KELLY v. SOUTH CAROLINA

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Syllabus
KELLY v. SOUTH CAROLINA
certiorari to the supreme court of south carolina
No. 00–9280. Argued November 26, 2001—Decided January 9, 2002
After convicting petitioner Kelly of murder and related crimes, a South
Carolina jury was asked to determine whether any aggravating factors
had been shown and, if so, to recommend a sentence of death or life
imprisonment. At the sentencing proceeding, the prosecutor presented
testimony that Kelly had made a knife while in prison and taken part
in an escape attempt with plans to hold a female guard hostage. The
prosecutor’s cross-examination of a psychologist brought out evidence
of Kelly’s sadism at an early age and his current desires to kill anyone
who irritated him. In his closing argument, the prosecutor spoke of
Kelly as a “dangerous” “bloody” “butcher.” Relying on the holding of
Simmons v. South Carolina, 512 U. S. 154—that when “a capital defend-
ant’s future dangerousness is at issue, and the only sentencing alterna-
tive to death . . . is life imprisonment without possibility of parole, due
process entitles the defendant ‘to inform the jury of [his] parole ineligi-
bility,’ ” Shafer v. South Carolina, 532 U. S. 36, 39—defense counsel re-
quested a jury instruction stating that Kelly would be ineligible for
parole if he received a life sentence. The trial court refused, saying
that the State’s evidence went to Kelly’s character and characteristics,
not to future dangerousness. The jury recommended a death sentence.
In affirming the sentence, the State Supreme Court held Simmons inap-
posite for two reasons: state law provided the jury with a third sentenc-
ing alternative, and future dangerousness was not at issue.
Held: Kelly was entitled to a jury instruction that he would be ineligible
for parole under a life sentence. The State Supreme Court’s statement
that Simmons is inapplicable under South Carolina’s new sentencing
scheme because life without the possibility of parole is not the only le-
gally available sentence alternative to death mistakes the relationship
of Simmons to the state sentencing scheme. Although a murder de-
fendant facing a possible death sentence can, under some circumstances,
receive a sentence less than life imprisonment, under the state scheme
a jury now makes a sentencing recommendation only if the jurors find
an aggravating circumstance. When they do make a recommendation,
their only alternatives are death or life without parole. Thus, the state
court’s reasoning is not to the point. The court also erred in ruling
that Kelly’s future dangerousness is not at issue. The evidence and
argument cited by the court are flatly at odds with that conclusion. The

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Syllabus
court saw the evidence as going only to Kelly’s behavior in prison, or to
his proclivity to escape from it, and overlooked the fact that evidence of
violent behavior in prison can raise a strong implication of generalized
future dangerousness, Simmons, supra, at 171. A jury hearing evi-
dence of a defendant’s propensity for violence reasonably will conclude
that he presents a risk of violent behavior, whether locked up or free,
and whether free as a fugitive or as a parolee. Evidence of future dan-
gerousness under Simmons is evidence with a tendency to prove dan-
gerousness in the future; its relevance to that point does not disappear
merely because it might support other inferences or be described in
other terms. The prosecutor accentuated the clear inference of future
dangerousness raised by the evidence and placed the case within the
four corners of Simmons. Although his characterizations of butchery
went to retribution, that did not make them any the less arguments that
Kelly would be dangerous down the road. Thus was Kelly’s jury, like
its predecessor in Simmons, invited to infer “that petitioner is a vicious
predator who would pose a continuing threat to the community.” Sim-
mons, supra, at 176. It is not dispositive that Kelly’s jury did not ask
the judge for further instruction on parole eligibility, whereas the Sim-
mons and Shafer juries did. A trial judge’s duty is to give instructions
sufficient to explain the law, an obligation that exists independently of
any question from the jurors or any other indication of perplexity on
their part. Nor is there any reason to believe that Kelly’s jury was
better informed than Simmons’s or Shafer’s on the matter of parole eligi-
bility. Pp. 251–258.
343 S. C. 350, 540 S. E. 2d 851, reversed and remanded.
Souter, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed
a dissenting opinion, in which Kennedy, J., joined, post, p. 258. Thomas,
J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 262.
David I. Bruck, by appointment of the Court, 534 U. S.
809, argued the cause for petitioner. With him on the briefs
was Robert M. Dudek.
S. Creighton Waters, Assistant Attorney General of South
Carolina, argued the cause for respondent. With him on
the brief were Charles M. Condon, Attorney General, John
W. McIntosh, Chief Deputy Attorney General, and Donald
J. Zelenka, Assistant Deputy Attorney General.

