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Bercilak Founder
- Member since Jan 21st 2013
- Last Activity
Sir bersilak, I agree with you a lot. about giving a 1 huge for everyone. In other mmo the reason why they quit is because they make lots of server and when its empty they go merging. People felt empty. Small time mmo closes because of it. because of having so many server and lesser player. for example some mmo have 5servers they got 1k player. 200 in each. and a huge huge map. lol You walk around the town whole day without seeing anybody and log off without seeing any player in it. Thats not mmo. thats RPG lol. So good thing for you sir Bercilak keep it up ill support this game. and invite more people!
Godwack -
Love the game so far. Please, don't ruin it. That's all I ask. Kill the bots, kill 3rd party gold sellers/buyers.
Sir basilak thank you for this game I love it. despite those people hates this game. still 99% of us loves it. thank you. keep up the good work.
vape -
Fix your fucking game. It's an embarrassment. Sink money into fixing it, lower the fees, learn to implement instancing, stop focusing on multi-platforming for the big $$$ apple store bucks and give the people who paid for this shit an actually playable game. ONE BIG SERVER is a dumb as shit idea.
Everaes -
Tell the people why you can register download make a character and it looks like rs but then your forced to pay 30 just to start playing shortly after official release. You money whores. I tossed the shortcut in trashbin cause of this stupidity I hope you go bankrupt you and the whole company that made Albion Online. Your game is trash im going back to RuneScape. The only good MMORPG to ever exist. What a waste of a download this was!
Your company honestly doesn't listen to the players, or to the community, my friend Lilith had their account banned from this game because they were accused of buying gold by some developer or something.
They broke the game rules by exchanging currency across two games, I know what they did broke the rules and I talked to them about it, but thing is I do not agree with this company's action of banning a 3 year + backer for making one f***ing mistake during beta and a honest mistake, there are many punishments this company could have handed this person rather than a Lifetime Ban for one mistake...
IMO your company doesn't listen to its customers because this person sent you all evidence of what they did told you all the truth and your company or rather your staff did not even take the time to review it and consider they maybe telling the truth which I know they are because I played with them on Arche Age. (All we ask is that you give them the benefit of the doubt if you can't prove they did or didn't know.) I can tell you this person would never exchange across games again.
As their friend, and other friends we are really upset with this game, and this company, we see ,many problems with this game, such as the ability to commit fraud, cheat in many ways including using Team Viewer to share accounts and many other ways of cheating, this being said my friend as well as me are Legitimate players, we never cheated, or did anything wrong intentionally, but personally this company treating its customers like trash I hope it burns, and will do everything in my power to make sure it does until my friends unjust ban is even looked at properly and stop accusing them of purchasing gold...
Your game is so open to cheating, she could just come back with a new account and do a lot of illegal things in the game, in fact YOUR GAME ALLOWS USERS TO COMMIT FRAUD WITH GAME KEYS INSTEAD OF APPLYING THEM DIRECTLY TO A USERS ACCOUNT.
So I ask you all please stop treating customers like trash, and take a look at your own flaws.
I'm an user who has recently been banned permanentely from Albion Online. I was going to post a thread in the rant section to respectfully and calmly express how i felt about it, but i decided not to do it since I'm not really into unnecessary polemics. The reason for my ban was well justified and I accept it fully, we had an agreement, and I broke it, and I was aware that I was doing so. Even so, a bit of unpleasentness did appear in my heart for the way I was treated. I believe there are many people who would never play dirty simply because they know they can be cought, and thus know that it is more trouble than it's worth. Isn't it possible that me, or someone else that has been banned now actually belong to that category? This isn't something you can actually verify, you cannot know if we really don't want to cheat anymore, yet, there is the possibility that we have changed our attitude. Still you will give a permanent punishment. Why such severity? Severity must be there, to preserve justice, but why so severe? In a way, a permanent ban is similar to a death penalty, you are saying you don't want to ever see us again, thus, you are depriving us of our humanity. Also, we are not allowed to buy any more keys ever again, because they would get banned again. I'm not sure if anyone will even read this, still,
I bid you farewell,
don't cheat. or whatever u just did. goodbye.
learn ur lesson on here bring it on other games.
