SIMMONS v. SOUTH CAROLINA

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Argument of David I. Bruck

Chief Justice Rehnquist: We'll hear argument next in No. 92-9059, Jonathan Dale Simmons v. South Carolina.

Mr. Bruck, you may proceed.

Mr. Bruck: Mr. Chief Justice, and may it please the Court:

The issue in this capital case is whether the prosecution can secure a death sentence on the grounds of the defendant's future dangerousness, while at the same time concealing from the sentencing jury a crucial aspect of its noncapital sentencing alternative, namely that life imprisonment means life without parole.

Future dangerousness was the primary reason advanced by the State in this case why the jury should sentence Jonathan Simmons to death.

The defense acknowledged that the petitioner, by reason of his serious mental illness, was, in fact, dangerous or would be, in fact, dangerous were he released back into society.

However, the defense showed, by expert and lay testimony, a likelihood that the petitioner would make a nonviolent and cooperative prison inmate.

Now, the jury itself identified the crucial piece of missing information in this presentation.

After 90 minutes of deliberation on the issue of penalty, the jury returned to the courtroom and asked the following question: Does the imposition of a life sentence carry with it the possibility of parole?

And the trial judge responded by telling them three things: you are instructed not to consider parole; that is not a proper issue for your consideration; and life imprisonment and death sentence are to be understood in their plain and ordinary meaning.

The issue in this case arises because of the fact that under South Carolina law the correct answer to the jury's question was no.

Because Jonathan Simmons had prior convictions for a violent offense, under South Carolina law life meant exactly that, life without the possibility of parole.

That was what the jury wanted to know and that is what the petitioner urged they be told.

The State, from the very beginning of the trial, successfully impressed upon the trial judge not to tell the jury.

It was obvious how critical this information was going to be and the... it was obvious what an advantage the State would receive if alone among everybody in the courtroom, the jury alone would be the only ones not to know.

Unknown Speaker: Mr.--

--Well, Mr. Bruck, are you arguing that a State has an obligation to provide a truthful answer to any question that a jury may ask?

Mr. Bruck: No, not at all.

But here where there is absolutely no justifiable, there is no rational State interest in refusing to give the information that the jury asked for and where the information on the facts of this particular case was so crucial to a reliable and fair determination of the sentence.

Unknown Speaker: Well, can a State say that we're not going to answer jury questions that involve collateral matters that are just going to distract the jury?

Mr. Bruck: Certainly.

However, what the alternative to death is in a case where the State is basically saying... not basically, where the State is literally arguing to the jury this is a matter of self-defense.

That was Mr. Harpootlian's jury argument.

The question before you is what to do with someone who is a threat.

He told the jury you... the issue is not what made him this way.

There was all this evidence of very very extreme abuse and sexual abuse and violence in this man's childhood.

The State's response was the question before you is what to do with him now that he is in our midst.

Unknown Speaker: Do juries or judges in South Carolina impose sentences in noncapital cases?

Mr. Bruck: No, they do not.

Unknown Speaker: Well, one must.

I asked do juries or judges?

Mr. Bruck: Oh, I'm sorry, excuse me.

There is no jury sentencing except in one or two... no there is, I believe, non whatsoever now.

Unknown Speaker: So supposing that in a noncapital case a jury comes in with a question after some deliberation and they want to know what the sentence is for this offense if they find the person guilty, is a State obligated to furnish that information?

Mr. Bruck: Not by any means.

And the reason for that is that the jury's task at the... in the hypothetical you put to me is to determine guilt or innocence, without regard to what is going to happen.

But in this case, in capital sentencing, the jury's task is to sentence.

And, of course, the State cannot derive any comfort from the principle that sentencing issues shouldn't interfere with guilt in a proceeding which is a sentencing hearing.

Unknown Speaker: What your position really boils down to is not, as I understand it, a position about information or a position about alternatives.

It boils down to the position that the jury should know the meaning of the terms, the meaning which the law gives to the terms that the jury is required to use in pronouncing the sentence.

Is that the nub of it?

Mr. Bruck: Yes.

And most particularly our Gardner claim, our due process claim, is that even if the Eighth Amendment did not require an affirmative answer to that question, where the State puts the meaning of the noncapital sentencing so clearly into issue... and we know it was an issue not only because of the evidence and the solicitor's... the prosecutor's argument, but because of the jury's question.

There surely... leaving all this Court's Eighth Amendment jurisprudence to one side for a moment, there obviously it just isn't fair.

Unknown Speaker: What if the jury asks... surely, you know, how severe the alternative punishment is is always an issue.

Suppose the jury comes back and says do prisoners in State prisons have television sets; how big are the cells in State prisons?

Mr. Bruck: I would submit that there is... one quite reach... readily reaches a de minimis level where the--

Unknown Speaker: Well, I don't know that that's de minimis.

The... you know, will this man be on a chain gang or are there any chain gangs in the State anymore?

Mr. Bruck: --Um--

Unknown Speaker: Those are very relevant questions for a jury that wants to know how severely this person is going to be punished if the capital sentence is not imposed.

Why are those questions irrelevant?

I don't think they're irrelevant at all.

Mr. Bruck: --I don't think they have absolutely no relevance, but I think it is within the broad range of the State's ability, under cases such as Johnson v. Texas, to channel and mold the jury's consideration of sentencing factors.

Unknown Speaker: But just not this question.

The other ones can be excluded but this one can't.

Mr. Bruck: No, that's correct.

Because this issue not only goes to the retributive... although we think the retributive importance of this life without parole information is very significant, but it pales towards... beside the incapacitating--

Unknown Speaker: What if there's a statutory amendment pending that would eliminate parole?

Is the judge supposed to tell; how does he answer?

Mr. Bruck: --That would eliminate parole--

Unknown Speaker: There is no... parole is unavailable... I'm sorry, that would make parole available.

Parole is unavailable now, but there is a bill currently being debated.

Can he tell them that?

Mr. Bruck: --I would think--

Unknown Speaker: I mean, isn't that the problem of answering them with respect to anything that--

Mr. Bruck: --I don't think the Constitution, obviously, requires that they be told.

I think this is... generally, the whole range of... well, can we tell them this; can we tell them that... that is found in the State's brief, was answered 10 years ago in California v. Ramos.

The Court addresses the question, is the information reliable; is it accurate?

Unknown Speaker: --But you... you keep answering these questions in terms of information.

