STEVENS, J., dissenting

IV

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

It is so ordered.

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.

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 petitioner had "forfeited his right to live among us," id., at 66. Nevertheless, the trial court re

1 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 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.

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fused 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.

Our virtually unanimous decision in Simmons v. South Carolina, 512 U. S. 154 (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:

"Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause,' Clemons v. Mississippi, 494 U. S. 738, 746 (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 (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 (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 (1986), quoting Gardner v. Florida, 430 U. S. 349, 362 (1977) (plurality opinion); see

2 In the years following our decision in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), unanimous Court opinions in capital cases have been virtually nonexistent. The decision in Simmons v. South Carolina, 512 U. S. 154 (1994), came closer than most, for only two Justices dissented.

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also 476 U. S., at 9-10 (Powell, J., concurring in judgment)." Id., at 175 (opinion concurring in judgment). Thus, this case is not about whether petitioner 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 156, 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.

I

My analysis begins where the majority tersely ends-with 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 (1990), and therefore should be retroactively applied even if it would constitute a "new" rule under Teague v. Lane, 489 U. S. 288, 307 (1989).

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 (1971) (Harlan, J., concurring in judgments in part and dissenting in part), in turn quoting Palko v. Connecticut, 302 U. S. 319, 325 (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 693694. We endorsed that view, with the caveat that this

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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 313.3

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. In my view, the right in Simmons-the right to respond to an inaccurate or misleading argument is 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 (opinion concurring in judgment). See also id., at 174 (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 (1986).

The Court today argues that Simmons defined only a "narrow right of rebuttal [for] defendants in a limited class of capital cases," ante, at 167, and therefore that the rule cannot be in that class of rules so essential to the accuracy of

3 Although Teague v. Lane, 489 U. S. 288 (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 (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 (1992)-is plainly encompassed by Teague's exception.

4 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 (1963).

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a criminal proceeding that they are excepted from Teague's nonretroactivity principle.

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." 512 U. S., at 177 (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

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 2 death sentences have been imposed in Virginia for crimes committed after January 1, 1995-whereas 10 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 life-without-parole alternative. See Green, Death Sentences Decline in Virginia, Richmond Times-Dispatch, Nov. 24, 1996,7 p. A1. The

5 See Simmons, 512 U. S., at 168, n. 8.

6 See id., at 167, 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).

7 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