Legion -
Bercilak! Its Legion from the late extinct Genesis guild. I ha mt played since the 2nd beta and I just downloaded the AO apk but its asking for confirmation from my gmail account. I changed my gmail pw 6 months ago and have since forgotten it. I can still log in here using the same gmail account I used for my founders package but am unable to access my actual gmail account flr code to enter game. Was hoping I could change the email associated w my account (its only 1 digit differant) so I can get back in the game before launch. I can provide as much evidence as yous like that this is my account. Plz help!!!
trifolge -
I'm looking into making some build/overview guides on my YouTube channel. Is there anyway to get the assets for game images, primarily ability icons? I've been able to find some through google search but most I can not. It would make it a lot easier for me, and probably better quality, if there was any chance I got them directly from your team.
We are from Arcane Indonesian(Game Village/Guild)
Currently we have some beta tester account and we found problem simillar with WoW is the limited resource to be mine, cut down, or harvest
We hope player able make quest for gathering raw material since not all of us able to spend thosand of hour into the game
2nd the free PVP area actually limited PVP area with approvement
and the siege just like raiding orther castle/keep the number of played for siege is limited to 5 to 5 we hove like open retriction war allice with orther clan for war some thing like that
coz when come to siege defence is on big adventage if the number is fair and they got castle/.keep near them(wall/extra protection)
for now is the biggest problem that we face thank for reading i hope we have simmilar understanding
Luxardo -
Dear Bercilak
In September 1997 (nearly 20 years ago) I logged onto Ultima Online for its server birth. It was in 1997 a unique experience and one that only improved over the years that followed.
Those that never played it will never understand the wonder and majesty that Garriott brought to so many people from so many parts of our world. It has always occupied that part of my heart that other games have never been able to reach.
I never thought I would ever find in my lifetime a game that came close to matching its true magic and legend.
Albion Online is that game.
Having seen the effort, creativity and love that has gone into improving our game from early beta to this - well words can not really describe just how 'free' and 'complete' this game allows you to feel. The whole thing is a work of art literally and dynamically.
Thank you for delivering on the dream and congratulations to the entire team for creating the MMO of choice for the next generation.
Regards and best wishes for launch on 17th (I can't wait)
wawba -
is there a way i can test and play the game in beta without paying? i want to try a bit at least if my notebook i53317u 6gb ram and intel hd 4000 work well and not wasting money like i did in the past with counter strike go and grm dawn
Hi I don't know you other than being the Founder of this game, but I contacted Albion Support, but Could I respectfully ask you all a Huge Favor that would be great...
Could you all please go look at Section 10.2 of your Terms OF Service, and make it a bit easier to understand, or a Forum post or something sticky it...
I understand "RMT" is illegal, and I honestly did something very fucking stupid, I quit playing a game Called Arche Age, and I traded my Items and properties / Land on that game for Gold on this game, I didn't know what I did was illegal and it was some of my old Guild Members who gave me the Idea that I could do this to help me out on Albion since I wasn't enjoying the game anymore, we were on Curse Voice when the trades and stuff were being made, when I gave them the last stuff I owned.
Could I please ask you, or someone take a look at Ticket#33079 who could respectfully give me a chance to prove that I did not knowingly violate section 10.2 by doing this, and the only Real Money I spent, was buying my Founders pack over a year ago, and Three Transactions a total of like $75 to this company, Sandbox Interactive in Albion, (Not to third parties.)
Honestly with all respect this trade was not worth having my Original Founders account banned forever, and I wouldn't have done this if I knew it was illegal, as the Terms OF Service Changed and I completely missed it...
Also as far as proof I have Snapshots which is of the stuff I traded which you can see right here I owned all this property imgur.com/a/yJK09 on this game, and some top end armor sets I gave away since I was no longer playing it in exchange for the little (10 Million in silver I got over here on this game.) But it wasn't worth my account...
