






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 alternative to death . . . is life imprisonment without possibility of parole, due process entitles the defendant 'to inform the jury of [his] parole ineligibility,' " Shafer v. South Carolina, 532 U. S. 36, 39—defense counsel requested 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 inapposite for two reasons: state law provided the jury with a third sentencing 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 legally available sentence alternative to death mistakes the relationship of Simmons to the state sentencing scheme. Although a murder defendant 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


Last modified: October 4, 2007