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Scalia, J., dissenting
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 diffi-cult 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 work-release 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
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