No. 96-6867


on writ of certiorari to the united states court of appeals for the fourth circuit

[June 19, 1997]

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

Although petitioner's guilt has been established, it is undisputed that the conduct of the sentencing hearing that led to the imposition of his death penalty violated the Due Process Clause of the Fourteenth Amendment. His eligibility for a death sentence depended on the prosecutor's ability to convince the jury that there was a "probability that he would commit criminal acts of violence that would constitute a continuous threat to society." App. 69. In support of his argument to the jury that nothing short of the death penalty would be sufficient, the prosecutor emphasized petitioner's misconduct when he was "outside of the prison system," id., at 61, [n.1] and stated that O'Dell had "forfeited his right to live among us," id., at 66. Nevertheless, the trial court refused to allow petitioner to advise the jury that if the death sentence were not imposed, he would be imprisoned for the rest of his life without any possibility of parole. Thus, he was denied the opportunity to make a fair response to the prosecutor's misleading argument about the future danger that he allegedly posed to the community.

Our virtually unanimous decision in Simmons v. South Carolina, 512 U.S. 154 (1994), [n.2] recognized the fundamental unfairness of the restrictive procedure followed in this case. As Justice O'Connor's opinion, which has been treated as expressing the narrowest ground on which the decision rested, explained:

" `Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause,' Clemons v. Mississippi, 494 U.S. 738, 746 (1990), and one of the hallmarks of due process in our adversary system is the defendant's ability to meet the State's case against him. Cf. Crane v. Kentucky, 476 U.S. 683, 690 (1986). In capital cases, we have held that the defendant's future dangerousness is a consideration on which the State may rely in seeking the death penalty. See California v. Ramos, 463 U.S. 992, 1002-1003 (1983). But `[w]here the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, . . . the elemental due process requirement that a defendant not be sentenced to death "on the basis of information which he had no opportunity to deny or explain" [requires that the defendant be afforded an opportunity to introduce evidence on this point].' Skipper v. South Carolina, 476 U.S. 1, 5, n. 1 (1986), quoting Gardner v. Florida, 430 U.S. 349, 362 (1977) (plurality opinion); see also 476 U. S., at 9-10 (Powell, J., concurring in judgment)." Id., at 175 (O'Connor, J., concurring in judgment).

Thus, this case is not about whether O'Dell was given a fair sentencing hearing; instead, the question presented is whether, despite the admittedly unfair hearing, he should be put to death because his trial was conducted before Simmons was decided. Because the Court regards the holding in Simmons as nothing more than a novel "court made rule," ante, at 4, it rejects petitioner's plea. In my view, our decision in Simmons applied a fundamental principle that is as old as the adversary system itself, and that had been quite clearly articulated by this Court in two earlier opinions. Accordingly, I respectfully dissent.

My analysis begins where the majority tersely ends--with the petitioner's contention that the rule in Simmons implicates "the fundamental fairness and accuracy of the criminal proceeding," Saffle v. Parks, 494 U.S. 484, 495 (1990), and therefore should be retroactively applied even if it would constitute a "new" rule under Teague v. Lane, 489 U.S. 288, 307 (1989).

Our decision in Teague recognized two exceptions to the general rule of nonretroactivity. The relevant exception for our purposes establishes that "a new rule should be applied retroactively if it requires the observance of `those procedures that . . . are "implicit in the concept of ordered liberty." ' " Ibid. (quoting Mackey v. United States, 401 U.S. 667, 693 (1971) (Harlan J., concurring in judgments in part and dissenting in part), which in turn quotes Palko v. Connecticut, 302 U.S. 319, 325 (1937)). In the opinion that provided the basis for the limitations on collateral review adopted in Teague, Justice Harlan emphasized the importance of protecting "bedrock procedural elements" that are "essential to the substance of a full hearing." Mackey, 401 U. S., at 693-694. We endorsed that view, with the caveat that this exception should be limited to those "procedures without which the likelihood of an accurate [determination of guilt or innocence] is seriously diminished." Teague, 489 U. S., at 313. [n.3]

Since Teague was decided, this Court has never found a rule so essential to the fairness of a proceeding that it would fall under this exception. [n.4] In my view, the right in Simmons--the right to respond to an inaccurate or misleading argument--is surely a bedrock procedural element of a full and fair hearing. As Justice O'Connor recognized in her opinion in Simmons, this right to rebut the prosecutor's arguments is a "hallmar[k] of due process," 512 U. S., at 175 (concurring opinion). See also id., at 174 (Ginsburg, J., concurring) ("This case is most readily resolved under a core requirement of due process, the right to be heard"). When a defendant is denied the ability to respond to the state's case against him, he is deprived of "his fundamental constitutional right to a fair opportunity to present a defense." Crane v. Kentucky, 476 U.S. 683, 687 (1986).

