SHAFER v. SOUTH CAROLINA

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Syllabus
SHAFER v. SOUTH CAROLINA
certiorari to the supreme court of south carolina
No. 00–5250. Argued January 9, 2001—Decided March 20, 2001
Under recent amendments to South Carolina law, capital jurors face two
questions at the sentencing phase of the trial. They decide first
whether the State has proved beyond a reasonable doubt the existence
of any statutory aggravating circumstance. If the jury fails to agree
unanimously on the presence of a statutory aggravator, it cannot make
a sentencing recommendation. In that event, the trial judge is charged
with sentencing the defendant to either life imprisonment or a manda-
tory minimum 30-year prison term. If, on the other hand, the jury
unanimously finds a statutory aggravator, it then recommends one of
two potential sentences—death or life imprisonment without the possi-
bility of parole. No other sentencing option is available to the jury.
A South Carolina jury found petitioner Shafer guilty of murder,
armed robbery, and conspiracy. During the trial’s sentencing phase,
Shafer’s counsel and the prosecutor disagreed on the application of Sim-
mons v. South Carolina, 512 U. S. 154, to this case. This Court held in
Simmons that where a capital defendant’s future dangerousness is at
issue, and the only sentencing alternative to death available to the jury
is life imprisonment without possibility of parole, due process requires
that the jury be informed of the defendant’s parole ineligibility. Shaf-
er’s counsel maintained that Simmons required the trial judge to in-
struct the jury that under South Carolina law a life sentence carries
no possibility of parole. The prosecutor, in opposition, urged that no
Simmons instruction was required because the State did not plan to
argue to the jury that Shafer would be a danger in the future. Shafer’s
counsel replied that the State had in fact put future dangerousness at
issue by introducing evidence of a postarrest assault by Shafer and jail
rules violations. The judge refused to charge on parole ineligibility,
stating that future dangerousness had not been argued. The judge also
denied Shafer’s counsel leave to read in his closing argument lines from
the controlling statute stating plainly that a life sentence in South Caro-
lina carries no possibility of parole. After the prosecution’s closing ar-
gument, Shafer’s counsel renewed his plea for a life without parole in-
struction on the ground that the State had placed future dangerousness
at issue by repeating the statements of an alarmed witness at the crime
scene that Shafer and his accomplices “might come back.” The trial
judge again denied the request. Quoting a passage from the relevant

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statute but not the full text, the judge twice told the jury that “life
imprisonment means until the death of the defendant.” During its sen-
tencing deliberations, the jury asked the judge whether, and under what
circumstances, someone convicted of murder could become eligible for
parole. The judge responded that “[p]arole eligibility or ineligibility
is not for your consideration.” The jury unanimously found beyond a
reasonable doubt the aggravating factor of murder while attempting
armed robbery, and recommended the death penalty, which the judge
imposed.
The South Carolina Supreme Court affirmed. Without consider-
ing whether the prosecutor’s evidentiary submissions or closing argu-
ment in fact placed Shafer’s future dangerousness at issue, the court
held Simmons generally inapplicable to the State’s “new sentencing
scheme.” Simmons is not triggered, the South Carolina court said, un-
less life without parole is the only legally available sentence alternative
to death. Currently, the court observed, when a capital jury begins its
sentencing deliberations, three alternative sentences are available: (1)
death, (2) life without the possibility of parole, or (3) a mandatory mini-
mum 30-year sentence. Since an alternative to death other than life
without the possibility of parole exists, the court concluded, Simmons
no longer constrains capital sentencing in South Carolina.
Held:
1. The South Carolina Supreme Court incorrectly interpreted Sim-
mons when it declared the case inapplicable to South Carolina’s current
sentencing scheme. That court’s reasoning might be persuasive if the
jury’s sentencing discretion actually encompassed the three choices the
court identified: death, life without the possibility of parole, or a manda-
tory minimum 30-year sentence. But, that is not how the State’s new
scheme works. Under the law now governing sentencing proceedings,
if the jury finds an aggravating circumstance, it must recommend a sen-
tence, and its choices are limited to death and life without parole.
When the jury makes the threshold determination whether a statutory
aggravator exists, a tightly circumscribed factual inquiry, none of Sim-
mons’ due process concerns yet arise. At that stage, there are no “mis-
understanding[s]” to avoid, no “false choice[s]” to guard against. See
Simmons, 512 U. S., at 161 (plurality opinion). The jury, as aggravating
circumstance factfinder, exercises no sentencing discretion itself. If no
aggravator is found, the judge takes over and has sole authority to im-
pose the mandatory minimum so heavily relied upon by the State Su-
preme Court. It is only when the jury endeavors the moral judgment
whether to impose the death penalty that parole eligibility may become
critical. Correspondingly, it is only at that stage that Simmons comes

