In
support of his argument, petitioner introduced testimony from a
female medical assistant and
1 The venire was informed, however, of the meaning of the term
"death" under South Carolina law. The trial judge specifically
advised the prospective jurors that "[b]y the death penalty, we
mean death by electrocution." The sentencing jury was also so
informed. App. 129.
158
Opinion of BLACKMUN, J.
from two supervising officers at the Richland County jail where
petitioner had been held prior to trial. All three testified that
petitioner had adapted well to prison life during his pretrial
confinement and had not behaved in a violent manner toward any of
the other inmates or staff. Petitioner also offered expert opinion
testimony from Richard L. Boyle, a clinical social worker and
former correctional employee, who had reviewed and observed
petitioner's institutional adjustment. Mr. Boyle expressed the view
that, based on petitioner's background and his current functioning,
petitioner would successfully adapt to prison if he was sentenced
to life imprisonment.
Concerned that the jury might not understand that "life
imprisonment" did not carry with it the possibility of parole in
petitioner's case, defense counsel asked the trial judge to clarify
this point by defining the term "life imprisonment" for the jury in
accordance with S. C. Code Ann. § 24-21-640 (Supp. 1993).2 To
buttress his request, petitioner proffered, outside the presence of
the jury, evidence conclusively establishing his parole
ineligibility. On petitioner's behalf, attorneys for the South
Carolina Department of Corrections and the Department of Probation,
Parole and Pardons testified that any offender in petitioner's
position was in fact ineligible for parole under South Carolina
law. The prosecution did not challenge or question petitioner's
parole ineligibility. Instead, it sought to elicit admissions from
the witnesses that, notwithstanding petitioner's parole
ineligibility, petitioner might receive holiday furloughs or other
forms of early release. Even this effort was unsuccessful,
however,
2 Section 24-21-640 states: "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
from a prior conviction, for violent crimes as defined in Section
16-1-60." Petitioner's earlier convictions for burglary in the
first degree and criminal sexual assault in the first degree are
violent offenses under § 16-1-60.
159
as the cross-examination revealed that Department of Corrections
regulations prohibit petitioner's release under early release
programs such as work-release or supervised furloughs, and that no
convicted murderer serving life without parole ever had been
furloughed or otherwise released for any reason.
Petitioner then offered into evidence, without objection, the
results of a statewide public-opinion survey conducted by the
University of South Carolina's Institute for Public Affairs. The
survey had been conducted a few days before petitioner's trial, and
showed that only 7.1 percent of all jury-eligible adults who were
questioned firmly believed that an inmate sentenced to life
imprisonment in South Carolina actually would be required to spend
the rest of his life in prison. See App. 152-154. Almost half of
those surveyed believed that a convicted murderer might be paroled
within 20 years; nearly three-quarters thought that release
certainly would occur in less than 30 years.
Ibid. More than
75 percent of those surveyed indicated that if they were called
upon to make a capital sentencing decision as jurors, the amount of
time the convicted murderer actually would have to spend in prison
would be an "extremely important" or a "very important" factor in
choosing between life and death.
Id., at 155.
Petitioner argued that, in view of the public's apparent
misunderstanding about the meaning of "life imprisonment" in South
Carolina, there was a reasonable likelihood that the jurors would
vote for death simply because they believed, mistakenly, that
petitioner eventually would be released on parole.
The prosecution opposed the proposed instruction, urging the
court "not to allow ... any argument by state or defense about
parole and not charge the jury on anything concerning parole."
Id., at 37. Citing the South Carolina Supreme Court's
opinion in
State v.
Torrence, 305 S. C. 45, 406 S.
E.
160
Opinion of BLACKMUN, J.
2d 315 (1991), the trial court refused petitioner's requested
instruction. Petitioner then asked alternatively for the following
instruction:
"I charge you that these sentences mean what they say. That is,
if you recommend that the defendant Jonathan Simmons be sentenced
to death, he actually will be sentenced to death and executed. If,
on the other hand, you recommend that he be sentenced to life
imprisonment, he actually will be sentenced to imprisonment in the
state penitentiary for the balance of his natural life.
"In your deliberations, you are not to speculate that these
sentences mean anything other than what I have just told you, for
what I have told you is exactly what will happen to the defendant,
depending on what your sentencing decision is." App. 162.
The trial judge also refused to give this instruction, but
indicated that he might give a similar instruction if the jury
inquired about parole eligibility.
After deliberating on petitioner's sentence for 90 minutes, the
jury sent a note to the judge asking a single question:
"Does the imposition of a life sentence carry with it the
possibility of parole?"
Id., at 145. Over petitioner's
objection, the trial judge gave the following instruction:
"You are instructed not to consider parole or parole eligibility
in reaching your verdict. Do not consider parole or parole
eligibility. That is not a proper issue for your consideration. The
terms life imprisonment and death sentence are to be understood in
their plan [sic] and ordinary meaning." Id., at 146.
Twenty-five minutes after receiving this response from the
court, the jury returned to the courtroom with a sentence of
death.
On appeal to the South Carolina Supreme Court, petitioner argued
that the trial judge's refusal to provide the jury accurate
information regarding his parole ineligibil-
161
ity violated the Eighth Amendment and the Due Process Clause of
the Fourteenth Amendment.3 The South Carolina Supreme Court
declined to reach the merits of petitioner's challenges. With one
justice dissenting, it concluded that, regardless of whether a
trial court's refusal to inform a sentencing jury about a
defendant's parole ineligibility might be error under some
circumstances, the instruction given to petitioner's jury
"satisfie[d] in substance [petitioner's] request for a charge on
parole ineligibility," and thus there was no reason to consider
whether denial of such an instruction would be constitutional error
in this case. 310 S. C. 439, 444, 427 S. E. 2d 175, 179 (1993). We
granted certiorari, 510 U. S. 811 (1993).
II
The Due Process Clause does not allow the execution of a person
"on the basis of information which he had no opportunity to deny or
explain."
Gardner v.
Florida, 430 U. S. 349, 362
(1977). In this case, the jury reasonably may have believed that
petitioner could be released on parole if he were not executed. To
the extent this misunderstanding pervaded the jury's deliberations,
it had the effect of creating a false choice between sentencing
petitioner to death and sentencing him to a limited period of
incarceration. This
3 Specifically, petitioner argued that under the Eighth
Amendment his parole ineligibility was "'mitigating' in the sense
that [it] might serve 'as a basis for a sentence less than death,'"
Skipper v.