The Court today argues that Simmons defined only a "narrow right of rebuttal [for] defendants in a limited class of capital cases," ante, at 16, and therefore that the rule cannot be in that class of rules so essential to the accuracy of a criminal proceeding that they are excepted from Teague's nonretroactivity principle.

The majority appears not to appreciate that the reason Simmons' holding applied directly to only a narrow class of capital defendants is because only a very few states had in place procedures that allowed the prosecutor to argue future dangerousness while at the same time prohibiting defendants from using "the only way that [they] can successfully rebut the State's case." Simmons, 512 U. S., at 177 (O'Connor, J., concurring in judgment). [n.5] The prevailing rule in the States that provided a life without parole sentencing alternative required an instruction explaining that alternative to the jury. [n.6]

Although the majority relies on the limited impact of the Simmons rule to discount its importance, the broad consensus in favor of giving the jury accurate information in fact underscores the importance of the rule applied in Simmons. The rule's significance is further demonstrated by evidence of the effect that information about the life without parole alternative has on capital jury deliberations. For example, only two death sentences have been imposed in Virginia for crimes committed after January 1, 1995--whereas ten were imposed in 1994 alone--and the decline in the number of death sentences has been attributed to the fact that juries in Virginia must now be informed of the life without parole alternative. See Green, Death Sentences Decline in Virginia, Richmond Times Dispatch, Nov. 24, 1996, [n.7] p. A1. The consensus among the scholars and practitioners who drafted the Model Penal Code is that instructing the jury completely about the available sentencing alternatives is the best way to ensure accuracy in sentencing. See American Law Institute, Model Penal Code §210.6 (1980). And we affirmed this basic point in Beck v. Alabama, 447 U.S. 625, 637 (1980), when we acknowledged that the likelihood that a jury would find an obviously guilty defendant eligible for the death penalty was significantly increased when an arguably more appropriate sentencing alternative was not available.

Thus, even if the rule in Simmons could properly be viewed as a "new" rule, it is of such importance to the accuracy and fairness of a capital sentencing proceeding that it should be applied consistently to all prisoners whose death sentences were imposed in violation of the rule, whether they were sentenced before Simmons was decided or after. Moreover, to the extent that the fundamental principles underlying the rule needed explicit articulation by this Court, they clearly had been expressed well before O'Dell's 1988 sentencing proceeding.

Distinguishing new rules from those that are not new under our post-Teague jurisprudence is not an easy task, but it is evident to me that if there is such a thing as a rule that is not new for these purposes, the rule announced in Simmons is one.

In Gardner v. Florida, 430 U.S. 349 (1977), a plurality of the Court concluded that the defendant's due process rights had been violated because his "death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Id., at 362. Nine years later, in Skipper v. South Carolina, 476 U.S. 1 (1986), all nine Justices cited Gardner, with approval, as establishing the "elemental due process requirement that a defendant not be sentenced to death `on the basis of information which he had no opportunity to deny or explain.' Gardner v. Florida, 430 U.S. 349, 362 (1977)." Skipper, 476 U. S., at 5, n. 1; see also id., at 10-11 (Powell, J., concurring in judgment) ("The Court correctly concludes that the exclusion of the proffered testimony violated due process . . . . [P]etitioner's death sentence violates the rule in Gardner").

When the Court was presented with the facts in Simmons, it was no surprise that Justice Blackmun said that "[t]he principle announced in Gardner was reaffirmed in Skipper, and it compels our decision today." 512 U. S., at 164-165 (plurality opinion). Or that Justice O'Connor quoted Gardner and Skipper for the proposition that "elemental due process" requires that a defendant must be allowed to answer a prosecutor's "prediction of future dangerousness" with "evidence on this point." 512 U. S., at 175.

