[ Souter ]
[ Rehnquist ]
[ Thomas ]
WILLIAM ARTHUR KELLY, PETITIONER v.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
[January 9, 2002]
Justice Thomas, with whom Justice Scalia joins, dissenting.
The Chief Justice, in dissent, concludes that, with the Courts opinion, [g]one is the due process basis for the [Simmons] rulethat 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 4. 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 Courts intent was to create a requirement that would apply in only a limited number of cases, todays sweeping rule was an entirely foreseeable consequence of Simmons. See id., at 183. The decisive opinion1 noted that if the prosecution does not argue future dangerousness, the State may appropriately decide that parole is not a proper issue for the jurys consideration even if the only alternative sentence to death is life imprisonment without possibility of parole. Id., at 176177 (OConnor, J., concurring in judgment). One might think from this language that the Court meant to preserve in most cases the States role in determining whether to instruct a jury regarding a defendants eligibility for parole. But the decisive opinion seriously diminished the States discretion in this area, holding that due process requires that [w]hen the State seeks to show the defendants future dangerousness . . . the defendant should be allowed to bring his parole ineligibility to the jurys 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 177178.
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 defendants future dangerousness, argue[d] future dangerousness, or put future dangerousness in issue. Id., at 176177. Given such an imprecise standard, it is not at all surprising that the Court today easily fits the States argument during Kellys 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 8 (emphasis added).
This expansion is not surprising when one considers that in Simmons the Court applied its own rule loosely. Placed 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 Courts 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 8, 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 to imagine how, for example, the depravity of mind that such a crime displays will not always have a tendency to show future dangerousness. And it is of little comfort that todays opinion technically requires not merely evidence with this tendency, but argument by the prosecutor, ante, at 8, n. 4. When does a prosecutor not argue the evidence, and when will argument regarding depravity not also constitute argument showing dangerousness? Thus, today the Court eviscerates the recognition in the Simmons decisive opinion that [t]he decision whether or not to inform the jury of the possibility of early release is generally left to the States. Id., at 176 (OConnor, J., concurring in judgment).
Todays decision allows the Court to meddle further in a States sentencing proceedings under the guise that the Constitution requires us to do so. I continue to believe, without qualification, that it is not this Courts role to micromanage state sentencing proceedings. Shafer v. South Carolina, 532 U.S. 36, 58 (2001) (Thomas, J., dissenting). As a matter of policy, it may be preferable for a trial court to give such an instruction, but these are matters that the Constitution leaves to the States. Ibid.
For these reasons, I respectfully dissent.
1. Justice Blackmuns plurality opinion in Simmons was joined by three Members of the Court. Justice OConnor, joined by The Chief Justice and Justice Kennedy, provided the necessary votes to sustain the judgment. Concurring in the judgment, Justice OConnor therefore wrote the decisive opinion. See ODell v. Netherland, 521 U.S. 151, 158159 (1997).
2. The plurality opinion used broader language, stating that due process requires the instruction when the prosecution allude[s] to the defendants future dangerousness or advanc[es] generalized arguments regarding the defendants future dangerousness. Simmons v. South Carolina, 512 U.S., at 164, 171.
3. Turning to the statements upon which the Simmons plurality and concurring opinions relied, Justice Scalia noted that the prosecutors 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 petitioners mitigating evidence. Id., at 181182. Similarly, the prosecutors comment that the jurys 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 parolehe did not mislead the jury. Ibid.