South Carolina, 476 U. S. 1, 4-5 (1986),
quoting
Lockett v.
Ohio, 438 U. S. 586, 604 (1978)
(plurality opinion), and that therefore he was entitled to inform
the jury of his parole ineligibility. He also asserted that by
withholding from the jury the fact that it had a
life-without-parole sentencing alternative, the trial court
impermissibly diminished the reliability of the jury's
determination that death was the appropriate punishment. Cf.
Beck v.
Alabama, 447 U. S. 625 (1980).
Finally, relying on the authority of
Gardner v.
Florida, 430
U. S. 349 (1977), petitioner argued that his due process right
to rebut the State's argument that petitioner posed a future danger
to society had been violated by the trial court's refusal to permit
him to show that a noncapital sentence adequately could protect the
public from any future acts of violence by him.
162
Opinion of BLACKMUN, J.
grievous misperception was encouraged by the trial court's
refusal to provide the jury with accurate information regarding
petitioner's parole ineligibility, and by the State's repeated
suggestion that petitioner would pose a future danger to society if
he were not executed. Three times petitioner asked to inform the
jury that in fact he was ineligible for parole under state law;
three times his request was denied. The State thus succeeded in
securing a death sentence on the ground, at least in part, of
petitioner's future dangerousness, while at the same time
concealing from the sentencing jury the true meaning of its
noncapital sentencing alternative, namely, that life imprisonment
meant life without parole. We think it is clear that the State
denied petitioner due process.4
A
This Court has approved the jury's consideration of future
dangerousness during the penalty phase of a capital trial,
recognizing that a defendant's future dangerousness bears on all
sentencing determinations made in our criminal justice system. See
Jurek v.
Texas, 428 U. S. 262, 275 (1976)
(joint opinion of Stewart, Powell, and STEVENS, JJ.) (noting that
"any sentencing authority must predict a convicted person's
probable future conduct when it engages in the process of
determining what punishment to impose");
California v.
Ramos, 463 U.
S. 992, 1003, n. 17 (1983) (explaining that it is proper for a
sentencing jury in a capital case to consider "the defendant's
potential for reform and whether his probable future behavior
counsels against the desirability of his release into
society").
Although South Carolina statutes do not mandate consideration of
the defendant's future dangerousness in capital sentencing, the
State's evidence in aggravation is not limited to evidence relating
to statutory aggravating circumstances.
4 We express no opinion on the question whether the result we
reach today is also compelled by the Eighth Amendment.
163
See
Barclay v.
Florida, 463 U. S. 939, 948-951
(1983) (plurality opinion);
California v.
Ramos, 463
U. S., at 1008 ("Once the jury finds that the defendant falls
within the legislatively defined category of persons eligible for
the death penalty ... the jury then is free to consider a myriad of
factors to determine whether death is the appropriate punishment").
Thus, prosecutors in South Carolina, like those in other States
that impose the death penalty, frequently emphasize a defendant's
future dangerousness in their evidence and argument at the
sentencing phase; they urge the jury to sentence the defendant to
death so that he will not be a danger to the public if released
from prison. Eisenberg & Wells, Deadly Confusion: Juror
Instructions in Capital Cases, 79 Cornell L. Rev. 1, 4 (1993).
Arguments relating to a defendant's future dangerousness
ordinarily would be inappropriate at the guilt phase of a trial, as
the jury is not free to convict a defendant simply because he poses
a future danger; nor is a defendant's future dangerousness likely
relevant to the question whether each element of an alleged offense
has been proved beyond a reasonable doubt. But where the jury has
sentencing responsibilities in a capital trial, many issues that
are irrelevant to the guilt-innocence determination step into the
foreground and require consideration at the sentencing phase. The
defendant's character, prior criminal history, mental capacity,
background, and age are just a few of the many factors, in addition
to future dangerousness, that a jury may consider in fixing
appropriate punishment. See
Lockett v.
Ohio, 438 U.
S. 586 (1978);
Eddings v.
Oklahoma, 455 U. S. 104, 110
(1982); Barclay v.
Florida, 463 U. S., at
948-951.
In assessing future dangerousness, the actual duration of the
defendant's prison sentence is indisputably relevant. Holding all
other factors constant, it is entirely reasonable for a sentencing
jury to view a defendant who is eligible for parole as a greater
threat to society than a defendant who is not. Indeed, there may be
no greater assurance of a defend-
164
Opinion of BLACKMUN, J.
ant's future nondangerousness to the public than the fact that
he never will be released on parole. The trial court's refusal to
apprise the jury of information so crucial to its sentencing
determination, particularly when the prosecution alluded to the
defendant's future dangerousness in its argument to the jury,
cannot be reconciled with our wellestablished precedents
interpreting the Due Process Clause.
B
In
Skipper v.
South Carolina, 476 U. S. 1 (1986), this
Court held that a defendant was denied due process by the refusal
of the state trial court to admit evidence of the defendant's good
behavior in prison in the penalty phase of his capital trial.
Although the majority opinion stressed that the defendant's good
behavior in prison was "relevant evidence in mitigation of
punishment," and thus admissible under the Eighth Amendment,
id., at 4, citing
Lockett v.
Ohio, 438 U. S.,
at 604 (plurality opinion), the
Skipper opinion expressly
noted that the Court's conclusion also was compelled by the Due
Process Clause. The Court explained that where the prosecution
relies on a prediction of future dangerousness in requesting the
death penalty, elemental due process principles operate to require
admission of the defendant's relevant evidence in rebuttal. 476 U.
S., at 5, n. 1. See also id., at 9 (Powell, J., opinion concurring
in judgment) ("[B]ecause petitioner was not allowed to rebut
evidence and argument used against him," the defendant clearly was
denied due process).
The Court reached a similar conclusion in
Gardner v.
Florida, 430
U. S. 349 (1977). In that case, a defendant was sentenced to
death on the basis of a presentence report which was not made
available to him and which he therefore could not rebut. A
plurality of the Court explained that sending a man to his death
"on the basis of information which he had no opportunity to deny or
explain" violated fundamental notions of due process.
Id.,
at 362. The principle an-
165
nounced in
Gardner was reaffirmed in
Skipper, and
it compels our decision today. See also
Crane v.
Kentucky, 476
U. S. 683, 690 (1986) (due process entitles a defendant to "'a
meaningful opportunity to present a complete defense''') (citation
omitted);
Ake v.
