521 U.S.

151
117 S.Ct. 1969
138 L.Ed.2d 327

Joseph Roger O'DELL, III, Petitioner,

v.
J.D. NETHERLAND, Warden, et al.
No. 96-6867.

Supreme Court of the United States

Argued March 18, 1997.
Decided June 19, 1997.

Syllabus *
At the penalty phase of petitioner's state trial on capital murder, rape, and
sodomy charges, evidence was presented that he had been convicted of a
host of other offenses-including the kidnaping and assault of another
woman while he was on parole and the murder of a fellow prisoner during
a previous prison stint. The court denied his request for a jury instruction
that he was ineligible for parole if sentenced to life in prison. The jury
determined that petitioner presented a future danger, and he was sentenced
to death. In subsequently granting federal habeas relief, the District Court
concluded that this Court's intervening decision in Simmons v. South
Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133-which requires
that a capital defendant be permitted to inform his sentencing jury that he
is parole-ineligible if the prosecution argues his future dangerousness-was
not a "new'' rule within the meaning of Teague v. Lane, 489 U.S. 288, 109
S.Ct. 1060, 103 L.Ed.2d 334, and thus entitled petitioner to resentencing.
The Fourth Circuit reversed.
Held: Simmons' rule was new and cannot, therefore, be used to disturb
petitioner's death sentence. Pp. ____-____.
(a) Under Teague, this Court will not disturb a final state conviction or
sentence unless it can be said that, at the time the conviction or sentence
became final, a state court would have acted objectively unreasonably by
not extending the relief later sought in federal court. Teague requires a
federal habeas court to determine the date on which the conviction

became final; to consider whether a state court considering the defendant's

claim at the time it became final would have felt compelled by existing
precedent to conclude that the rule he seeks was required by the
Constitution; and if not, to determine whether that new rule nonetheless
falls within one of two narrow exceptions to the Teague doctrine. Lambrix
v. Singletary, 520 U.S. ----, ----, 117 S.Ct. 1517, ----, 137 L.Ed.2d 771. Pp.
____-____.
(b) Petitioner's conviction became final in 1988 and Simmons was decided
in 1994. Simmons is an unlikely candidate for "old-rule'' status. There was
no opinion for the Court in Simmons, and the array of views expressed
there suggests that the rule announced was, in light of this Court's
precedent, "susceptible to debate among reasonable minds.'' Butler v.
McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347. An
assessment of the legal landscape existing at the time petitioner's
conviction and sentence became final bolsters this conclusion. Contrary to
petitioner's position, the result in Simmons did not follow ineluctably from
the decisions in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51
L.Ed.2d 393, and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669,
90 L.Ed.2d 1. The seven opinions in Gardner produced a narrow holding
that a death penalty procedure permitting consideration of secret
information relevant to the offender's character and record-there a
presentence report not provided to the defendant-violates the Eighth
Amendment. Petitioner points to no secret evidence in his case. And the
evidence he sought to present to the jury was not historical evidence about
his character and record but evidence concerning what might happen,
under then-extant law, after a sentence was imposed. In Skipper, too, it
was evidence of past behavior that the defendant was unconstitutionally
prevented from adducing. The distinction between information concerning
state postsentencing law and evidence specifically related to the defendant
was also at the heart of two other cases in 1988's complex legal landscape.
In California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171,
the Court concluded that California had reasonably chosen to provide
some, limited, postsentence information to the capital-sentencing jury,
namely the possibility of pardon. But the Court emphasized that this
conclusion did not override the choices of other States not to permit their
juries to be informed of postsentencing proceedings, including parole. The
general proposition that the States retained the prerogative to determine
how much (if at all) juries would be informed about the postsentencing
legal regime was given further credence in Caldwell v. Mississippi, 472
U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231. The Court determined there
that the prosecution and judge had improperly left the jury with the
impression that a death sentence was not final because it would be

extensively reviewed, with a plurality concluding that, Ramos

notwithstanding, sentencing juries were never to be given information
about postsentencing appellate proceedings, and Justice O'CONNOR
concluding that such information-if accurate-could be provided. In light of
these cases, it would hardly have been unreasonable for a jurist in 1988 to
conclude that his State had acted constitutionally by choosing not to
advise its jurors as to events that would (or would not) follow their death
sentence recommendation. Accordingly, Simmons announced a new rule
that may not be applied here unless it falls within a Teague exception. Pp.
____-____.
(c) Simmons' narrow right of rebuttal is not a watershed rule of criminal
procedure implicating the fundamental fairness and accuracy of the
criminal proceeding under the second exception to Teague. Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, distinguished. Pp.
____-____.
95 F.3d 1214, affirmed.
THOMAS, J., delivered the opinion of the Court, in which REHNQUIST,
C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS,
J., filed a dissenting opinion, in which SOUTER, GINSBURG, and
BREYER, JJ., joined.
Robert S. Smith, Paw Creek, NC, for petitioner.
Katherine P. Baldwin, for respondents.
Justice THOMAS delivered the opinion of the Court.

This case presents the question whether the rule set out in Simmons v. South
Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)-which
requires that a capital defendant be permitted to inform his sentencing jury that
he is parole-ineligible if the prosecution argues that he presents a future dangerwas "new'' within the meaning of Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989), and thereby inapplicable to an already final
death sentence. We conclude that it was new, and that it cannot, therefore, be
used to disturb petitioner's death sentence, which had been final for six years
when Simmons was decided.

* Helen Schartner was last seen alive late in the evening of February 5, 1985,
leaving the County Line Lounge in Virginia Beach, Virginia. Her lifeless body

was discovered the next day, in a muddy field across a highway from the
lounge. Schartner's head had been laid open by several blows with the barrel of
a handgun, and she had been strangled with such violence that bones in her neck
were broken and finger imprints were left on her skin. An abundance of
physical evidence linked petitioner to the crime scene and crime-among other
things, tire tracks near Schartner's body were consistent with petitioner's car,
and bodily fluids recovered from Schartner's body matched petitioner. He was
indicted on counts of capital murder, rape, sodomy, and abduction (which
count was later dismissed).
3

After a jury trial, petitioner was found guilty on the murder, rape, and sodomy
counts. During the subsequent sentencing hearing, the prosecution sought to
establish two aggravating factors: that petitioner presented a future danger, and
that the murder had been "wanton, vile or inhuman.'' Evidence was presented
that, prior to Schartner's murder, petitioner had been convicted of a host of other
offenses, including the kidnaping and assault of another woman while he was
on parole, and the murder of a fellow inmate during an earlier prison stint.
Petitioner sought a jury instruction explaining that he was not eligible for
parole if sentenced to life in prison. The trial judge denied petitioner's request.
After the sentencing hearing, the jury found beyond a reasonable doubt that
petitioner "would constitute a continuous serious threat to society'' and that "his
conduct in committing the offense was outrageously wanton, vile, or inhuman.''
46 Record 208. The jury recommended that petitioner be sentenced to death.1
The trial judge adopted the jury's recommendation and sentenced petitioner to
40 years' imprisonment each for the rape and sodomy convictions, and to death
by electrocution for Schartner's murder. Petitioner appealed to the Supreme
Court of Virginia, which affirmed both the conviction and the sentence. O'Dell
v. Commonwealth, 234 Va. 672, 364 S.E.2d 491 (1988). We denied certiorari.
O'Dell v. Virginia, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988).
Petitioner's efforts at state habeas relief were unsuccessful, and we again
denied certiorari. O'Dell v. Thompson, 502 U.S. 995, 112 S.Ct. 618, 116
L.Ed.2d 639 (1991).

