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Simmons v. South Carolina is a 1994 Supreme Court case that guarantees capital defendants the right to inform juries about their parole ineligibility when the defendant's future dangerousness was at issue in trial. After being found guilty of murder, Jonathan Dale Simmons faced either a death sentence or a sentence to life in prison without the possibility of parole. During the trial's penalty phase, the State asked the jury to sentence Mr. Simmons to death, arguing that his future dangerousness to society compelled a sentence of execution. Mr. Simmons repeatedly requested permission to instruct the jury that, should he not be executed, the alternative sentence was life in prison without possibility of parole. The trial court denied these requests. A plurality of the Supreme Court held that denying the requested instruction violated Mr. Simmons' due process rights, and presented a "false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration."

Although Simmons was a plurality opinion, the Supreme Court has repeatedly reaffirmed its holding.

Facts and procedural history
Jonathan Dale Simmons was found guilty of brutally murdering 79 year-old Josie Lamb. Mr. Simmons' criminal history rendered him ineligible for parole, and the only possible sentences were life in prison and execution. Before trial, the court forbid defense counsel from asking potential jury members about their understanding of parole in voir dire. Following jury selection and a three-day long trial, Mr. Simmons was found guilty. During the penalty phase, the State asked the jury to sentence Mr. Simmons to death. Although Mr. Simmons was not eligible for parole, and the only alternative sentence available was life imprisonment, the prosecution repeatedly told the jury to execute Mr. Simmons because of the future danger he posed. For example, the State told the jury that returning a death sentence would be "an act of self-defense" and a "response of society to someone who is a threat."

At various points in this process, defense counsel requested permission to instruct the jury that Mr. Simmons' could never be released into public society. The court denied these requests. At one point during deliberations, the jury sent a note to the judge asking whether a "life sentence" included the possibility of parole. The judge replied by instructing the jury to "not consider parole eligibility." After receiving this response, and upon further deliberation, the jury sentenced Mr. Simmons to death. The South Carolina Supreme Court affirmed the sentence, and the Supreme Court granted certiorari.

Plurality opinion
Justice Blackmun's plurality opinion began by grounding the Court's holding in the Due Process Clause, which requires that no person be executed "'on the basis of information which he had no opportunity to deny or explain.'" The opinion then details the trial court proceedings, and the "grievous misperception" created by the State's emphasis on Mr. Simmons' future dangerousness and the court's refusal to provide information regarding Mr. Simmons' parole ineligibility. In particular, the plurality noted the defense's repeated requests – and the court's refusals – to instruct the jury on Mr. Simmons' ineligibility for parole. The result, the Court concluded, was that the jury was presented a "false choice between sentencing [him] to death and sentencing him to a limited period of incarceration."

Indeed, the plurality pointed out, studies    revealed that jurors commonly misunderstand the meaning of the term "life imprisonment," and have a misconception that the sentence could include early release. In Mr. Simmons case, this misunderstanding was exacerbated by the State's repeated emphasis on Mr. Simmons' future dangerousness. Of course, the plurality noted, the State was permitted to emphasize future dangerousness as a valid consideration for the jury during sentencing. Indeed, there are several factors in addition to future dangerousness – such as the defendant's age, mental capacity, and prior criminal history – that are appropriate for jury consideration during the sentencing phase and yet inappropriate during the guilt phase. That being said, when the defendant's future dangerousness is considered by the jury, the defendant has the right to inform the jury if he is ineligible for parole.

Justice Souter, joined by Justice Stevens
Justice Souter, joined by Justice Stevens, wrote separately to base the Court's judgment in the Eighth Amendment, which guarantees capital defendants the right to clarify legal terms for the jury. In addition to the due process clause, Justice Souter wrote, the Eighth Amendment imposes "a straightforward duty on the court" to instruct juries on the meaning of a capital defendant's parole eligibility. The concurring Justices would specifically require that the court (as opposed to defense counsel) provide the instruction to ensure that jurors understand it to be a binding statement of law (as opposed to an argumentative statement of an advocate).

Justice Ginsburg
Concurring in the opinion, Justice Ginsburg wrote to place the capital defendant's right to inform the jury of his parole ineligibility within his "right to be heard" which is a "core requirement of due process." Additionally, Justice Ginsburg noted that the right is satisfied regardless of whether the defense counsel or the judge provides the instruction.

Justice O'Connor, joined by Chief Justice Rehnquist and Justice Kennedy
Justice O'Connor wrote to concur in the judgment, joined by Chief Justice Rehnquist and Justice Kennedy. The concurring opinion reiterated the right of the State to argue the defendant's future dangerousness, noted that the State may argue that the defendant could be dangerous in prison, and acknowledged that the judgment was "despite [the] general deference to state decisions regarding what the jury should be told about sentencing."

Dissent
Justice Scalia and Justice Thomas dissented, arguing that the Court's ruling was a vast departure from the Constitution and represented a broad overreach into state power. The plurality opinion, the dissent criticized, is based neither in state practice nor the Constitution. The judgment could not be based on state practices, because most states did not allow juries considering capital sentences to receive information regarding parole. And the judgment could not be based on prior Fourteenth Amendment jurisprudence, the dissent explained, because those cases were based on an emphasis on future dangerousness which was lacking in the Simmons record. Though the Court's opinion might have been "reasonable as a matter of policy," the dissent stated, the Constitution did not require it be "followed coast to coast."