Why don't you answer the question in terms of meaning?

They want to know whether life means life or means something else, and isn't that a far stronger argument than simply the argument that there are degrees of relevance of extraneous information.

This isn't a question about extraneous information; it's a question about meaning, isn't it?

Mr. Bruck: Well, I agree with that, but I suppose the... Justice Scalia's question could always be posed, well, it means life without parole, but then it also means that he will or won't have a TV set.

I don't agree with that and I think that stretches--

Unknown Speaker: It's life in prison, but it isn't really prison.

Mr. Bruck: --Whatever.

I think that stretches the concept of the meaning of a sentence beyond all bounds, but I can... I would be surprised if my friend doesn't make the argument in a moment.

Unknown Speaker: But doesn't... but your point is the meaning of a word.

Mr. Bruck: Yes.

Unknown Speaker: Yeah.

Mr. Bruck: Yes, that's right.

And the importance of clarifying what the meaning--

Unknown Speaker: Well, do you argue simply that you're entitled to the instruction if the jury asks?

Mr. Bruck: --No.

Unknown Speaker: Is not the foundation of your argument that the defense counsel is entitled to make this argument to the jury if it chooses?

Mr. Bruck: Absolutely.

And the trial judge, at the prosecutor's urging, refused to allow precisely that argument.

And you can see--

Unknown Speaker: Well, what--

--So is the premise of that position that the jury is entitled to hear from counsel or from the court anything that is likely to be relevant to the jury's sentencing decision?

Is that the working principle we have?

Mr. Bruck: --Well, turning to the Eighth Amendment, the Skipper-Locket aspect, which this Court need not reach, but if it were to reach that, I think the language from Justice Powell's opinion in McCleskey, any relevant circumstance which could cause the jury to fail to... to decline to impose the death penalty.

Now--

Unknown Speaker: So if a prosecutor wanted to put in... or, pardon me, a defense counsel wanted to put in a videotape of what an execution looks like, he should be able to do that so the jury could see the consequences of what they're doing?

Mr. Bruck: --No.

Because I think given the fact that the method of execution is constrained by the Eighth Amendment and there is no torturous or cruel form of execution permitted, I think it is within... Lockett does not remove the power of the State to say that that is not relevant, and therefore it is not irrelevant circumstance.

But it is impossible to say that the fact that Jonathan Simmons will not allow... again, allow... be allowed to be paroled and to roam the streets is not a relevant circumstance.

Unknown Speaker: I suppose we're struggling for the definition of what's relevant.

Mr. Bruck: Yes.

Unknown Speaker: How are we going to do that in the confines of this case, other than make it parole specific?

Mr. Bruck: Well, of course, this case is about parole, and the Court need go no further than to say that when the State has a... has a dangerous mentally ill defendant who it wishes to execute, it cannot urge the jury... it cannot create a false dilemma.

I think Beck is instructive, although not on point, in this area.

Unknown Speaker: But that leaves us without a guiding principle.

Mr. Bruck: The Court has struggled with the meaning of relevant.

In Skipper the State of South Carolina urged that it was not relevant that the defendant would be a well-behaved prisoner, because it went... in the future in prison, because it went neither to his character and record nor to the circumstances of the offense.

And the Court responded that that future... likely future behavior, albeit only in prison, was relevant in the sense... or was mitigating in the sense that it might reasonably incline the jury to be less likely to vote for a sentence of death.

Unknown Speaker: Mr. Bruck, may I try to ask what it is exactly you're urging, that the defendant had a right to put in evidence about what the parole system law meant in South Carolina?

Mr. Bruck: No, we do not think that it was necessary.

This was a matter of law and our claim is limited to those situations in which--

Unknown Speaker: Well, is it an argument that the defendant's lawyer should have been allowed to argue it to the jury, or do you say that in every case the trial court should, sua sponte, instruct on it?

I don't know what it is you're really asking us to hold.

Mr. Bruck: --I'm asking--

Unknown Speaker: What's your request here?

Mr. Bruck: --I'm asking you to hold that where parole is not an option, where State law is clear, as it is here, that the jury not have that information withheld from them.

Our... the center of our case was a request that State law be instructed to the jury by the judge.

Unknown Speaker: But if you were allowed to tell the jury in your argument that life means life, you wouldn't have a constitutional objection, I take it.

Your argument is the jury must be told.

Mr. Bruck: Yes.

Unknown Speaker: But does it require the judge to tell them, or... the judge wouldn't permit you to tell them either, right?

Mr. Bruck: That's correct.

The State moved and the judge so ruled.

Unknown Speaker: So is there a constitutional distinction that requires the judge be the one to say it, or is your point that the term "life" must be defined... you must be allowed to define it for the jury?

Whether counsel does it or the court does it is not a constitutional distinction.

Mr. Bruck: It is the latter.

So long as the defendant is able to have the jury informed, whether it be by his counsel or by the court.

Now, of course, the jury might not take counsel's word for it and might very well, even had argument been allowed, come back with this question, in which case we think that the judge should have responded.

Unknown Speaker: I assume--

--And that is because parole is likely to be an essential or a material or a substantial factor in the jury's decision?

Is that the standard we're working with?

We need a standard here I know what you want so far as specific relief, but I'm not sure of the underlying principle.

Mr. Bruck: Yes, I think that the... it's... it is difficult for me to lay down a rule, I think, that does not have some element of generality in it to propose one.

And I think... I don't know that the Court need establish or that it is possible to establish a bright-line rule which will clearly cover every conceivable fact situation.

Unknown Speaker: Yes, but isn't it part of your case... now I don't know if... there's some evidence in the record, as I understand it, that without this instruction the jury will be acting on a false premise.

Mr. Bruck: Absolutely, absolutely.

Unknown Speaker: So your... whatever your standard is, it's limited to situations, as I understand it, where in the absence of an instruction the jury will be mislead.

Mr. Bruck: Yes.

Unknown Speaker: And mislead, as I understand it, about the law.

Mr. Bruck: That's correct, about the meaning--

Unknown Speaker: You sometimes speak in terms of fact, but what you want them told is what a legal term means which they have got to use in sentencing.

Mr. Bruck: --That is correct.

Unknown Speaker: And some jurors may think it means life subject to parole, other jurors may think it means life without parole, and you want that legal definition given to them.

Mr. Bruck: That is correct.