Petitioner then filed a federal habeas claim. He contended, inter alia, that
newly obtained DNA evidence established that he was actually innocent, and
that his death sentence was faulty because he had been prevented from
informing the jury of his ineligibility for parole. The District Court rejected
petitioner's claim of innocence. O'Dell v. Thompson, Civ. Action No.
3:92CV480 (E.D.Va., Sept. 6, 1994), App. 171-172. But it agreed with
petitioner that he was entitled to resentencing under the intervening decision in
Simmons v. South Carolina, supra. The District Court described Simmons as
holding "that where the defendant's future dangerousness is at issue, and state

law prohibits the defendant's release on parole, the Due Process Clause of the
Fourteenth Amendment requires that the sentencing jury be informed that the
defendant is not eligible for parole.'' App. 198. The court concluded that the
Simmons rule was not new and thus was available to petitioner. Because the
prosecutor "obviously used O'Dell's prior releases on cross-examination, and in
his closing argument, to argue that the defendant presented a future danger to
society,'' App. 201 (citations omitted), the District Court held that petitioner
was entitled to be resentenced if it could be demonstrated that he were in fact
ineligible for parole.
5

A divided en banc Court of Appeals for the Fourth Circuit reversed. 95 F.3d
1214 (1996). After an exhaustive review of our precedents, the Court of
Appeals majority determined that "Simmons was the paradigmatic "new rule,'''
id., at 1218, and, as such, could not aid petitioner. The Fourth Circuit was
closely divided as to whether Simmons set forth a new rule, but every member
of the court agreed that petitioner's "claim of actual innocence [was] not even
colorable.'' 95 F.3d, at 1218; see also id., at 1255-1256 (Ervin, J., concurring in
part and dissenting in part). We declined review on petitioner's claim of actual
innocence, but granted certiorari to determine whether the rule of Simmons was
new. 519 U.S. ----, 117 S.Ct. 631, 136 L.Ed.2d 552 (1996); see also ibid.
(SCALIA, J., respecting the grant of certiorari).

II
6

Before a state prisoner may upset his state conviction or sentence on federal
collateral review, he must demonstrate as a threshold matter that the courtmade rule of which he seeks the benefit is not "new.'' We have stated variously
the formula for determining when a rule is new. See, e.g., Graham v. Collins,
506 U.S. 461, 467, 113 S.Ct. 892, 897-898, 122 L.Ed.2d 260 (1993) ("A
holding constitutes a "new rule' within the meaning of Teague if it "breaks new
ground,' "imposes a new obligation on the States or the Federal Government,'
or was not "dictated by precedent existing at the time the defendant's
conviction became final''') (quoting Teague, 489 U.S., at 301, 109 S.Ct., at
1070) (emphasis in original). At bottom, however, the Teague doctrine
"validates reasonable, good-faith interpretations of existing precedents made by
state courts even though they are shown to be contrary to later decisions.''
Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347
(1990) (citation omitted). "Reasonableness, in this as in many other contexts, is
an objective standard.'' Stringer v. Black, 503 U.S. 222, 237, 112 S.Ct. 1130,
1140, 117 L.Ed.2d 367 (1992). Accordingly, we will not disturb a final state
conviction or sentence unless it can be said that a state court, at the time the
conviction or sentence became final, would have acted objectively

unreasonably by not extending the relief later sought in federal court.

7

The Teague inquiry is conducted in three steps. First, the date on which the
defendant's conviction became final is determined. Lambrix v. Singletary, 520
U.S. ----, ----, 117 S.Ct. 1517, 1524, 137 L.Ed.2d 771 (1997). Next, the habeas
court considers whether "a state court considering [the defendant's] claim at the
time his conviction became final would have felt compelled by existing
precedent to conclude that the rule [he] seeks was required by the
Constitution.'' Ibid. (quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257,
1260, 108 L.Ed.2d 415 (1990)) (alterations in Lambrix). If not, then the rule is
new. If the rule is determined to be new, the final step in the Teague analysis
requires the court to determine whether the rule nonetheless falls within one of
the two narrow exceptions to the Teague doctrine. 520 U.S., at ----, 117 S.Ct., at
1530-1531. The first, limited exception is for new rules "forbidding criminal
punishment of certain primary conduct [and] rules prohibiting a certain
category of punishment for a class of defendants because of their status or
offense.'' Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 2953, 106
L.Ed.2d 256 (1989). The second, even more circumscribed, exception permits
retroactive application of "watershed rules of criminal procedure implicating
the fundamental fairness and accuracy of the criminal proceeding.'' Graham,
supra, at 478, 113 S.Ct., at 903 (quoting Teague, 489 U.S., at 311, 109 S.Ct., at
1075) (internal quotation marks omitted). "Whatever the precise scope of this
[second] exception, it is clearly meant to apply only to a small core of rules
requiring observance of those procedures that . . . are implicit in the concept of
ordered liberty.'' Graham, supra, at 478, 113 S.Ct., at 903 (internal quotation
marks omitted).

III
8

Petitioner's conviction became final on October 3, 1988, when we declined to

review the Virginia Supreme Court's decision affirming his sentence on direct
review. Simmons, the rule of which petitioner now seeks to avail himself, was
decided in 1994.

