Kelly v. South Carolina, 534 U.S. 246, 19 (2002)

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Thomas, J., dissenting

in context, the prosecutor there neither "emphasiz[ed] future dangerousness as a crucial factor" nor even mentioned "future dangerousness outside of prison." 512 U. S., at 181 (Scalia, J., dissenting).3 Thus, while I agree with The Chief Justice that the prosecutor here did not argue future dangerousness, an effort to distinguish this case from Simmons amounts to hairsplitting, demonstrating that the Court's inability to construct a limited rule inhered in Simmons itself. Today, the Court acknowledges that "the evidence in a substantial proportion, if not all, capital cases will show a defendant likely to be dangerous in the future." Ante, at 254, n. 4. "All" is the more accurate alternative, given that our capital jurisprudence has held that routine murder does not qualify, but only a more narrowly circumscribed class of crimes such as those that "reflec[t] a consciousness materially more 'depraved' than that of any person guilty of murder," Godfrey v. Georgia, 446 U. S. 420, 433 (1980) (plurality opinion). See also Lowenfield v. Phelps, 484 U. S. 231, 246 (1988) ("Here, the 'narrowing function' was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that 'the offender has a specific intent to kill or to inflict great bodily harm upon more than one person' "). It is hard

3 Turning to the statements upon which the Simmons plurality and concurring opinions relied, Justice Scalia noted that the prosecutor's comment concerning " 'what to do with [petitioner] now that he is in our midst' . . . was not made (as they imply) in the course of an argument about future dangerousness, but was a response to petitioner's mitigating evidence." Id., at 181-182. Similarly, "the prosecutor's comment that the jury's verdict would be an 'act of self-defense' . . . came at the end of admonition of the jury to avoid emotional responses and enter a rational verdict." Id., at 182. As Justice Scalia indicates, the reference "obviously alluded, neither to defense of the jurors' own persons, nor specifically to defense of persons outside the prison walls, but to defense of all members of society against this individual, wherever he or they might be. . . . [T]he prosecutor did not invite the jury to believe that petitioner would be eligible for parole—he did not mislead the jury." Ibid.

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