Unknown Speaker: So why don't you just limit your principle here to saying when there is a legitimate doubt about the meaning of a term which is used in instructing the jury, and which the jury must, in turn, use in sentencing, that term must be defined.

Why don't you go to that point and stop?

Mr. Bruck: That is a entirely satisfactory way of framing the issue and it does... I must say that it does simplify the issue of how to--

Unknown Speaker: It does, Mr. Bruck.

But if it goes to the meaning of the word, I assume it would go the meaning whether the answer is yes or no, right?

And that would mean the prosecutors would be entitled to introduce in these cases the fact that if you give this individual life, it really doesn't mean life, he'll be walking the streets in 20 years, right?

Mr. Bruck: --I read Ramos--

Unknown Speaker: Fair is fair.

Mr. Bruck: --Fair is fair.

Unknown Speaker: If it goes to the meaning of the word, right, right.

Mr. Bruck: Fair is fair.

Unknown Speaker: Now, it is my impression... it is--

--I just want--

Mr. Bruck: I agree with that if it's true.

Unknown Speaker: --Yeah.

Mr. Bruck: If the prosecutor can produce South Carolina law to show that, in fact--

Unknown Speaker: Right, right, right.

Mr. Bruck: --Life doesn't really mean life, even though there's no parole.

Ramos settled that a long time ago.

Unknown Speaker: It's my impression that some States exclude information about parole for the very purpose that juries will not distort the State parole system by discounting it in advance, so that knowing that a person's going to get time off for good behavior, or whatever, they up the sentence from what it otherwise would be in order to defeat the parole system.

Mr. Bruck: Yes.

Unknown Speaker: That's a perfectly rational thing for a State to do, it seems to me.

And you're saying that that can't be done, because 35 years doesn't really mean 35 years if there's a parole system, or life does not really mean life if there's a parole system.

Mr. Bruck: No, I don't say that can't be done at all.

The crucial fact here is that there is no parole system for this defendant.

Unknown Speaker: Isn't the crucial fact that the jury is sentencing here and the jury is normally not sentencing.

Mr. Bruck: Well, that's true.

And, of course, the information... the legal definition that we think the jury should have had of its sentencing alternative is a legal definition known to the sentencer in 99.9999 percent of sentencing proceedings.

Unknown Speaker: Well, what if the jury comes in with a question after deliberation and asks in what prison would a life term be served?

Mr. Bruck: Well, I do not view that as part of the legal definition of its sentencing alternative.

Unknown Speaker: Well, then, how do you define the legal definition of a sentencing alternative?

Mr. Bruck: Well, South Carolina law does not provide for statutory law.

The law defining the punishments does not deal with classification and institutional assignment.

Now, I don't think that there is any... if the State wants to show, through evidence or however, that there are huge security... there are... you know, there are some... in other words, if a State wishes to show facts about the prison system that support its view of future dangerousness and show that the risk from the defendant is greater than simply life without parole might suggest, I see, under California v. Ramos, the Constitution providing no bar.

Unknown Speaker: Well, could a State... could a State... could the prosecutor produce evidence that the place all these lifers are sent is really not a very well built prison and it would be fairly easy to break out of?

Mr. Bruck: If that information is accurate, I think that that... that under the... I would be very surprised if a State supreme court would allow that sort of collateral trial, but I, frankly, have to say I don't read the Eighth Amendment, under your cases, as creating a bar.

Providing... the touchstone is accuracy and reliability, and I think... our claim does not engage all of these factual matters.

Unknown Speaker: Well, isn't it even narrower than that, Mr. Bruck?

The touchstone you say is reliability, but also your... part of your touchstone, as I understand your argument, is that in the absence of the instruction the jury would be acting on a false premise.

Mr. Bruck: Yes.

Unknown Speaker: Now, in the Chief Justice's example it presumes, you know, one State prison in each State, and presumably there's not much doubt about where the man's going to go, so you wouldn't need the instruction.

Mr. Bruck: That's correct.

Unknown Speaker: And if they thought they were all going to spend their life in a country club somewhere, then perhaps it would be appropriate to clear up the misunderstanding.

Mr. Bruck: That's correct.

Unknown Speaker: You're saying the jury will send this man to his death if he... if it knows he's only otherwise going to be in prison for 25 years, whereas it might otherwise not.

Mr. Bruck: Might, and we submit in this case likely did, yes.

Unknown Speaker: Well.

Because the jurors came in and asked the question.

Mr. Bruck: Because of the way the case was presented; because of the facts of the case; because of the manifest dangerousness of this man's record and of his mental illness; because of the prosecuted argument; because of the fact that the defense was prevented from making this crucial argument that you can protect society adequately, you can exercise the right of collective self-defense without putting him to death.

And because, finally, lest there be the slightest doubt, the jury not only came back and asked the question, but when the judge gave a 25 minutes with death.

It was thank you very much; that is what we needed to know; we are not going to take the risk that this man will be back on the street in the very vivid way that the prosecutor described in his closing argument.

Unknown Speaker: Mr. Bruck, but if we're talking about what does the term "life" mean, I take it you're saying you should be allowed, or the judge should instruct to say that there is no parole in this case.

On the other hand, the prosecutor could then say but the Governor has certain authority, they could let this person out, or that the law could change.

The Governor in South Carolina does not have that authority.

If he did, Ramos is on point, I think, and would, under the Eighth Amendment, allow that instruction.

A change of law is a more difficult question, but for the purposes of our... because the idea that the law could change is sort of a universal solvent in which the entire idea of guided discretion tends to disappear, leaving only the finality of death as the only guidepost.

But even... for purposes of our argument today and for purposes of deciding this case, even the fact that... if the judge were to instruct under current law, or subject to further action by the legislature, I don't think that that in any way affects our submission today.

The State didn't want to get a fair hearing on this or spell out or clarify the definition of the definition of life imprisonment.

The State wanted to keep the jury in the dark and the State was successful in doing exactly that.

And I submit that under the Due Process Clause on the facts of this case, under the reliability prong of this Court's line on this Court's Eighth Amendment cases, and we also submit under the Lockett-Skipper line of the right to present mitigating evidence and to have mitigating evidence given substantial and reasonable weight in the jury's deliberations.

Because the failure to define the life imprisonment punishment rendered almost meaningless the defendant's Skipper evidence, his good behavior in prison evidence.

What difference would it make if he's only going to be in prison for 5 or 10 years?