In Simmons, the defendant had been found guilty of capital murder for the
brutal killing of an elderly woman. The defendant had also assaulted other
elderly women, resulting in convictions that rendered him-at least as of the time
he was sentenced-ineligible for parole. Prosecutors in South Carolina are
permitted to argue to sentencing juries that defendants' future dangerousness is
an appropriate consideration in determining whether to affix a sentence of
death. 512 U.S., at 162-163, 114 S.Ct., at 2193-2194 (plurality opinion).
Simmons sought to rebut the prosecution's "generalized argument of future

dangerousness'' by presenting the jury with evidence that "his dangerousness

was limited to elderly women,'' none of whom he was likely to encounter in
prison. Id., at 157, 114 S.Ct., at 2191. Simmons' efforts to shore up this
argument by demonstrating to the jury that, under South Carolina law, he was
ineligible for parole were rebuffed by the trial court. This Court reversed the
judgment of the South Carolina Supreme Court upholding Simmons' death
sentence. A plurality of the Court noted that a prosecutor's future
dangerousness argument will "necessarily [be] undercut'' by "the fact that the
alternative sentence to death is life without parole.'' Id., at 169, 114 S.Ct., at
2196. The plurality, relying on Gardner v. Florida, 430 U.S. 349, 97 S.Ct.
1197, 51 L.Ed.2d 393 (1977), and Skipper v. South Carolina, 476 U.S. 1, 106
S.Ct. 1669, 90 L.Ed.2d 1 (1986), concluded that " [b]ecause truthful
information of parole ineligibility allows the defendant to "deny or explain' the
showing of future dangerousness, due process plainly requires that he be
allowed to bring it to the jury's attention.'' 512 U.S., at 169, 114 S.Ct., at 2196.
10
Justice
O'CONNOR, joined by THE CHIEF JUSTICE and Justice KENNEDY,
concurred in the judgment, providing the dispositive votes necessary to sustain it.
The concurrence recognized:
11

" [The Court has] previously noted with approval . . . that "[m]any state courts
have held it improper for the jury to consider or to be informed-through
argument or instruction-of the possibility of commutation, pardon, or parole.'
California v. Ramos, 463 U.S. [992, 1013, n. 30, 103 S.Ct. 3446, 3460, n. 30,
77 L.Ed.2d 1171 (1983)]. The decision whether or not to inform the jury of the
possibility of early release is generally left to the States.'' Id., at 176, 114 S.Ct.,
at 2200.

12 concurrence also distinguished Skipper, noting that Skipper involved an attempt

The
to introduce "factual evidence'' regarding the defendant himself, while Simmons
"sought to rely on the operation of South Carolina's sentencing law'' to demonstrate
that he did not present a future danger. 512 U.S., at 176, 114 S.Ct., at 2200. But the
concurrence nonetheless concluded that, " [w]hen the State seeks to show the
defendant's future dangerousness,'' the defendant "should be allowed to bring his
parole ineligibility to the jury's attention.'' Id., at 177, 114 S.Ct., at 2200.
13

Petitioner asserts that the Simmons rule covers his case, and that because he
was parole-ineligible-but not allowed to relay that information to the jury in
order to rebut the prosecutor's argument as to his future
dangerousness-Simmons requires vacatur of his sentence. Before we can decide
whether petitioner's claim falls within the scope of Simmons, we must
determine whether the rule of Simmons was new for Teague purposes, and, if

so, whether that rule falls within one of the two exceptions to Teague's bar.
14

* We observe, at the outset, that Simmons is an unlikely candidate for "oldrule'' status. As noted above, there was no opinion for the Court. Rather, Justice
Blackmun's plurality opinion, for four Members, concluded that the Due
Process Clause required allowing the defendant to inform the jury-through
argument or instruction-of his parole-ineligibility in the face of a prosecution's
future dangerousness argument. 512 U.S., at 168-169, 114 S.Ct., at 2196-2197.
Two members of the plurality, Justice SOUTER and Justice STEVENS, would
have further held that the Eighth Amendment mandated that the trial court
instruct the jury on a capital defendant's parole ineligibility even if future
dangerousness was not at issue. Id., at 172-174, 114 S.Ct., at 2198-2199
(SOUTER, J., concurring). Justice GINSBURG, also a member of the plurality,
wrote a concurrence grounded in the Due Process Clause. Id., at 174-175, 114
S.Ct., at 2199-2200. THE CHIEF JUSTICE and Justice KENNEDY joined
Justice O'CONNOR's decisive opinion concurring in the judgment, as described
above. Id., at 175-178, 114 S.Ct., at 2199-2201. And, two Justices dissented,
arguing that the result did not "fit'' the Court's precedents and that it was not, in
any case, required by the Constitution. Id., at 180, 185, 114 S.Ct., at 2202,
2204-2205 (opinion of SCALIA, J., joined by THOMAS, J.). The array of
views expressed in Simmons itself suggests that the rule announced there was,
in light of this Court's precedent, "susceptible to debate among reasonable
minds.'' Butler, 494 U.S., at 415, 110 S.Ct., at 1217; cf. Sawyer v. Smith, 497
U.S. 227, 236-237, 110 S.Ct. 2822, 2828-2829, 111 L.Ed.2d 193 (1990) (citing,
as evidence that Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86
L.Ed.2d 231 (1985), announced a new rule, the views of the three Caldwell
dissenters). An assessment of the legal landscape existing at the time
petitioner's conviction and sentence became final bolsters this conclusion.

PCS1
15

Petitioner's review of the relevant precedent discloses the decisions relied upon
in Simmons, namely Gardner v. Florida, supra and Skipper v. South Carolina,
supra. Petitioner asserts that a reasonable jurist considering his claim in light of
those two decisions "would have felt "compelled . . . to conclude that the rule
[petitioner] seeks was required by the Constitution.''' Brief for Petitioner 14
(quoting Saffle, 494 U.S., at 488, 110 S.Ct., at 1260) (emphasis omitted).

16

In Gardner, the defendant received a death sentence from a judge who had
reviewed a presentence report that was not made available to the defendant.
Gardner produced no opinion for the Court. A plurality of the Court concluded
that the defendant "was denied due process of law when the death sentence was

imposed, at least in part, on the basis of information which he had no

opportunity to deny or explain.'' 430 U.S., at 362, 97 S.Ct., at 1207. Justice
White concurred in the judgment, providing the narrowest grounds of decision
among the Justices whose votes were necessary to the judgment. Cf. Marks v.
United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977). He
concluded that the Eighth Amendment was violated by a "procedure for
selecting people for the death penalty which permits consideration of such
secret information relevant to the character and record of the individual
offender. '' 430 U.S., at 364, 97 S.Ct., at 1207-1208 (internal quotation marks
omitted; emphasis added).
17

In Skipper, the prosecutor argued during the penalty phase that a death sentence
was appropriate because the defendant "would pose disciplinary problems if
sentenced to prison and would likely rape other prisoners.'' 476 U.S., at 3, 106
S.Ct., at 1670. Skipper's efforts to introduce evidence that he had behaved
himself in, and made a "good adjustment'' to, jail in the time between his arrest
and his trial were rejected by the trial court. Ibid. The Court concluded: "
[E]vidence that the defendant would not pose a danger if spared (but
incarcerated) must be considered potentially mitigating. Under Eddings [v.
Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)], such evidence
may not be excluded from the sentencer's consideration.'' 476 U.S., at 5, 106
S.Ct., at 1671 (footnote omitted). This holding was grounded, as was Eddings,
in the Eighth Amendment. The Court also cited the Due Process Clause, stating
that " [w]here the prosecution specifically relies on a prediction of future
dangerousness in asking for the death penalty'' due process required that "a
defendant not be sentenced to death "on the basis of information which he had
no opportunity to deny or explain.''' 476 U.S., at 5, n. 1, 106 S.Ct., at 1671, n. 1
(quoting Gardner, supra, at 362, 97 S.Ct., at 1207).