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Syllabus
into play, a stage at which South Carolina law provides no third choice,
no 30-year mandatory minimum, just death or life without parole. See
Ramdass v. Angelone, 530 U. S. 156, 169. Thus, whenever future dan-
gerousness is at issue in a capital sentencing proceeding under South
Carolina’s new scheme, due process requires that the jury be informed
that a life sentence carries no possibility of parole. Pp. 48–51.
2. South Carolina’s other grounds in support of the trial judge’s
refusal to give Shafer’s requested parole ineligibility instruction are
unavailing. Pp. 52–55.
(a) The State’s argument that the jury was properly informed of
the law on parole ineligibility by the trial court’s instructions and by
defense counsel’s own argument is unpersuasive. To support that con-
tention, the State sets out defense counsel’s closing pleas that, if Shafer’s
life is spared, he will die in prison after spending his natural life there,
as well as passages from the trial judge’s instructions reiterating that
life imprisonment means until the death of the defendant. Displace-
ment of the longstanding practice of parole availability remains a rela-
tively recent development, and common sense indicates that many jurors
might not know whether a life sentence carries with it the possibility of
parole. Simmons, 512 U. S., at 177–178 (O’Connor, J., concurring in
judgment). Indeed, until two years before Shafer’s trial, South Caro-
lina’s law did not categorically preclude parole for capital defendants
sentenced to life imprisonment. Most plainly contradicting the State’s
contention, the jury’s written request for further instructions on the
question left no doubt about the jury’s failure to gain from defense coun-
sel’s closing argument or the judge’s instructions any clear understand-
ing of what a life sentence means. Cf., e. g., id., at 178. The jury’s
comprehension was hardly aided by the court’s final instruction declar-
ing that parole eligibility was not for the jury’s consideration. That
instruction did nothing to ensure that the jury was not misled and may
well have been taken to mean that parole was available but that the
jury, for some unstated reason, should be blind to this fact. E. g., id.,
at 170 (plurality opinion). Thus, although a life sentence for Shafer
would permit no parole or other release under current state law, this
reality was not conveyed to Shafer’s jury by the court’s instructions or
by the arguments defense counsel was allowed to make. Pp. 52–54.
(b) The State’s contention that no parole ineligibility instruction
was required under Simmons because the State never argued that
Shafer would pose a future danger to society presents an issue that is
not ripe for this Court’s resolution. The State Supreme Court, in order
to rule broadly that Simmons no longer governs capital sentencing in
the State, apparently assumed, arguendo, that future dangerousness had
been shown at Shafer’s sentencing proceeding. Because that court did

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not home in on the question whether the prosecutor’s evidentiary sub-
missions or closing argument in fact placed Shafer’s future dangerous-
ness at issue, the question is left open for the state court’s attention and
disposition. Pp. 54–55.
340 S. C. 291, 531 S. E. 2d 524, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, Souter, and Breyer, JJ.,
joined. Scalia, J., post, p. 55, and Thomas, J., post, p. 55, filed dissent-
ing opinions.
David I. Bruck, by appointment of the Court, 531 U. S.
1009, argued the cause for petitioner. With him on the
briefs was William N. Nettles.
Donald J. Zelenka, Assistant Deputy Attorney General
of South Carolina, argued the cause for respondent. With
him on the brief were Charlie Condon, Attorney General,
John W. McIntosh, Chief Deputy Attorney General, and
S. Creighton Waters, Assistant Attorney General.*
Justice Ginsburg delivered the opinion of the Court.
This case concerns the right of a defendant in a capital
case to inform the jury that, under the governing state law,
he would not be eligible for parole in the event that the jury
sentences him to life imprisonment. In Simmons v. South
Carolina, 512 U. S. 154 (1994), this Court held that where a
capital defendant’s future dangerousness is at issue, and the
only sentencing alternative to death available to the jury is
life imprisonment without possibility of parole, due process
entitles the defendant “to inform the jury of [his] parole ineli-
gibility, either by a jury instruction or in arguments by coun-
sel.” Ramdass v. Angelone, 530 U. S. 156, 165 (2000) (plu-
rality opinion) (describing Simmons’ premise and plurality
opinion). The case we now confront involves a death sen-
tence returned by a jury instructed both that “life imprison-
*Sheri Lynn Johnson and John H. Blume filed a brief for the Cornell
Death Penalty Project as amicus curiae.

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ment means until death of the offender,” and that “[p]arole
eligibility or ineligibility is not for your consideration.” 340
S. C. 291, 297, 531 S. E. 2d 524, 527 (2000). It presents the
question whether the South Carolina Supreme Court mis-
read our precedent when it declared Simmons inapplicable
to South Carolina’s current sentencing scheme. We hold
that South Carolina’s Supreme Court incorrectly limited
Simmons and therefore reverse that court’s judgment.
I
In April 1997, in the course of an attempted robbery in
Union County, South Carolina, then-18-year-old Wesley
Aaron Shafer, Jr., shot and killed a convenience store cashier.
A grand jury indicted Shafer on charges of murder, at-
tempted armed robbery, and criminal conspiracy. App. 2–4.
Prior to trial, the prosecutor notified Shafer that the State
would seek the death penalty for the murder. App. 4–5. In
that pursuit, the prosecutor further informed Shafer, the
State would present evidence of Shafer’s “prior bad acts,”
as well as his “propensity for [future] violence and unlawful
conduct.” App. 6, 8.
Under South Carolina law, juries in capital cases consider
guilt and sentencing in separate proceedings. S. C. Code
Ann. §§ 16–3–20(A), (B) (2000 Cum. Supp.). In the initial
(guilt phase) proceeding, the jury found Shafer guilty on all
three charges. Governing the sentencing proceeding, South
Carolina law instructs: “[T]he jury . . . shall hear additional
evidence in extenuation, mitigation, or aggravation of the
punishment. . . . The State, the defendant, and his counsel
are permitted to present arguments for or against the sen-
tence to be imposed.” § 16–3–20(B).
Under amendments effective January 1, 1996, South Caro-
lina capital jurors face two questions at sentencing. They
decide first whether the State has proved beyond a rea-
sonable doubt the existence of any statutory aggravating
circumstance. If the jury fails to agree unanimously on

