Opinion of the Court

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. The plurality, relying on Gardner v. Florida, 430 U. S. 349 (1977), and Skipper v. South Carolina, 476 U. S. 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.

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:

"[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 (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.

The concurrence also distinguished Skipper, noting that Skipper involved an attempt 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. But the concurrence nonetheless concluded that, "[w]hen the State seeks to show the defendant's future

Opinion of the Court

dangerousness," the defendant "should be allowed to bring his parole ineligibility to the jury's attention." Id., at 177. 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.

A

We observe, at the outset, that Simmons is an unlikely candidate for "old-rule" 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. 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 (SOUTER, J., concurring). JUSTICE GINSBURG, also a Member of the plurality, wrote a concurrence grounded in the Due Process Clause. Id., at 174-175. THE CHIEF JUSTICE and JUSTICE KENNEDY joined JUSTICE O'CONNOR's decisive opinion concurring in the judgment, as described above. Id., at 175-178. 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 (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

Opinion of the Court

this Court's precedent, "susceptible to debate among reasonable minds." Butler, 494 U. S., at 415; cf. Sawyer v. Smith, 497 U. S. 227, 236-237 (1990) (citing, as evidence that Caldwell v. Mississippi, 472 U. S. 320 (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.

1

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) (emphasis deleted).

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. 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 (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 (internal quotation marks omitted; emphasis added).

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

Opinion of the Court

prison and would likely rape other prisoners." 476 U. S., at 3. 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 (1982)], such evidence may not be excluded from the sentencer's consideration." 476 U. S., at 5 (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 (quoting Gardner, supra, at 362).

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

2 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 (1994) (emphasis added). While this language, expressing the view of four Justices, is certainly evidence tending to prove that the

Opinion of the Court

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, 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 (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.

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 (O'CONNOR, J., concurring in judgment).

2

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. Respondents point to, and the Fourth Circuit ma

rule of Simmons was not new-i. e., that it was "dictated" by thenexisting 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 (1990).