18

Simmons, argues petitioner, presented merely a variation on the facts of

Skipper. In each, the prosecution raised the issue of future dangerousness.
Skipper was unconstitutionally prevented from demonstrating that he had
behaved in prison and thus would not be a danger to his fellow prisoners.
Simmons, likewise, says petitioner, was not allowed to inform the jury that he
would be in, rather than out of, prison and so could not present a danger to
elderly women. Because the rule of Simmons was allegedly set forth in the
1986 decision in Skipper, which in turn relied upon the 1977 decision in
Gardner, petitioner argues that his death sentence was flawed when affirmed in
1988, and we may set it aside without running afoul of Teague.2

19

Even were these two cases the sum total of relevant precedent bearing on the
rule of Simmons, petitioner's argument that the result in Simmons followed

ineluctably would not be compelling. Gardner produced seven opinions, none

for a majority of the Court. Taking the view expressed in Justice White's
opinion concurring in the judgment as the rule of Gardner, see Marks, supra, at
193, 97 S.Ct., at 993, the holding is a narrow one-that " [a] procedure for
selecting people for the death penalty which permits consideration of . . . secret
information relevant to the character and record of the individual offender''
violates the Eighth Amendment's requirement of "reliability in the
determination that death is the appropriate punishment.'' (430 U.S., at 364,
97 S.Ct., at 1207) (citation and internal quotation marks omitted; emphasis
added). Petitioner points to no secret evidence given to the sentencer but not to
him. And, the evidence that he sought to present to the jury was not historical
evidence about his "character and record,'' but evidence concerning the
operation of the extant legal regime.
20

In Skipper, too, the evidence that the defendant was unconstitutionally

prevented from adducing was evidence of his past behavior. It is a step from a
ruling that a defendant must be permitted to present evidence of that sort to a
requirement that he be afforded an opportunity to describe the extant legal
regime. Cf. Simmons, 512 U.S., at 176, 114 S.Ct., at 2200 (O'CONNOR, J.,
concurring in judgment).

2
21

Whatever support Gardner and Skipper, standing alone, might lend to

petitioner's claim that Simmons was a foregone conclusion, the legal landscape
in 1988 was far more complex. Respondent points to, and the Fourth Circuit
majority relied on, two other cases that had been decided by the time
petitioner's conviction became final and that bear on its constitutionality:
California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983),
and Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231
(1985). In Ramos, the Court upheld an instruction that informed the jury that a
defendant sentenced to life in prison without parole could nonetheless be
rendered parole-eligible if the Governor elected to commute his sentence. The
Court concluded that the instruction neither introduced a constitutionally
irrelevant factor into the sentencing process, Ramos, 463 U.S., at 1001-1004,
103 S.Ct., at 3453-3455, nor diverted the jury's attention from the task of
rendering an "individualized sentencing determination,'' id., at 1005, 103 S.Ct.,
at 3455. Within the bounds of the Constitution, the Court stated that it would
defer to California's "identification of the Governor's power to commute a life
sentence as a substantive factor to be presented for the sentencing jury's
consideration.'' Id., at 1013, 103 S.Ct., at 3460. We emphasized, however, that
this conclusion was not to be taken to "override the contrary judgment of state

legislatures'' that capital juries not learn of a governor's commutation power.

Ibid. "Many state courts,'' we pointed out, "have held it improper for the jury to
consider or to be informed-through argument or instruction-of the possibility of
commutation, pardon, or parole. '' Id., at 1013, n. 30, 103 S.Ct., at 3460, n. 30
(emphasis added); see also ibid. (citing, inter alia, Ga.Code Ann. 17-8-76
(1982), and describing that statute as "prohibiting argument as to possibility of
pardon, parole, or clemency'') (emphasis added). "We sit as judges, not as
legislators, and the wisdom of the decision to permit juror consideration of
possible commutation is best left to the States.'' 463 U.S., at 1014, 103 S.Ct., at
3460. The dissenters in Ramos disputed the constitutionality of ever informing
juries of the governor's power to commute a death sentence. See id., at 1018,
103 S.Ct., at 3462 (opinion of Marshall, J., joined by Brennan and Blackmun,
JJ.); see also id., at 1019-1020, 103 S.Ct., at 3462-3463 (asserting that
consideration by a capital-sentencing jury of a defendant's prospects for
commutation or parole is unconstitutional).
22

The general proposition that the States retained the prerogative to determine
how much (if at all) juries would be informed about the postsentencing legal
regime was given further credence in Caldwell v. Mississippi, supra. In that
case, the prosecution and the judge had, the Court concluded, improperly left
the jury with the impression that a death sentence was not final because it
would be extensively reviewed. Justice Marshall authored the opinion for the
Court except for one portion. In that portion, Justice Marshall-writing for a
plurality-concluded that, Ramos notwithstanding, sentencing juries were not to
be given information about postsentencing appellate proceedings. Justice
O'CONNOR, who provided the fifth vote necessary to the judgment, did not
join this portion of Justice Marshall's opinion. She wrote separately, stating
that, under Ramos, a State could choose whether or not to "in struc[t] the jurors
on the sentencing procedure, including the existence and limited nature of
appellate review,'' so long as any information it chose to provide was accurate.
472 U.S., at 342, 105 S.Ct., at 2646 (O'CONNOR, J., concurring in part and
concurring in judgment).

3
23

In light of Ramos and Caldwell, we think it plain that, a reasonable jurist in

1988 would not have felt compelled to adopt the rule later set out in Simmons.
As noted above, neither Gardner nor Skipper involved a prohibition on
imparting information concerning what might happen, under then-extant law,
after a sentence was imposed. Rather, the information at issue in each case was
information pertaining to the defendant's "character and record.'' Although the
principal opinions in Simmons found Skipper (which, in turn, relied on

Gardner) persuasive, Justice O'CONNOR distinguished Skipper from the facts

presented in Simmons on this very ground, see 512 U.S., at 176, 114 S.Ct., at
2200 (opinion concurring in judgment), suggesting that the rule announced in
Simmons was not inevitable. See also id., at 183, 114 S.Ct., at 2203-2204
(SCALIA, J., dissenting).
24

That distinction-between information concerning state postsentencing law on

the one hand and evidence specifically related to the defendant on the otherwas also at the heart of Ramos and Caldwell. In Ramos, the majority concluded
that California had reasonably chosen to provide some, limited, postsentence
information to the capital-sentencing jury-though it noted that many other
States had elected just the opposite. The principal dissent in Ramos would have
forbidden the provision of any information about postsentence occurrences for
the very reason that it did not constitute evidence concerning the defendant's
"character or the nature of his crime.'' 463 U.S., at 1022, 103 S.Ct., at 3464
(opinion of Marshall, J.). In Caldwell, the plurality and Justice O'CONNOR
contested whether the fact that "appellate review is available to a capital
defendant sentenced to death'' was "simply a factor that in itself is wholly
irrelevant to the determination of the appropriate sentence'' (as the plurality
concluded, 472 U.S., at 336, 105 S.Ct., at 2643), or whether provision of that
information was a constitutional "policy choice in favor of jury education'' (as
Justice O'CONNOR concluded, id., at 342, 105 S.Ct., at 2646 (opinion
concurring in part and concurring in judgment)).