Today, however, the Court seeks to revise the import of this line of cases. The first misstep in the Court's analysis is its treatment of Gardner. The majority makes much of the fact that the lead opinion was joined by only three Justices, [n.8] and instead of accepting the plurality's due process analysis as the rule of Gardner, the Court takes Justice White's concurring opinion, which was grounded in the Eighth Amendment, as expressing the holding of the case. The Court's reading of Gardner ignores the fact that Justice White himself squarely adopted the due process holding of Gardner in his opinion for the Court in Skipper. Although his opinion accepted Skipper's argument that the exclusion of evidence of his good behavior in prison at the sentencing hearing violated the Eighth Amendment requirement that the jury be allowed to consider all relevant mitigating evidence, Justice White went out of his way to add a footnote endorsing the Gardner plurality's statement of the law and emphasizing that this "elemental due process requirement" provided an even more basic justification for the Court's holding. [n.9] Moreover, in his opinion concurring in the judgment in Skipper, Justice Powell, joined by the Chief Justice and then Justice Rehnquist, rejected the mitigating evidence rationale, relying instead on "the rule in Gardner." 476 U. S., at 10-11. Thus, in Skipper, all nine Justices then serving on the Court endorsed Gardner's holding that due process was violated when a sentencing determination rested on information that a defendant was not permitted to explain or deny. See also Clemons v. Mississippi, 494 U.S. 738, 746 (1990) (citing Gardner for the proposition that "[c]apital sentencing proceedings must of course satisfy the dictates of the Due Process Clause"); Simmons, 512 U. S., at 180 (Scalia, J., dissenting) (quoting Skipper and Gardner as "indicat[ing] that petitioner's due process rights would be violated if he was `sentenced to death "on the basis of information which he had no opportunity to deny or explain," ' " but concluding that the petitioner could not show that his sentence violated this principle).

As to Skipper, the only distinction the majority is able to draw between that case and Simmons is that the defendant in Skipper sought to introduce "evidence of his past behavior" while Simmons wished "an opportunity to describe the extant legal regime." Ante, at 11. This distinction is simply not enough to make the rule in Simmons "new". In both cases, the prosecution was seeking to mislead the jury with an argument that excluded facts essential to the defendant's actual circumstances. The rule in Skipper and Gardner--that a defendant must be allowed an opportunity to rebut arguments put forward by the prosecution--simply cannot turn on whether his rebuttal relies on the fact that he is ineligible for parole or on the fact that he is a model prisoner.

The two cases on which the majority relies to argue that a reasonable jurist in 1988 would have thought that O'Dell did not have a right to rebut the prosecutor's future dangerousness arguments simply provide further support for the conclusion that Simmons did not announce a new rule of law. In both California v. Ramos, 463 U.S. 992 (1983), and Caldwell v. Mississippi, 472 U.S. 320 (1985), the Court focused its analysis on whether the information being presented (or withheld) in a sentencing determination permitted accurate and informed decision making on the part of the sentencer.

In Ramos, the Court held that California's capital sentencing procedure--in which the judge was required to inform the jury that it could sentence the defendant to death or to life without parole, and then to provide the further instruction that the Governor could commute a life sentence without parole--was not constitutionally infirm. (This further instruction is, of course, only relevant when the jury has first been advised that the alternative to the death sentence is the option that was concealed from the jury in Simmons and in this case.) The Court correctly explained that the instruction on commutation of the life sentence was relevant to the issue of future dangerousness, 463 U. S., at 1003, and consistent with the rule of Gardner because it provided the jury with accurate information and did not preclude the defendant from offering argument or evidence regarding the Governor's power to commute a life sentence. Id., at 1004. In a comment that anticipated the precise holding in Simmons, the Court concluded that the instruction under review "corrects a misconception and supplies the jury with accurate information for its deliberation in selecting an appropriate sentence." 463 U. S., at 1009. [n.10]

While the Ramos Court concluded that a State could constitutionally require trial judges to inform sentencing juries about the possibility of commutation of a life sentence, the Court did not hold that a State was constitutionally compelled to do so. The majority today, ante, at 12, suggests that the Ramos Court's endorsement of that option--involving a choice between two nonmisleading instructions, one mentioning and the other not mentioning the remote "possibility" of parole--might have led reasonable state judges to conclude that they could allow juries to be misled on the future dangerousness issue by concealing entirely the legal certainty of parole impossibility. But the general rule applied in Ramos simply permits state courts to give accurate instructions that will prevent juries from being misled about sentencing options in capital cases. In order to decide Simmons correctly, there was no need to "carv[e] out an exception," ante at 14, from that rule.

The Court's reading of Caldwell is equally unpersuasive. In that case, the prosecutor had urged the jury not to view itself as finally determining whether the defendant would die, because the death sentence was subject to appellate review. As Justice O'Connor's controlling opinion explained, the prosecutor's remarks were improper "because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility." 472 U. S., at 342. Because Justice Marshall's plurality opinion suggested that any comment on appellate review was "wholly irrelevant" to the sentencing determination, id., at 336, the Court today suggests that state judges might reasonably have concluded "that information about postsentence procedures was never to go to the jury." Ante, at 14. Apart from the fact that an instruction describing a sentencing alternative does not relate to "postsentence procedures," I see no basis for assuming that concerns about describing the process of appellate review to a jury might have anything to do with the necessity for providing the jury with accurate information about sentencing options when the prosecutor makes the misleading argument that the death penalty is the only way to prevent a defendant's future dangerousness "outside of the prison system."