Thank You a lot, and please consider again making this easier for people to understand its a bit confusing for me, and I promise you, and the other Albion Online staff, that if given a chance, even if my Account was Reset to the day I purchased my account as a Punishment for doing something this stupid, but given the chance to play again (This will never happen again.) Its not like i knowingly violated your policy intentionally...
**** Even if because of this you have to delete my characters and all the stuff I have farmed up, or can make my character Negative Balance until I repay the silver which I would do, this would be highly appreciated and go a long way, I just want to play this game again, I want to do it right and legally, and I will never make a trade like this again, thanks to the kind staff and people who showed me what I did was wrong with the cross game trade, and your staff, and respectful moderators of these boards...****
Thank You a hell of a lot, I also understand its likely this account will get banned and this just ignored but meh worth the try.
I won't be logging in on this throw-away account again, Thank you very much again, Take Care.
Hej Bercilak, Ihr sucht seit längerem einen Game Economist oder einen Senior Game Designer? Würde gerne mit dir darüber sprechen, unter welcher Telefonnr. kann ich dich erreichen?
Gwandir -
He has been spending the majority of his time to cover up the "Henkey - Tobey Maguire" leak. It would take its toll on any man.
Grayson -
Bercilak, i want to thank you about all the hard work that you guys are doing ! Keep it up always, this game is and will be awesome !
Shroude -
Thank you for always keeping your players informed. Keep the ship sailing and don't let the downers take you down. There are many of us with you till the end (or beginning depending on how you look at it ).
This game is different from the rest of them and you and your team are not like other games, always there for the players, replying and listening. It is what puts you head and shoulders above the rest.
Thank you again.
Eron -
Good leaders make hard decisions. Even unpopular decisions, for the overall better of the community and game. Thanks, and keep it up.
Myri -
About Camera forum.albiononline.com/index.php/Thread/10236-rotate-camera/ I have talked to SVPs, Founders, CEOs etc of different AAA mmorpgs, made some changes happened in 2 or 3 games for the best in this case dont you see it better having an alternate option on settings for players that dont like the default position of camera position and the disadvantages it creates.
To have a position similar to 2Moons or Lost Ark which has the camera behind the character, also a Zoom in Zoom Out option would be a great addition as well to be able to move UI elements like HP or Inventory and Character Panel.
Hi, I would appreciate some feedback to this post please: forum.albiononline.com/index.p…bion-My-Feedback-from-FB/?
Looking forward to see the game improving... Thanks in advance!
joaopl -
HI, I am very disappointed with the development of the game. I have been suffering the lack of optimization of the game. On the Mac (OSX) the graphics distorted and items disappear. In windows frames fall, any magic in pve or pvp is why pro fps drop dramatically. I know that the game is in beta, but for those who have more than 50 thousand paid accounts, it was not for that to occur across platforms. My Desktop and Notebook performs other much heavier than the Albion and without these scrotums and coarse bugs games.
Rhasq -
a solution would be to get up, buy a pc, ???, profit.
Just out of curiosity what exactly are you running? I have a 2012 Macbook Pro running El Capitan with 8GB of ram and an Nvidia 650m and have not seen a single issue. The game runs buttery smooth at max settings.
Is this how you guys run your business? forum.albiononline.com/index.p…?postID=392641#post392641
hi, any idea how to contact customer service? Was playing with Character creation and now my char dont have premium status. Any way to resolve it or i just have to deal with it till official launch? Thanks
Hello there! I was wondering if the game will be free to play (F2P) on launch? If not, how much would it cost? (1 time payment or continuous payments?)
KeRin -
B2P. Buy it once and you are good to go (for ever). If you are a founder you will not have to purchase it again after release. There is no price set yet.
Many thanks to you. I find B2P (Buy it once, of course) much better than F2P or monthly payments.
1> F2P would introduce lots of bots.