25

A reasonable jurist in 1988, then, could have drawn a distinction between

information about a defendant and information concerning the extant legal
regime. It would hardly have been unreasonable in light of Ramos and
Caldwell for the jurist to conclude that his State had acted constitutionally by
choosing not to advise its jurors as to events that would (or would not) follow
their recommendation of a death sentence, as provided by the legal regime of
the moment. Indeed, given the sentiments, expressed in Justice Marshall's
Ramos dissent and Caldwell plurality, that information about postsentence
procedures was never to go to the jury and given that the decision whether to
provide such information had been described by the Ramos majority opinion
and Justice O'CONNOR's concurrence in Caldwell as a "policy choice'' left to
the States, the reasonable jurist may well have concluded that the most surely
constitutional course, when confronted with a request to inform a jury about a
defendant's parole-eligibility, was silence.

26

Teague asks state court judges to judge reasonably, not presciently. See
Stringer v. Black, 503 U.S., at 244, 112 S.Ct., at 1143-1144 (SOUTER, J.,
dissenting). In Simmons, the Court carved out an exception to the general rule

described in Ramos by, for the first time ever, requiring that a defendant be
allowed to inform the jury of postsentencing legal eventualities. A 1988 jurist's
failure to predict this cannot, we think, be deemed unreasonable. Accordingly,
the rule announced in Simmons was new, and petitioner may not avail himself
of it unless the rule of Simmons falls within one of the exceptions to Teague's
bar.3
B
27

Petitioner contends that, even if it is new, the rule of Simmons falls within the
second exception to Teague, which permits retroactive application of
""watershed rules of criminal procedure' implicating the fundamental fairness
and accuracy of the criminal proceeding.'' Graham, 506 U.S., at 478, 113 S.Ct.,
at 903 (quoting Teague, 489 U.S., at 311, 109 S.Ct., at 1076). Petitioner
describes the "practice condemned in Simmons'' as a "shocking one.'' Brief for
Petitioner 33. The rule forbidding it, we are told, is "on par'' with Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)-which we have
cited as an example of the sort of rule falling within Teague's second exception,
see Saffle, 494 U.S., at 495, 110 S.Ct., at 1264-because "both cases rest upon
this Court's belief that certain procedural protections are essential to prevent a
miscarriage of justice,'' Brief for Petitioner 35 (citations omitted). We disagree.4
Unlike the sweeping rule of Gideon, which established an affirmative right to
counsel in all felony cases, the narrow right of rebuttal that Simmons affords to
defendants in a limited class of capital cases has hardly """alter[ed] our
understanding of the bedrock procedural elements''' essential to the fairness of
a proceeding.'' Sawyer, 497 U.S., at 242, 110 S.Ct., at 2831 (quoting Teague,
supra, at 311, 109 S.Ct., at 1076, quoting, in turn, Mackey v. United States, 401
U.S. 667, 693, 91 S.Ct. 1171, 1180, 28 L.Ed.2d 388 (1971) (Harlan, J.,
concurring in judgments in part and dissenting in part) (emphasis in Teague)).
Simmons possesses little of the "watershed'' character envisioned by Teague's
second exception.

IV
28

For the reasons stated herein, the judgment of the Court of Appeals is affirmed.

29

It is so ordered.

30

Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and

Justice BREYER join, dissenting.

31

Although petitioner's guilt has been established, it is undisputed that the

conduct of the sentencing hearing that led to the imposition of his death penalty
violated the Due Process Clause of the Fourteenth Amendment. His eligibility
for a death sentence depended on the prosecutor's ability to convince the jury
that there was a "probability that he would commit criminal acts of violence
that would constitute a continuous threat to society.'' App. 69. In support of his
argument to the jury that nothing short of the death penalty would be sufficient,
the prosecutor emphasized petitioner's misconduct when he was "outside of the
prison system,'' id., at 61, 1 and stated that O'Dell had "forfeited his right to live
among us,'' id., at 66. Nevertheless, the trial court refused to allow petitioner to
advise the jury that if the death sentence were not imposed, he would be
imprisoned for the rest of his life without any possibility of parole. Thus, he
was denied the opportunity to make a fair response to the prosecutor's
misleading argument about the future danger that he allegedly posed to the
community.
32

Our virtually unanimous decision in Simmons v. South Carolina, 512 U.S. 154,
114 S.Ct. 2187, 129 L.Ed.2d 133 (1994),2 recognized the fundamental
unfairness of the restrictive procedure followed in this case. As Justice
O'CONNOR's opinion, which has been treated as expressing the narrowest
ground on which the decision rested, explained:

33

""Capital sentencing proceedings must of course satisfy the dictates of the Due
Process Clause,' Clemons v. Mississippi, 494 U.S. 738, 746 [110 S.Ct. 1441,
1447, 108 L.Ed.2d 725] (1990), and one of the hallmarks of due process in our
adversary system is the defendant's ability to meet the State's case against him.
Cf. Crane v. Kentucky, 476 U.S. 683, 690 [106 S.Ct. 2142, 2146-2147, 90
L.Ed.2d 636] (1986). In capital cases, we have held that the defendant's future
dangerousness is a consideration on which the State may rely in seeking the
death penalty. See California v. Ramos, 463 U.S. 992, 1002-1003 [103 S.Ct.
3446, 3454, 77 L.Ed.2d 1171] (1983). But "[w]here the prosecution
specifically relies on a prediction of future dangerousness in asking for the
death penalty, . . . the elemental due process requirement that a defendant not
be sentenced to death "on the basis of information which he had no opportunity
to deny or explain'' [requires that the defendant be afforded an opportunity to
introduce evidence on this point].' Skipper v. South Carolina, 476 U.S. 1, 5, n. 1
[106 S.Ct. 1669, 1671, n. 1, 90 L.Ed.2d 1] (1986), quoting Gardner v. Florida,
430 U.S. 349, 362 [97 S.Ct. 1197, 1207, 51 L.Ed.2d 393] (1977) (plurality
opinion); see also 476 U.S., at 9-10 [106 S.Ct., at 1673-1674] (Powell, J.,
concurring in judgment).'' Id., at 175, 114 S.Ct., at 2200 (O'CONNOR, J.,
concurring in judgment).

