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Opinion of Kennedy, J.
By eliminating Simmons' well-understood rule, petition-er's approach would give rise to litigation on a peripheral point. Parole eligibility may be unrelated to the circumstances of the crime the jury is considering or the character of the defendant, except in an indirect way. Evidence of potential parole ineligibility is of uncertain materiality, as it can be overcome if a jury concludes that even if the defendant might not be paroled, he may escape to murder again, see Garner v. Jones, 529 U. S. 244 (2000); he may be pardoned; he may benefit from a change in parole laws; some other change in the law might operate to invalidate a conviction once thought beyond review, see Bousley v. United States, 523 U. S. 614 (1998); or he may be no less a risk to society in prison, see United States v. Battle, 173 F. 3d 1343 (CA11 1999), cert. denied, 529 U. S. 1022 (2000). The Virginia Supreme Court had good reason not to extend Simmons beyond the circumstances of that case, which included conclusive proof of parole ineligibility under state law at the time of sentencing.
A jury evaluating future dangerousness under Virginia law considers all of the defendant's recent criminal history, without being confined to convictions. As we have pointed out, the Domino's Pizza conviction was not even a part of the prosecution's main case in the sentencing proceedings. Parole ineligibility, on the other hand, does relate to formal criminal proceedings. The Commonwealth is entitled to some deference, in the context of its own parole laws, in determining the best reference point for making the ineligibility determination. Given the damaging testimony of the criminal acts in the spree Ramdass embarked upon in the weeks before the Kayani murder, it is difficult to say just what weight a jury would or should have given to the possibility of parole; and it was not error for the Commonwealth to insist upon an accurate assessment of the parole rules by using a trial court judgment as the measuring point.
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