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the presence of a statutory aggravator, “it shall not make
a sentencing recommendation.” § 16–3–20(C). “[T]he trial
judge,” in that event, “shall sentence the defendant to either
life imprisonment or a mandatory minimum term of impris-
onment for thirty years.” Ibid.; see § 16–3–20(B). If, on
the other hand, the jury unanimously finds a statutory aggra-
vator, it then recommends one of two potential sentences—
death or life imprisonment without the possibility of parole.
§§ 16–3–20(A), (B). No sentencing option other than death
or life without parole is available to the jury.
During the sentencing proceeding in Shafer’s case, the
State introduced evidence of his criminal record, past ag-
gressive conduct, probation violations, and misbehavior in
prison. The State urged the statutory aggravating circum-
stance that Shafer had committed the murder in the course
of an attempted robbery while armed with a deadly weapon.
See § 16–3–20(C)(a)(1)(d). The defense presented evidence
of Shafer’s abusive childhood and mental problems.
Near the completion of the parties’ sentencing presenta-
tions, the trial judge conducted an in camera hearing on jury
instructions. Shafer’s counsel maintained that due process,
and our decision in Simmons v. South Carolina, 512 U. S.
154 (1994), required the judge to instruct that under South
Carolina law a life sentence carries no possibility of parole.
The prosecutor, in opposition, urged that Shafer was not
entitled to a Simmons instruction because “the State has
not argued at any point . . . that he would be a danger to
anybody in the future, nor will we argue [that] in our closing
argument . . . .” App. 161. Shafer’s counsel replied: “The
State cannot introduce evidence of future dangerousness,
and then say we are not going to argue it and [thereby avoid]
a charge on the law. . . . They have introduced [evidence of
a] post arrest assault, [and] post arrest violations of the rules
of the jail . . . . If you put a jailer on to say that [Shafer] is
charged with assault . . . on [the jailer], that is future danger-
ousness.” App. 162. Ruling that “the matter of parole

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ineligibility will not be charged,” the trial judge stated: “I
find that future dangerousness [was] not argued[;] if it’s ar-
gued [in the prosecutor’s closing], it may become different.”
App. 164.
Unsuccessful in his effort to gain a court instruction on
parole ineligibility, Shafer’s counsel sought permission to im-
part the information to the jury himself. He sought leave
to read in his closing argument lines from the controlling
statute, § 16–3–20(A), stating plainly that a life sentence in
South Carolina carries no possibility of parole. App. 164–
165.1 In accord with the State’s motion “to prevent the de-
fense from arguing in their closing argument anything to the
effect that [Shafer] will never get out of prison,” App. 161,
the judge denied the defense permission to read the statute’s
text to the jury. App. 165.
1 Section 16–3–20(A) reads: “A person who is convicted of or pleads
guilty to murder must be punished by death, by imprisonment for life, or
by a mandatory minimum term of imprisonment for thirty years. If the
State seeks the death penalty and a statutory aggravating circumstance
is found beyond a reasonable doubt pursuant to subsections (B) and (C),
and a recommendation of death is not made, the trial judge must impose
a sentence of life imprisonment. For purposes of this section, ‘life impris-
onment’ means until death of the offender. No person sentenced to life
imprisonment pursuant to this section is eligible for parole, community
supervision, or any early release program, nor is the person eligible to
receive any work credits, education credits, good conduct credits, or any
other credits that would reduce the mandatory life imprisonment required
by this section. No person sentenced to a mandatory minimum term of
imprisonment for thirty years pursuant to this section is eligible for parole
or any early release program, nor is the person eligible to receive any
work credits, education credits, good conduct credits, or any other credits
that would reduce the mandatory minimum term of imprisonment for
thirty years required by this section. . . . When the Governor commutes a
sentence of death to life imprisonment under the provisions of Section 14
of Article IV of the Constitution of South Carolina, 1895, the commutee is
not eligible for parole, community supervision, or any early release pro-
gram, nor is the person eligible to receive any work credits, good conduct
credits, education credits, or any other credits that would reduce the man-
datory imprisonment required by this subsection.”

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After the prosecution’s closing argument, and out of the
presence of the jury, Shafer’s counsel renewed his plea for “a
life without parole charge.” App. 188. He referred to his
earlier submissions and urged, in addition, that the State had
placed future dangerousness at issue during closing argu-
ment by repeating the words of an alarmed witness at the
crime scene: “[T]hey [Shafer and his two accomplices] might
come back, they might come back.” App. 188. The trial
judge denied the request. The judge “admit[ted he] had
some concern [as to whether the State’s] argument . . . had
crossed the line,” but in the end he found “that it comes
close, but did not.” App. 191–192.
Instructing the jury, the judge explained:
“If you do not unanimously find the existence of the ag-
gravating circumstance as set forth on the form [murder
during the commission of an attempted armed robbery],
you do not need to go any further.
“If you find unanimously the existence of a statutory
aggravating circumstance . . . you will go further and
continue your deliberations.
“Once you have unanimously found and signed as to
the presence of an aggravated circumstance, you then
further deliberate, and determine whether or not Wes-
ley Aaron Shafer should be sentence[d] to life imprison-
ment or death.” App. 202.
The judge twice told the jury, quoting words from § 16–3–
20(A), that “life imprisonment means until the death of the
defendant.” App. 201; see App. 209. In line with his prior
rulings, the judge did not instruct that a life sentence, if
recommended by the jury, would be without parole. In the
concluding portion of his charge, he told the jury that “the
sentence you send to me by way of a recommendation will
in fact be the sentence that the court imposes on the defend-
ant.” App. 215. After the judge instructed the jury, the
defense once more renewed its “objection to the statutory

