O‘DELL v. NETHERLAND, WARDEN, ET AL.
No. 96-6867
Supreme Court of the United States
Argued March 18, 1997—Decided June 19, 1997
521 U.S. 151
Robert S. Smith, by appointment of the Court, 520 U.S. 1114, argued the cause for petitioner. With him on the briefs were Alan Effron and Michele J. Brace.
Katherine P. Baldwin, Assistant Attorney General of Virginia, argued the cause for respondents. With her on the brief were James S. Gilmore III, Attorney General, and David E. Anderson, Chief Deputy Attorney General.
JUSTICE THOMAS delivered the opinion of the Court.
This case presents the question whether the rule set out in Simmons v. South Carolina, 512 U.S. 154 (1994)—which requires that a capital defendant be permitted to inform his sentencing jury that he is parole ineligible if the prosecution argues that he presents a future danger—was “new” within the meaning of Teague v. Lane, 489 U.S. 288 (1989), and thereby inapplicable to an already final death sentence. We conclude that it was new, and that it cannot, therefore, be used to disturb petitioner‘s death sentence, which had been final for six years when Simmons was decided.
I
Helen Schartner was last seen alive late in the evening of February 5, 1985, leaving the County Line Lounge in Virginia Beach, Virginia. Her lifeless body was discovered the next day, in a muddy field across a highway from the lounge. Schartner‘s head had been laid open by several blows with the barrel of a handgun, and she had been strangled with such violence that bones in her neck were broken and finger imprints were left on her skin. An abundance of physical evidence linked petitioner to the crime scene and crime—among other things, tire tracks near Schartner‘s body were consistent with petitioner‘s car, and bodily fluids recovered
After a jury trial, petitioner was found guilty on the murder, rape, and sodomy counts. During the subsequent sentencing hearing, the prosecution sought to establish two aggravating factors: that petitioner presented a future danger, and that the murder had been “wanton, vile or inhuman.” Evidence was presented that, prior to Schartner‘s murder, petitioner had been convicted of a host of other offenses, including the kidnaping and assault of another woman while he was on parole, and the murder of a fellow inmate during an earlier prison stint. Petitioner sought a jury instruction explaining that he was not eligible for parole if sentenced to life in prison. The trial judge denied petitioner‘s request. After the sentencing hearing, the jury found beyond a reasonable doubt that petitioner “would constitute a continuous serious threat to society” and that “his conduct in committing the offense was outrageously wanton, vile or inhuman.” 46 Record 208. The jury recommended that petitioner be sentenced to death.1 The trial judge adopted the jury‘s recommendation and sentenced petitioner to 40 years’ imprisonment each for the rape and sodomy convictions, and to death by electrocution for Schartner‘s murder. Petitioner appealed to the Supreme Court of Virginia, which affirmed both the conviction and the sentence. O‘Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491 (1988). We denied certiorari. O‘Dell v. Virginia, 488 U.S. 871 (1988). Petitioner‘s efforts at state habeas relief were unsuccessful, and we again denied certiorari. O‘Dell v. Thompson, 502 U.S. 995 (1991).
A divided en banc Court of Appeals for the Fourth Circuit reversed. 95 F.3d 1214 (1996). After an exhaustive review of our precedents, the Court of Appeals majority determined that ”Simmons was the paradigmatic ‘new rule,‘” id., at 1218, and, as such, could not aid petitioner. The Fourth Circuit was closely divided as to whether Simmons set forth a new rule, but every member of the court agreed that petitioner‘s “claim of actual innocence [was] not even colorable.” 95 F.3d, at 1218; see also id., at 1255-1256 (Ervin, J., concurring in part and dissenting in part). We declined review on petitioner‘s claim of actual innocence, but granted certiorari to determine whether the rule of Simmons was new. 519 U.S. 1050 (1996); see also ibid. (SCALIA, J., respecting the grant of certiorari).
