Cite as: 527 U. S. 373 (1999)
Ginsburg, J., dissenting
and would rank the District Court's misconstruction "plain error," 15 because the FDPA unquestionably is a procedural statute that does not alter substantive prescriptions.16 No
serious doubt should have existed on that score.17
The flawed charge did not simply include a nonexistent option. It could have been understood to convey that, absent juror unanimity, some "lesser sentence" might be imposed by the court. That message came from instructions that the jury must be unanimous to "bring back a verdict recommending the punishment of death or life without the possibility of release," App. 45, that "some other lesser sentence" was possible, id., at 44, and that the jury should not "be concerned with the . . . sentence the defendant might receive in the event [it] determine[d] not to recommend a death sentence or a sentence of life without the possibility of release," ibid. Jones's proposed instructions—that he
15 Justice Breyer does not believe that the District Court's submission of the (unobjected-to) jury instructions amounted to "plain error." In his view, the judge's (objected-to) failure to submit the defense's proposed instruction no. 5 amounted to an "abuse of discretion," for that proposed instruction was legally correct, the judge's failure to give it likely rested upon an erroneous view of the law, and it would have corrected the false impression created by the remaining instructions. See Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 405 (1990); App. 74 (order denying defend-ant's motion for new trial); cf. 132 F. 3d, at 242.
16 The Fifth Circuit noted that Jones's counsel proposed language referring to a "lesser sentence," but reviewed for "plain error," rather than discounting the error as "invited," because the District Court did not use defense counsel's requested language. 132 F. 3d, at 246, n. 10. Although Jones's counsel did propose "lesser sentence" language, see, e. g., App. 26, Jones's proposed instructions nos. 4 and 5 made one thing clear—his view that the jury and judge were required to impose life without possibility of release if the jury did not agree to death. See supra, at 409-410, nn. 9, 10.
17 The Court, in a footnote, appears to recognize what should be beyond genuine debate: For Jones, "the only possible sentences were death and a life sentence." Ante, at 387, n. 8. In face of the District Court's lesser sentence instructions, four times given to the jury, it is difficult to comprehend why this Court "cannot see that any error occurred." See ante, at 390.
415
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