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248 KELLY v. SOUTH CAROLINA
Opinion of the Court
Justice Souter delivered the opinion of the Court.
Last Term, we reiterated the holding of Simmons v. South
Carolina, 512 U. S. 154 (1994), that when “a capital defend-
ant’s future dangerousness is at issue, and the only sentenc-
ing alternative to death available to the jury is life imprison-
ment without possibility of parole, due process entitles the
defendant ‘to inform the jury of [his] parole ineligibility,
either by a jury instruction or in arguments by counsel.’ ”
Shafer v. South Carolina, 532 U. S. 36, 39 (2001) (quoting
Ramdass v. Angelone, 530 U. S. 156, 165 (2000) (plurality
opinion)). In this case, the Supreme Court of South Caro-
lina held Simmons inapposite for two reasons: state law pro-
vided the jury with a third sentencing alternative, and future
dangerousness was not at issue. Each reason was error.
I
In 1996, the State of South Carolina indicted petitioner
William Kelly for an extraordinarily brutal murder, kidnap-
ing, and armed robbery, and for possession of a knife during
the commission of a violent crime. The jury convicted Kelly
on all charges.
The trial then proceeded to a separate sentencing phase
calling for the jury to determine whether any aggravating
factor had been shown and, if so, to choose between recom-
mendations of death or life imprisonment. The prosecutor
began by telling the jurors that “I hope you never in your
lives again have to experience what you are experiencing
right now. Being some thirty feet away from such a person.
Murderer.” App. 64. He went on to present testimony
that while in prison, Kelly had made a knife (or shank) and
had taken part in an escape attempt, even to the point of
planning to draw a female guard into his cell where he would
hold her hostage. See id., at 129–132, 140–141. The prose-
cutor’s cross-examination of a psychologist brought out evi-

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Opinion of the Court
dence of Kelly’s sadism at an early age, see id., at 218, and
his inclination to kill anyone who rubbed him the wrong way,
see id., at 195.
After presentation of this evidence but before closing ar-
guments, Kelly’s counsel relied on Simmons in requesting
the judge to instruct the jurors that if Kelly received a sen-
tence of life imprisonment, he would be ineligible for parole.
The instruction she sought was a near-verbatim excerpt of
S. C. Code Ann. § 16–3–20 (2000 Cum. Supp.):
“ ‘[L]ife imprisonment’ means imprisonment until the
death of the offender. No person sentenced to life im-
prisonment is eligible for parole, community supervision,
or any early release program, nor is the person eligible
to receive any work credits, education credits, good con-
duct credits, or any other credits that would reduce the
mandatory life imprisonment required by law.” 343
S. C. 350, 360, 540 S. E. 2d 851, 856 (2001).
The prosecutor objected that “I’m not going to argue future
dangerous[ness]. So that takes it out of Simmons anyhow.”
App. 245. The defense responded that “the State ha[d]
already raised future dangerousness” through presentation
of sentencing phase evidence, “calling correctional officers to
testify to an escape attempt, to testify to the fact that [Kelly]
had possession of a shank, by calling inmates who testified
to [Kelly’s] behavior in the jail . . . [and] his plan to take a
female guard hostage.” Ibid. Defense counsel argued that
the State’s cross-examination of the psychologist reinforced
the other evidentiary indications of Kelly’s future dangerous-
ness. Id., at 245–246. The trial court denied the requested
instruction, saying that the State’s evidence went to Kelly’s
character and characteristics, not to future dangerousness.
Id., at 249.
The sentencing proceeding then closed with arguments in
which the prosecutor spoke of Kelly as “the butcher of Bates-