II
Before a state prisoner may upset his state conviction or sentence on federal collateral review, he must demonstrate as a threshold matter that the court-made rule of which he seeks the benefit is not “new.” We have stated variously the formula for determining when a rule is new. See, e.g., Graham v. Collins, 506 U.S. 461, 467 (1993) (“A holding constitutes a ‘new rule’ within the meaning of Teague if it ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant‘s conviction became final‘“) (quoting Teague, 489 U.S., at 301) (emphasis in original). At bottom, however, the Teague doctrine “validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Butler v. McKellar, 494 U.S. 407, 414 (1990) (citation omitted). “Reasonableness, in this as in many other contexts, is an objective standard.” Stringer v. Black, 503 U.S. 222, 237 (1992). Accordingly, we will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court.
The Teague inquiry is conducted in three steps. First, the date on which the defendant‘s conviction became final is determined. Lambrix v. Singletary, 520 U.S. 518, 527 (1997). Next, the habeas court considers whether “‘a state court considering [the defendant‘s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.‘” Ibid. (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)) (alterations in Lambrix). If not, then the rule is new. If the rule is determined to be new, the final step in the Teague analysis requires the court to determine whether
III
Petitioner‘s conviction became final on October 3, 1988, when we declined to review the Virginia Supreme Court‘s decision affirming his sentence on direct review. Simmons, the rule of which petitioner now seeks to avail himself, was decided in 1994.
In Simmons, the defendant had been found guilty of capital murder for the brutal killing of an elderly woman. The defendant had also assaulted other elderly women, resulting in convictions that rendered him—at least as of the time he was sentenced—ineligible for parole. Prosecutors in South Carolina are permitted to argue to sentencing juries that defendants’ future dangerousness is an appropriate consideration in determining whether to affix a sentence of death. 512 U.S., at 162-163 (plurality opinion). Simmons sought to rebut the prosecution‘s “generalized argument of future dangerousness” by presenting the jury with evidence that “his dangerousness was limited to elderly women,” none of whom he was likely to encounter in prison. Id., at 157.
JUSTICE O‘CONNOR, joined by THE CHIEF JUSTICE and JUSTICE KENNEDY, concurred in the judgment, providing the dispositive votes necessary to sustain it. The concurrence recognized:
“[The Court has] previously noted with approval . . . 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. [992, 1013, n. 30 (1983)]. The decision whether or not to inform the jury of the possibility of early release is generally left to the States.” Id., at 176.
The concurrence also distinguished Skipper, noting that Skipper involved an attempt to introduce “factual evidence” regarding the defendant himself, while Simmons “sought to rely on the operation of South Carolina‘s sentencing law” to demonstrate that he did not present a future danger. 512 U.S., at 176. But the concurrence nonetheless concluded that, “[w]hen the State seeks to show the defendant‘s future
Petitioner asserts that the Simmons rule covers his case, and that because he was parole ineligible—but not allowed to relay that information to the jury in order to rebut the prosecutor‘s argument as to his future dangerousness—Simmons requires vacatur of his sentence. Before we can decide whether petitioner‘s claim falls within the scope of Simmons, we must determine whether the rule of Simmons was new for Teague purposes, and, if so, whether that rule falls within one of the two exceptions to Teague‘s bar.
A
We observe, at the outset, that Simmons is an unlikely candidate for “old-rule” status. As noted above, there was no opinion for the Court. Rather, Justice Blackmun‘s plurality opinion, for four Members, concluded that the Due Process Clause required allowing the defendant to inform the jury—through argument or instruction—of his parole ineligibility in the face of a prosecution‘s future dangerousness argument. 512 U.S., at 168-169. Two Members of the plurality, JUSTICE SOUTER and JUSTICE STEVENS, would have further held that the Eighth Amendment mandated that the trial court instruct the jury on a capital defendant‘s parole ineligibility even if future dangerousness was not at issue. Id., at 172-174 (SOUTER, J., concurring). JUSTICE GINSBURG, also a Member of the plurality, wrote a concurrence grounded in the Due Process Clause. Id., at 174-175. THE CHIEF JUSTICE and JUSTICE KENNEDY joined JUSTICE O‘CONNOR‘s decisive opinion concurring in the judgment, as described above. Id., at 175-178. And, two Justices dissented, arguing that the result did not “fit” the Court‘s precedents and that it was not, in any case, required by the Constitution. Id., at 180, 185 (opinion of SCALIA, J., joined by THOMAS, J.). The array of views expressed in Simmons itself suggests that the rule announced there was, in light of
1
Petitioner‘s review of the relevant precedent discloses the decisions relied upon in Simmons, namely, Gardner v. Florida, supra, and Skipper v. South Carolina, supra. Petitioner asserts that a reasonable jurist considering his claim in light of those two decisions “would have felt ‘compelled . . . to conclude that the rule [petitioner] seeks was required by the Constitution.‘” Brief for Petitioner 14 (quoting Saffle, 494 U.S., at 488) (emphasis deleted).