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language [on parole ineligibility] not being charged,” App.
221, and the judge again overruled the objection, App. 222.
Three hours and twenty-five minutes into its sentencing
deliberations, the jury sent a note to the trial judge contain-
ing two questions:
“1) Is there any remote chance for someone convicted
of murder to become elig[i]ble for parole?
“2) Under what conditions would someone convicted for
murder be elig[i]ble.” App. 253.
Shafer’s counsel urged the court to read to the jury the fol-
lowing portion of § 16–3–20(A):
“If the State seeks the death penalty and a statutory
aggravating circumstance is found beyond a reasonable
doubt . . . and a recommendation of death is not made,
the trial judge must impose a sentence of life imprison-
ment. For purposes of this section, ‘life imprisonment’
means until death of the offender. No person sen-
tenced to life imprisonment pursuant to this section
is eligible for parole, community supervision, or any
early release program, nor is the person eligible to
receive any work credits, education credits, good
conduct credits, or any other credits that would re-
duce the mandatory life imprisonment required by
this section.” App. 226 (emphasis added).
He argued that the court’s charge, which partially quoted
from § 16–3–20 (above in italics), but omitted the provision’s
concluding sentence (above in boldface), had left the jurors
confused about Shafer’s parole eligibility. App. 226. The
State adhered to its position that “the jury should not be
informed as to any parole eligibility.” App. 223. South
Carolina law, the prosecutor insisted, required the judge to
“instruct the jury that it shall not consider parole eligibility
in reaching its decision, and that the term life imprisonment
and a death sentence should be understood in their ordinary
and plain meaning.” App. 223–224.

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The trial judge decided “not . . . to charge the jury about
parole ineligibility,” App. 229, and informed counsel that he
would instruct:
“Your consideration is restricted to what sentence to
recommend. I will, as trial judge, impose the sentence
you recommend. Section 16–3–20 of the South Carolina
Code of Laws provides that for the purpose of this
section life imprisonment means until the death of the
offender. Parole eligibility is not for your consider-
ation.” App. 236.
Shafer’s counsel asked the judge “to take off the language of
parole eligibility.” App. 236. The statement that “parole
eligibility is not to be considered by [the jury],” counsel ar-
gued, “impl[ies] that it is available.” App. 236; see App. 239
(Shafer’s counsel reiterated: “[I]f you tell them they can’t
consider parole eligibility . . . that certainly implies that he
may be eligible.”).
Following counsels’ arguments, and nearly an hour after
the jury tendered its questions, the trial judge instructed:
“Section 16–3–20 of our Code of Laws as applies to
this case in the process we’re in, states that, quote, for
the purposes of this section life imprisonment means
until the death of the offender, end quote.
“Parole eligibility or ineligibility is not for your con-
sideration.” App. 240.
The jury returned some 80 minutes later. It unanimously
found beyond a reasonable doubt the aggravating factor of
murder while attempting armed robbery, and recommended
the death penalty. App. 242–243. The jury was polled, and
each member indicated his or her assent to the aggravated
circumstance finding and to the death penalty recommenda-
tion. App. 243–248. Defense counsel asked that the jury
be polled on “the specific question as to whether parole eligi-
bility, their belief therein, gave rise to the verdict,” and
“whether juror number 233 who works for probation and pa-

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role, expressed personal knowledge in the jury’s deliberation
outside of the evidence and the law given.” App. 248. The
judge denied both requests and imposed the death sentence.
App. 248, 251.2
Shafer appealed his death sentence to the South Carolina
Supreme Court. Noting our decision in Simmons, the
South Carolina Supreme Court acknowledged that “[w]hen
the State places the defendant’s future dangerousness at
issue and the only available alternative sentence to the death
penalty is life imprisonment without parole, due process enti-
tles the defendant to inform the jury he is parole ineligible.”
340 S. C., at 297–298, 531 S. E. 2d, at 528. Without consid-
ering whether the prosecutor’s evidentiary submissions or
closing argument in fact placed Shafer’s future dangerous-
ness at issue, the court held Simmons generally inapplicable
to South Carolina’s “new sentencing scheme.” Under that
scheme, life without the possibility of parole and death are
not the only authorized sentences, the court said, for there
is a third potential sentence, “a mandatory minimum thirty
year sentence.” 340 S. C., at 298, 531 S. E. 2d, at 528 (citing
State v. Starnes, 340 S. C. 312, 531 S. E. 2d 907 (2000) (de-
cided the same day as Shafer)).3
2 The judge also sentenced Shafer to consecutive terms of 20 years in
prison for the attempted armed robbery and 5 years in prison for the
criminal conspiracy. App. 251–252.
3 South Carolina’s “new” sentencing scheme changed the punishments
available for a capital murder conviction that did not result in a death
sentence. The capital sentencing law in effect at the time we decided
Simmons read: “A person who is convicted of or pleads guilty to murder
must be punished by death or by imprisonment for life and is not eligible
for parole until the service of twenty years; provided, however, that when
the State seeks the death penalty and an aggravating circumstance is spe-
cifically found beyond a reasonable doubt . . . , and a recommendation of
death is not made, the court must impose a sentence of life imprisonment
without eligibility for parole until the service of thirty years.” S. C. Code
Ann. § 16–3–20(A) (Supp. 1993). What made Simmons parole ineligible
was the provision stating: “The board must not grant parole nor is parole
authorized to any prisoner serving a sentence for a second or subsequent
conviction, following a separate sentencing for a prior conviction, for vio-