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burg,” “Bloody Billy,” and “Billy the Kid.” Id., at 267–268.
The prosecutor told the jurors that “[Kelly] doesn’t have any
mental illness. He’s intelligent. . . . He’s quick-witted.
Doesn’t that make somebody a little more dangerous—” id.,
at 269. Defense counsel interrupted the prosecutor in mid-
sentence with an objection, presumably for raising Kelly’s
future dangerousness. The prosecutor nonetheless went on
immediately, “—for this lady, this crime on January the 5th,
doesn’t that make him more unpredictable for [the victim]
Shirley Shealy.” Ibid. Kelly’s counsel did not renew her
objection, and the trial court never ruled on the objection
entered.1 The prosecutor continued that “murderers will
be murderers. And he is the cold-blooded one right over
there.” Id., at 272.
After the closing arguments, the trial judge instructed the
jury that in choosing between recommendations of death and
life imprisonment, it should consider the possible presence of
five statutory aggravating circumstances, and three possible
statutory mitigating circumstances. The judge explained
“that the terms ‘life imprisonment’ and ‘death sentence’ are
to be understood in this ordinary and plain meaning.” Id.,
at 289. But, in accordance with the earlier ruling, the court
did not say that under South Carolina law, a convicted mur-
derer sentenced to life imprisonment was ineligible for pa-
role, nor did the court instruct that Kelly’s future dangerous-
ness was not in issue. At the end of the charge, Kelly’s
counsel renewed her objection to the court’s refusal to give
her requested Simmons instruction or, in the alternative,
to inform the jury that the State had stipulated that future
dangerousness was not in issue in the case. App. 304.
1 Although the State Supreme Court referred to this portion of the
prosecutor’s argument, it did not indicate that defense counsel had ob-
jected between the prosecutor’s description of Kelly as “dangerous” and
his subsequent characterization of Kelly as dangerous to the victim. 343
S. C. 350, 360, 540 S. E. 2d 851, 856 (2001).

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Opinion of the Court
After deliberating for 43 minutes, the jury found five statu-
tory aggravating circumstances beyond a reasonable doubt
and returned a recommendation of death, id., at 305–307, to
which the trial court acceded.
On appeal to the Supreme Court of South Carolina, Kelly
assigned error to the trial court’s refusal to instruct that he
would be ineligible for parole under a life sentence. The
State Supreme Court ruled otherwise and gave two alterna-
tive grounds for affirming the sentence. First, it followed
the trial court in saying that the State’s evidence at sentenc-
ing did not raise future dangerousness and so did not trigger
Simmons: “[W]e agree with the trial court that the State’s
evidence at sentencing did not implicate future dangerous-
ness. . . . In our opinion, the evidence presented by the State
in the penalty phase was designed to show that Kelly would
not adapt to prison life . . . .” 343 S. C., at 362, 540 S. E. 2d,
at 857. Second, relying on its own ruling in State v. Shafer,
340 S. C. 291, 531 S. E. 2d 524 (2000), rev’d, Shafer v. South
Carolina, 532 U. S. 36 (2001), the state court held that
Simmons had no application to the sentencing regime in
place at Kelly’s trial. 343 S. C., at 364, 540 S. E. 2d, at 858.
The State Supreme Court committed error on each point.
We granted certiorari, 533 U. S. 928 (2001), and now reverse.
II
We take the State Supreme Court’s reasons out of order,
for the second one can be answered with little more than
citation to Shafer, in which we reversed a South Carolina
judgment last Term. The state court said that “Simmons is
inapplicable under [South Carolina’s] new sentencing scheme
because life without the possibility of parole is not the only
legally available sentence alternative to death.” 343 S. C.,
at 364, 540 S. E. 2d, at 858. That statement mistakes the
relationship of Simmons to the state sentencing scheme. It
is true that a defendant charged with murder carrying the

