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Opinion of the Court

jority 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 (1983), and Caldwell v. Mississippi, 472 U. S. 320 (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, 463 U. S., at 1001-1004, nor diverted the jury's attention from the task of rendering an “individualized sentencing determination,” id., at 1005. 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 à substantive factor to be presented for the sentencing jury's consideration.” Id., at 1013. 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 (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. 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 (opinion of Marshall, J., joined by Brennan and Blackmun, JJ.); see also id., at 1019–1020 (asserting that consideration by a capital sentencing jury

Opinion of the Court

of a defendant's prospects for commutation or parole is unconstitutional).

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 “instruc[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 (opinion concurring in part and concurring in judgment).

3

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 (opinion concurring Opinion of the Court

in judgment), suggesting that the rule announced in Simmons was not inevitable. See also id., at 183 (SCALIA, J., dissenting).

That distinction—between information concerning state postsentencing law on the one hand and evidence specifically related to the defendant on the other

was 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 (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), or whether provision of that information was a constitutional “policy choice in favor of jury education” (as JUSTICE O'CONNOR concluded, id., at 342 (opinion concurring in part and concurring in judgment)).

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 informa

Opinion of the Court

tion 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.

Teague asks state-court judges to judge reasonably, not presciently. See Stringer v. Black, 503 U. S., at 244 (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.

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. 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 (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 (CA4 1985), rev'd on other grounds sub nom. Turner v. Murray, 476 U. S. 28 (1986); O'Bryan v. Estelle, 714 F. 2d 365, 389 (CA5 1983), cert. denied sub nom. O'Bryan v. McKaskle, 465 U. S. 1013 (1984); King v. Lynaugh, 850 F. 2d 1055, 1057 (CA5 1988) (en banc), cert. denied, 488 U. S. 1019 (1989); Peterson v. Murray, 904 F. 2d 882, 886–887 (CA4), cert. denied, 498 U. S. 992 (1990); Knox v. Collins, 928 F. 2d 657, 660, 662 (CA5 1991); see also Turner v. Commonwealth, 234 Va. 543, 551–552, 364 S. E. 2d 483, 487–488, cert. denied, 486 U. S. 1017 (1988); Mueller v. Commonwealth, 244 Va. 386, 408,409, 422 S. E. 2d 380, 394 (1992), cert. denied, 507 U. S. 1043 (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 (CA5 1995), cert. denied sub nom. Johnson v. Johnson, 517 U. S. 1122 (1996); Mueller v. Murray, 252 Va. 356, 365–366, 478 S. E. 2d 542, 548 (1996); Commonwealth v. Opinion of the Court

B

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 (quoting Teague, 489 U. S., at 311). Petitioner describes the "practice condemned in Simmonsas 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 (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—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. 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 (quoting Teague, supra, at 311, quoting, in turn, Mackey v. United States, 401 U. S. 667, 693 (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.

Christy, 540 Pa. 192, 215–217, 656 A. 2d 877, 888-889, cert. denied, 516 U. S. 872 (1995).

4 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.

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