174
Ginsburg, J., concurring
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
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