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possibility of a death sentence can, under some circum-
stances, receive a sentence less than life imprisonment.
But, as we explained in Shafer, under the South Carolina
sentencing scheme a jury now makes a sentencing recom-
mendation only if the jurors find the existence of an aggra-
vating circumstance. When they do make a recommenda-
tion, their only alternatives are death or life without parole.
532 U. S., at 49–50.2 We therefore hold, as we did in Shafer,
that the state court’s reasoning is not to the point.
The State Supreme Court’s first ground, that Kelly’s fu-
ture dangerousness was not “at issue,” is unsupportable on
the record before us. It is not that the state court failed to
pose the legal issue accurately, for in considering the applica-
bility of Simmons it asked whether Kelly’s future dangerous-
ness was “a logical inference from the evidence,” or was “in-
jected into the case through the State’s closing argument.”
343 S. C., at 363, 540 S. E. 2d, at 857; see also Shafer, supra,
at 54–55 (whether prosecutor’s evidence or argument placed
future dangerousness in issue); Simmons, 512 U. S., at 165,
171 (plurality opinion) (future dangerousness in issue be-
cause “State raised the specter of . . . future dangerousness
generally” and “advanc[ed] generalized arguments regarding
the [same]”); id., at 174 (Ginsburg, J., concurring); id., at 177
(O’Connor, J., concurring in judgment). The error, rather,
2 Under South Carolina law, capital jurors first must decide whether the
State has proven the existence of any statutory aggravating circumstance
beyond a reasonable doubt. If the jury cannot agree unanimously on the
presence of such a circumstance, it cannot make a sentencing recommenda-
tion; the judge is then charged with sentencing the defendant either to life
imprisonment without parole or to a prison term of at least 30 years.
S. C. Code Ann. §§ 16–3–20(B), (C) (2000 Cum. Supp.); State v. Starnes,
340 S. C. 312, 328, 531 S. E. 2d 907, 916 (2000). But, if the jury does
unanimously find a statutory aggravating circumstance, it recommends
one of two possible sentences: death or life imprisonment without the pos-
sibility of parole. §§ 16–3–20(A), (B). The jury has no other sentencing
option.

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was on the facts: the evidence and argument cited by the
state court are flatly at odds with the view that “future dan-
gerousness was not an issue in this case.” 343 S. C., at 363,
540 S. E. 2d, at 857.
The court acknowledged the prosecutor’s “[e]vidence that
Kelly took part in escape attempts and carried a shank,” id.,
at 362, 540 S. E. 2d, at 857, and that “he had been caught
carrying a weapon and planning or participating in escape
attempts,” ibid. The court concluded, however, that this ev-
idence was not the sort contemplated by Simmons, that is,
evidence demonstrating future danger “ ‘if released from
prison.’ ” 343 S. C., at 362, n. 8, 540 S. E. 2d, at 857, n. 8
(quoting Simmons, supra, at 163) (emphasis added by state
court). The court saw the evidence as going only to Kelly’s
likely behavior in prison, or to his proclivity to escape from
it; the state court said that Kelly was allowed to rebut this
evidence of his inability to adapt to prison life, but that
explaining parole ineligibility would do nothing to rebut evi-
dence that Kelly was an escape risk. 343 S. C., at 362–363,
540 S. E. 2d, at 857.
Even if we confine the evidentiary consideration to the evi-
dence discussed by the State Supreme Court, the court’s con-
clusion cannot be accepted. To the extent that it thought
that “[e]vidence that Kelly took part in escape attempts and
carried a shank . . . is not the type of future dangerousness
evidence contemplated by Simmons,” id., at 362, 540 S. E.
2d, at 857, it overlooked that evidence of violent behavior in
prison can raise a strong implication of “generalized . . . fu-
ture dangerousness.” Simmons, supra, at 171. (And, of
course, the state court’s reasoning says nothing about the
evidence of the crime, or of Kelly’s sadism generally, and his
mercurial thirst for vengeance.) A jury hearing evidence of
a defendant’s demonstrated propensity for violence reason-
ably will conclude that he presents a risk of violent behavior,

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whether locked up or free, and whether free as a fugitive or
as a parolee.3
The fallacy of the State Supreme Court’s attempt to por-
tray the thrust of the evidence as so unrealistically limited
harks back to a comparable mistake by the trial judge, who
spoke of the evidence as going, not to future dangerousness,
but “to [Kelly’s] character and characteristics.” App. 249.
The error in trying to distinguish Simmons this way lies in
failing to recognize that evidence of dangerous “character”
may show “characteristic” future dangerousness, as it did
here. This, indeed, is the fault of the State’s more general
argument before us, that evidence of future dangerousness
counts under Simmons only when the State “introduc[es]
evidence for which there is no other possible inference but
future dangerousness to society.” Brief for Respondent 27
(emphasis in original). Evidence of future dangerousness
under Simmons is evidence with a tendency to prove dan-
gerousness in the future; its relevance to that point does not
disappear merely because it might support other inferences
or be described in other terms.4
3 The Chief Justice’s dissent correctly notes that a required instruc-
tion on parole eligibility does not bar a prosecutor from arguing danger-
ousness in prison as a ground for choosing the death penalty. See post,
at 261. The plurality acknowledged this possibility in Simmons v. South
Carolina, 512 U. S. 154, 165, n. 5 (1994) (“[T]he fact that a defendant is
parole ineligible does not prevent the State from arguing that the defend-
ant poses a future danger”); see also id., at 177 (O’Connor, J., concurring
in judgment) (when the defendant “bring[s] his parole ineligibility to the
jury’s attention” “the prosecution is free to argue that the defendant
would be dangerous in prison”). But the plurality also recognized that
even if a “State [were] free to argue that the defendant will pose a danger
to others in prison,” id., at 165, n. 5, the State was not free to “mislead
the jury by concealing accurate information about the defendant’s parole
ineligibility,” ibid.
4 As The Chief Justice says, see post, at 261 (dissenting opinion), it
may well be that the evidence in a substantial proportion, if not all, capital
cases will show a defendant likely to be dangerous in the future. See
Simmons, supra, at 163 (plurality opinion) (noting that “prosecutors in
South Carolina, like those in other States that impose the death penalty,

