South Carolina's death penalty odyssey continues.

In Kelly v. South Carolina, (1) the Supreme Court dealt, for the fourth time, with that state's determined and malign efforts to deprive juries in capital cases of information relevant to their decisions on whether to sentence defendants to life imprisonment or to impose the death penalty.

South Carolina's Supreme Court odyssey began in 1986 with Skipper v. South Carolina. (2) In that case, the state courts had agreed that an inmate facing death should not be allowed to introduce evidence from his jailers about his good behavior in prison. His lawyer had offered this evidence to rebut prosecution claims that the inmate would "pose disciplinary problems" and "likely rape other prisoners" (3) if he were incarcerated rather than executed, although neither of the claims seems to have been supported by any evidence. (4)

The Supreme Court rebuffed the prosecution's argument. Six justices ruled Skipper had been deprived of his right to present "relevant mitigating evidence," and the remaining three found that he had been deprived of his right to "rebut evidence and argument used against him." (5)

In 1994, the issue returned to the Supreme Court in Simmons v. South Carolina. (6) This time, the prosecution asked a jury to sentence a defendant to death because he posed a danger to society. But the judge did not allow the defense to tell the jurors that Simmons would be sentenced to life in prison without parole if they did not impose the death penalty.

Although the justices could not reach consensus on a majority opinion, seven justices agreed to strike down Simmons's death sentence. Four justices, led by Justice Harry Blackmun, found that when the defendant's future dangerousness is an issue, due process requires that the jury be informed of the defendant's parole ineligibility. They suggested that only a jury instruction would suffice. Three other justices, in a concurring opinion written by Justice Sandra Day O'Connor, agreed with the holding but believed that this information could be conveyed by "either argument or instruction." (7) Justices Antonin Scalia and Clarence Thomas, dissenting, argued that the Due Process Clause does not require that the jury be so informed.

After Simmons, South Carolina changed its sentencing law in an apparent effort to avoid the Supreme Court's holding. (8) Under the new law, after a guilty verdict, the jury must determine whether a statutory aggravating circumstance, such as murder during the commission of a felony, existed. If the jury does not find an aggravating circumstance, the trial judge must sentence the defendant to either a mandatory minimum 30-year prison term or life imprisonment. If the jury finds an aggravating circumstance, it must choose between a death sentence and life without parole.

The state's death penalty made a third trip to the Court last term. Shafer v. South Carolina involved a defendant who had shot and killed a convenience store clerk during a robbery attempt. (9) After Shafer was convicted, the state sought the death penalty based on the aggravating circumstance that the murder was committed during the course of a felony. (10)

To prove its point, the prosecution presented evidence of Shafer's "criminal record, past aggressive conduct, probation violations and misbehavior in prison." The defense requested an instruction to the jurors that if they found an aggravating circumstance, they could sentence the defendant to death or life without parole.

The judge instructed the jury that "life imprisonment means until the death of the defendant." (11) However, when the jury asked whether "someone convicted of murder [could] become eligible for parole," the judge responded, over the defense's objection, that "parole eligibility is not for your consideration." (12) The jury sentenced Shafer to death. (13)

The South Carolina Supreme Court affirmed the death sentence. The court ruled that because life without parole was not the "only legally available sentence alternative to death" (14) under the new sentencing scheme, the trial judge did not err in refusing to give the instruction required by Simmons.

However, the U.S. Supreme Court pointed out the obvious fact that the new South Carolina sentencing scheme did not affect whether Simmons applied. At the time the jury decided whether or not to impose the death penalty, the only available alternative was life without parole. (15) Further, the Court repeated its observation from Simmons that instructing the jurors not to consider parole eligibility would be misleading because they "reasonably may have believed that [Simmons] could be released on parole if he were not executed." (16) Accordingly, the defense instruction must be given. Even if the jury could have sentenced the defendant to a 30-year minimum term, the panel should still be instructed that, under South Carolina law, a life sentence means life without parole. South Carolina's argument made no sense, and no one on the Court--not even the two dissenters--gave it credit. (17)

The justices noted that the South Carolina Supreme Court, in its desire to hold Simmons entirely inapplicable to death sentences in the state, "apparently assumed arguendo that future dangerousness had been shown at Shafer's sentencing proceeding. (18) Therefore, the Court did not decide whether Simmons would apply to a case in which the state had not argued a defendant's future dangerousness as a reason to impose the death penalty.