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Shafer had urged that a Simmons instruction was war-
ranted under the new sentencing scheme, for when the jury
serves as sentencer, i. e., when it finds a statutory aggravat-
ing circumstance, sentencing discretion is limited to death or
life without the possibility of parole. See 340 S. C., at 298,
531 S. E. 2d, at 528. The South Carolina Supreme Court
read Simmons differently. In its view, “Simmons requires
the trial judge instruct the jury the defendant is parole ineli-
gible only if no other sentence than death, other than life
without the possibility of parole, is legally available to the
defendant.” 340 S. C., at 298, 531 S. E. 2d, at 528 (emphasis
in original) (citing Simmons, 512 U. S., at 178 (O’Connor, J.,
concurring in judgment)). “At the time [Shafer’s] jury
began its deliberations,” the court observed, “three alter-
native sentences were available”; “[s]ince one of these al-
ternatives to death was not life without the possibility of
parole,” the court concluded, “Simmons was inapplicable.”
340 S. C., at 299, 531 S. E. 2d, at 528.
Chief Justice Finney dissented. “[T]he overriding princi-
ple to be drawn from [Simmons],” he stated, “is that due
process is violated when a jury’s speculative misunderstand-
ing about a capital defendant’s parole eligibility is allowed to
go uncorrected.” Id., at 310, 531 S. E. 2d, at 534. Due proc-
ess mandates reversal here, he concluded, because “the jury’s
inquiry prompted a misleading response which suggested pa-
role was a possibility.” Ibid. Moreover, Chief Justice Fin-
ney added, when “a capital jury inquires about parole,” id.,
at 310, n. 2, 531 S. E. 2d, at 534, n. 2, even if the question “is
simply one of policy, as the majority suggests [it is], then
why not adopt a policy which gives the jurors the simpl[e]
truth: no parole.” Id., at 311, 531 S. E. 2d, at 534.
lent crimes . . . .” § 24–21–640. This latter provision has not been
amended; however, it did not apply to Shafer. Here, we consider whether
South Carolina’s wholesale elimination of parole for capital defendants sen-
tenced to life in prison, see S. C. Code Ann. § 16–3–20 (2000 Cum. Supp.),
described supra, at 40–41, requires a Simmons instruction in all South
Carolina capital cases in which future dangerousness is “at issue.”

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We granted certiorari, 530 U. S. 1306 (2000), to determine
whether the South Carolina Supreme Court properly held
Simmons inapplicable to the State’s current sentencing re-
gime. We conclude that South Carolina’s Supreme Court
misinterpreted Simmons, and we therefore reverse that
court’s judgment.
II
South Carolina has consistently refused to inform the jury
of a capital defendant’s parole eligibility status.4 We first
confronted this practice in Simmons. The South Carolina
sentencing scheme then in effect, S. C. Code Ann. §§ 16–3–
20(A) and 24–21–610 (Supp. 1993), did not categorically pre-
clude parole for capital defendants sentenced to life impris-
onment, see supra, at 46–47, n. 3. Simmons, however, was
parole ineligible under that scheme because of prior convic-
tions for crimes of violence. See § 24–21–640; Simmons, 512
U. S., at 156 (plurality opinion); id., at 176 (O’Connor, J.,
concurring in judgment). Simmons’ jury, in a note to the
judge during the penalty phase deliberations, asked: “Does
the imposition of a life sentence carry with it the possibility
of parole?” Id., at 160 (plurality opinion). Over defense
counsel’s objection, the trial judge in Simmons instructed:
“Do not consider parole or parole eligibility [in reaching your
4 At the time we decided Simmons v. South Carolina, 512 U. S. 154
(1994), South Carolina was one of only three States—Pennsylvania and
Virginia were the others—that “ha[d] a life-without-parole sentencing al-
ternative to capital punishment for some or all convicted murderers but
refuse[d] to inform sentencing juries of th[at] fact.” Id., at 168, n. 8.
Since Simmons, Virginia has abandoned this practice. Yarbrough v.
Commonwealth, 258 Va. 347, 374, 519 S. E. 2d 602, 616 (1999) (“[W]e hold
that in the penalty-determination phase of a trial where the defendant has
been convicted of capital murder, in response to a proffer of a proper
instruction from the defendant prior to submitting the issue of penalty-
determination to the jury or where the defendant asks for such an instruc-
tion following an inquiry from the jury during deliberations, the trial court
shall instruct the jury that the words ‘imprisonment for life’ mean ‘impris-
onment for life without possibility of parole.’ ”).

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verdict]. That is not a proper issue for your consideration.”
Ibid. After receiving this response from the court, Sim-
mons’ jury returned a sentence of death, which Simmons un-
successfully sought to overturn on appeal to the South Caro-
lina Supreme Court. Id., at 160–161.
Mindful of the “longstanding practice of parole availabil-
ity,” id., at 177 (O’Connor, J.), we recognized that Simmons’
jury, charged to chose between death and life imprisonment,
may have been misled. Given no clear definition of “life im-
prisonment” and told not to consider parole eligibility, that
jury “reasonably may have believed that [Simmons] could be
released on parole if he were not executed.” Id., at 161 (plu-
rality opinion); see id., at 177–178 (O’Connor, J.). It did not
comport with due process, we held, for the State to “secur[e]
a death sentence on the ground, at least in part, of [defend-
ant’s] future dangerousness, while at the same time conceal-
ing from the sentencing jury the true meaning of its [only]
noncapital sentencing alternative, namely, that life imprison-
ment meant life without parole.” Id., at 162 (plurality opin-
ion); see id., at 178 (O’Connor, J.) (“Where the State puts
the defendant’s future dangerousness in issue, and the only
available alternative sentence to death is life imprisonment
without possibility of parole, due process entitles the defend-
ant to inform the capital sentencing jury—by either argu-
ment or instruction—that he is parole ineligible.”).
As earlier stated, see supra, at 46–47, the South Carolina
Supreme Court held Simmons “inapplicable under the
[State’s] new sentencing scheme,” 340 S. C., at 298, 531 S. E.
2d, at 528. Simmons is not triggered, the South Carolina
court said, unless life without parole is “the only legally
available sentence alternative to death.” 340 S. C., at 298,
531 S. E. 2d, at 528. Currently, the court observed, when a
capital case jury begins its sentencing deliberations, three
alternative sentences are available: “1) death, 2) life without
the possibility of parole, or 3) a mandatory minimum thirty
year sentence.” Ibid. “Since one of these alternatives to