34

Thus, this case is not about whether O'Dell was given a fair sentencing hearing;

instead, the question presented is whether, despite the admittedly unfair

hearing, he should be put to death because his trial was conducted before
Simmons was decided. Because the Court regards the holding in Simmons as
nothing more than a novel "court-made rule,'' ante, at __, it rejects petitioner's
plea. In my view, our decision in Simmons applied a fundamental principle that
is as old as the adversary system itself, and that had been quite clearly
articulated by this Court in two earlier opinions. Accordingly, I respectfully
dissent.
35

* My analysis begins where the majority tersely ends-with the petitioner's

contention that the rule in Simmons implicates "the fundamental fairness and
accuracy of the criminal proceeding,'' Saffle v. Parks, 494 U.S. 484, 495, 110
S.Ct. 1257, 1264, 108 L.Ed.2d 415 (1990), and therefore should be
retroactively applied even if it would constitute a "new'' rule under Teague v.
Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 1073-1074, 103 L.Ed.2d 334 (1989).

36

Our decision in Teague recognized two exceptions to the general rule of

nonretroactivity. The relevant exception for our purposes establishes that "a
new rule should be applied retroactively if it requires the observance of "those
procedures that . . . are "implicit in the concept of ordered liberty.''''' Ibid.
(quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1171, 1180, 28
L.Ed.2d 388 (1971) (Harlan J., concurring in judgments in part and dissenting
in part), which in turn quotes Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct.
149, 152, 82 L.Ed. 288 (1937)). In the opinion that provided the basis for the
limitations on collateral review adopted in Teague, Justice Harlan emphasized
the importance of protecting "bedrock procedural elements'' that are "essential
to the substance of a full hearing.'' Mackey, 401 U.S., at 693-694, 91 S.Ct., at
1180-1181. We endorsed that view, with the caveat that this exception should
be limited to those "procedures without which the likelihood of an accurate
[determination of guilt or innocence] is seriously diminished.'' Teague, 489
U.S., at 313, 109 S.Ct., at 1077. 3

37

Since Teague was decided, this Court has never found a rule so essential to the
fairness of a proceeding that it would fall under this exception.4 In my view, the
right in Simmons-the right to respond to an inaccurate or misleading argumentis surely a bedrock procedural element of a full and fair hearing. As Justice
O'CONNOR recognized in her opinion in Simmons, this right to rebut the
prosecutor's arguments is a "hallmar[k] of due process,'' 512 U.S., at 175, 114
S.Ct., at 2200 (concurring opinion). See also id., at 174, 114 S.Ct., at 2199
(GINSBURG, J., concurring) ("This case is most readily resolved under a core
requirement of due process, the right to be heard''). When a defendant is denied
the ability to respond to the state's case against him, he is deprived of "his

fundamental constitutional right to a fair opportunity to present a defense.''

Crane v. Kentucky, 476 U.S. 683, 687, 106 S.Ct. 2142, 2145, 90 L.Ed.2d 636
(1986).
38

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

39

The majority appears not to appreciate that the reason Simmons' holding
applied directly to only a narrow class of capital defendants is because only a
very few states had in place procedures that allowed the prosecutor to argue
future dangerousness while at the same time prohibiting defendants from using
"the only way that [they] can successfully rebut the State's case.'' Simmons, 512
U.S., at 177, 114 S.Ct., at 2200 (O'CONNOR, J., concurring in judgment).5 The
prevailing rule in the States that provided a life-without-parole sentencing
alternative required an instruction explaining that alternative to the jury.6

40

Although the majority relies on the limited impact of the Simmons rule to
discount its importance, the broad consensus in favor of giving the jury
accurate information in fact underscores the importance of the rule applied in
Simmons. The rule's significance is further demonstrated by evidence of the
effect that information about the life-without-parole alternative has on capital
jury deliberations. For example, only two death sentences have been imposed in
Virginia for crimes committed after January 1, 1995-whereas ten were imposed
in 1994 alone-and the decline in the number of death sentences has been
attributed to the fact that juries in Virginia must now be informed of the lifewithout-parole alternative. See Green, Death Sentences Decline in Virginia,
Richmond Times-Dispatch, Nov. 24, 1996,7 p. A1. The consensus among the
scholars and practitioners who drafted the Model Penal Code is that instructing
the jury completely about the available sentencing alternatives is the best way
to ensure accuracy in sentencing. See American Law Institute, Model Penal
Code 210.6 (1980). And we affirmed this basic point in Beck v. Alabama, 447
U.S. 625, 637, 100 S.Ct. 2382, 2389-2390, 65 L.Ed.2d 392 (1980), when we
acknowledged that the likelihood that a jury would find an obviously guilty
defendant eligible for the death penalty was significantly increased when an
arguably more appropriate sentencing alternative was not available.

41

Thus, even if the rule in Simmons could properly be viewed as a "new'' rule, it
is of such importance to the accuracy and fairness of a capital sentencing
proceeding that it should be applied consistently to all prisoners whose death

sentences were imposed in violation of the rule, whether they were sentenced
before Simmons was decided or after. Moreover, to the extent that the
fundamental principles underlying the rule needed explicit articulation by this
Court, they clearly had been expressed well before O'Dell's 1988 sentencing
proceeding.
II
42

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

43

In Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), a
plurality of the Court concluded that the defendant's due process rights had
been violated because his "death sentence was imposed, at least in part, on the
basis of information which he had no opportunity to deny or explain.'' Id., at
362, 97 S.Ct., at 1207. Nine years later, in Skipper v. South Carolina, 476 U.S.
1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), all nine Justices cited Gardner, with
approval, as establishing the "elemental due process requirement that a
defendant not be sentenced to death "on the basis of information which he had
no opportunity to deny or explain.' Gardner v. Florida, 430 U.S. 349, 362 [97
S.Ct. 1197, 1207, 51 L.Ed.2d 393] (1977).'' Skipper, 476 U.S., at 5, n. 1, 106
S.Ct., at 1671, n. 1; see also id., at 10-11, 106 S.Ct., at 1674 (Powell, J.,
concurring in judgment) ("The Court correctly concludes that the exclusion of
the proffered testimony violated due process . . . . [P]etitioner's death sentence
violates the rule in Gardner'').

44

When the Court was presented with the facts in Simmons, it was no surprise
that Justice Blackmun said that " [t]he principle announced in Gardner was
reaffirmed in Skipper, and it compels our decision today.'' 512 U.S., at 164-165,
114 S.Ct., at 2194 (plurality opinion). Or that Justice O'CONNOR quoted
Gardner and Skipper for the proposition that "elemental due process'' requires
that a defendant must be allowed to answer a prosecutor's "prediction of future
dangerousness'' with "evidence on this point.'' 512 U.S., at 175, 114 S.Ct., at
2200.