We're concerned about what happens what he's paroled.

And, indeed, the fact that he's a good inmate might actually, to the jury, make it more likely that he'll be paroled sooner and back on the streets.

So for all of those reasons, we submit that what happened here cannot be squared with the Constitution of the United States.

And I would note too that this is, in terms of what goes on around the country, a very narrow issue.

Because of the States which have parole, precious few of them try to put this sort of a thumb on the scales for death.

They tell the jury forthrightly, in the overwhelming majority of States, and I believe it goes down the line of them, that if life means life, that is usually part of the sentencing verdict itself, and the jury is not left in the dark and defendants are not exposed to the sort of unfairness that happened in this case.

If I may, I should like to reserve the remainder of my time for rebuttal.

Very well, Mr. Bruck.

Mr. Harpootlian, we'll hear from you.

Argument of Richard A. Harpootlian

Mr. Harpootlian: Mr. Chief Justice, if it please the Court:

It seems to me that the linchpin of Mr. Bruck's argument, and the fiction that we need to examine, is that throughout his argument to the lower court and his presentation here today he equates the term "ineligibility of parole" with "ineligibility of release".

When the jury came back and asked when would he be eligible for parole, were they asking that limited, specific, technical term, or were they asking when will he be eligible to be released?

Unknown Speaker: Why don't we assume that they were asking what they asked, and they asked about eligibility for parole?

Mr. Harpootlian: Well, Justice Souter, they may have asked about eligibility for parole.

The requested instruction by Mr. Bruck during trial was concluded with the term that he will remain in jail for the rest of his life.

In South Carolina while the Governor does not have the power to pardon, the Pardon and Parole Board does.

Unknown Speaker: Well, maybe Mr. Bruck's suggested instruction was inaccurate in that respect, but do you take the position that the jury should not be told the meaning of a term about which it has a legitimate question?

Mr. Harpootlian: I think the jury should be told the meaning of the term.

Unknown Speaker: Well, do you think there's a legitimate question possible in the minds of jurors, given what most people know or think they know about the penal system, as to whether or not the term "life" includes a parole eligibility factor or whether it doesn't?

Is that a legitimate question?

Mr. Harpootlian: I think it is a legitimate question, and the response by the South Carolina judge under the South Carolina case of Torrence is that you cannot consider parole; do not consider parole or parole eligibility.

Unknown Speaker: In other words, it's a legitimate question about the meaning of the terms, but the jury cannot be given a legal answer.

Mr. Harpootlian: Well, I think that the jury was given the legal answer, which is something we should not consider.

It is not something that you should consider as part of your sentence.

Unknown Speaker: But the consequence of that, it seems to me, based on what you've already said, is that the jury should not be informed about the meaning of a term that it's got to use.

It's got to say life or death.

The jury should not be informed about the legal meaning of that term when the jury has a question about it.

Mr. Harpootlian: They were given the meaning of the term "life".

They were told--

Unknown Speaker: You mean in the last sentence of the judge's response.

Mr. Harpootlian: --Yes.

Unknown Speaker: Plain and ordinary meaning.

Mr. Harpootlian: Yes, sir.

"Life"--

Unknown Speaker: But isn't the problem with that that that is a... given the premise of the question, it is a totally ambiguous answer.

If you use the... if it has the ordinary meaning in the mind, certainly, of some jurors... and I would have been one of those jurors myself... then it means yes, "Life" means subject to parole.

If you give it a plain meaning which is not ordinary, then it would mean life does not include eligibility for parole.

It seems to me that if you've got to answer the question, that wasn't much of an answer.

Mr. Harpootlian: --Well the answer was life means life.

The answer was--

Unknown Speaker: No, that isn't what the answer was.

The answer was you give the terms their plain and ordinary meaning--

Mr. Harpootlian: --Without considering--

Unknown Speaker: --And if you give it a plain meaning in a strict sense, it means life means life.

If you give it a meaning in an ordinary sense to lots of jurors who chink they... who have heard about the parole system, then it would mean subject to parole.

But whatever that answer was, it was not a plain answer.

Mr. Harpootlian: --But they have been told not to consider parole.

Unknown Speaker: But you're then simply, it seems to me, backtracking on your answer.

You agree that they ought to know the meaning of the terms that they've got to use in sentencing.

You don't dispute that.

Mr. Harpootlian: No, sir, I don't dispute that.

Unknown Speaker: And you are now saying, but they can't be told about that term.

Mr. Harpootlian: I don't think that is a term that is necessary for them to know about in sentencing.

It is a decision to be made--

Unknown Speaker: In other words when they have to make a choice between the death penalty and life imprisonment, they don't need to know the meaning of life imprisonment?

Mr. Harpootlian: --Life imprisonment, for their purposes, was defined as life imprisonment.

Life--

Unknown Speaker: Well, we're getting... we're getting nowhere, because the question is whether they are entitled to a clear definition responsive to their question.

Mr. Harpootlian: --And I submit that they got a clear definition of that charge.

Unknown Speaker: So your answer, then, is that they were entitled to the answer, they are entitled to know the meaning of the terms they have to use, but there's no problem here because the definition they got was adequate.

Mr. Harpootlian: They do not need to know the definition of the term "parole" to make that decision.

Unknown Speaker: But they do need to know the definition of the term "life" or "life imprisonment".

Mr. Harpootlian: Yes, sir.

And they were given that.

Unknown Speaker: Okay.

And you say they... you agree that they're entitled to that and you say they got it.

Mr. Harpootlian: Yes, sir.

Unknown Speaker: Okay.

Mr. Harpootlian: To go beyond life means life, and that's exactly what they were told, we would have to discuss pardon, work release, furlough.

Unknown Speaker: Excuse me, I don't want to play with words, but that is not exactly what they were told.

They were told that the terms the court had used were to be given their plain and ordinary meaning.

Mr. Harpootlian: Yes, sir.

Because to go beyond that would open up, in the South Carolina court's opinion, a can of worms.

Unknown Speaker: Well, what you contend is that they were told that the sentence that they would impose would be a sentence of life imprisonment.

Mr. Harpootlian: Yes, sir.

Unknown Speaker: And you think they do not have to be told that there are other laws which we have in our State which would enable a person sentenced to life in prison, which is a sentence for life, to perhaps get parole, to perhaps get a pardon, to perhaps get work relief, all other different laws which have nothing to do with the meaning of the word "life".