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The prosecutor accentuated the clear implication of future
dangerousness raised by the evidence and placed the case
within the four corners of Simmons. He had already ex-
pressed his hope that the jurors would “never in [their] lives
again have to experience . . . [b]eing some thirty feet away
from such a person” as Kelly. App. 64. The State Supreme
Court made no mention of this, despite its thrust: since the
jurors were unlikely to be spending any time in prison, they
would end up 30 feet away from the likes of Kelly only if he
got out of prison, as he might if parole were possible. The
argument thus echoed the one made in Simmons itself, that
the imposition of the death penalty was an act of “self-
defense.” Both statements “implied that petitioner would
be let out eventually if the jury did not recommend a death
sentence.” 512 U. S., at 178 (O’Connor, J., concurring in
judgment) (emphasis in original).
And there was more. The state court to be sure con-
sidered the prosecutor’s comparison of Kelly to a notorious
serial killer, variously calling him a “dangerous” “bloody”
“butcher.” The court nonetheless thought it could somehow
cordon off these statements as raising nothing more than a
call for retribution. 343 S. C., at 363, 540 S. E. 2d, at 857.
But the import of the argument simply cannot be compart-
mentalized this way. Characterizations of butchery did go
to retribution, but that did not make them any the less argu-
ments that Kelly would be dangerous down the road.5 They
frequently emphasize a defendant’s future dangerousness in their evidence
and argument at the sentencing phase”). But this is not an issue here,
nor is there an issue about a defendant’s entitlement to instruction on a
parole ineligibility law when the State’s evidence shows future dangerous-
ness but the prosecutor does not argue it. The only questions in this case
are whether the evidence presented and the argument made at Kelly’s
trial placed future dangerousness at issue. The answer to each question
is yes, and we need go no further than Simmons in our discussion.
5 Nor, as the State Supreme Court thought, was evidence, elicited by
the prosecution, that Kelly “took part in escape attempts,” 343 S. C., at
362, 540 S. E. 2d, at 857, somehow distinct from indications of dangerous-
ness. It is true that evidence of propensity to escape does not necessarily

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complemented the prosecutor’s submissions that Kelly was
“more frightening than a serial killer,” App. 260, and that
“murderers will be murderers,” id., at 272.6 Thus was Kel-
ly’s jury, like its predecessor in Simmons, invited to infer
“that petitioner is a vicious predator who would pose a con-
tinuing threat to the community.” Simmons, supra, at 176
(O’Connor, J., concurring in judgment).
Perhaps because this is so undeniable, the State in its ar-
gument before us takes a tack never pursued by the state
court, in claiming there was no need for instruction on parole
ineligibility, because “there is nothing whatsoever to indicate
that the jurors were concerned at all with the possibility of
[Kelly’s] future release when they decided death was appro-
priate.” Brief for Respondent 47. But it cannot matter
that Kelly’s jury did not ask the judge for further instruction
on parole eligibility, whereas the Simmons and Shafer juries
did. See Shafer, 532 U. S., at 44; Simmons, supra, at 160.
A trial judge’s duty is to give instructions sufficient to ex-
plain the law, an obligation that exists independently of any
question from the jurors or any other indication of perplexity
on their part. Cf. C. Wright, Federal Practice and Proce-
dure § 485, p. 375 (3d ed. 2000) (“It is the duty of the trial
judge to charge the jury on all essential questions of law,
whether requested or not”). Time after time appellate
courts have found jury instructions to be insufficiently clear
without any record that the jury manifested its confusion;
one need look no further than Penry v. Johnson, 532 U. S. 782
(2001), for a recent example. While the jurors’ questions
in Simmons and Shafer confirmed the inadequacy of the
charges in those cases, in each case it was independently
put future dangerousness at issue, but here, the prosecution proffered evi-
dence of at least one violent escape attempt. The evidence of Kelly’s plan
to take a female guard hostage with a shank underscored a propensity for
violence in addition to a predilection to escape.
6 The latter statement, in fact, speaks not to Kelly’s past conduct, but to
his future deportment.

