Kelly v. South Carolina, 534 U.S. 246, 13 (2002)

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Rehnquist, C. J., dissenting

The judgment of the Supreme Court of South Carolina is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Chief Justice Rehnquist, with whom Justice Kennedy joins, dissenting.

In Simmons v. South Carolina, 512 U. S. 154 (1994), the prevailing opinion said:

"In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact. Likewise, if the prosecution does not argue future dangerousness, the State may appropriately decide that parole is not a proper issue for the jury's consideration even if the only alternative sentence to death is life imprisonment without possibility of parole.

"When the State seeks to show the defendant's future dangerousness, however, the fact that he will never be released from prison will often be the only way that a violent criminal can successfully rebut the State's case. . . . And despite our general deference to state decisions regarding what the jury should be told about sentencing, I agree that due process requires that the defendant be allowed to do so in cases in which the only available alternative sentence to death is life imprisonment without possibility of parole and the prosecution argues that the defendant will pose a threat to society in the future." Id., at 176-177 (O'Connor, J., concurring in judgment).

But today, while purporting to merely "apply" Simmons, the Court converts a tenable due process holding into a "truth in sentencing" doctrine which may be desirable policy, but

ted defense counsel to read to the jury the relevant section of the South Carolina Code. See Tr. of Oral Arg. 51.

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