Kelly v. South Carolina, 534 U.S. 246, 17 (2002)

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Thomas, J., dissenting

To be sure, the prosecutor's arguments about the details of the murder, as well as the violent episodes in prison, demonstrated petitioner's evil character. Yet if this were what Simmons intended with the phrase "future dangerousness," it would have held that the Constitution always required an instruction about parole ineligibility. It plainly did not.

Justice Thomas, with whom Justice Scalia joins, dissenting.

The Chief Justice, in dissent, concludes that, with the Court's opinion, "[g]one is the due process basis for the [Simmons] rule—that where the State argues that the defendant will be dangerous in the future, the defendant is entitled to inform the jury by way of rebuttal that he will be in prison for life." Ante, at 260. I write separately because I continue to believe that there never was a "basis for such a pronouncement." Simmons v. South Carolina, 512 U. S. 154, 178 (1994) (Scalia, J., dissenting). Indeed, the decision today merely solidifies my belief that the Court was wrong, in the first instance, to hold that the Due Process Clause requires the States to permit a capital defendant to inform the jury that he is parole ineligible in cases where the prosecutor argues future dangerousness.

While we were informed in Simmons that the Court's intent was to create a requirement that would apply in only a limited number of cases, today's sweeping rule was an entirely foreseeable consequence of Simmons. See id., at 183. The decisive opinion 1 noted that "if the prosecution does not argue future dangerousness, the State may appropriately decide that parole is not a proper issue for the jury's consider-1 Justice Blackmun's plurality opinion in Simmons was joined by three Members of the Court. Justice O'Connor, joined by The Chief Justice and Justice Kennedy, provided the necessary votes to sustain the judgment. Concurring in the judgment, Justice O'Connor therefore wrote the decisive opinion. See O'Dell v. Netherland, 521 U. S. 151, 158- 159 (1997).

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