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significant that “[d]isplacement of ‘the longstanding practice
of parole availability’ remains a relatively recent develop-
ment [in South Carolina], and ‘common sense tells us that
many jurors might not know whether a life sentence carries
with it the possibility of parole.’ ” 532 U. S., at 52 (quoting
Simmons, supra, at 177–178 (O’Connor, J., concurring in
judgment)).7
Nor is there any reason to believe that Kelly’s jury was
better informed than Simmons’s or Shafer’s on the matter of
parole eligibility. The State, to be sure, emphasizes defense
counsel’s opening statement that the jury’s recommendation
would be “the sentence actually imposed and the sentence
that will actually be carried out,” Record 1660, as well as
counsel’s closing, which stressed that Kelly would be in
prison for the rest of his life and would “never see the light
of daylight again,” id., at 2060. The State stresses that the
judge told the jury that the terms “life imprisonment” and
“death sentence” should be understood in their plain and or-
dinary meanings. App. 289.
But the same things could be said of Shafer, where we
explicitly noted defense counsel’s statement to the jury that
Shafer would “ ‘die in prison’ after ‘spend[ing] his natural life
there,’ ” as well as the trial judge’s instructions that “ ‘life
imprisonment means until the death of the defendant.’ ” 532
U. S., at 52 (emphasis deleted). We found these statements
inadequate to convey a clear understanding of Shafer’s pa-
role ineligibility, id., at 53–54,8 and Kelly, no less than Shafer,
was entitled to his requested jury instruction.
7 Whether this history of penology should suffice to require a Simmons
instruction regardless of the details of evidence and argument going to
future dangerousness is a question not raised by this case, in which evi-
dence and argument did place dangerousness in issue.
8 If Kelly’s counsel had read the law verbatim to the jury with the
judge’s manifest approval, that might have sufficed, but the State does not
claim that defense counsel had any such opportunity, and conceded at oral
argument that it is “very unlikely” that the trial judge would have permit-

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258 KELLY v. SOUTH CAROLINA
Rehnquist, C. J., dissenting
The judgment of the Supreme Court of South Carolina is
reversed, and the case is remanded for proceedings not in-
consistent with this opinion.
It is so ordered.
Chief Justice Rehnquist, with whom Justice Ken-
nedy joins, dissenting.
In Simmons v. South Carolina, 512 U. S. 154 (1994), the
prevailing opinion said:
“In a State in which parole is available, the Constitution
does not require (or preclude) jury consideration of that
fact. Likewise, if the prosecution does not argue future
dangerousness, the State may appropriately decide that
parole is not a proper issue for the jury’s consideration
even if the only alternative sentence to death is life im-
prisonment without possibility of parole.
“When the State seeks to show the defendant’s future
dangerousness, however, the fact that he will never be
released from prison will often be the only way that
a violent criminal can successfully rebut the State’s
case. . . . And despite our general deference to state
decisions regarding what the jury should be told about
sentencing, I agree that due process requires that the
defendant be allowed to do so in cases in which the only
available alternative sentence to death is life imprison-
ment without possibility of parole and the prosecution
argues that the defendant will pose a threat to society
in the future.” Id., at 176–177 (O’Connor, J., concur-
ring in judgment).
But today, while purporting to merely “apply” Simmons, the
Court converts a tenable due process holding into a “truth
in sentencing” doctrine which may be desirable policy, but
ted defense counsel to read to the jury the relevant section of the South
Carolina Code. See Tr. of Oral Arg. 51.