In Gardner, the defendant received a death sentence from a judge who had reviewed a presentence report that was not made available to the defendant. Gardner produced no opinion for the Court. A plurality of the Court concluded that the defendant “was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” 430 U.S., at 362. Justice White concurred in the judgment, providing the narrowest grounds of decision among the Justices whose votes were necessary to the judgment. Cf. Marks v. United States, 430 U.S. 188, 193 (1977). He concluded that the Eighth Amendment was violated by a “‘procedure for selecting people for the death penalty which permits consideration of such secret information relevant to the character and record of the individual offender.‘” 430 U.S., at 364 (internal quotation marks omitted; emphasis added).
In Skipper, the prosecutor argued during the penalty phase that a death sentence was appropriate because the defendant “would pose disciplinary problems if sentenced to
Simmons, argues petitioner, presented merely a variation on the facts of Skipper. In each, the prosecution raised the issue of future dangerousness. Skipper was unconstitutionally prevented from demonstrating that he had behaved in prison and thus would not be a danger to his fellow prisoners. Simmons, likewise, says petitioner, was not allowed to inform the jury that he would be in, rather than out of, prison and so could not present a danger to elderly women. Because the rule of Simmons was allegedly set forth in the 1986 decision in Skipper, which in turn relied upon the 1977 decision in Gardner, petitioner argues that his death sentence was flawed when affirmed in 1988, and we may set it aside without running afoul of Teague.2
Even were these two cases the sum total of relevant precedent bearing on the rule of Simmons, petitioner‘s argument that the result in Simmons followed ineluctably would not be compelling. Gardner produced seven opinions, none for a majority of the Court. Taking the view expressed in Justice White‘s opinion concurring in the judgment as the rule of Gardner, see Marks, supra, at 193, the holding is a narrow one—that “[a] procedure for selecting people for the death penalty which permits consideration of . . . secret information relevant to the character and record of the individual offender” violates the Eighth Amendment‘s requirement of “reliability in the determination that death is the appropriate punishment.” 430 U.S., at 364 (citation and internal quotation marks omitted; emphasis added). Petitioner points to no secret evidence given to the sentencer but not to him. And, the evidence that he sought to present to the jury was not historical evidence about his “character and record,” but evidence concerning the operation of the extant legal regime.
In Skipper, too, the evidence that the defendant was unconstitutionally prevented from adducing was evidence of his past behavior. It is a step from a ruling that a defendant must be permitted to present evidence of that sort to a requirement that he be afforded an opportunity to describe the extant legal regime. Cf. Simmons, 512 U.S., at 176 (O‘CONNOR, J., concurring in judgment).
2
Whatever support Gardner and Skipper, standing alone, might lend to petitioner‘s claim that Simmons was a foregone conclusion, the legal landscape in 1988 was far more complex. Respondents point to, and the Fourth Circuit ma
The general proposition that the States retained the prerogative to determine how much (if at all) juries would be informed about the postsentencing legal regime was given further credence in Caldwell v. Mississippi, supra. In that case, the prosecution and the judge had, the Court concluded, improperly left the jury with the impression that a death sentence was not final because it would be extensively reviewed. Justice Marshall authored the opinion for the Court except for one portion. In that portion, Justice Marshall—writing for a plurality—concluded that, Ramos notwithstanding, sentencing juries were not to be given information about postsentencing appellate proceedings. JUSTICE O‘CONNOR, who provided the fifth vote necessary to the judgment, did not join this portion of Justice Marshall‘s opinion. She wrote separately, stating that, under Ramos, a State could choose whether or not to “instruc[t] the jurors on the sentencing procedure, including the existence and limited nature of appellate review,” so long as any information it chose to provide was accurate. 472 U.S., at 342 (opinion concurring in part and concurring in judgment).
