200
Stevens, J., dissenting
on an assessment of how probable it is that the defendant will be found parole ineligible—or, as the plurality might put it, what is "more certain" under state law.
The plurality is correct to reject the Virginia Supreme Court's holding that state law entirely controls the applicability of Simmons. Simmons announced a rule of due process, not state law. 512 U. S., at 156 (plurality opinion); id., at 177 (O'Connor, J., concurring in judgment). This is not to say that the federal due process right in Simmons does not make reference to state law, for surely it does; the very reason why Simmons is an exception to Ramos is because of the consequences of parole ineligibility under state law. But that is not the same thing as saying that the precise, technical operation of state law entirely controls its applicability.
Simmons itself makes this perfectly clear. In that case South Carolina argued that "because future exigencies such as legislative reform, commutation, clemency, and escape might allow [Simmons] to be released into society, [Simmons] was not entitled to inform the jury that he is parole ineligible." 512 U. S., at 166, and n. 6 (plurality opinion). Indeed, as noted earlier, it argued that Simmons was not, technically, parole ineligible at the time of sentencing because the state parole board had not yet made its determination. See supra, at 186-187.
Yet the plurality opinion rejected outright the argument that "hypothetical future developments" control the issue, finding that South Carolina's argument about state law, while "technically . . . true," and "legally accurate," had "little force." Simmons, 512 U. S., at 166, and n. 6.29 In other
words, the due process standard of Simmons was not con-29 While Justice O'Connor's concurring opinion did not make direct reference to those hypothetical possibilities, South Carolina's brief and the plurality's opinion put the issue squarely before the Court. If those hypotheticals had made a difference, the outcome of the case for the concurring opinion would have been precisely the opposite of what it was.
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