South Carolina claimed that it had such a case in Kelly. At the sentencing phase of Kelly's murder trial, the prosecutor presented evidence that the defendant had made a knife in prison and attempted to escape, as well as evidence of his sadism as a youth and his current desire to kill anyone who irritated him. In closing argument, the prosecutor described Kelly as a "dangerous, bloody butcher." (19) Nevertheless, the prosecutor claimed that he was not "argu[ing] future dangerousness." (20)

The defense attorney requested a Simmons instruction, but the trial court refused because the "state's evidence went to Kelly's character and characteristics, not to future dangerousness." (21) The state supreme court affirmed the death sentence.

In an opinion written by Justice David Souter, the U.S. Supreme Court once again rejected South Carolina's argument. The Court observed that a "jury hearing evidence of a defendant's demonstrated 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." (22)

The Court noted that, as Simmons had previously held, the state could argue that the defendant should be executed even if he would never be released from prison, since he posed an escape risk as well as a danger to other prisoners. But this does not mean that the state is "free to mislead the jury by concealing accurate information about the defendant's parole eligibility. (23)

The Court also rejected South Carolina's contention that "evidence of future dangerousness counts under Simmons only when the prosection `introduces evidence for which there is no other possible inference but future dangerousness to society.'" (24) Rather, any evidence with a "tendency to prove dangerousness in the future" qualifies under Simmons, regardless of the fact that "it might support other inferences or be described in other terms." (25) The majority freely acquiesced to Chief Justice William Rehnquist's assertion, in his dissent, that "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," and hence the defendant would be entitled to the Simmons instruction. (26)

The Rehnquist dissent correctly stated that Kelly represents an expansion of Simmons, since O'Connor's "prevailing" opinion in Simmons had said that "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. (27) But depriving the jury of information that is clearly germane to its life-or-death decision is never justified, regardless of how the state might characterize its arguments.

Even an argument that seems to focus solely on the details of the defendant's past is likely to raise the jury's concerns about future dangerousness. Accordingly, the instruction that "life imprisonment" means "life without parole" should always be given. It would have been better if the Kelly majority had removed any last hope of evasion, lest the solons of South Carolina try to come up with yet another argument for getting around Simmons.

More fundamentally, I am disgusted by South Carolina's determined efforts to execute convicted murderers while deceiving jurors about their sentencing options.

Notes

(1.) 122 S. Ct. 726 (2002).

(2.) 476 U.S. 1 (1986).

(3.) Id. at 3.

(4.) Id. at 9-10 (Powell, J., concurring).

(5.) Id, at 9.

(6.) 512 U.S. 154 (1994).

(7.) Id. at 178 (O'Connor, J., concurring).

(8.) S.C. CODE ANN. [section] 16-3-20(A), (B) (2000 cum. supp.).

(9.) 121 S. Ct. 1263 (2001).

(10.) Id. at 1267.

(11.) Id. at 1269.

(12.) Id.

(13.) Id. at 1270.

(14.) Id. at 1272.

(15.) Id. at 1272-73.

(16.) Id. at 1271-72 (quoting Simmons, 512 U.S. 154, 161).

(17.) Scalia and Thomas reiterated their disagreement with Simmons in separate dissents. 121 S. Ct. 1263, 1275-76.

(18.) Id. at 1274.

(19.) 122 S. Ct. 726, 732.

(20.) Id. at 729.

(21.) Id.

(22.) Id. at 731.

(23.) Id. at 732 n.3 (quoting Simmons, 512 U.S. 154,165 n.5).

(24.) 122 S. Ct. 726, 732 (emphasis in original).

(25.) Id.

(26.) Id. at n.4.

(27.) Id. at 734.

Craig M. Bradley is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].