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Rehnquist, C. J., dissenting
has almost no connection with the due process rationale of
Simmons.
In some States—Texas, for example, see Tex. Crim. Proc.
Code Ann. §§ 37.071(b) and (g) (2001)—“future dangerous-
ness” is itself a ground for imposing the death penalty in a
capital case. In California v. Ramos, 463 U. S. 992 (1983),
we held that such a system was consistent with the Eighth
Amendment. But South Carolina’s capital punishment sys-
tem does not work that way. There are 11 statutory aggra-
vating factors which may be found by the jury that must be
weighed against mitigating factors.* See S. C. Code Ann.
*The statutory aggravating factors are:
“(1) The murder was committed while in the commission of the follow-
ing crimes or acts:
“(a) criminal sexual conduct in any degree;
“(b) kidnapping;
“(c) burglary in any degree;
“(d) robbery while armed with a deadly weapon;
“(e) larceny with use of a deadly weapon;
“(f) killing by poison;
“(g) drug trafficking as defined in Section 44–53–370(e), 44–53–375(B),
44–53–440, or 44–53–445;
“(h) physical torture; or
“(i) dismemberment of a person.
“(2) The murder was committed by a person with a prior conviction
for murder.
“(3) The offender by his act of murder knowingly created a great risk
of death to more than one person in a public place by means of a weapon
or device which normally would be hazardous to the lives of more than
one person.
“(4) The offender committed the murder for himself or another for the
purpose of receiving money or a thing of monetary value.
“(5) The murder of a judicial officer, former judicial officer, solicitor,
former solicitor, or other officer of the court during or because of the exer-
cise of his official duty.
“(6) The offender caused or directed another to commit murder or com-
mitted murder as an agent or employee of another person.
“(7) The murder of a federal, state, or local law enforcement officer,
peace officer or former peace officer, corrections employee or former cor-

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260 KELLY v. SOUTH CAROLINA
Rehnquist, C. J., dissenting
§ 16–3–20(C) (2001). At the sentencing phase of petitioner’s
trial, the State argued, and the jury found, the statutory ag-
gravators that the murder was committed while in the com-
mission of: kidnaping; burglary; robbery while armed with a
deadly weapon; larceny with use of a deadly weapon; and
physical torture. Once a South Carolina jury has found the
necessary aggravators, it may consider future dangerousness
in determining what sentence to impose.
In the present case, the prosecutor did not argue future
dangerousness—as he did in Simmons—in any meaningful
sense of that term. But the Court says that he need not, in
order for the defendant to invoke Simmons; it is enough if
evidence introduced to prove other elements of the case has
a tendency to prove future dangerousness as well. Gone is
the due process basis for the rule—that where the State ar-
gues 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. Thus, the Simmons rule
is invoked, not in reference to any contention made by the
State, but only by the existence of evidence from which a
jury might infer future dangerousness. And evidence there
will surely be in a case such as the present one, correctly
described by the Court as “an extraordinarily brutal mur-
der.” Ante, at 248.
rections employee, or fireman or former fireman during or because of the
performance of his official duties.
“(8) The murder of a family member of an official listed in subitems
(5) and (7) above with the intent to impede or retaliate against the official.
‘Family member’ means a spouse, parent, brother, sister, child, or person
to whom the official stands in the place of a parent or a person living in
the official’s household and related to him by blood or marriage.
“(9) Two or more persons were murdered by the defendant by one act
or pursuant to one scheme or course of conduct.
“(10) The murder of a child eleven years of age or under.
“(11) The murder of a witness or potential witness committed at any
time during the criminal process for the purpose of impeding or deterring
prosecution of any crime.” S. C. Code Ann. § 16–3–20(C) (2001).