Oklahoma, 470 U. S. 68, 83-87 (1985)
(where the State presents psychiatric evidence of a defendant's
future dangerousness at a capital sentencing proceeding, due
process entitles an indigent defendant to the assistance of a
psychiatrist for the development of his defense).
Like the defendants in
Skipper and
Gardner,
petitioner was prevented from rebutting information that the
sentencing authority considered, and upon which it may have relied,
in imposing the sentence of death. The State raised the specter of
petitioner's future dangerousness generally, but then thwarted all
efforts by petitioner to demonstrate that, contrary to the
prosecutor's intimations, he never would be released on parole and
thus, in his view, would not pose a future danger to society.5 The
logic and effectiveness of petitioner's argument naturally depended
on the fact that he was legally ineligible for parole and thus
would remain in prison if afforded a life sentence. Petitioner's
efforts to focus the jury's attention on the question whether, in
prison, he would be a future danger were futile, as he repeatedly
was denied any opportunity to inform the jury that he never would
be released on parole. The jury was left to speculate about
petitioner's parole eligibility when evaluating petitioner's future
dangerousness, and was denied a straight an-
5 Of course, the fact that a defendant is parole ineligible does
not prevent the State from arguing that the defendant poses a
future danger. The 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. But the State may not mislead the jury by
concealing accurate information about the defendant's parole
ineligibility. The Due Process Clause will not tolerate placing a
capital defendant in a straitjacket by barring him from rebutting
the prosecution's arguments of future dangerousness with the fact
that he is ineligible for parole under state law.
166
Opinion of BLACKMUN, J.
swer about petitioner's parole eligibility even when it was
requested.
C
The State and its
amici contend that petitioner was not
entitled to an instruction informing the jury that petitioner is
ineligible for parole because such information is inherently
misleading.6 Essentially, they argue that because future exigencies
such as legislative reform, commutation, clemency, and escape might
allow petitioner to be released into society, petitioner was not
entitled to inform the jury that he is parole ineligible. Insofar
as this argument is targeted at the specific wording of the
instruction petitioner requested, the argument is misplaced.
Petitioner's requested instruction ("If ... you recommend that [the
defendant] be sentenced to life imprisonment, he actually will be
sentenced to imprisonment in the state penitentiary for the balance
of his natural life," App. 162) was proposed only after the trial
court ruled that South Carolina law prohibited a plain-language
instruction that petitioner was ineligible for parole under state
law. To the extent that the State opposes even a simple
paroleineligibility instruction because of hypothetical future
developments, the argument has little force. Respondent admits that
an instruction informing the jury that petitioner is ineligible for
parole is legally accurate. Certainly, such an instruction is more
accurate than no instruction at all, which leaves the jury to
speculate whether "life imprisonment" means life without parole or
something else.
The State's asserted accuracy concerns are further undermined by
the fact that a large majority of States which pro-
6 In this regard, the State emphasizes that no statute prohibits
petitioner's eventual release into society. While this technically
may be true, state regulations unambiguously prohibit work-release
and virtually all other furloughs for inmates who are ineligible
for parole. See App. 16. As for pardons, the statute itself
provides that they are available only in "the most extraordinary
circumstances." S. C. Code Ann. §24-21-950D (1989).
167
vide for life imprisonment without parole as an alternative to
capital punishment inform the sentencing authority of the
defendant's parole ineligibility. 7 The few States that do not
provide capital sentencing juries with any information regarding
parole ineligibility seem to rely, as South Carolina
7 At present, there are 26 States that both employ juries in
capital sentencing and provide for life imprisonment without parole
as an alternative to capital punishment. In 17 of these, the jury
expressly is informed of the defendant's ineligibility for parole.
Nine States simply identify the jury's sentencing alternatives as
death and life without parole. See Ala. Code § 13A-5-46(e) (1982);
Ark. Code Ann. § 5-4-603(b) (1993); Cal. Penal Code Ann. § 190.3
(West 1988); Conn. Gen. Stat. § 53a-46a(f) (1985); Del. Code Ann.,
Tit. 11, § 4209(a) (1987); La. Code Crim. Proc. Ann., Art. 905.6
(West Supp. 1994); Mo. Rev. Stat. § 565.030.4 (Supp. 1993); N. H.
Rev. Stat. Ann. § 630:5 (Supp. 1992); Wash. Rev. Code § 10.95.030
(1994). Eight States allow the jury to specify whether the
defendant should or should not be eligible for parole. See Ga. Code
Ann. § 17-10-31.1(a) (Supp. 1993); Ind. Code § 35-50-2-9 (Supp.
1993); Md. Ann. Code, Art. 27, § 413(c)(3) (Supp. 1993); Nev. Rev.
Stat. § 175.554(2)(c)(2) (1993); Okla. Stat. Ann. Tit. 21, §
701.10(A) (Supp. 1993-1994); Ore. Rev. Stat. § 163.105 (1991);
Tenn. Code Ann. §§ 39-13-204(a)-(f)(2) (Supp. 1993); Utah Code Ann.
§ 76-3207(4) (Supp. 1993).
In three States, statutory or decisional law requires that the
sentencing jury be instructed, where accurate, that the defendant
will be ineligible for parole. See Colo. Rev. Stat. §
16-11-103(1)(b) (Supp. 1993);
People v.
Gacho, 122
Ill. 2d 221, 262, 522 N. E. 2d 1146, 1166 (1988);
Turner v.
State, 573 So. 2d 657, 675 (Miss. 1990), cert. denied, 500
U. S. 910 (1991).
Three States have not considered the question whether jurors
should be instructed that the defendant is ineligible for parole
under state law. See Fla. Stat. Ann. § 775.0823(1) (Supp. 1994); S.
D. Codified Laws § 2415-4 (1988); Wyo. Stat. §§ 6-2-101(b),
7-13-402(a) (1993). The Florida Supreme Court, however, has
approved for publication pattern jury instructions that inform
capital sentencing juries of the no-parole feature of Fla. Stat.
Ann. § 775.0823(1). See Standard Jury Instructions-Criminal Cases
No. 92-1,603 So.2d 1175, 1205 (Fla. 1992).
Finally, there are four States in which the capital sentencing
decision is made by the trial judge alone or by a sentencing panel
of judges. Thus, in these States, as well, the sentencing authority
is fully aware of the precise parole status of life-sentenced
murderers. Ariz. Rev. Stat. Ann. § 13-703(B) (Supp. 1993); Idaho
Code § 19-2515(d) (1987); Mont. Code Ann. §46-18-301 (1993); Neb.