45

Today, however, the Court seeks to revise the import of this line of cases. The
first misstep in the Court's analysis is its treatment of Gardner. The majority
makes much of the fact that the lead opinion was joined by only three Justices,8
and instead of accepting the plurality's due process analysis as the rule of
Gardner, the Court takes Justice White's concurring opinion, which was

grounded in the Eighth Amendment, as expressing the holding of the case. The
Court's reading of Gardner ignores the fact that Justice White himself squarely
adopted the due process holding of Gardner in his opinion for the Court in
Skipper. Although his opinion accepted Skipper's argument that the exclusion
of evidence of his good behavior in prison at the sentencing hearing violated
the Eighth Amendment requirement that the jury be allowed to consider all
relevant mitigating evidence, Justice White went out of his way to add a
footnote endorsing the Gardner plurality's statement of the law and
emphasizing that this "elemental due process requirement'' provided an even
more basic justification for the Court's holding.9 Moreover, in his opinion
concurring in the judgment in Skipper, Justice Powell, joined by the CHIEF
JUSTICE and then-Justice REHNQUIST, rejected the mitigating evidence
rationale, relying instead on "the rule in Gardner. '' 476 U.S., at 10-11, 106
S.Ct., at 1674-1675. Thus, in Skipper, all nine Justices then serving on the
Court endorsed Gardner's holding that due process was violated when a
sentencing determination rested on information that a defendant was not
permitted to explain or deny. See also Clemons v. Mississippi, 494 U.S. 738,
746, 110 S.Ct. 1441, 1447, 108 L.Ed.2d 725 (1990) (citing Gardner for the
proposition that " [c]apital sentencing proceedings must of course satisfy the
dictates of the Due Process Clause''); Simmons, 512 U.S., at 180, 114 S.Ct., at
2202 (SCALIA, J., dissenting) (quoting Skipper and Gardner as "indicat[ing]
that petitioner's due process rights would be violated if he was "sentenced to
death "on the basis of information which he had no opportunity to deny or
explain,''''' but concluding that the petitioner could not show that his sentence
violated this principle).
46

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

47

The two cases on which the majority relies to argue that a reasonable jurist in
1988 would have thought that O'Dell did not have a right to rebut the
prosecutor's future dangerousness arguments simply provide further support for
the conclusion that Simmons did not announce a new rule of law. In both
California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983),

and Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231
(1985), the Court focused its analysis on whether the information being
presented (or withheld) in a sentencing determination permitted accurate and
informed decision-making on the part of the sentencer.
48

In Ramos, the Court held that California's capital sentencing procedure-in

which the judge was required to inform the jury that it could sentence the
defendant to death or to life without parole, and then to provide the further
instruction that the Governor could commute a life sentence without parole-was
not constitutionally infirm. (This further instruction is, of course, only relevant
when the jury has first been advised that the alternative to the death sentence is
the option that was concealed from the jury in Simmons and in this case.) The
Court correctly explained that the instruction on commutation of the life
sentence was relevant to the issue of future dangerousness, 463 U.S., at 1003,
103 S.Ct., at 3454-3455, and consistent with the rule of Gardner because it
provided the jury with accurate information and did not preclude the defendant
from offering argument or evidence regarding the Governor's power to
commute a life sentence. Id., at 1004, 103 S.Ct., at 3455. In a comment that
anticipated the precise holding in Simmons, the Court concluded that the
instruction under review "corrects a misconception and supplies the jury with
accurate information for its deliberation in selecting an appropriate sentence.''
463 U.S., at 1009, 103 S.Ct., at 3458. 10

49

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

50

The Court's reading of Caldwell is equally unpersuasive. In that case, the

prosecutor had urged the jury not to view itself as finally determining whether
the defendant would die, because the death sentence was subject to appellate
review. As Justice O'CONNOR's controlling opinion explained, the
prosecutor's remarks were improper "because they were inaccurate and

misleading in a manner that diminished the jury's sense of responsibility.'' 472

U.S., at 342, 105 S.Ct., at 2646. Because Justice Marshall's plurality opinion
suggested that any comment on appellate review was "wholly irrelevant'' to the
sentencing determination, id., at 336, 105 S.Ct., at 2643, the Court today
suggests that state judges might reasonably have concluded "that information
about postsentence procedures was never to go to the jury.'' Ante, at __. Apart
from the fact that an instruction describing a sentencing alternative does not
relate to "postsentence procedures,'' I see no basis for assuming that concerns
about describing the process of appellate review to a jury might have anything
to do with the necessity for providing the jury with accurate information about
sentencing options when the prosecutor makes the misleading argument that
the death penalty is the only way to prevent a defendant's future dangerousness
"outside of the prison system.''
51

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

52

I respectfully dissent.

The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.
282, 287, 50 L.Ed. 499.

The Virginia Supreme Court concluded that the jury's recommendation of a

death sentence was based only on the first aggravating factor-petitioner's future
dangerousness. O'Dell v. Commonwealth, 234 Va. 672, 706, 364 S.E.2d 491,
510 (1988). Only that aggravating factor is before us.

Petitioner makes much of language in the Simmons plurality opinion that the
"principle announced in Gardner was reaffirmed in Skipper, and it compels our
decision today.'' Simmons v. South Carolina, 512 U.S. 154, 164-165, 114 S.Ct.
2187, 2194, 129 L.Ed.2d 133 (1994) (emphasis added). While this language,
expressing the view of four Justices, is certainly evidence tending to prove that
the rule of Simmons was not new-i.e., that it was "dictated'' by then-existing
precedent-it is far from conclusive. We have noted that " [c]ourts frequently
view their decisions as being "controlled' or "governed' by prior opinions even

when aware of reasonable contrary conclusions reached by other courts.'' Butler

v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 1217, 108 L.Ed.2d 347 (1990).
3

Our conclusion that the rule of Simmons was new finds support in the decisions
of the state courts and the lower federal courts. See Butler, 494 U.S., at 415,
110 S.Ct., at 1217-1218. By 1988, no state or federal court had adopted the rule
of Simmons. In fact, both before and after Skipper v. South Carolina, 476 U.S.
1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), several courts had upheld against
constitutional challenge practices similar, if not identical, to that later forbidden
in Simmons. See, e.g., Turner v. Bass, 753 F.2d 342, 354 (C.A.4 1985), rev'd on
other grounds sub nom. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90
L.Ed.2d 27 (1986); O'Bryan v. Estelle, 714 F.2d 365, 389 (C.A.5 1983), cert.
denied sub nom. O'Bryan v. McKaskle, 465 U.S. 1013, 104 S.Ct. 1015, 79
L.Ed.2d 245 (1984); King v. Lynaugh, 850 F.2d 1055, 1057 (C.A.5 1988) (en
banc), cert. denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989);
Peterson v. Murray, 904 F.2d 882, 886-887(C.A.4), cert. denied, 498 U.S. 992,
111 S.Ct. 537, 112 L.Ed.2d 547 (1990); Knox v. Collins, 928 F.2d 657, 660,
662 (C.A.5 1991); see also Turner v. Commonwealth, 234 Va. 543, 551-552,
364 S.E.2d 483, 487-488, cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100
L.Ed.2d 218 (1988); Mueller v. Commonwealth, 244 Va. 386, 408-409, 422
S.E.2d 380, 394 (1992), cert. denied, 507 U.S. 1043, 113 S.Ct. 1880, 123
L.Ed.2d 498 (1993). In addition, several of the courts to consider the question
have, along with the Fourth Circuit in this case, concluded that the rule of
Simmons was new. See, e.g., Johnson v. Scott, 68 F.3d 106, 111-112, n. 11
(C.A.5 1995), cert. denied sub nom. Johnson v. Johnson, 517 U.S. ----, 116
S.Ct. 1358, 134 L.Ed.2d 525 (1996); Mueller v. Murray, 252 Va. 356, 365-366,
478 S.E.2d 542, 548 (1996); Commonwealth v. Christy, 540 Pa. 192, 215-217,
656 A.2d 877, 888-889, cert. denied, 516 U.S. ----, 116 S.Ct. 194, 133 L.Ed.2d
130 (1995).

