Kelly v. South Carolina, 534 U.S. 246, 3 (2002)

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Opinion of the Court

Justice Souter delivered the opinion of the Court.

Last Term, we reiterated the holding of Simmons v. South Carolina, 512 U. S. 154 (1994), that when "a capital defend-ant's future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, due process entitles the defendant 'to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.' " Shafer v. South Carolina, 532 U. S. 36, 39 (2001) (quoting Ramdass v. Angelone, 530 U. S. 156, 165 (2000) (plurality opinion)). In this case, the Supreme Court of South Carolina held Simmons inapposite for two reasons: state law provided the jury with a third sentencing alternative, and future dangerousness was not at issue. Each reason was error.


In 1996, the State of South Carolina indicted petitioner William Kelly for an extraordinarily brutal murder, kidnaping, and armed robbery, and for possession of a knife during the commission of a violent crime. The jury convicted Kelly on all charges.

The trial then proceeded to a separate sentencing phase calling for the jury to determine whether any aggravating factor had been shown and, if so, to choose between recommendations of death or life imprisonment. The prosecutor began by telling the jurors that "I hope you never in your lives again have to experience what you are experiencing right now. Being some thirty feet away from such a person. Murderer." App. 64. He went on to present testimony that while in prison, Kelly had made a knife (or shank) and had taken part in an escape attempt, even to the point of planning to draw a female guard into his cell where he would hold her hostage. See id., at 129-132, 140-141. The prose-cutor's cross-examination of a psychologist brought out evi-

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