Rev. Stat. §29-2520 (1989).
168
Opinion of BLACKMUN, J.
does here, on the proposition that
California v.
Ramos, 463 U. S. 992 (1983), held that such determinations
are purely matters of state law.8
It is true that
Ramos stands for the broad proposition
that we generally will defer to a State's determination as to what
a jury should and should not be told about sentencing. In a State
in which parole is available, how the jury's knowledge of parole
availability will affect the decision whether or not to impose the
death penalty is speculative, and we shall not lightly second-guess
a decision whether or not to inform a jury of information regarding
parole. States reasonably may conclude that truthful information
regarding the availability of commutation, pardon, and the like
should be kept from the jury in order to provide "greater
protection in [the States'] criminal justice system than the
Federal Constitution requires."
Id., at 1014. Concomitantly,
nothing in the Constitution prohibits the prosecution from arguing
any truthful information relating to parole or other forms of early
release.
But if the State rests its case for imposing the death penalty
at least in part on the premise that the defendant will
8 Only two States other than South Carolina have a
life-without-parole sentencing alternative to capital punishment
for some or all convicted murderers but refuse to inform sentencing
juries of this fact. See
Commonwealth v.
Henry, 524
Pa. 135, 160, 569 A. 2d 929, 941 (1990), cert. denied, 499 U. S.
931 (1991);
Commonwealth v.
Strong, 522 Pa. 445,
458460, 563 A. 2d 479, 485-486 (1989);
Eaton v.
Commonwealth, 240 Va. 236, 248-249, 397 S. E. 2d 385,
392-393 (1990), cert. denied, 502 U. S. 824 (1991);
O'Dell
v.
Commonwealth, 234 Va. 672, 701, 364 S. E. 2d 491, 507,
cert. denied, 488 U. S. 871 (1988).
JUSTICE SCALIA points out that two additional States, Texas and
North Carolina, traditionally have kept information about a capital
defendant's parole ineligibility from the sentencing jury. See
post, at 179. Neither of these States, however, has a
life-without-parole sentencing alternative to capital punishment.
It is also worthy of note that, pursuant to recently enacted
legislation, North Carolina now requires trial courts to instruct
capital sentencing juries concerning parole eligibility. See 1993
N. C. Sess. Laws, ch. 538, § 29.
169
be dangerous in the future, the fact that the alternative
sentence to death is life without parole will necessarily undercut
the State's argument regarding the threat the defendant poses to
society. Because truthful information of parole ineligibility
allows the defendant to "deny or explain" the showing of future
dangerousness, due process plainly requires that he be allowed to
bring it to the jury's attention by way of argument by defense
counselor an instruction from the court. See
Gardner, 430 U.
S., at 362.
III
There remains to be considered whether the South Carolina
Supreme Court was correct in concluding that the trial court
"satisfie[d] in substance [petitioner's] request for a charge on
parole ineligibility," 310 S. C., at 444, 427 S. E. 2d, at 179,
when it responded to the jury's query by stating that life
imprisonment was to be understood in its "plain and ordinary
meaning," ibid. In the court's view, petitioner basically received
the parole-ineligibility instruction he requested. We disagree.
It can hardly be questioned that most juries lack accurate
information about the precise meaning of "life imprisonment" as
defined by the States. For much of our country's history, parole
was a mainstay of state and federal sentencing regimes, and every
term (whether a term of life or a term of years) in practice was
understood to be shorter than the stated term. See generally
Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness
of Determinate Sentencing Reform, 81 Calif. L. Rev. 61 (1993)
(describing the development of mandatory sentencing laws).
Increasingly, legislatures have enacted mandatory sentencing laws
with severe penalty provisions, yet the precise contours of these
penal laws vary from State to State. See Cheatwood, The Life-
Without- Parole Sanction: Its Current Status and a Research Agenda,
34 Crime & Delinq. 43, 45, 48 (1988). Justice Chandler of the
South Carolina Supreme
170
Opinion of BLACKMUN, J.
Court observed that it is impossible to ignore "the reality,
known to the 'reasonable juror,' that, historically, life-term
defendants have been eligible for parole."
State v.
Smith, 298 S. C. 482, 489-490, 381 S. E. 2d 724, 728 (1989)
(opinion concurring and dissenting), cert. denied, 494 U. S. 1060
(1990).9
An instruction directing juries that life imprisonment should be
understood in its "plain and ordinary" meaning does nothing to
dispel the misunderstanding reasonable jurors may have about the
way in which any particular State defines "life imprisonment." 10
See
Boyde v.
California, 494 U. S. 370, 380 (1990)
(where there is a "reasonable likelihood that the jury has applied
the challenged instruction in a way that prevents the consideration
of constitutionally relevant evidence," the defendant is denied due
process).
It is true, as the State points out, that the trial court
admonished the jury that "you are instructed not to consider
parole" and that parole "is not a proper issue for your
consideration." App. 146. Far from ensuring that the jury was not
misled, however, this instruction actually suggested that parole
was available but that the jury, for some unstated reason,
should be blind to this fact. Undoubtedly, the instruction was
confusing and frustrating to the jury, given
9 Public opinion and juror surveys support the commonsense
understanding that there is a reasonable likelihood of juror
confusion about the meaning of the term "life imprisonment." See
Paduano & Smith, Deadly Errors: Juror Misperceptions Concerning
Parole in the Imposition of the Death Penalty, 18 Colum. Human
Rights L. Rev. 211, 222-225 (1987); Note, The Meaning of "Life" for
Virginia Jurors and Its Effect on Reliability in Capital
Sentencing, 75 Va. L. Rev. 1605, 1624 (1989); Eisenberg &
Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79
Cornell L. Rev. 1 (1993); Bowers, Capital Punishment and
Contemporary Values: People's Misgivings and the Court's
Misperceptions, 27 Law & Society 157, 169170 (1993).
10 It almost goes without saying that if the jury in this case
understood that the "plain meaning" of "life imprisonment" was life
without parole in South Carolina, there would have been no reason
for the jury to inquire about petitioner's parole eligibility.
171
the arguments by both the prosecution and the defense relating
to petitioner's future dangerousness, and the obvious relevance of
petitioner's parole ineligibility to the jury's formidable
sentencing task. While juries ordinarily are presumed to follow the
court's instructions, see
Greer v.