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50 SHAFER v. SOUTH CAROLINA
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death [is] not life without the possibility of parole,” the court
concluded, Simmons no longer constrains capital sentencing
in South Carolina. 340 S. C., at 299, 531 S. E. 2d, at 528.
This reasoning might be persuasive if the jury’s sentencing
discretion encompassed the three choices the South Carolina
court identified. But, that is not how the State’s new
scheme works. See supra, at 40–41. Under the law now
governing, in any case in which the jury does not unani-
mously find a statutory aggravator, death is not a permissi-
ble sentence and Simmons has no relevance. In such a case,
the judge alone becomes the sentencer. S. C. Code Ann.
§ 16–3–20(C) (2000 Cum. Supp.). Only if the jury finds an
aggravating circumstance does it decide on the sentence.
Ibid. And when it makes that decision, as was the case in
Simmons, only two sentences are legally available under
South Carolina law: death or life without the possibility of
parole. § 16–3–20(C).
The South Carolina Supreme Court was no doubt correct
to this extent: At the time the trial judge instructed the jury
in Shafer’s case, it was indeed possible that Shafer would
receive a sentence other than death or life without the possi-
bility of parole. That is so because South Carolina, in line
with other States, gives capital juries, at the penalty phase,
discrete and sequential functions. Initially, capital juries
serve as factfinders in determining whether an alleged ag-
gravating circumstance exists. Once that factual threshold
is passed, the jurors exercise discretion in determining the
punishment that ought to be imposed. The trial judge in
Shafer’s case recognized the critical difference in the two
functions. He charged that “[a] statutory aggravating cir-
cumstance is a fact, an incident, a detail or an occurrence,”
the existence of which must be found beyond a reasonable
doubt. App. 203. Turning to the sentencing choice, he re-
ferred to considerations of “fairness and mercy,” and the de-
fendant’s “moral culpability.” App. 204. He also instructed

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that the jury was free to decide “whether . . . for any reason
or no reason at all Mr. Shafer should be sentenced to life
imprisonment rather than to death.” App. 203.
In sum, when the jury determines the existence of a stat-
utory aggravator, a tightly circumscribed factual inquiry,
none of Simmons’ due process concerns arise. There are no
“misunderstanding[s]” to avoid, no “false choice[s]” to guard
against. See Simmons, 512 U. S., at 161 (plurality opinion).
The jury, as aggravating circumstance factfinder, exercises
no sentencing discretion itself. If no aggravator is found,
the judge takes over and has sole authority to impose the
mandatory minimum so heavily relied upon by the South
Carolina Supreme Court. See supra, at 46–47, 49–50. It is
only when the jury endeavors the moral judgment whether
to impose the death penalty that parole eligibility may be-
come critical. Correspondingly, it is only at that stage that
Simmons comes into play, a stage at which South Carolina
law provides no third choice, no 30-year mandatory mini-
mum, just death or life without parole. See Ramdass, 530
U. S., at 169 (Simmons applies where “as a legal matter,
there is no possibility of parole if the jury decides the appro-
priate sentence is life in prison.” (emphasis added)).5 We
therefore hold that whenever future dangerousness is at
issue in a capital sentencing proceeding under South Caroli-
na’s new scheme, due process requires that the jury be in-
formed that a life sentence carries no possibility of parole.
5 Tellingly, the State acknowledged at oral argument that if future dan-
gerousness was a factor, and the jury first reported finding an aggravator
before going on to its sentencing recommendation, a Simmons charge
would at that point be required. Tr. of Oral Arg. 32. We see no signifi-
cant difference between that situation and the one presented here. Nor
does Justice Thomas’ dissent in this case plausibly urge any such distinc-
tion. See post, at 56–58. If the jurors should be told life means no parole
in the hypothesized bifurcated sentencing proceeding, they should be
equally well informed in the actual uninterrupted proceeding.