3
In light of Ramos and Caldwell, we think it plain that a reasonable jurist in 1988 would not have felt compelled to adopt the rule later set out in Simmons. As noted above, neither Gardner nor Skipper involved a prohibition on imparting information concerning what might happen, under then-extant law, after a sentence was imposed. Rather, the information at issue in each case was information pertaining to the defendant‘s “character and record.” Although the principal opinions in Simmons found Skipper (which, in turn, relied on Gardner) persuasive, JUSTICE O‘CONNOR distinguished Skipper from the facts presented in Simmons on this very ground, see 512 U.S., at 176 (opinion concurring
That distinction—between information concerning state postsentencing law on the one hand and evidence specifically related to the defendant on the other—was also at the heart of Ramos and Caldwell. In Ramos, the majority concluded that California had reasonably chosen to provide some, limited, postsentence information to the capital sentencing jury—though it noted that many other States had elected just the opposite. The principal dissent in Ramos would have forbidden the provision of any information about postsentence occurrences for the very reason that it did not constitute evidence concerning the defendant‘s “character or the nature of his crime.” 463 U.S., at 1022 (opinion of Marshall, J.). In Caldwell, the plurality and JUSTICE O‘CONNOR contested whether the fact that “appellate review is available to a capital defendant sentenced to death” was “simply a factor that in itself is wholly irrelevant to the determination of the appropriate sentence” (as the plurality concluded, 472 U.S., at 336), or whether provision of that information was a constitutional “policy choice in favor of jury education” (as JUSTICE O‘CONNOR concluded, id., at 342 (opinion concurring in part and concurring in judgment)).
A reasonable jurist in 1988, then, could have drawn a distinction between information about a defendant and information concerning the extant legal regime. It would hardly have been unreasonable in light of Ramos and Caldwell for the jurist to conclude that his State had acted constitutionally by choosing not to advise its jurors as to events that would (or would not) follow their recommendation of a death sentence, as provided by the legal regime of the moment. Indeed, given the sentiments, expressed in Justice Marshall‘s Ramos dissent and Caldwell plurality, that information about postsentence procedures was never to go to the jury and given that the decision whether to provide such informa
Teague asks state-court judges to judge reasonably, not presciently. See Stringer v. Black, 503 U.S., at 244 (SOUTER, J., dissenting). In Simmons, the Court carved out an exception to the general rule described in Ramos by, for the first time ever, requiring that a defendant be allowed to inform the jury of postsentencing legal eventualities. A 1988 jurist‘s failure to predict this cannot, we think, be deemed unreasonable. Accordingly, the rule announced in Simmons was new, and petitioner may not avail himself of it unless the rule of Simmons falls within one of the exceptions to Teague‘s bar.3
For the reasons stated herein, the judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
Although petitioner‘s guilt has been established, it is undisputed that the conduct of the sentencing hearing that led to the imposition of his death penalty violated the Due Process Clause of the Fourteenth Amendment. His eligibility for a death sentence depended on the prosecutor‘s ability to convince the jury that there was a “probability that he would commit criminal acts of violence that would constitute a continuous threat to society.” App. 69. In support of his argument to the jury that nothing short of the death penalty would be sufficient, the prosecutor emphasized petitioner‘s misconduct when he was “outside of the prison system,” id., at 61,1 and stated that petitioner had “forfeited his right to live among us,” id., at 66. Nevertheless, the trial court re
Our virtually unanimous decision in Simmons v. South Carolina, 512 U.S. 154 (1994),2 recognized the fundamental unfairness of the restrictive procedure followed in this case. AS JUSTICE O‘CONNOR‘s opinion, which has been treated as expressing the narrowest ground on which the decision rested, explained:
“‘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).” Id., at 175 (opinion concurring in judgment).