Miller, 483 U. S. 756, 766, n. 8
(1987), we have recognized that in some circumstances "the risk
that the jury will not, or cannot, follow instructions is so great,
and the consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored."
Bruton v.
United States, 391 U. S. 123, 135
(1968). See also
Beck v.
Alabama, 447 U. S. 625, 642
(1980);
Barclay v.
Florida, 463 U. S., at 950 ("Any
sentencing decision calls for the exercise of judgment. It is
neither possible nor desirable for a person to whom the State
entrusts an important judgment to decide in a vacuum, as if he had
no experiences").
But even if the trial court's instruction successfully prevented
the jury from considering parole, petitioner's due process rights
still were not honored. Because petitioner's future dangerousness
was at issue, he was entitled to inform the jury of his parole
ineligibility. An instruction directing the jury not to consider
the defendant's likely conduct in prison would not have satisfied
due process in
Skipper v.
South Carolina, 476 U. S. 1 (1986), and,
for the same reasons, the instruction issued by the trial court in
this case does not satisfy due process.
IV
The State may not create a false dilemma by advancing
generalized arguments regarding the defendant's future
dangerousness while, at the same time, preventing the jury from
learning that the defendant never will be released on parole. The
judgment of the South Carolina Supreme Court accordingly is
reversed, and the case is remanded for further proceedings.
It is so ordered.
172
JUSTICE SOUTER, with whom JUSTICE STEVENS joins, concurring.
I join in JUSTICE BLACKMUN'S opinion that, at least when future
dangerousness is an issue in a capital sentencing determination,
the defendant has a due process right to require that his
sentencing jury be informed of his ineligibility for parole. I
write separately because I believe an additional, related principle
also compels today's decision, regardless of whether future
dangerousness is an issue at sentencing.
The Eighth Amendment entitles a defendant to a jury capable of a
reasoned moral judgment about whether death, rather than some
lesser sentence, ought to be imposed. The Court has explained that
the Amendment imposes a heightened standard "for reliability in the
determination that death is the appropriate punishment in a
specific case,"
Woodson v.
North Carolina, 428 U. S. 280, 305 (1976)
(plurality opinion of Stewart, Powell, and STEVENS, JJ.); see also,
e. g., Godfrey v.
Georgia, 446 U. S. 420, 427-428
(1980);
Mills v.
Maryland, 486 U. S. 367, 383-384
(1988). Thus, it requires provision of "accurate sentencing
information [as] an indispensable prerequisite to a reasoned
determination of whether a defendant shall live or die,"
Gregg v.
Georgia, 428 U. S. 153, 190 (1976)
(joint opinion of Stewart, Powell, and STEVENS, JJ.), and
invalidates "procedural rules that ten[d] to diminish the
reliability of the sentencing determination,"
Beck v.
Alabama, 447
U. S. 625, 638 (1980).
That same need for heightened reliability also mandates
recognition of a capital defendant's right to require instructions
on the meaning of the legal terms used to describe the sentences
(or sentencing recommendations) a jury is required to consider, in
making the reasoned moral choice between sentencing alternatives.
Thus, whenever there is a reasonable likelihood that a juror will
misunderstand a sentencing term, a defendant may demand instruction
on its meaning, and a death sentence following the refusal of such
a request
173
should be vacated as having been "arbitrarily or
discriminatorily" and "wantonly and ... freakishly imposed."
Fur
man v.
Georgia, 408 U. S. 238, 249 (1972)
(Douglas, J., concurring) (internal quotation marks omitted); id.,
at 310 (Stewart, J., concurring).
While I join the other Members of the Court's majority in
holding that, at least, counsel ought to be permitted to inform the
jury of the law that it must apply, see
ante, at 169
(plurality opinion);
post, at 174 (GINSBURG, J.,
concurring);
post, at 178 (O'CONNOR, J., concurring in
judgment), I also accept the general rule that, on matters of law,
arguments of counsel do not effectively substitute for statements
by the court.
"[A]rguments of counsel generally carry less weight with a jury
than do instructions from the court. The former are usually billed
in advance to the jury as matters of argument, not evidence, and
are likely viewed as the statements of advocates; the latter, we
have often recognized, are viewed as definitive and binding
statements of the law." Boyde v. California, 494 U. S. 370, 384 (1990)
(citation omitted).
I would thus impose that straightforward duty on the court.
Because JUSTICE BLACKMUN persuasively demonstrates that juries
in general are likely to misunderstand the meaning of the term
"life imprisonment" in a given context, see
ante, at 159,
169-170, and n. 9, the judge must tell the jury what the term
means, when the defendant so requests. It is, moreover, clear that
at least one of these particular jurors did not understand the
meaning of the term, since the jury sent a note to the judge
asking, "Does the imposition of a life sentence carry with it the
possibility of parole?"
Ante, at 160, 170, n. 10. The answer
here was easy and controlled by state statute. The judge should
have said no. JUSTICE BLACKMUN shows that the instruction actually
given was at
174
best a confusing, "equivocal direction to the jury on a basic
issue,"
Bollenbach v.
United States, 326 U. S. 607, 613
(1946), and that "there is a reasonable likelihood that the jury
has applied the challenged instruction in a way" that violated
petitioner's rights.
Boyde, supra, at 380. By effectively
withholding from the jury the life-without-parole alternative, the
trial court diminished the reliability of the jury's decision that
death, rather than that alternative, was the appropriate penalty in
this case.
While States are, of course, free to provide more protection for
the accused than the Constitution requires, see
California
v.
Ramos, 463
U. S. 992, 1014 (1983), they may not provide less. South
Carolina did so here. For these reasons, as well as those set forth
by JUSTICE BLACKMUN, whose opinion I join, the judgment of the
Supreme Court of South Carolina must be reversed.
JUSTICE GINSBURG, concurring.
This case is most readily resolved under a core requirement of
due process, the right to be heard.
Crane v.
Kentucky, 476
U. S. 683, 690 (1986). When the prosecution urges a defendant's
future dangerousness as cause for the death sentence, the
defendant's right to be heard means that he must be afforded an
opportunity to rebut the argument. See
Skipper v.
South
Carolina, 476 U. S.
1, 5, n. 1 (1986). To be full and fair, that opportunity must
include the right to inform the jury, if it is indeed the case,
that the defendant is ineligible for parole. JUSTICE BLACKMUN'S
opinion is in accord with JUSTICE O'CONNOR'S on this essential
point. See
ante, at 164, 165-166, 168-169;
post, at
176-178.