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52 SHAFER v. SOUTH CAROLINA
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III
South Carolina offers two other grounds in support of the
trial judge’s refusal to give Shafer’s requested parole ineligi-
bility instruction. First, the State argues that the jury was
properly informed of the law on parole ineligibility by the
trial court’s instructions and by defense counsel’s own argu-
ment. Second, the State contends that no parole ineligibil-
ity instruction was required under Simmons because the
State never argued Shafer would pose a future danger to
society. We now turn to those arguments.
A
“Even if this Court finds Simmons was triggered,” the
State urges, “the defense’s closing argument and the judge’s
charge fulfilled the requirements of Simmons.” Brief for
Respondent 38. To support that contention, the State sets
out defense counsel’s closing pleas that, if Shafer’s life is
spared, he will “die in prison” after “spend[ing] his natural
life there.” Id., at 39. Next, the State recites passages
from the trial judge’s instructions reiterating that “life im-
prisonment means until the death of the defendant.” Id.,
at 40.
The South Carolina Supreme Court, we note, never sug-
gested that counsel’s arguments or the trial judge’s instruc-
tions satisfied Simmons. That court simply held Simmons
inapplicable under the State’s new sentencing scheme. 340
S. C., at 298, 531 S. E. 2d, at 528. We do not find the State’s
position persuasive. Displacement of “the longstanding
practice of parole availability” remains a relatively recent
development, and “common sense tells us that many jurors
might not know whether a life sentence carries with it the
possibility of parole.” Simmons, 512 U. S., at 177–178
(O’Connor, J.). South Carolina’s situation is illustrative.
Until two years before Shafer’s trial, as we earlier noted, the
State’s law did not categorically preclude parole for capital

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defendants sentenced to life imprisonment. See supra, at
46–47, n. 3, and 48.
Most plainly contradicting the State’s contention, Shafer’s
jury left no doubt about its failure to gain from defense coun-
sel’s closing argument or the judge’s instructions any clear
understanding of what a life sentence means. The jurors
sought further instruction, asking: “Is there any remote
chance for someone convicted of murder to become elig[i]ble
for parole?” App. 253; cf. Simmons, 512 U. S., at 178
(O’Connor, J.) (“that the jury in this case felt compelled to
ask whether parole was available shows that the jurors did
not know whether or not a life-sentenced defendant will be
released from prison”).6
The jury’s comprehension was hardly aided by the court’s
final instruction: “Parole eligibility or ineligibility is not for
your consideration.” App. 240. That instruction did noth-
ing to ensure that the jury was not misled and may well have
been taken to mean “that parole was available but that the
jury, for some unstated reason, should be blind to this fact.”
Simmons, 512 U. S., at 170 (plurality opinion); see 340 S. C.,
at 310, 531 S. E. 2d, at 534 (Finney, C. J., dissenting) (“[T]he
jury’s inquiry prompted a misleading response which sug-
gested parole was a possibility.”); State v. Kelly, 343 S. C.
342, 375, 540 S. E. 2d 851, 863–864 (2001) (Pleicones, J., dis-
senting in part, concurring in part) (“Without the knowledge
that, if aggravators are found, a life sentence is not subject
to being reduced by parole, or any other method of early
release, the jury is likely to speculate unnecessarily on the
possibility of early release, and impose a sentence of death
6 Animating Justice Thomas’ dissent is the conviction that the limited
information defense counsel was allowed to convey and the judge’s charge
“left no room for speculation by the jury.” Post, at 57. The full record
scarcely supports, and we do not share, that conviction. Cf. 340 S. C. 291,
310–311, 531 S. E. 2d 524, 534 (2000) (Finney, C. J., dissenting) (“the jury’s
inquiry prompted a misleading response” that did not reveal the “sim-
pl[e] truth”).

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54 SHAFER v. SOUTH CAROLINA
Opinion of the Court
based upon ‘fear rather than reason.’ ” (quoting Yarbrough v.
Commonwealth, 258 Va. 347, 369, 519 S. E. 2d 602, 613
(1999))).
In sum, a life sentence for Shafer would permit no “parole,
community supervision, . . . early release program, . . . or
any other credits that would reduce the mandatory life
imprisonment,” S. C. Code Ann. § 16–3–20(A) (2000 Cum.
Supp.) (set out supra, at 42, n. 1); this reality was not con-
veyed to Shafer’s jury by the court’s instructions or by the
arguments defense counsel was allowed to make.
B
Ultimately, the State maintains that “[t]he prosecution did
not argue future dangerousness,” so the predicate for a Sim-
mons charge is not present here. Brief for Respondent 42.
That issue is not ripe for our resolution.
In the trial court, the prosecutor and defense counsel dif-
fered on what it takes to place future dangerousness “at
issue.” The prosecutor suggested that the State must
formally argue future dangerousness. App. 161. Defense
counsel urged that once the prosecutor introduces evidence
showing future dangerousness, the State cannot avoid a Sim-
mons charge by saying the point was not argued or calling
the evidence by another name. See App. 161–162.
As earlier recounted, the trial judge determined that fu-
ture dangerousness was not at issue, but acknowledged, at
one point, that the prosecutor had come close to crossing the
line. See supra, at 41–42, 43. The South Carolina Supreme
Court, in order to rule broadly that Simmons no longer
governs capital sentencing in the State, apparently assumed,
arguendo, that future dangerousness had been shown at
Shafer’s sentencing proceeding. See supra, at 46–47; cf.
Kelly, 343 S. C., at 363, 540 S. E. 2d, at 857 (recognizing
that future dangerousness is an issue when it is “a logical
inference from the evidence” or was “injected into the case
through the State’s closing argument”). Because the South