Mr. Harpootlian: That is correct, Justice Scalia.

And in... this Court, in a number of cases, Penry v. Lynaugh, did not define the term... the court did not define the term deliberately.

And yet this Court found that was sufficient.

Unknown Speaker: But I take it, then, that if we think or a majority of us think that the definition was inadequate, that it just did not respond to the jury's perplexity, that you would agree there would have to be a reversal here?

Mr. Harpootlian: No, sir, I would not agree with that.

Unknown Speaker: Then I don't understand what I thought was your answer to the question of whether the jury was or was not entitled to be told the definition of the terms it was using.

Because if they're entitled to be told the definition and the definition is not inadequate, I would suppose it would follow that there would be a reversal.

Mr. Harpootlian: No, sir.

My position is that... first of all, I would not... obviously, for purposes of your hypothetical, that it would fail.

I don't concede it fails.

It's difficult for me to get to the logical assumption that it fails, for a number of reasons.

Unknown Speaker: But let's assume, for the sake of the hypothetical, that it does fail, there would have to be a reversal, wouldn't there?

Mr. Harpootlian: Well, I would submit that the definitional term of "life imprisonment", if you have to define every term, if you have to parse--

Unknown Speaker: No, but you're... with respect, I don't want to cut off your argument, but I want you to answer my question, and I think what you're doing is basically denying my premise.

If we conclude that the definition was not adequate to inform them--

Mr. Harpootlian: --You--

Unknown Speaker: --Do you agree that there would have to be a reversal here?

Mr. Harpootlian: --As to the second part of the charge, if that was inadequate, that life means life, that you were to give it the plain and ordinary meaning.

Unknown Speaker: Yeah, yeah.

Mr. Harpootlian: I would not concede that because of the prior sentence which... in which the judge indicated do not consider parole or parole--

Unknown Speaker: Well, then it... then you are taking the position that the jury is not entitled to know the meaning of the terms which it must use in pronouncing the sentence.

Mr. Harpootlian: --I am of the opinion--

Unknown Speaker: Because you are saying, if I understand you, that they do have to use this term, but it is perfectly proper to deny them a definition of it.

Mr. Harpootlian: --The term--

Unknown Speaker: Because that's what South Carolina said.

Mr. Harpootlian: --I just don't think parole is part of the definition of the term--

Unknown Speaker: I'm not talking about parole.

I'm talking about the meaning of life imprisonment.

Mr. Harpootlian: --No, what I'm saying is--

Unknown Speaker: Do they have to be given the definition of life imprisonment if they're going to use that as a sentencing alternative?

Mr. Harpootlian: --I think that they have to be given... they have to have a definition of life.

I just don't think parole is part of that.

And I think that the first sentence excludes parole from that.

Unknown Speaker: Okay, so we're back to the question.

If the definition they were given by the court is inadequate, if we assume that... you don't, I recognize that.

Mr. Harpootlian: Right.

Unknown Speaker: And I'm not asking you to concede it.

But if you assume it for the sake of argument, then we get a reversal here.

Mr. Harpootlian: If one of the two sentences is misunderstood, there's a reasonable likelihood of misunderstanding under Boyde, yes, sir.

Unknown Speaker: Okay.

Mr. Harpootlian: If we have not met the Boyde... the Boyde v. California standard.

Unknown Speaker: But you say it's legally irrelevant that there are, in fact, two different kinds of life sentences, life with parole and life without parole, that that's legally irrelevant?

Mr. Harpootlian: That is correct.

Unknown Speaker: Mr. Harpootlian, do most States that have a system of life without parole tell the juries that it's life imprisonment without parole?

Mr. Harpootlian: There are a variety... different States have different schemes, if you will.

Pursuant to this Court's decision in Ramos, the States felt that they could develop different schemes.

And a number--

Unknown Speaker: It was my understanding that most States that have adopted a life imprisonment without parole go ahead and advise juries if a jury is sentencing--

Mr. Harpootlian: --Many--

Unknown Speaker: --That it's life imprisonment without parole.

Mr. Harpootlian: --Many do, but many have a specific verdict by the jury of life without parole.

Unknown Speaker: How many States would do as South Carolina and refuse to clarify that?

Mr. Harpootlian: There are three.

Unknown Speaker: And they are?

Mr. Harpootlian: Virginia, South Carolina, North Carolina... and Pennsylvania, I'm sorry.

Unknown Speaker: Pennsylvania instead of North Carolina or in addition?

Mr. Harpootlian: Yes, sir, I'm sorry.

I would submit to the Court that to expand the Eighth Amendment to include the custody status, if you will, of a defendant or a petitioner such as this, strains the use of the Eighth Amendment.

Now, in Skipper this Court ruled that future adaptability to prison was relevant to the sentencing authority's decision.

And to that end, we go back to the Court's prior cases, Lockett and Eddings and other cases, in which you talk about the character of the defendant, the characteristics of his crime and his prior record.

Skipper specifically speaks to future adaptability as being a characteristic of the defendant.

How can parole ineligibility or parole status fit within that... that classification?

Unknown Speaker: Suppose in a case the prosecutor tells the jury, sentence this man to death because if you don't he can roam free some day and kill somebody?

Suppose the prosecutor says that to the jury, is the defense counsel entitled to say, now, you've heard the prosecutor's argument, but I want you to know that in this State there's life imprisonment without possibility of parole, which would apply to this defendant?

Mr. Harpootlian: That is not the circumstances in this case.

However, if he did that, I think so, yes, Mr. Kennedy.

Unknown Speaker: Well, that's my next point.

Wasn't it, in effect, argued here when the prosecutor said whether or not the sentence of death for Simmons will deter anybody else.

I submit to you the fact that it will deter him is plenty, and your verdict should be a response of society to someone who's a threat.

Your verdict will be an act of self-defense.

Don't avoid your responsibility.

It's an act of self-defense.

Mr. Harpootlian: No argument about release, about parole, about being back out on the street.

And I would challenge--

Unknown Speaker: You don't think jurors could fairly infer from that argument that he was a danger to society because he might be released?

Mr. Harpootlian: --Well, in this case the petitioner's own psychologist testified he would be dangerous, number one.

Number two, we have the Skipper adaptability--

Unknown Speaker: All the more reason to tell the jury that he's going to be confined.