As a subsidiary matter, JUSTICE O'CONNOR'S opinion clarifies
that the due process requirement is met if the relevant information
is intelligently conveyed to the jury; due process does not dictate
that the judge herself, rather than defense counsel, provide the
instruction. See
post, at 177-178. I do
175
not read JUSTICE BLACKMUN'S opinion to say otherwise.* And I
note that the trial court here not only refused to instruct the
jury that in this case life means "life without parole"; the court
also ordered petitioner's counsel to refrain from saying anything
to the jury about parole ineligibility. App. 55-57.
On these understandings, I concur in JUSTICE BLACKMUN'S
opinion.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE
KENNEDY join, concurring in the judgment.
"Capital sentencing proceedings must of course satisfy the
dictates of the Due Process Clause,"
Clemons v.
Mississippi, 494 U. S. 738, 746
(1990), and one of the hallmarks of due process in our adversary
system is the defendant's ability to meet the State's case against
him. Cf.
Crane v.
Kentucky, 476 U. S. 683, 690
(1986). In capital cases, we have held that the defendant's future
dangerousness is a consideration on which the State may rely in
seeking the death penalty. See
California v.
Ramos,
463 U. S. 992,
1002-1003 (1983). But "[w]here the prosecution specifically relies
on a prediction of future dangerousness in asking for the death
penalty, ... the elemental due process requirement that a defendant
not be sentenced to death 'on the basis of information which he had
no opportunity to deny or explain' [requires that the defendant be
afforded an opportunity to introduce evidence on this point]."
Skipper v.
South Carolina, 476 U. S. 1, 5, n. 1
(1986), quoting
Gardner v.
Florida, 430 U. S. 349, 362 (1977)
(plurality opinion); see also 476 U. S., at 9-10 (Powell, J.,
concurring in judgment).
In this case, petitioner physically and sexually assaulted three
elderly women-one of them his own grandmotherbefore killing a
fourth. At the capital sentencing proceed-
*Compare
ante, at 162, n. 4 (refraining from addressing
Simmons' Eighth Amendment claim), with
ante, at 173-174
(SOUTER, J., concurring) (Eighth Amendment requires judge to
instruct jury about parole ineligibility).
176
O'CONNOR, J., concurring in judgment
ing, the State sought to show that petitioner is a vicious
predator who would pose a continuing threat to the community. The
prosecutor argued that the jury's role was to decide "what to do
with [petitioner] now that he is in our midst," App. 110, and told
the jury: "Your verdict should be a response of society to someone
who is a threat. Your verdict will be an act of self-defense,"
ibid.; see also
id., at 102, 112. Petitioner's
response was that he only preyed on elderly women, a class of
victims he would not encounter behind bars. See
id., at 121;
ante, at 157 (plurality opinion). This argument stood a
chance of succeeding, if at all, only if the jury were convinced
that petitioner would
stay in prison. Although the only
available alternative sentence to death in petitioner's case was
life imprisonment without possibility of parole, S. C. Code Ann. §§
16-3-20(A) and 24-21-640 (Supp. 1993), the trial court precluded
the jury from learning that petitioner would never be released from
prison.
Unlike in
Skipper, where the defendant sought to
introduce factual evidence tending to disprove the State's showing
of future dangerousness, see 476 U. S., at 3; id., at 10-11
(Powell, J., concurring in judgment), petitioner sought to rely on
the operation of South Carolina's sentencing law in arguing that he
would not pose a threat to the community if he were sentenced to
life imprisonment. We have previously noted with approval, however,
that "[m]any state courts have held it improper for the jury to
consider or to be informed-through argument or instruction-of the
possibility of commutation, pardon, or parole."
California
v.
Ramos, 463 U. S., at 1013, n. 30. The decision whether or
not to inform the jury of the possibility of early release is
generally left to the States. See id., at 1014. 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
177
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. I agree with the Court that in
such a case the defendant should be allowed to bring his parole
ineligibility to the jury's attention-by way of argument by defense
counselor an instruction from the court-as a means of responding to
the State's showing of future dangerousness. 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. Of course,
in such cases the prosecution is free to argue that the defendant
would be dangerous in prison; the State may also (though it need
not) inform the jury of any truthful information regarding the
availability of commutation, pardon, and the like. See id., at
1001-1009.
The prosecutor in this case put petitioner's future
dangerousness in issue, but petitioner was not permitted to argue
parole ineligibility to the capital sentencing jury. Although the
trial judge instructed the jurors that "[t]he terms life
imprisonment and death sentence are to be understood in their
pla[i]n and ordinary meaning," App. 146, I cannot agree with the
court below that this instruction "satisfie[d] in substance
[petitioner's] request for a charge on parole ineligibility." 310
S. C. 439, 444, 427 S. E. 2d 175, 179 (1993). The rejection of
parole by many States (and the Federal Government) is a recent
development that displaces the longstanding practice of parole
availability, see
ante, at 169-170 (plurality opinion), and
common sense tells us that many jurors might not know whether a
life sentence carries with it the
178
possibility of parole. While it may come to pass that the "plain
and ordinary meaning" of a life sentence is life without parole,
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. Moreover,
the prosecutor, by referring to a verdict of death as an act of
"self-defense," strongly implied that petitioner
would be
let out eventually if the jury did not recommend a death
sentence.
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. In this case,
the prosecution argued at the capital sentencing proceeding that
petitioner would be dangerous in the future. Although the only
alternative sentence to death under state law was life imprisonment
without possibility of parole, petitioner was not allowed to argue
to the jury that he would never be released from prison, and the
trial judge's instruction did not communicate this information to
the jury. I therefore concur in the Court's judgment that
petitioner was denied the due process of law to which he is
constitutionally entitled.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
Today's judgment certainly seems reasonable enough as a
determination of what a capital sentencing jury should be permitted
to consider. That is not, however, what it purports to be. It
purports to be a determination that any capital sentencing scheme
that does not permit jury consideration of such material is so
incompatible with our national traditions of criminal procedure
that it violates the Due Process Clause of the Constitution of the
United States. There is really no basis for such a pronouncement,
neither in
179
any near uniform practice of our people, nor in the
jurisprudence of this Court.