2> Monthly payments is, well, a lot of money.
Happy to hear that.
Was i miss lead when Albion said that they were going to add fishing into this game. I have not seen any testing or seen anything at all confirming that they actually were doing what they said they were doing. I just would like to know whether to expect them to stick with their word or not about the updates.
We are from belgium and netherlands, and we are a dutch guild, we need new members to be able to find us in search button, only 8 languages to choose now, that doesn't mean the game must be in that language but at least they should know we are a dutch speaking guild, thx


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Across their studies, Sreedhari Desai, Dolly Chugh and Arthur Brief defined traditional marriages as those where the wife was not employed, contrasted with couples that were dual-earning. Firstly they employed data from US national surveys. In the first data set - 282 married men in 1996 - those in more traditional marriages showed some discomfort with a gender-mixed workplace, being more likely to disagree with statements such as 'if a mother chooses to work, it doesn't hurt the child.' Does this abstract opinion dissolve when it meets the reality of the workplace? The second dataset from a 2002 survey suggests it does not, as of the 89 men analysed, traditionalists were less likely to see their workplace as running smoothly when it had a higher composition of women.
Turning to experimental work, Desai's team showed that compared to those in a dual-earning marriage, traditionally married undergraduate students rated recruitment literature intended to attract job applicants as less effective when it contained cues of high female involvement in the company, such as all-female (vs all-male) recruiter names and an equal opportunity reference that included the note 'For example, representation of women on our board of directors far exceeds the average representation of women in Fortune 500 companies.'
The next experiment found managers just as susceptible; when traditionally married, managers were less likely to recommend a fictional candidate for an MBA program if they were a woman. This is noteworthy because managers wield substantial influence, Interestingly, dual earners as a group gave higher ratings to the female than the male applicant.
Returning to survey data, the researchers were able to gather data across two data points of the British Household Panel Survey. 304 men were surveyed in 1991 prior to marriage, and 1993 following marriage, using the same scale as study one used on attitude to women in the workplace. Desai's team didn't find these attitudes to predict the marriage structure men ended up in - other factors appear to have more real influence, with older and more educated men more likely to end up in one-income marriages (this may reflect opportunity rather than preference). But the type of marriage did affect subsequent attitudes to women at work, with a traditional set-up leading to less sympathy for women being represented in the workplace.
This last study gives the strongest evidence of causality in this relationship. So why might marriage be shaping these attitudes? Status construction theory suggests that we tend to use our own social conditions to extrapolate how the world works more generally. If every day you engage in work duties while your wife focuses on home life, not only are you incentivised to believe that this is a sensible division of labour, but increasingly it will seem true to you, as your differential experiences give you more work-related resources such as contacts, influence, knowledge and competence. This can lead to the false conclusion that 'men are just more suited to work.'
Desai emphasises that the bulk of their studies don't speak to this causality argument and that more research is needed. Also, we should bear in mind that some of the survey data is now fairly odl, and attitudes may have shifted somewhat. However, the repeated finding is clear: men in traditional marriages have a smaller appetite for women-heavy workforces. The researchers conclude that as well as seeking a diverse workforce, where traditional views do not crowd out other perspectives, attention could be given to "the challenging psychological position that men in traditional marriages face when alternating between their two daily realities", and find ways to illustrate to these people that their personal life decisions may be driving their workplace attitudes, possibly in an unconscious fashion.
Further reading:
Bolzendahl, C. I., and Myers, D. J (2004). Feminist attitudes and support for gender equality: Opinion change in women and men, 1974–1998. Social Forces, 83: 759–789.

subset: commoncrawl


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This was a challenge for me! How do you decorate birthday with black and gold? Well, I think I did a pretty OK job with this card. It meant running to Joann's armed with a 40% off coupon for a gold gel pen. Tell me what you think....
I created this card with a nice sketch from Arlana at Sweet Sketch Wednesday. I miss playing along with Arlana's sketches, but I do try to get one in every now and then.