The Court has consistently, and appropriately, shown a particular concern for procedures that protect the accuracy of sentencing determinations in capital cases. [n.11] Today, the majority discards this concern when it relies on a nonexistent tension between Gardner and Skipper on the one hand and Ramos and Caldwell on the other to justify its refusal to apply the rule in Simmons to this case.

I respectfully dissent.


1 During his closing statement at the sentencing proceeding, the prosecutor observed: "Isn't it interesting that he is only able to be outside of the prison system for a matter of months to a year and a half before something has happened again?" App. 61. And, after drawing out the parallels between the Virginia murder and a kidnaping and robbery for which the petitioner had been convicted in Florida some years earlier, the prosecutor said: "We are a society of fair, honest people who believe in our government and who believe in our justice system; and I submit to you there was a failure in the Florida criminal justice system for paroling this man when they did." Id., at 64.

The prosecutor concluded his argument by saying: "[Y]ou may still sentence him to life in prison, but I ask you ladies and gentlemen[,] in a system, in a society that believes in its criminal justice system and its government, what does this mean? . . . [A]ll the times he has committed crimes before and been before other juries and judges, no sentence ever meted out to this man has stopped him. Nothing has stopped him, and nothing ever will except the punishment that I now ask you to impose." Id., at 66.

2 In the years following our decision in Furman v. Georgia, 408 U.S. 238 (1972), unanimous Court opinions in capital cases have been virtually nonexistent. The decision in Simmons v. South Carolina, 512 U.S. 154 (1994), came closer than most, for only two Justices dissented.

3 Although Teague v. Lane, 489 U.S. 288 (1989), focused on the accuracy of a guilt innocence determination, we have long recognized that sentencing procedures, as well as trials, must satisfy the dictates of the Due Process Clause, see, e.g., Clemons v. Mississippi, 494 U.S. 738, 746 (1990), and that the unique character of the death penalty mandates special scrutiny of those procedures in capital cases. An unfair procedure that seriously diminishes the likelihood of an accurate determination that a convicted defendant should receive the death penalty rather than life without parole--that the defendant is "innocent of the death penalty," see Sawyer v. Whitley, 505 U.S. 333, 341-343 (1992)--is plainly encompassed by Teague's exception.

4 The most commonly cited example of a rule so fundamental that it would fit this category is the right to counsel articulated in Gideon v. Wainwright, 372 U.S. 335 (1963).

5 See Simmons, 512 U. S., at 168, n. 8.

6 See id., 512 U. S., at 167, n. 7 (listing the States whose capital punishment schemes in one way or another require the jury to be informed that life without parole is either the only available alternative sentence or one of the options from which the jury is free to choose).

7 See also, e.g., Comment, Truth in Sentencing: The Prospective and Retroactive Application of Simmons v. South Carolina, 63 U. Chi. L. Rev. 1573 (1996); Eisenberg & Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L. Rev. 1, 7-9 (1993) ("[J]urors who believe the alternative to death is a relatively short time in prison tend to sentence to death"); Paduano & Stafford Smith, Deathly Errors: Juror Misconceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum. Hum. Rts. L. Rev. 211 (1987).

8 The Court ignores the fact that Justice Brennan and Justice Marshall agreed with the plurality's conclusion that sentencing a defendant based on information he was not permitted to deny or explain violated due process, but refused to join the judgment insofar as it permitted further proceedings that could lead to another death sentence. See Gardner v. Florida, 430 U.S. 349, 364-365 (1977) (opinion of Brennan, J.); id., at 365 (Marshall, J., dissenting).

9 "Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death `on the basis of information which he had no opportunity to deny or explain.' Gardner v. Florida, 430 U.S. 349, 362 (1977)." Skipper v. South Carolina, 476 U.S. 1, 5, n. 1 (1986).

10 The Court cited with approval the provision of the Model Penal Code recommending that the jury be advised of "the nature of the sentence of imprisonment that may be imposed, including its implication with respect to possible release upon parole, if the jury verdict is against sentence of death." California v. Ramos, 463 U.S. 992, 1009, n. 23 (1983) (quoting American Law Institute, Model Penal Code §210.6 (Prop. Off. Draft 1962)).

11 See Gardner, 430 U. S., at 357-358 ("From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion"). See also, e.g., Ramos, 463 U. S., at 998-999; Beck v. Alabama, 447 U.S. 625, 637-638 (1980).