180
Scalia, J., dissenting
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.
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