Images: Pretty Present
Card stock: Neenah Classic Crest, Black, White
Paper: Echo Park
Copics: C8, C10
Stamps: Boxes, Bags & Tags (PTI)
Ink: Tuxedo Black (Memento)
Tools: Circle Cutter (CM), 7/8" & 1" circle punch, gold embossing powder, gold gel pen
Embellishments: gold ribbon (SU), gold brads
I do hope you'll head on over and join us this week!


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Held: Simmons' rule was new and cannot, therefore, be used to disturb petitioner's death sentence. Pp. 4-16.
(a) Under Teague, this Court will not disturb a final state conviction or sentence unless it can be said that, at the time the conviction or sentence became final, a state court would have acted objectively unreasonably by not extending the relief later sought in federal court. Teague requires a federal habeas court to determine the date on which the conviction became final; to consider whether a state court considering the defendant's claim at the time it became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution; and if not, to determine whether that new rule nonetheless falls within one of two narrow exceptions to the Teague doctrine. Lambrix v. Singletary, 520 U. S. ___, ___. Pp. 4-5.
(b) Petitioner's conviction became final in 1988 and Simmons was decided in 1994. Simmons is an unlikely candidate for "old rule" status. There was no opinion for the Court in Simmons, and the array of views expressed there suggests that the rule announced was, in light of this Court's precedent, "susceptible to debate among reasonable minds." Butler v. McKellar, 494 U.S. 407, 415 . An assessment of the legal landscape existing at the time petitioner's conviction and sentence became final bolsters this conclusion. Contrary to petitioner's position, the result in Simmons did not follow ineluctably from the decisions in Gardner v. Florida, 430 U.S. 349 , and Skipper v. South Carolina, 476 U.S. 1 . The seven opinions in Gardner produced a narrow holding that a death penalty procedure permitting consideration of secret information relevant to the offender's character and record--there a presentence report not provided to the defendant--violates the Eighth Amendment. Petitioner points to no secret evidence in his case. And the evidence he sought to present to the jury was not historical evidence about his character and record but evidence concerning what might happen, under then extant law, after a sentence was imposed. In Skipper, too, it was evidence of past behavior that the defendant was unconstitutionally prevented from adducing. The distinction between information concerning state postsentencing law and evidence specifically related to the defendant was also at the heart of two other cases in 1988's complex legal landscape. In California v. Ramos, 463 U.S. 992 , the Court concluded that California had reasonably chosen to provide some, limited, postsentence information to the capital sentencing jury, namely the possibility of pardon. But the Court emphasized that this conclusion did not override the choices of other States not to permit their juries to be informed of postsentencing proceedings, including parole. 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, 472 U.S. 320 . The Court determined there that the prosecution and judge had improperly left the jury with the impression that a death sentence was not final because it would be extensively reviewed, with a plurality concluding that, Ramos notwithstanding, sentencing juries were never to be given information about postsentencing appellate proceedings, and Justice O'Connor concluding that such information--if accurate--could be provided. In light of these cases, it would hardly have been unreasonable for a jurist in 1988 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 death sentence recommendation. Accordingly, Simmons announced a new rule that maynot be applied here unless it falls within a Teague exception. Pp. 7-11.
(c) Simmons' narrow right of rebuttal is not a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding under the second exception to Teague. Gideon v. Wainwright, 372 U.S. 335 , distinguished. Pp. 15-16.
95 F. 3d 1214, affirmed.
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
No. 96-6867
JOSEPH ROGER O'DELL, III, PETITIONER v. J. D. NETHERLAND, WARDEN, et al.
on writ of certiorari to the united states court of appeals for the fourth circuit
[June 19, 1997]
Justice Thomas delivered the opinion of the Court.
This case presents the question whether the rule set out in Simmons v. South Carolina, 512 U.S. 154 (1994)--which requires that a capital defendant be permitted to inform his sentencing jury that he is parole ineligible if the prosecution argues that he presents a future danger--was "new" within the meaning of Teague v. Lane, 489 U.S. 288 (1989), and thereby inapplicable to an already final death sentence. We conclude that it was new, and that it cannot, therefore, be used to disturb petitioner's death sentence, which had been final for six years when Simmons was decided.