Mr. Harpootlian: --Well, the Skipper adaptability evidence was introduced by petitioner and so my position is that pursuant to the argument taken in contex with the judge's charge, and argument by defense counsel where, on Joint Appendix page 125, petitioner's argument was that he's 22 years of age, a life sentence is punishment.

The petitioner in his argument talked about life being life.

the jury, I submit, as the South Carolina Supreme Court found in their decision in this case, understood life to mean life.

And so the argument has to be in the context of what the jury was told, not the hypothetical that Your Honor submits for my examination.

Unknown Speaker: Well, wasn't the jury also told by the use of a phrase that described the prisoner as being "among us"?

I seem to recall that quotation somewhere in the briefs.

Was that phrase used in describing him?

Mr. Harpootlian: Yes, sir, in the context... in this context.

The argument was that the defense has provided testimony to you that he was abused as a child, that he underwent a number of difficulties as a child, that he suffers from a series of stimuli, if you will, over his young age that made him what he is today.

The argument was that the question isn't how he got here.

He's here; what do we do with him now that he is here amongst us in our midst.

The question is is the enormity of the crime, that is his personal characteristics, his record, his personal characteristics, enough... and I submit it was... for him to be sentenced to the ultimate punishment of death.

Unknown Speaker: Well, doesn't the description of him as being amongst us suggest a different answer to Justice Kennedy's question?

Mr. Harpootlian: No, sir, I don't think so.

Unknown Speaker: I mean it's... the argument is irrelevant unless it is assumed that he will at some point also continue to be amongst us.

Mr. Harpootlian: Well, even if you were to assume that he was parole eligible, as apparently the assumption here is, that the jury assumed that, that doesn't mean he's going to be paroled.

There is no conclusion that he is going to be out.

Even if you assume, that's a decision that will be made by someone... again, the equation here is that... not only that parole ineligibility means he won't be released, but parole eligibility means that he will.

Unknown Speaker: But, I thought you had conceded at the outset in your answer to my first question that if the prosecutor did make an argument about prevention of future crimes, that counsel... defense counsel could respond to that?

Mr. Harpootlian: That he could... that if he argued future crimes against society in general, yes, I think so, but that wasn't done in this case.

Unknown Speaker: So if... so if we disagree with you in our interpretation of what the jury might fairly infer from the prosecutor's argument, then we must reverse on that basis?

Mr. Harpootlian: No, sir, again I would not concede that reversal is necessary if you find that there was some talk about future dangerousness beyond the penal institutions.

I would suggest that, again, one... you're talking... implying that due process is somehow violated by the implication, if you will, of future dangerousness.

The judge's charge corrected any assumption that the jury would have had that he posed a future danger to them.

I don't... he told them to disregard any terms about parole or parole eligibility and to give the term "life imprisonment" its natural... its plain and ordinary meaning.

So I would not concede that even had the prosecutor argued that he's some danger, that that was corrected by this instruction... the primary instruction by the court, which was... he used terms "life imprisonment" and "death by electrocution" throughout his charge, and then when the jury came back and asked about the possibility of parole, to clarify that by saying disregard it.

Just as if they have come back and asked about some other impermissible area for their inquiry, the burden of proof, or why the defendant didn't testify, a number of other areas that this Court has found that curative or cautionary instructions are very proper.

The State of South Carolina has decided that parole eligibility or ineligibility is not a proper concern for a jury.

Unknown Speaker: Mr.--

--But wasn't that determination made under... in a much different context.

I mean, wasn't the original reason for not telling the jury about parole eligibility was the fear that juries might be too harsh on defendants, either to convict where they might have a reasonable doubt, or if they have anything to do with sentencing, to ratchet it up?

Mr. Harpootlian: Well, in, of course, State v. Atkinson, which is the early... the seventies case, that was the rationale.

But as we go from State v. Atkins in 1987 through State v. Torrence in 1991, I think the Supreme Court has decided that the... that these extraneous factors that had nothing to do with the criteria laid out in Lockett of the defendant--

Unknown Speaker: Now we're switching to... Lockett is a different issue.

But the initial reason for not telling the jury about parole was defendant protective, was it not?

Mr. Harpootlian: --That is correct, Your Honor, the initial reason.

And, of course, in Ramos, which petitioner cited, the Briggs instruction was in response to this... the jury being told of his ineligibility for parole.

We don't have, and our supreme court has decided that they don't want to go through that process.

And footnote 30 in Ramos and the rationale in Ramos is that this is a decision best left to the States.

And that's what the State of South Carolina did.

The relied on the logic and rationale of Ramos to exclude factors which they thought would cause undue speculation with the jury--

Unknown Speaker: May I ask a question about the history of this statute?

My recollection may be wrong because I read the briefs quite a long time ago, but is it correct that the law-enforcement community in the State originally opposed life without possibility of parole because they thought juries would then be inclined to give that sentence rather than the death sentence; it might reduce the number of death sentences.

And the response that was made was, well, that won't happen if we can keep from the juries this new sentence.

Mr. Harpootlian: --Well, I think that's an oversimplification.

There were some segments of the law-enforcement community that indicated they did not want it.

Some segments of the law-enforcement community said they did.

And certainly there's no uniform position.

Unknown Speaker: But is it correct that one of the arguments in response was made; well, we will adopt a rule that will preclude the jury from getting this information?

Mr. Harpootlian: I'm sure someone made that argument, but I don't... in my opinion--

Unknown Speaker: Because that's what the State supreme court has, in effect, done.

Mr. Harpootlian: --What the State of South Carolina Supreme Court has done is asked the jury not to consider any... not just parole, but any other extraneous sentencing factor.

Unknown Speaker: Well, I understand.

But with specific reference to this precise point, it is the law of the State that the jury may not be advised of this... given this information.

Mr. Harpootlian: That is correct.

Unknown Speaker: And the reason for it is that they would therefore be less likely to impose the death sentence, isn't that what the history teaches us?

Mr. Harpootlian: No, sir.

No, sir, I think not.

Unknown Speaker: That history didn't come from supreme court conferences.

I assume it came from the legislature.

Mr. Harpootlian: It came from newspaper articles.

Unknown Speaker: From newspaper articles.

And was this rule imposed by the legislature or is it one adopted by the court?

Mr. Harpootlian: One adopted by the court.

Unknown Speaker: Is there any sentence in South Carolina that... would a jury ever be put nowadays to a choice between life with parole and the death penalty, or is the only... is the only choice between--

Mr. Harpootlian: Life with parole and the death penalty?