With respect to the former I shall discuss only current
practice, since the parties and
amici have addressed only
that, and since traditional practice may be relatively
uninformative with regard to the new schemes of capital sentencing
imposed upon the States by this Court's recent jurisprudence. The
overwhelming majority of the 32 States that permit juries to impose
or recommend capital sentences do not allow specific information
regarding parole to be given to the jury. To be sure, in many of
these States the sentencing choices specifically include "life
without parole," so that the jury charge itself conveys the
information whether parole is available. In at least eight of those
States, however, the jury's choice is not merely between "life
without parole" and "death," but among some variation of (parole
eligible) "life," "life without parole," and "death" 1_S0 that the
precise date of availability of parole is relevant to the jury's
choice. Moreover, even among those States that permit the jury to
choose only between "life" (unspecified) and "death," South
Carolina is not alone in keeping parole information from the jury.
Four other States in widely separated parts of the country follow
that same course,2 and there are other States that lack
IThe eight States are Georgia, see Ga. Code Ann. § 17-10-31.1
(Supp. 1993), Indiana, see Ind. Code § 35-50-2-9 (1993), Maryland,
see Md. Ann. Code, Art. 27, §413(c)(3) (Supp. 1993), Nevada, see
Nev. Rev. Stat. § 175.554(2)(c)(2) (1993), Oklahoma, see Okla.
Stat., Tit. 21, § 701.10(A) (Supp. 1993), Oregon, see Ore. Rev.
Stat. § 163.150 (Supp. 1991), Tennessee, see Tenn. Code Ann.
§39-13-204(a) (Supp. 1993), and Utah, see Utah Code Ann. §
76-3-207(4) (Supp. 1993).
2 The four States are Pennsylvania, see
Commonwealth v.
Henry, 524 Pa. 135, 159-161, 569 A. 2d 929, 941 (1990),
Texas, see
Jones v.
State, 843 S. W. 2d 487, 495
(Tex. Crim. App. 1992), Virginia, see
Eaton v.
Commonwealth, 240 Va. 236, 247-250, 397 S. E. 2d 385,
392-393 (1990), and North Carolina, see
State v.
Brown, 306 N. C. 151, 182-184,293 S. E. 2d 569, 589 (1982),
which will alter its practice effective January 1, 1995, see 1993
N. C. Sess. Laws, ch. 538, § 29.
180
any clear practice.3 By contrast, the parties and their
amici point to only 10 States that arguably employ the
procedure which, according to today's opinions, the Constitution
requires.4 This picture of national practice falls far short of
demonstrating a principle so widely shared that it is part of even
a current and temporary American consensus.
As for our prior jurisprudence: The opinions of JUSTICE BLACKMUN
and JUSTICE O'CONNOR rely on the Fourteenth Amendment's guarantee
of due process, rather than on the Eighth Amendment's "cruel and
unusual punishments" prohibition, as applied to the States by the
Fourteenth Amendment. But cf.
ante, at 172 (SOUTER, J.,
concurring). The prior law applicable to that subject indicates
that petitioner's due process rights would be violated if he was
"sentenced to death 'on the basis of information which he had no
opportunity to deny or explain.'"
Skipper v.
South
Carolina, 476 U. S. 1, 5, n. 1 (1986), quoting
Gardner
v.
Florida, 430 U. S. 349, 362
(1977). Both opinions try to bring this case within that
description, but it does not fit.
The opinions paint a picture of a prosecutor who repeatedly
stressed that petitioner would pose a threat to society
upon his
release. The record tells a different story.
3 The States that allow the jury to choose between "life without
parole" and "death" and have not squarely decided whether the jury
should receive information about parole include South Dakota, see
S. D. Codified Laws § 24-15-4 (1988), and Wyoming, see Wyo. Stat. §
7-13-402(a) (Supp. 1993).
4 The 10 States identified by the parties and their
amici
are Colorado, see Colo. Rev. Stat. § 16-11-103(1)(b) (Supp. 1993),
Florida, see Standard Jury Instructions-Criminal Cases, Report No.
92-1, 603 So. 2d 1175 (1992), Illinois, see
People v.
Gacho, 122 Ill. 2d 221, 262-264, 522 N. E. 2d 1146, 1166
(1988), Maryland, see
Doering v.
State, 313 Md. 384,
545 A. 2d 1281 (1988), Mississippi, see
Turner v.
State, 573 So. 2d 657 (Miss. 1990), New Jersey, see
State v.
Martini, 131 N. J. 176,312-314,619 A. 2d
1208, 1280 (1993), New Mexico, see
State v.
Henderson, 109 N. M. 655,789 P. 2d 603 (1990), Nevada, see
Petrocelli v.
State, 101 Nev. 46, 692 P. 2d 503
(1985), Oklahoma, see
Humphrey v.
State, 864 P. 2d
343 (Okla. Crim. App. 1993), and Oregon, see Brief for State of
Idaho et al. as
Amici Curiae 8.
181
Rather than emphasizing future dangerousness as a crucial
factor, the prosecutor stressed the nature of petitioner's crimes:
the crime that was the subject of the prosecution, the brutal
murder of a 79-year-old woman in her home, and three prior crimes
confessed to by petitioner, all rapes and beatings of elderly
women, one of them his grandmother. I am sure it was the sheer
depravity of those crimes, rather than any specific fear for the
future, which induced the South Carolina jury to conclude that the
death penalty was justice.
Not only, moreover, was future dangerousness not emphasized, but
future dangerousness
outside of prison was not even
mentioned. The trial judge undertook specifically to prevent that,
in response to the broader request of petitioner's counsel that the
prosecutor be prevented from arguing future dangerousness
at
all:
"Obviously, I will listen carefully to the argument of the
solicitor to see if it contravenes the actual factual circumstance.
Certainly, I recognize the right of the State to argue concerning
the defendant's dangerous propensity. I will not allow the
solicitor, for example, to say to the jury anything that would
indicate that the defendant is not going to be jailed for the
period of time that is encompassed within the actual law. The fact
that we do not submit the parole eligibility to the jury does not
negate the fact that the solicitor must stay within the trial
record." App. 56-57.
As I read the record, the prosecutor followed this
admonition-and the Due Process Clause requires nothing more.
Both JUSTICE BLACKMUN and JUSTICE O'CONNOR focus on two portions
of the prosecutor's final argument to the jury in the sentencing
phase. First, they stress that the prosecutor asked the jury to
answer the question of "what to do with [petitioner] now that he is
in our midst." That statement, however, was not made (as they
imply) in the course of an argument about future dangerousness, but
was a response to
182
petitioner's mitigating evidence. Read in context, the statement
is not even relevant to the issue in this case:
"The defense in this case as to sentence ... [is] a diversion.