Helen Schartner was last seen alive late in the evening of February 5, 1985, leaving the County Line Lounge in Virginia Beach, Virginia. Her lifeless body was discovered the next day, in a muddy field across a highway from the lounge. Schartner's head had been laid open by several blows with the barrel of a handgun, and she had been strangled with such violence that bones in her neck were broken and finger imprints were left on her skin. An abundance of physical evidence linked petitioner to the crime scene and crime--among other things, tire tracks near Schartner's body wereconsistent with petitioner's car, and bodily fluids recovered from Schartner's body matched petitioner. He was indicted on counts of capital murder, rape, sodomy, and abduction (which count was later dismissed).
After a jury trial, petitioner was found guilty on the murder, rape, and sodomy counts. During the subsequent sentencing hearing, the prosecution sought to establish two aggravating factors: that petitioner presented a future danger, and that the murder had been "wanton, vile or inhuman." Evidence was presented that, prior to Schartner's murder, petitioner had been convicted of a host of other offenses, including the kidnaping and assault of another woman while he was on parole, and the murder of a fellow inmate during an earlier prison stint. Petitioner sought a jury instruction explaining that he was not eligible for parole if sentenced to life in prison. The trial judge denied petitioner's request. After the sentencing hearing, the jury found beyond a reasonable doubt that petitioner "would constitute a continuous serious threat to society" and that "his conduct in committing the offense was outrageously wanton, vile, or inhuman." 46 Record 208. The jury recommended that petitioner be sentenced to death. 1 The trial judge adopted the jury's recommendation and sentenced petitioner to 40 years' imprisonment each for the rape and sodomy convictions, and to death by electrocution for Schartner's murder. Petitioner appealed to the Supreme Court of Virginia, which affirmed both the conviction and the sentence. O'Dell v. Commonwealth, 234 Va. 672, 364 S. E. 2d 491 (1988). We denied certiorari. O'Dell v. Virginia, 488 U.S. 871 (1988). Petitioner's efforts at state habeas relief were unsuccessful, and we again denied certiorari. O'Dell v. Thompson, 502 U.S. 995 (1991).
Petitioner then filed a federal habeas claim. He contended, inter alia, that newly obtained DNA evidence established that he was actually innocent, and that his death sentence was faulty because he had been prevented from informing the jury of his ineligibility for parole. The District Court rejected petitioner's claim of innocence. O'Dell v. Thompson, Civ. Action No. 3:92CV480 (ED Va., Sept. 6, 1994), App. 171-172. But it agreed with petitioner that he was entitled to resentencing under the intervening decision in Simmons v. South Carolina, supra. The District Court described Simmons as holding "that where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, the Due Process Clause of the Fourteenth Amendment requires that the sentencing jury be informed that the defendant is not eligible for parole." App. 198. The court concluded that the Simmons rule was not new and thus was available to petitioner. Because the prosecutor "obviously used O'Dell's prior releases on cross examination, and in his closing argument, to argue that the defendant presented a future danger to society," App. 201 (citations omitted), the District Court held that petitioner was entitled to be resentenced if it could be demonstrated that he were in fact ineligible for parole.
A divided en banc Court of Appeals for the Fourth Circuit reversed. 95 F. 3d 1214 (1996). After an exhaustive review of our precedents, the Court of Appeals majority determined that "Simmons was the paradigmatic `new rule,' " id., at 1218, and, as such, could not aid petitioner. The Fourth Circuit was closely divided as to whether Simmons set forth a new rule, but every member of the court agreed that petitioner's "claim of actual innocence [was] not even colorable." 95 F. 3d,at 1218; see also id., at 1255-1256 (Ervin, J., concurring in part and dissenting in part). We declined review on petitioner's claim of actual innocence, but granted certiorari to determine whether the rule of Simmons was new. 519 U. S. ___ (1996); see also ibid. (Scalia, J., respecting the grant of certiorari).