Thus, this case is not about whether petitioner was given a fair sentencing hearing; instead, the question presented is whether, despite the admittedly unfair hearing, he should be put to death because his trial was conducted before Simmons was decided. Because the Court regards the holding in Simmons as nothing more than a novel “court-made rule,” ante, at 156, it rejects petitioner‘s plea. In my view, our decision in Simmons applied a fundamental principle that is as old as the adversary system itself, and that had been quite clearly articulated by this Court in two earlier opinions. Accordingly, I respectfully dissent.
I
My analysis begins where the majority tersely ends—with petitioner‘s contention that the rule in Simmons implicates “the fundamental fairness and accuracy of the criminal proceeding,” Saffle v. Parks, 494 U.S. 484, 495 (1990), and therefore should be retroactively applied even if it would constitute a “new” rule under Teague v. Lane, 489 U.S. 288, 307 (1989).
Our decision in Teague recognized two exceptions to the general rule of nonretroactivity. The relevant exception for our purposes establishes that “a new rule should be applied retroactively if it requires the observance of ‘those procedures that . . . are implicit in the concept of ordered liberty.‘” Ibid. (quoting Mackey v. United States, 401 U.S. 667, 693 (1971) (Harlan, J., concurring in judgments in part and dissenting in part), in turn quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). In the opinion that provided the basis for the limitations on collateral review adopted in Teague, Justice Harlan emphasized the importance of protecting “bedrock procedural elements” that are “essential to the substance of a full hearing.” Mackey, 401 U.S., at 693-694. We endorsed that view, with the caveat that this
Since Teague was decided, this Court has never found a rule so essential to the fairness of a proceeding that it would fall under this exception.4 In my view, the right in Simmons—the right to respond to an inaccurate or misleading argument—is surely a bedrock procedural element of a full and fair hearing. As JUSTICE O‘CONNOR recognized in her opinion in Simmons, this right to rebut the prosecutor‘s arguments is a “hallmar[k] of due process,” 512 U.S., at 175 (opinion concurring in judgment). See also id., at 174 (GINSBURG, J., concurring) (“This case is most readily resolved under a core requirement of due process, the right to be heard“). When a defendant is denied the ability to respond to the state‘s case against him, he is deprived of “his fundamental constitutional right to a fair opportunity to present a defense.” Crane v. Kentucky, 476 U.S. 683, 687 (1986).
The Court today argues that Simmons defined only a “narrow right of rebuttal [for] defendants in a limited class of capital cases,” ante, at 167, and therefore that the rule cannot be in that class of rules so essential to the accuracy of
The majority appears not to appreciate that the reason Simmons’ holding applied directly to only a narrow class of capital defendants is because only a very few States had in place procedures that allowed the prosecutor to argue future dangerousness while at the same time prohibiting defendants from using “the only way that [they] can successfully rebut the State‘s case.” 512 U.S., at 177 (O‘CONNOR, J., concurring in judgment).5 The prevailing rule in the States that provided a life-without-parole sentencing alternative required an instruction explaining that alternative to the jury.6
Although the majority relies on the limited impact of the Simmons rule to discount its importance, the broad consensus in favor of giving the jury accurate information in fact underscores the importance of the rule applied in Simmons. The rule‘s significance is further demonstrated by evidence of the effect that information about the life-without-parole alternative has on capital jury deliberations. For example, only 2 death sentences have been imposed in Virginia for crimes committed after January 1, 1995—whereas 10 were imposed in 1994 alone—and the decline in the number of death sentences has been attributed to the fact that juries in Virginia must now be informed of the life-without-parole alternative. See Green, Death Sentences Decline in Virginia, Richmond Times-Dispatch, Nov. 24, 1996, p. A1. The
Thus, even if the rule in Simmons could properly be viewed as a “new” rule, it is of such importance to the accuracy and fairness of a capital sentencing proceeding that it should be applied consistently to all prisoners whose death sentences were imposed in violation of the rule, whether they were sentenced before Simmons was decided or after. Moreover, to the extent that the fundamental principles underlying the rule needed explicit articulation by this Court, they clearly had been expressed well before petitioner‘s 1988 sentencing proceeding.