It's putting the blame on society, on his father, on his
grandmother, on whoever else he can, spreading it out to avoid that
personal responsibility. That he came from a deprived background.
That he didn't have all of the breaks in life and certainly that
helps shape someone. But we are not concerned about how he got
shaped. We are concerned about what to do with him now that he is
in our midst." Id., at 110.
Both opinions also seize upon the prosecutor's comment that the
jury's verdict would be "an act of self-defense." That statement
came at the end of admonition of the jury to avoid emotional
responses and enter a rational verdict:
"Your verdict shouldn't be returned in anger. Your verdict
shouldn't be an emotional catharsis. Your verdict shouldn't be ...
a response to that eight-year-old kid [testifying in mitigation]
and really shouldn't be a response to the gruesome grotesque
handiwork of [petitioner]. Your verdict should be a response of
society to someone who is a threat. Your verdict will be an act of
self-defense." Id., at 109-110.
This reference to "self-defense" 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.
Thus, as I read the record (and bear in mind that the trial judge
was on the lookout with respect to this point), the prosecutor did
not
invite the jury to believe that petitioner would be
eligible for parole-he did not
mislead the jury.
The rule the majority adopts in order to overturn this sentence
therefore goes well beyond what would be necessary to counteract
prosecutorial misconduct (a disposition with
183
which I might agree). It is a rule at least as sweeping as this:
that the Due Process Clause overrides state law limiting the
admissibility of information concerning parole
whenever the
prosecution argues future dangerousness. JUSTICE BLACKMUN appears
to go even further, requiring the admission of parole ineligibility
even when the prosecutor does
not argue future
dangerousness. See
ante, at 163-164; but see
ante, at
174 (GINSBURG, J., concurring). I do not understand the basis for
this broad prescription. As a general matter, the Court leaves it
to the States to strike what
they consider the appropriate
balance among the many factorsprobative value, prejudice,
reliability, potential for confusion, among others-that determine
whether evidence ought to be admissible. Even in the capital
punishment context, the Court has noted that "the wisdom of the
decision to permit juror consideration of [postsentencing
contingencies] is best left to the States."
California v.
Ramos, 463 U.
S. 992,1014 (1983). "[T]he States, and not this Court, retain
'the traditional authority' to determine what particular evidence
... is relevant."
Skipper v.
South Carolina, 476 U.
S., at 11 (Powell, J., concurring in judgment). One reason for
leaving it that way is that a sensible code of evidence cannot be
invented piecemeal. Each item cannot be considered in isolation,
but must be given its place within the whole. Preventing the
defense from introducing evidence regarding parolability is
only half of the rule that prevents the
prosecution from
introducing it as well. If the rule is changed for defendants, many
will think that evenhandedness demands a change for prosecutors as
well. State's attorneys ought to be able to say that if, ladies and
gentlemen of the jury, you do not impose capital punishment upon
this defendant (or if you impose anything less than life without
parole) he may be walking the streets again in eight years! Many
would not favor the admission of such an argument-but would prefer
it to a state scheme in which defendants can call attention to the
unavailability of parole, but prosecutors cannot note
184
its availability. This Court should not force state legislators
into such a difficult choice unless the isolated state evidentiary
rule that the Court has before it is not merely less than ideal,
but beyond a high threshold of unconstitutionality.
The low threshold the Court constructs today is difficult to
reconcile with our almost simultaneous decision in
Romano v.
Oklahoma, ante, p. 1. There, the Court holds that the proper
inquiry when evidence is admitted in contravention of a state law
is "whether the admission of evidence ... so infected the
sentencing proceeding with unfairness as to render the jury's
imposition of the death penalty a denial of due process."
Ante, at 12. I do not see why the unconstitutionality
criterion for
excluding evidence
in accordance with
state law should be any less demanding than the unconstitutionality
criterion
Romano recites for
admitting evidence
in
violation of state law: "fundamental unfairness." And
"fundamentally unfair" the South Carolina rule is assuredly not.
The notion that the South Carolina jury imposed the death penalty
"just in case" Simmons might be released on parole seems to me
quite farfetched. And the notion that the decision taken on such
grounds would have been altered by information on the
current
state of the law concerning parole (which could of course be
amended) is even more farfetched. And the scenario achieves the
ultimate in farfetchedness when there is added the fact that,
according to uncontroverted testimony of prison officials in this
case, even
current South Carolina law (as opposed to
discretionary prison regulations) does not prohibit furloughs and
workrelease programs for life-without-parole inmates. See App.
16-17.
When the prosecution has not specifically suggested
parolability, I see no more reason why the United States
Constitution should compel the admission of evidence showing that,
under the State's current law, the defendant would be nonparolable,
than that it should compel the admission of evidence showing that
parolable life-sentence murderers are in fact
185
almost never paroled, or are paroled only after age 70; or
evidence to the effect that escapes of life-without-parole inmates
are rare; or evidence showing that, though under current law the
defendant
will be parolable in 20 years, the recidivism rate
for elderly prisoners released after long incarceration is
negligible. All of this evidence may be thought relevant to whether
the death penalty should be imposed, and a petition raising the
last of these claims has already arrived. See Pet. for Cert. in
Rudd v.
Texas, O. T. 1993, No. 93-7955.
As I said at the outset, the regime imposed by today's judgment
is undoubtedly reasonable as a matter of policy, but I see nothing
to indicate that the Constitution requires it to be followed coast
to coast. I fear we have read today the first page of a whole new
chapter in the "death-isdifferent" jurisprudence which this Court
is in the apparently continuous process of composing. It adds to
our insistence that state courts admit "all relevant mitigating
evidence," see,
e. g., Eddings v.
Oklahoma, 455 U. S. 104 (1982);
Lockett v.
Ohio, 438 U. S. 586 (1978), a
requirement that they adhere to distinctive rules, more demanding
than what the Due Process Clause normally requires, for admitting
evidence of other sorts-Federal Rules of Death Penalty Evidence, so
to speak, which this Court will presumably craft (at great expense
to the swiftness and predictability of justice) year by year. The
heavily outnumbered opponents of capital punishment have
successfully opened yet another front in their guerilla war to make
this unquestionably constitutional sentence a practical
impossibility.
I dissent.
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