Kelly v. South Carolina, 534 U.S. 246, 18 (2002)

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

Thomas, J., dissenting

ation even if the only alternative sentence to death is life imprisonment without possibility of parole." Id., at 176-177 (O'Connor, J., concurring in judgment). One might think from this language that the Court meant to preserve in most cases the State's role in determining whether to instruct a jury regarding a defendant's eligibility for parole. But the decisive opinion seriously diminished the State's discretion in this area, holding that due process requires that "[w]hen the State seeks to show the defendant's future dangerousness . . . the defendant should be allowed to bring his parole ineligibility to the jury's attention." Id., at 177 (emphasis added).2 Applying this rule, the Court concluded that the prosecution "put [Simmons'] future dangerousness in issue" and that due process required that the instruction be given. Id., at 177-178.

After Simmons, we were left with a due process requirement that hinged on a factual inquiry as to whether the State somehow "show[ed] the defendant's future dangerousness," "argue[d] future dangerousness, " or "put . . . future dangerousness in issue." Id., at 176-177. Given such an imprecise standard, it is not at all surprising that the Court today easily fits the State's argument during Kelly's proceedings into the universe of arguments that trigger the Simmons requirement. But the Court goes even further. In making this factual judgment, the Court dilutes the Simmons test, now requiring that a parole ineligibility instruction be given where the prosecution makes arguments that have a "tendency to prove dangerousness in the future." Ante, at 254 (emphasis added).

This expansion is not surprising when one considers that in Simmons the Court applied its own rule loosely. Placed

2 The plurality opinion used broader language, stating that due process requires the instruction when the "prosecution allude[s]" to the defend-ant's future dangerousness or "advanc[es] generalized arguments regarding the defendant's future dangerousness." Simmons v. South Carolina, 512 U. S., at 164, 171.


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