Implications
Since Simmons, a jury instruction regarding a capital defendant's parole ineligibility status is commonly referred to as a "Simmons instruction." Several studies reveal that providing juries with Simmons instructions can have significant consequences: typical jurors on capital cases mistakenly believe that a "life sentence" could include parole, and are therefore more likely to execute.

Evading Simmons
As the Simmons plurality opinion noted, 17 states were already providing clarifying instructions for capital defendants facing life without parole or execution at the time of the Simmons decision. In any event, some commentators predicted a significant impact on state criminal law. However, despite Justice Souter's opinion – which claimed a broad Eighth Amendment right for capital defendants – most state courts narrowly interpreted Simmons.

Following Simmons, some states used the possibility of clemency to deny Simmons instructions, and claimed that the opportunity to receive clemency rendered them eligible for release. Additionally, South Carolina amended its sentencing scheme following Simmons and, based on those amendments, claimed Simmons no longer applied. Pursuant to the amended scheme, jurors first decided whether an aggravating factor was present. If the jury answered no, then the defendant faced life imprisonment or a mandatory minimum of 30 years. If the jury answered yes, then the defendant faced life without parole or execution. In 2002, the Supreme Court rejected this approach, ruling that Simmons applied given the lack of sentencing discretion after an aggravating factor had been found.

Legal commentators have noted that, since Simmons, the Supreme Court has chastised state attempts to evade the judgment and deny Simmons instructions.

Implementing Simmons
When Simmons was decided, only 8 states – Florida, North Carolina, Pennsylvania, South Carolina, South Dakota, Texas, Virginia, and Wyoming – did not provide parole ineligibility instructions under the relevant circumstances. Since Simmons, Florida, North Carolina, South Carolina, South Dakota, Texas, and Virginia all routinely provide Simmons-like instructions to juries in capital sentencing proceedings.

Selected Supreme Court and federal courts of appeals cases

 * O'Dell v. Netherland, 521 U.S. 151 (1997) (ruling that Simmons constituted a new rule which, pursuant to Teague, could not disturb a final state court judgment through habeas corpus proceedings).


 * Ramdass v. Angelone, 530 U.S. 156 (2000) (plurality opinion)(ruling that capital defendant did not have constitutional right to Simmons instruction where he did not conclusively establish he was ineligible for parole as a matter of state law).
 * Kelly v. South Carolina, 534 U.S. 246 (2002) (ruling that Simmons requires parole ineligibility instruction where defendant's future dangerousness is merely implied, and that the right is not satisfied by defense counsel commenting on the permanence of life imprisonment).


 * Campbell v. Polk, 447 F.3d 270 (4th Cir. 2006) (holding that denying a Simmons instruction for capital defendant who would eligible for parole after 20 years was not a violation of due process).
 * Mollett v. Mullin, 348 F.3d 902, 914-16 (10th Cir. 2003) (holding that capital defendant's due process rights were violated by trial court's denying his request for a Simmons instruction)


 * Booker v. FL Dep't of Corrections, 684 F.3d 1121, (11th Cir. 2012) (holding that a capital defendant who would have to serve consecutive prison sentence of over one hundred years before qualifying for parole does not have due process right to Simmons instruction).

Selected scholarship

 * John H. Blume, Stephen P. Garvey and Sheri Lynn Johnson, FUTURE DANGEROUSNESS IN CAPITAL CASES: ALWAYS “AT ISSUE," 86 Cornell L. Rev. 397 (January 2001) (arguing that a Simmons instruction is warranted regardless of whether the State puts a defendant's future dangerousness at issue, because future dangerousness is always on the minds of the jury).
 * Craig M. Bradley, SOUTH CAROLINA'S DEATH PENALTY ODYSSEY CONTINUES, 38-APR JTLATRIAL 68 (April, 2002).
 * Kimberly Metzger, Resolving the "False Dilemma": Simmons v. South Carolina and the Capital-Sentencing Jury's Access to Parole Ineligibility Information, 27 U. Tol. L. Rev. 149 (1995).
 * Meghan Shapiro, AN OVERDOSE OF DANGEROUSNESS: HOW “FUTURE DANGEROUSNESS” CATCHES THE LEAST CULPABLE CAPITAL DEFENDANTS AND UNDERMINES THE RATIONALE FOR THE EXECUTIONS IT SUPPORTS, American Journal of Criminal Law, 35 AMJCRL 145, 177 (Spring 2008) (noting that the failure to define "society" as "prison society" when arguing future dangerousness may violate Simmons ' prohibition on presenting false choices to the jury in capital proceedings).
 * Mary Zaug, SIMMONS v. SOUTH CAROLINA: SAFEGUARDING A CAPITAL DEFENDANT'S RIGHT TO FAIR SENTENCING, 26 Loy. U. Chi. L.J. 511 (1982).

Selected treatises and manuals

 * 40A § 536 American Jurisprudence Homicide (2d Ed., February 2019) (citing Simmons for the defendant's right to a parole ineligibility instruction where he faces life without parole or death and his future dangerousness is at issue).
 * Gregory G. Sarno, Adequacy of defense counsel's representation of criminal client regarding appellate and post-conviction remedies, 15 American Law Report 4th 582 (1982).