176
Stevens, J., dissenting
As to Skipper, the only distinction the majority is able to draw between that case and Simmons is that the defendant in Skipper sought to introduce "evidence of his past behavior," while Simmons wished "an opportunity to describe the extant legal regime." Ante, at 162. This distinction is simply not enough to make the rule in Simmons "new." In both cases, the prosecution was seeking to mislead the jury with an argument that excluded facts essential to the defendant's actual circumstances. The rule in Skipper and Gardner—that a defendant must be allowed an opportunity to rebut arguments put forward by the prosecution—simply cannot turn on whether his rebuttal relies on the fact that he is ineligible for parole or on the fact that he is a model prisoner.
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
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