Justice Scalia, yes, in most cases, I would submit, especially in light of an amendment which is cited in our brief by the legislature, amending this law to do away with the enhancement of any... the use of a conviction prior to January 1, 1986 to enhance.

Unknown Speaker: --So, if we believe in evenhandedness and say that the jury must be advised when it is life without parole, we would then say that the jury must be advised when it is life with parole?

Mr. Harpootlian: If--

Unknown Speaker: And that situation can arise.

Mr. Harpootlian: --In most cases one would... in South Carolina right now you would have to have a prior... a conviction for a violent crime which carries a substantial sentence, in most instances do your time, get out, commit a subsequent crime.

And that prior conviction would have had to have occurred... or offense would have had to have occurred after January 1, 1986.

So it really narrows... the amendment by the legislature last year limiting the pool, if you will, limiting the enhancement aspect of that, has really narrowed the pool, so most defendants are going to fall into the parole-eligible category.

Unknown Speaker: Well, we have not advanced a theory in this Court that the State would be mandated to advise the jury that the defendant is eligible parole... for parole.

Mr. Harpootlian: That is correct.

Unknown Speaker: We've just said that it'd be permitted, if it chooses.

Mr. Harpootlian: That is correct.

That is correct.

Unknown Speaker: Technically, I take it it was error for the trial judge to include in his response to the juror's question that statement about giving the terms their plain and ordinary meaning.

Technically, that was a violation of the supreme... the State supreme court's position that you don't instruct on that point.

Mr. Harpootlian: Well, the State supreme court in their decision noted that he used terms that are used in State v. Norris, but they found that not to be error, they found that to be appropriate in this case.

Unknown Speaker: So they... I take if they weren't retreating from their position, they must have assumed that it didn't amount to a definition?

Mr. Harpootlian: Your Honor... well, I do not assume that.

No, sir, I don't assume that.

Unknown Speaker: But a definition would have been error.

I mean they... to get into the issue that the juror was concerned with would have been to get into issues which the State supreme court concludes they shouldn't be considering.

Mr. Harpootlian: This case stands for the proposition it was not error.

Our supreme court has decided that was not error.

Unknown Speaker: No, I realize that it has in this case.

But the general rule still is that you don't get into parole issues, so therefore assuming the State supreme court is at least internally consistent on this point, it must have assumed that this particular definition did not get into an instruction on parole eligibility.

Mr. Harpootlian: Well, I would answer that by saying that that they had not previously put the two together.

They found it to be constitutionally acceptable.

And the definition certainly assisted... should assist the jury in their... as they said in their opinion, it would tell the jury that life means life.

That is the South Carolina Supreme Court's conclusion as to the result of this charge.

So considering the Eighth Amendment violation and... the petitioner would ask you to expand that way beyond Skipper, to go to a definition that excludes... that goes outside the definition that's been previously used by this Court, and to... I would submit to you, to result in a situation which would only be part of the truth, only a small part of the truth.

There are 12 statutorily authorized programs, if you will, that could result in a defendant in a nonparole sentence, life sentence, to be back into the community.

So if you are going to open that can of worms, if you will, and our supreme court has said you shall not, you end up in a situation where... and, of course, in Ramos it was found by this Court to be constitutionally acceptable to do that, but not mandated.

And as a result the South Carolina Supreme Court has said we shall not do that.

I would note that this defendant, or any defendant sentenced to a life without parole sentence... and if you... on page 13 of the appendix, Larry Batson of the Department of Corrections confirms that he'd be eligible for a pardon, work release, perhaps extended work released, supervised furlough, provisional parole.

Under the emergency powers overcrowding release he could be released at some point, trustee status.

Unknown Speaker: I thought there were some limitations, that this particular defendant would not be eligible for furlough?

Mr. Harpootlian: Not under State law he would be.

There are currently regulations in the Department of Corrections that prohibit him from some programs.

Pardon, for instance, he would be entitled to.

There is--

Unknown Speaker: But all this, work release, parole, he wouldn't be eligible for that.

Mr. Harpootlian: --Work release he would be eligible for.

Unknown Speaker: He would be, this defendant?

Mr. Harpootlian: He is eligible under State law for work release.

There are regulations within the Department of Corrections that indicate--

Unknown Speaker: We're taking law plus regulations together.

Mr. Harpootlian: --He would not be eligible for extended work release, but as I understand it he would be eligible for work release.

He would be eligible for supervised furlough to go home for a weekend, to... AL-3 custody, which, as we note in our brief, would... after 10 years he would be eligible for AL-3 custody which is minimum security custody, under the agreement signed by the Department of Corrections in our prison-overcrowding lawsuit back in October.

He could be... under section 24-3-210, unsupervised furloughs at the direction or the Commission of the South Carolina Department of Corrections, for a weekend, for a holiday.

And Mr. Batson confirms that in his testimony.

Use of convict labor on State house grounds; he could be working on the State house grounds.

Now, if we are going... if the question is when could he be released, then all these answers must be given, I submit.

Our State supreme court, following the direction given in State... in the Ramos--

Unknown Speaker: Well, you can't say "must" because, as Justice O'Connor pointed out, most States that have life without parole do inform the jury of that.

And as I understand it, they don't go on to suggest what might be if prison regulations were this way or that way.

Well, of course--

--So it's not... it can't be a must.

Mr. Harpootlian: --Well, I submit, Justice Ginsburg, the... I agree with you, it should not be, it would not be a must.

But the Supreme Court of the State of South Carolina has indicated that if we're going to consider one release mechanism, that it would open the door to the consideration of other release mechanisms.

Unknown Speaker: Her point is that if it must be provided under coercion, under the coercion of some principle, that principle would require that other things besides parole be provided.

Mr. Harpootlian: That is correct, Justice Scalia.

Unknown Speaker: It's a must in that sense.

Mr. Harpootlian: That is correct.

Unknown Speaker: Only if we're bound by some principle.

Mr. Harpootlian: If you're bound by some principle.

And I guess that raises the question, what is the principle here?

The principle that petitioner would have you adopt is that the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment requires juries to have a piece of the truth, not the whole truth.

The... whether or not the--

Unknown Speaker: Well, how do we know that?

Was there any attempt to give the whole truth or a request by you to have the whole truth given?

