Kelly v. South Carolina, 534 U.S. 246, 7 (2002)

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Opinion of the Court

possibility of a death sentence can, under some circumstances, receive a sentence less than life imprisonment. But, as we explained in Shafer, under the South Carolina sentencing scheme a jury now makes a sentencing recommendation only if the jurors find the existence of an aggravating circumstance. When they do make a recommendation, their only alternatives are death or life without parole. 532 U. S., at 49-50.2 We therefore hold, as we did in Shafer, that the state court's reasoning is not to the point.

The State Supreme Court's first ground, that Kelly's future dangerousness was not "at issue," is unsupportable on the record before us. It is not that the state court failed to pose the legal issue accurately, for in considering the applicability of Simmons it asked whether Kelly's future dangerousness was "a logical inference from the evidence," or was "injected into the case through the State's closing argument." 343 S. C., at 363, 540 S. E. 2d, at 857; see also Shafer, supra, at 54-55 (whether prosecutor's evidence or argument placed future dangerousness in issue); Simmons, 512 U. S., at 165, 171 (plurality opinion) (future dangerousness in issue because "State raised the specter of . . . future dangerousness generally" and "advanc[ed] generalized arguments regarding the [same]"); id., at 174 (Ginsburg, J., concurring); id., at 177 (O'Connor, J., concurring in judgment). The error, rather,

2 Under South Carolina law, capital jurors first must decide whether the State has proven the existence of any statutory aggravating circumstance beyond a reasonable doubt. If the jury cannot agree unanimously on the presence of such a circumstance, it cannot make a sentencing recommendation; the judge is then charged with sentencing the defendant either to life imprisonment without parole or to a prison term of at least 30 years. S. C. Code Ann. 16-3-20(B), (C) (2000 Cum. Supp.); State v. Starnes, 340 S. C. 312, 328, 531 S. E. 2d 907, 916 (2000). But, if the jury does unanimously find a statutory aggravating circumstance, it recommends one of two possible sentences: death or life imprisonment without the possibility of parole. 16-3-20(A), (B). The jury has no other sentencing option.

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