II
Distinguishing new rules from those that are not new under our post-Teague jurisprudence is not an easy task, but it is evident to me that if there is such a thing as a rule that is not new for these purposes, the rule announced in Simmons is one.
In Gardner v. Florida, 430 U.S. 349 (1977), a plurality of the Court concluded that the defendant‘s due process rights had been violated because his “death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” Id., at 362. Nine years later, in Skipper v. South Carolina, 476 U.S. 1 (1986), all
When the Court was presented with the facts in Simmons, it was no surprise that Justice Blackmun said that “[t]he principle announced in Gardner was reaffirmed in Skipper, and it compels our decision today.” 512 U.S., at 164-165 (plurality opinion). Or that JUSTICE O‘CONNOR quoted Gardner and Skipper for the proposition that “elemental due process” requires that a defendant must be allowed to answer a prosecutor‘s “prediction of future dangerousness” with “evidence on this point.” 512 U.S., at 175 (internal quotation marks omitted).
Today, however, the Court seeks to revise the import of this line of cases. The first misstep in the Court‘s analysis is its treatment of Gardner. The majority makes much of the fact that the lead opinion was joined by only three Justices,8 and instead of accepting the plurality‘s due process analysis as the rule of Gardner, the Court takes Justice White‘s concurring opinion, which was grounded in the Eighth Amendment, as expressing the holding of the case. The Court‘s reading of Gardner ignores the fact that Justice White himself squarely adopted the due process holding of
The two cases on which the majority relies to argue that a reasonable jurist in 1988 would have thought that petitioner did not have a right to rebut the prosecutor‘s future dangerousness arguments simply provide further support for the conclusion that Simmons did not announce a new rule of law. In both California v. Ramos, 463 U.S. 992 (1983), and Caldwell v. Mississippi, 472 U.S. 320 (1985), the Court focused its analysis on whether the information being presented (or withheld) in a sentencing determination permitted accurate and informed decisionmaking on the part of the sentencer.
In Ramos, the Court held that California‘s capital sentencing procedure—in which the judge was required to inform the jury that it could sentence the defendant to death or to life without parole, and then to provide the further instruction that the Governor could commute a life sentence without parole—was not constitutionally infirm. (This further instruction is, of course, only relevant when the jury has first been advised that the alternative to the death sentence is the option that was concealed from the jury in Simmons and in this case.) The Court correctly explained that the instruction on commutation of the life sentence was relevant
While the Ramos Court concluded that a State could constitutionally require trial judges to inform sentencing juries about the possibility of commutation of a life sentence, the Court did not hold that a State was constitutionally compelled to do so. The majority today, ante, at 163-164, suggests that the Ramos Court‘s endorsement of that option—involving a choice between two nonmisleading instructions, one mentioning and the other not mentioning the remote “possibility” of parole—might have led reasonable state judges to conclude that they could allow juries to be misled on the future dangerousness issue by concealing entirely the legal certainty of parole impossibility. But the general rule applied in Ramos simply permits state courts to give accurate instructions that will prevent juries from being misled about sentencing options in capital cases. In order to decide Simmons correctly, there was no need to “carv[e] out an exception,” ante, at 166, from that rule.
The Court‘s reading of Caldwell is equally unpersuasive. In that case, the prosecutor had urged the jury not to view itself as finally determining whether the defendant would
The Court has consistently, and appropriately, shown a particular concern for procedures that protect the accuracy of sentencing determinations in capital cases.11 Today, the majority discards this concern when it relies on a nonexistent tension between Gardner and Skipper on the one hand and Ramos and Caldwell on the other to justify its refusal to apply the rule in Simmons to this case.
I respectfully dissent.