Mr. Harpootlian: --Under State v. Torrence we're not allowed--

Unknown Speaker: No, but so there... that isn't before us.

I mean, your State has decided not to have the whole truth go forward.

Mr. Harpootlian: --That is correct.

Unknown Speaker: So that if that regime were held to be invalid, then presumably they would have the opportunity in the next case to say we ought to have a fair instruction that tells them there are these... some possibilities of work release that are not often invoked, but it is at least a possibility.

I don't think your opponent is denying that.

Mr. Harpootlian: But the State of South Carolina has decided that is less fair.

Unknown Speaker: Well, the State of South Carolina has decided that a half truth is better than a whole truth.

Mr. Harpootlian: Well, but the half truth that the petitioner would have is that he will... and if you look at the appendix, you will note that he speaks in terms of never being eligible... will spend the rest of his life in jail.

That is the half truth he wants.

Those are the half truths that we were confronted with.

You can't--

Unknown Speaker: And as Justice Scalia points out, perhaps the correct principle is that both sides should be willing to have the whole truth come up, but that's not your position.

Mr. Harpootlian: --That is not my position... that is not the State of South Carolina's position.

I am a prosecutor.

I perhaps have a different position than the State of Carolina personally.

Unknown Speaker: You think you'd do better, maybe, with the whole truth coming out in all the cases.

Mr. Harpootlian: I think that if I could get in front of a jury and read this list of a dozen programs that would make him eligible for release, that we would have no more life sentences in the State of South Carolina.

And that is the principle that the State of South Carolina, through its supreme court, has adopted.

Unknown Speaker: And taking just parole alone, if I understood you correctly earlier, under recent statutory amendments in South Carolina you think that there are more cases in which the alternative to death will be life with parole than in which it will be life without parole?

Mr. Harpootlian: There is no question in my mind about that, no question.

Many more, many, many, many more.

And I would submit that the result will be that... in South Carolina, if we get into the release mechanisms... not just parole, but if we get into those release mechanisms, I can assure you as a prosecutor, having appeared before juries many, many times on these kinds of cases, that the jury then will discount the value of a life sentence.

Thank you very much.

Unknown Speaker: Thank you, Mr. Harpootlian.

Mr. Bruck, you have 6 minutes remaining.

Rebuttal of David I. Bruck

Mr. Bruck: Mr. Chief Justice, I rise only to clarify a couple of factual items.

Mr. Harpootlian, no doubt inadvertently, misdescribed the requested instruction made by the defendant.

The request is at page... pages 21 and 22 of the Joint Appendix, and it is simply that the judge read the no parole statute to the jury.

As an alternative when that was denied, we then requested, as very much second or third best, a more vague instruction about that he actually will be sentenced to serve life in the State penitentiary.

But that was not the request we made and that is not the request upon which this case turns.

Unknown Speaker: Let's assume you had gotten what you asked for.

At least to the extent that you asked for it, would you take the bitter with the sweet and concede that it would be appropriate to read some more instructions to the jury, some more statements of law to the jury, going into questions... the possibilities of furlough and work release and so on?

Mr. Bruck: Providing those are accurate, I think under the Eighth Amendment, for purposes of this morning, yes.

I don't think the South Carolina Supreme Court will necessarily allow these... what are, in fact, very speculative and remote possibilities.

The record, as opposed to the list that Mr. Harpootlian just--

Unknown Speaker: Well parole may be very speculative too for someone committed... who's committed a horrible crime and sentenced to life imprisonment.

Mr. Bruck: --Absolutely.

Unknown Speaker: That's very speculative.

Mr. Bruck: Yes.

And, of course, in this case it is not only... the chance of his being released on parole is not merely highly speculative but legally nonexistent.

The record actually shows that no life without parole inmate had ever been granted a furlough, and it goes on and one.

Under the regulations they are not eligible for work release.

This long laundry list of 12 possibilities, if you look closely at the record, is actually vanishingly small.

And, yes, we are willing to take the bitter with the sweet, as a matter of Eighth Amendment law.

Justice O'Connor inquired about the list of States.

I would simply direct the Court's attention to pages 39 to 41 of our brief, that's footnotes 23 to 27, which gives in some detail exactly what all of the life-without-parole States have to say on this issue.

Finally, I would just note the issue... the history of this issue in South Carolina has been somewhat torturous.

We describe it in our brief.

Shortly after life without parole became an option for recidivist cases, the State supreme court said that on the request of a defendant restrictions on parole should be charged, and that was the law until a month before this trial.

This is the first case to be tried under the new regime of State v. Torrence which overruled that majority practice and said that from now on the jury should be left in the dark, and therefore I think it is at least fortuitous that this practice is a novel one and can and should, we submit, be nipped in the bid.

If there are no further questions, that's all we have.

Chief Justice Rehnquist: Thank you, Mr. Bruck.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 92-9059, Simmons against South Carolina will be announced by Justice Blackmun.

Argument of Justice Blackmun

Mr. Blackmun: This case comes to us from the Supreme Court of the State of South Carolina.

During the penalty phase of petitioner's State Court trial, the state argued that future dangerousness was a factor for the jury to consider in deciding between the death penalty and life imprisonment for the murder of an elderly woman.

Petitioner in rebuttal presented evidence that his future dangerousness was limited to elderly women.

The court refused to give the jury petitioner's proposed instruction that under state law he was ineligible for parole.

The court instructed the jury not to consider parole in reaching their verdict.

A death sentence was returned.

The Supreme Court of South Carolina ruled that the instruction satisfies in substance petitioner's request for a charge on ineligibility.

In an opinion filed with the Clerk today, that judgment is reversed and the case is remanded.

The opinion I have written is only a plurality and is joined by Justices Stevens, Souter, and Ginsburg.

We would hold that due process requires that the sentencing jury be informed that the defendant is parole ineligible.

The Trial Court's instruction did not satisfy petitioner's request for a parole ineligibility charge.

Justice Souter has filed a concurring opinion in which Justice Stevens has joined.

Justice O'Connor, joined by the Chief Justice and Justice Kennedy, concluded that where the state puts a defendant's future dangerousness at issue and the only available alternative sentence to death is life imprisonment without parole, then due process entitles the defendant to inform the sentencing jury that he is parole ineligible.

Justice Ginsburg has filed a concurring opinion, and Justice Scalia has filed a dissenting opinion in which Justice Thomas has joined.