It is by no means inevitable that, absent application of the rule of Simmons,

"miscarriage[s] of justice'' will occur. We note, for example, that at the time he
was sentenced to death for Helen Schartner's murder, petitioner had already
been convicted of a murder committed while he was in prison. Informing his
sentencing jury that petitioner would spend the rest of his days in prison would
not, then, necessarily have rebutted an argument that he presented a continuing
danger.

During his closing statement at the sentencing proceeding, the prosecutor

observed: "Isn't it interesting that he is only able to be outside of the prison
system for a matter of months to a year and a half before something has
happened again?'' App. 61. And, after drawing out the parallels between the
Virginia murder and a kidnaping and robbery for which the petitioner had been

convicted in Florida some years earlier, the prosecutor said: "We are a society
of fair, honest people who believe in our government and who believe in our
justice system; and I submit to you there was a failure in the Florida criminal
justice system for paroling this man when they did.'' Id., at 64.
The prosecutor concluded his argument by saying: " [Y]ou may still sentence
him to life in prison, but I ask you ladies and gentlemen[,] in a system, in a
society that believes in its criminal justice system and its government, what
does this mean? . . . [A]ll the times he has committed crimes before and been
before other juries and judges, no sentence ever meted out to this man has
stopped him. Nothing has stopped him, and nothing ever will except the
punishment that I now ask you to impose.'' Id., at 66.
2

In the years following our decision in Furman v. Georgia, 408 U.S. 238, 92
S.Ct. 2726, 33 L.Ed.2d 346 (1972), unanimous Court opinions in capital cases
have been virtually nonexistent. The decision in Simmons v. South Carolina,
512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), came closer than most,
for only two Justices dissented.

Although Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989), focused on the accuracy of a guilt-innocence determination, we have
long recognized that sentencing procedures, as well as trials, must satisfy the
dictates of the Due Process Clause, see, e.g., Clemons v. Mississippi, 494 U.S.
738, 746, 110 S.Ct. 1441, 1447, 108 L.Ed.2d 725 (1990), and that the unique
character of the death penalty mandates special scrutiny of those procedures in
capital cases. An unfair procedure that seriously diminishes the likelihood of an
accurate determination that a convicted defendant should receive the death
penalty rather than life without parole-that the defendant is "innocent of the
death penalty,'' see Sawyer v. Whitley, 505 U.S. 333, 341-343, 112 S.Ct. 2514,
2519-2521, 120 L.Ed.2d 269 (1992)-is plainly encompassed by Teague's
exception.

The most commonly cited example of a rule so fundamental that it would fit
this category is the right to counsel articulated in Gideon v. Wainwright, 372
U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

See Simmons, 512 U.S., at 168, n. 8, 114 S.Ct., at 2196, n. 8.

See id., 512 U.S., at 167, n. 7, 114 S.Ct., at 2196, n. 7 (listing the States whose
capital punishment schemes in one way or another require the jury to be
informed that life without parole is either the only available alternative sentence
or one of the options from which the jury is free to choose).

See also, e.g., Comment, Truth in Sentencing: The Prospective and Retroactive

Application of Simmons v. South Carolina, 63 U. Chi. L.Rev. 1573 (1996);

Eisenberg & Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79
Cornell L.Rev. 1, 7-9 (1993) (" [J]urors who believe the alternative to death is a
relatively short time in prison tend to sentence to death''); Paduano & Stafford
Smith, Deathly Errors: Juror Misconceptions Concerning Parole in the
Imposition of the Death Penalty, 18 Colum. Hum. Rts. L.Rev. 211 (1987).
8

The Court ignores the fact that Justice Brennan and Justice Marshall agreed
with the plurality's conclusion that sentencing a defendant based on information
he was not permitted to deny or explain violated due process, but refused to join
the judgment insofar as it permitted further proceedings that could lead to
another death sentence. See Gardner v. Florida, 430 U.S. 349, 364-365, 97
S.Ct. 1197, 1208, 51 L.Ed.2d 393 (1977) (opinion of Brennan, J.); id., at 365,
97 S.Ct., at 1208 (Marshall, J., dissenting).

" Where the prosecution specifically relies on a prediction of future

dangerousness in asking for the death penalty, it is not only the rule of Lockett
and Eddings that requires that the defendant be afforded an opportunity to
introduce evidence on this point; it is also the elemental due process
requirement that a defendant not be sentenced to death "on the basis of
information which he had no opportunity to deny or explain.' Gardner v.
Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393 (1977).''
Skipper v. South Carolina, 476 U.S. 1, 5, n. 1, 106 S.Ct. 1669, 1671, n. 1, 90
L.Ed.2d 1 (1986).

10

The Court cited with approval the provision of the Model Penal Code
recommending that the jury be advised of "the nature of the sentence of
imprisonment that may be imposed, including its implication with respect to
possible release upon parole, if the jury verdict is against sentence of death.''
California v. Ramos, 463 U.S. 992, 1009, n. 23, 103 S.Ct. 3446, 3458, n. 23, 77
L.Ed.2d 1171 (1983) (quoting American Law Institute, Model Penal Code
210.6 (Prop. Off. Draft 1962)).

11

See Gardner, 430 U.S., at 357-358, 97 S.Ct., at 1204 ("From the point of view
of the defendant, it is different in both its severity and its finality. From the
point of view of society, the action of the sovereign in taking the life of one of
its citizens also differs dramatically from any other legitimate state action. It is
of vital importance to the defendant and to the community that any decision to
impose the death sentence be, and appear to be, based on reason rather than
caprice or emotion''). See also, e.g., R amos, 463 U.S., at 998-999, 103 S.Ct., at
3451-3452; Beck v. Alabama, 447 U.S. 625, 637-638, 100 S.Ct. 2382, 23892390, 65 L.Ed.2d 392 (1980).