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55 Cite as: 532 U. S. 36 (2001)
Thomas, J., dissenting
Carolina Supreme Court did not home in on the question
whether the prosecutor’s evidentiary submissions or closing
argument in fact placed Shafer’s future dangerousness at
issue, we leave that question open for the state court’s atten-
tion and disposition.
* * *
For the reasons stated, the judgment of the South Carolina
Supreme Court is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Scalia, dissenting.
While I concede that today’s judgment is a logical exten-
sion of Simmons v. South Carolina, 512 U. S. 154 (1994),
I am more attached to the logic of the Constitution, whose
Due Process Clause was understood as an embodiment of
common-law tradition, rather than as authority for fed-
eral courts to promulgate wise national rules of criminal
procedure.
As I pointed out in Simmons, that common-law tradition
does not contain special jury-instruction requirements for
capital cases. Today’s decision is the second page of the
“whole new chapter” of our improvised “ ‘death-is-different’
jurisprudence” that Simmons began. Id., at 185 (Scalia,
J., dissenting). The third page (or the fourth or fifth) will
be the (logical-enough) extension of this novel requirement
to cases in which the jury did not inquire into the possibility
of parole. Providing such information may well be a good
idea (though it will sometimes harm rather than help the
defendant’s case)—and many States have indeed required it.
See App. B to Brief for Petitioner. The Constitution, how-
ever, does not. I would limit Simmons to its facts.
Justice Thomas, dissenting.
For better or, as I believe, worse, the majority’s decision
in this case is the logical next step after Simmons v. South

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56 SHAFER v. SOUTH CAROLINA
Thomas, J., dissenting
Carolina, 512 U. S. 154 (1994). Now, whenever future dan-
gerousness is placed at issue and the jury’s potential sentenc-
ing choice is between life without parole and death, the trial
court must instruct the jury on the impossibility of release
even if there is an alternative sentence available to the court
under which the defendant could be released. However,
even accepting that sentencing courts in South Carolina
must now permit the jury to learn about the impossibility
of parole when life imprisonment is a sentencing possibility,
I believe that the court’s instructions and the arguments
made by counsel in Shafer’s case were sufficient to inform
the jury of what “life imprisonment” meant for Shafer. I
therefore respectfully dissent.
In Simmons, a majority of this Court was concerned that
the jury in Simmons’ trial reasonably could have believed
that, if he were sentenced to life, he would be eligible for
parole. See id., at 161 (plurality opinion); id., at 177–178
(O’Connor, J., concurring in judgment). Therefore, Sim-
mons’ defense to future dangerousness—that because he sex-
ually assaulted only elderly women, he would pose no danger
to fellow inmates, see id., at 157 (plurality opinion)—would
not have been effective. To correct the jury’s possible mis-
understanding of the availability of parole, Simmons re-
quested several jury instructions, including one that would
explain that, if he were sentenced to life imprisonment, “ ‘he
actually w[ould] be sentenced to imprisonment in the state
penitentiary for the balance of his natural life.’ ” Id., at 160.
The trial court rejected this instruction and instead ambigu-
ously informed the jury that the term life imprisonment is
to be understood according to its “ ‘plain and ordinary mean-
ing,’ ” which did “nothing to dispel the misunderstanding
reasonable jurors may have about the way in which any par-
ticular State defines ‘life imprisonment.’ ” Id., at 169–170.
In this case, by contrast, the judge repeatedly explained
that “life imprisonment means until the death of the defend-
ant.” App. 201. The judge defined “life imprisonment” as

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57 Cite as: 532 U. S. 36 (2001)
Thomas, J., dissenting
“incarceration of the defendant until his death,” id., at 209,
and informed the jury that, if it chose the punishment of
life imprisonment, the verdict form would read “ ‘We, the
jury . . . unanimously recommend that the defendant, Wesley
Aaron Shafer, be imprisoned in the state penitentiary for the
balance of his natural life.’ ” Id., at 213–214. Emphasizing
this very point, Shafer’s counsel argued to the jury that
Shafer would never leave prison if he received a life sen-
tence. See id., at 192 (“The question is will the State exe-
cute him or will he just die in prison”); id., at 194 (“putting
a 19 year old in prison until he is dead” and “you can put
him some place until he is dead”); id., at 198 (“When they
say give [him] life, he’s not going home. . . . I’m just asking
for the smallest amount of mercy it takes to make a man, a
child spend the rest of his life in prison”).
Given these explanations of what life imprisonment means,
which left no room for speculation by the jury, I can only
infer that the jury’s questions regarding parole referred not
to Shafer’s parole eligibility in the event the jury sentenced
Shafer to life, but rather to his parole eligibility in the event
it did not sentence him at all. In fact, both of the jury’s
questions referred only to parole eligibility of someone “con-
victed of murder,” id., at 239–240 (“ ‘[I]s there any remote
chance that someone convicted of murder could become eligi-
ble for parole’ ”); id., at 240 (“ ‘[U]nder what conditions would
someone convicted for murder be eligible [for parole]’ ”),
rather than parole eligibility of someone sentenced to life
imprisonment. Under South Carolina law, if the jury does
not find an aggravating circumstance, someone convicted of
murder could be sentenced to a term of 30 years’ imprison-
ment or greater. See S. C. Code Ann. § 16–3–20(C) (2000
Cum. Supp.). If the jury thought Shafer’s release from
prison was a possibility in the event the judge sentenced
him, they would have been correct. To be sure, under South
Carolina’s sentencing scheme, the jury did not need to know
what sentencing options were available to the judge in the

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58 SHAFER v. SOUTH CAROLINA
Thomas, J., dissenting
event the jury did not find an aggravating circumstance.
But that is precisely why the trial court’s answers were ap-
propriate. It explained what “life” meant for purposes of
the jury’s sentencing option, and then added that “[p]arole
eligibility or ineligibility is not for your consideration.”
App. 240.
The majority appears to believe that it could develop jury
instructions that are more precise than those offered to Shaf-
er’s jury. It may well be right. But it is not this Court’s
role to micromanage state sentencing proceedings or to de-
velop model jury instructions. I would decline to interfere
further with matters that the Constitution leaves to the
States.