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261 Cite as: 534 U. S. 246 (2002)
Rehnquist, C. J., dissenting
That today’s decision departs from Simmons is evident
from the Court’s rejection of the South Carolina Supreme
Court’s distinction between evidence regarding danger to
fellow inmates and evidence regarding danger to society at
large. Simmons itself recognized this distinction. Imme-
diately after holding that the defendant should be allowed to
show that “he never would be released on parole and thus,
in his view, would not pose a future danger to society,” 512
U. S., at 165 (emphasis added), Simmons noted that “[t]he
State is free to argue that the defendant will pose a danger
to others in prison and that executing him is the only means
of eliminating the threat to the safety of other inmates or
prison staff,” id., at 165, n. 5. See also id., at 177 (O’Con-
nor, J., concurring in judgment) (noting that where a parole
ineligibility instruction is given, “the prosecution is free to
argue that the defendant would be dangerous in prison”).
This makes eminent good sense, for when the State argues
that the defendant poses a threat to his cellmates or prison
guards, it is no answer to say that he never will be released
from prison.
But the test is no longer whether the State argues future
dangerousness to society; the test is now whether evidence
was introduced at trial that raises an “implication” of future
dangerousness to society. Ante, at 253. It is difficult to en-
vision a capital sentencing hearing where the State presents
no evidence from which a juror might make such an infer-
ence. I would hazard a guess that many jurors found the
sheer brutality of this crime—petitioner bound the hands of
the victim (who was six months pregnant) behind her back,
stabbed her over 30 times, slit her throat from ear to ear,
and left dollar bills fastened to her bloodied body—indicative
of petitioner’s future threat to society. Yet all of this evi-
dence was introduced not to prove future dangerousness,
but to prove other elements required by South Carolina law,
including the statutory aggravating factor that the murder
was committed while in the commission of physical torture.

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262 KELLY v. SOUTH CAROLINA
Thomas, J., dissenting
To be sure, the prosecutor’s arguments about the details of
the murder, as well as the violent episodes in prison, demon-
strated petitioner’s evil character. Yet if this were what
Simmons intended with the phrase “future dangerousness,”
it would have held that the Constitution always required an
instruction about parole ineligibility. It plainly did not.
Justice Thomas, with whom Justice Scalia joins,
dissenting.
The Chief Justice, in dissent, concludes that, with the
Court’s opinion, “[g]one is the due process basis for the [Sim-
mons] rule—that 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 260. I write separately because I con-
tinue 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 prose-
cutor argues future dangerousness.
While we were informed in Simmons that the Court’s in-
tent was to create a requirement that would apply in only a
limited number of cases, today’s sweeping rule was an en-
tirely foreseeable consequence of Simmons. See id., at 183.
The decisive opinion 1 noted that “if the prosecution does not
argue future dangerousness, the State may appropriately de-
cide that parole is not a proper issue for the jury’s consider-
1 Justice Blackmun’s plurality opinion in Simmons was joined by three
Members of the Court. Justice O’Connor, joined by The Chief Jus-
tice and Justice Kennedy, provided the necessary votes to sustain the
judgment. Concurring in the judgment, Justice O’Connor therefore
wrote the decisive opinion. See O’Dell v. Netherland, 521 U. S. 151, 158–
159 (1997).

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263 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 dangerous-
ness . . . 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 require-
ment 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 danger-
ousness in issue.” Id., at 176–177. Given such an imprecise
standard, it is not at all surprising that the Court today eas-
ily fits the State’s argument during Kelly’s proceedings into
the universe of arguments that trigger the Simmons re-
quirement. 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 “tend-
ency 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 regard-
ing the defendant’s future dangerousness.” Simmons v. South Carolina,
512 U. S., at 164, 171.

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264 KELLY v. SOUTH CAROLINA
Thomas, J., dissenting
in context, the prosecutor there neither “emphasiz[ed] future
dangerousness as a crucial factor” nor even mentioned “fu-
ture 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 Sim-
mons amounts to hairsplitting, demonstrating that the
Court’s inability to construct a limited rule inhered in Sim-
mons itself. Today, the Court acknowledges that “the evi-
dence 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 circum-
scribed class of crimes such as those that “reflec[t] a con-
sciousness materially more ‘depraved’ than that of any per-
son 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 de-
fendant 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 con-
curring opinions relied, Justice Scalia noted that the prosecutor’s com-
ment 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 “obvi-
ously alluded, neither to defense of the jurors’ own persons, nor specifically
to defense of persons outside the prison walls, but to defense of all mem-
bers 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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265 Cite as: 534 U. S. 246 (2002)
Thomas, J., dissenting
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 to-
day’s opinion technically requires not merely evidence with
this tendency, but argument by the prosecutor, ante, at 254–
255, n. 4. When does a prosecutor not argue the evidence,
and when will argument regarding depravity not also con-
stitute 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.” 512 U. S., at 176 (O’Connor, J., concurring in
judgment).
Today’s decision allows the Court to meddle further in a
State’s sentencing proceedings under the guise that the Con-
stitution requires us to do so. I continue to believe, without
qualification, that “it is not this Court’s 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.