Kelly v. South Carolina, 534 U.S. 246, 12 (2002)

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Cite as: 534 U. S. 246 (2002)

Opinion of the Court

significant that "[d]isplacement of 'the longstanding practice of parole availability' remains a relatively recent development [in South Carolina], and 'common sense tells us that many jurors might not know whether a life sentence carries with it the possibility of parole.' " 532 U. S., at 52 (quoting Simmons, supra, at 177-178 (O'Connor, J., concurring in judgment)).7

Nor is there any reason to believe that Kelly's jury was better informed than Simmons's or Shafer's on the matter of parole eligibility. The State, to be sure, emphasizes defense counsel's opening statement that the jury's recommendation would be "the sentence actually imposed and the sentence that will actually be carried out," Record 1660, as well as counsel's closing, which stressed that Kelly would be in prison for the rest of his life and would "never see the light of daylight again," id., at 2060. The State stresses that the judge told the jury that the terms "life imprisonment" and "death sentence" should be understood in their plain and ordinary meanings. App. 289.

But the same things could be said of Shafer, where we explicitly noted defense counsel's statement to the jury that Shafer would " 'die in prison' after 'spend[ing] his natural life there,' " as well as the trial judge's instructions that " 'life imprisonment means until the death of the defendant.' " 532 U. S., at 52 (emphasis deleted). We found these statements inadequate to convey a clear understanding of Shafer's parole ineligibility, id., at 53-54,8 and Kelly, no less than Shafer, was entitled to his requested jury instruction.

7 Whether this history of penology should suffice to require a Simmons instruction regardless of the details of evidence and argument going to future dangerousness is a question not raised by this case, in which evidence and argument did place dangerousness in issue.

8 If Kelly's counsel had read the law verbatim to the jury with the judge's manifest approval, that might have sufficed, but the State does not claim that defense counsel had any such opportunity, and conceded at oral argument that it is "very unlikely" that the trial judge would have permit-


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