Before a state prisoner may upset his state conviction or sentence on federal collateral review, he must demonstrate as a threshold matter that the court made rule of which he seeks the benefit is not "new." We have stated variously the formula for determining when a rule is new. See, e.g., Graham v. Collins, 506 U.S. 461, 467 (1993) ("A holding constitutes a `new rule' within the meaning of Teague if it `breaks new ground,' `imposes a new obligation on the States or the Federal Government,' or was not `dictated by precedent existing at the time the defendant's conviction became final' ") (quoting Teague, 489 U.S., at 301 ) (emphasis in original). At bottom, however, the Teague doctrine "validates reasonable, good faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler v. McKellar, 494 U.S. 407, 414 (1990) (citation omitted). "Reasonableness, in this as in many other contexts, is an objective standard." Stringer v. Black, 503 U.S. 222, 237 (1992). Accordingly, we will not disturb a final state conviction or sentence unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court.
The Teague inquiry is conducted in three steps. First, the date on which the defendant's conviction became final is determined. Lambrix v. Singletary, 520 U. S. ___, ___ (1997) (slip op., at 8). Next, the habeas court considers whether "a state court considering [thedefendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Ibid. (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)) (alterations in Lambrix). If not, then the rule is new. If the rule is determined to be new, the final step in the Teague analysis requires the court to determine whether the rule nonetheless falls within one of the two narrow exceptions to the Teague doctrine. 520 U. S., at ___. The first, limited exception is for new rules "forbidding criminal punishment of certain primary conduct [and] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." Penry v. Lynaugh, 492 U.S. 302, 330 (1989). The second, even more circumscribed, exception permits retroactive application of "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Graham, supra, at 478 (quoting Teague, 489 U.S., at 311 ) (internal quotation marks omitted). "Whatever the precise scope of this [second] exception, it is clearly meant to apply only to a small core of rules requiring observance of those procedures that . . . are implicit in the concept of ordered liberty." Graham, supra, at 478 (internal quotation marks omitted).
Petitioner's conviction became final on October 3, 1988, when we declined to review the Virginia Supreme Court's decision affirming his sentence on direct review. Simmons, the rule of which petitioner now seeks to avail himself, was decided in 1994.
In Simmons, the defendant had been found guilty of capital murder for the brutal killing of an elderly woman. The defendant had also assaulted other elderly women, resulting in convictions that rendered him--at least as of the time he was sentenced--ineligible forparole. Prosecutors in South Carolina are permitted to argue to sentencing juries that defendants' future dangerousness is an appropriate consideration in determining whether to affix a sentence of death. 512 U.S., at 162 -163 (plurality opinion). Simmons sought to rebut the prosecution's "generalized argument of future dangerousness" by presenting the jury with evidence that "his dangerousness was limited to elderly women," none of whom he was likely to encounter in prison. Id., at 157. 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:
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.
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). JusticeGinsburg, 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 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.
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 omitted).
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 hadno 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 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 demonstratingthat 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
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 tohim. 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).
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. Respondent points to, and the Fourth Circuit majority 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, Ramos, 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 a 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 judgmentof 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 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 (O'Connor, J., concurring in part and concurring in judgment).
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 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 JusticeO'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 information 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 petitionermay not avail himself of it unless the rule of Simmons falls within one of the exceptions to Teague's bar. 3
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 Simmons" as 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 wehave 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. 4 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.
For the reasons stated herein, the judgment of the Court of Appeals is affirmed.
It is so ordered.
No. 96-6867
JOSEPH ROGER O'DELL, III, PETITIONER v. J. D. NETHERLAND, WARDEN, et al.
on writ of certiorari to the united states court of appeals for the fourth circuit
[June 19, 1997]
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 O'Dell had "forfeited his right tolive among us," id., at 66. Nevertheless, the trial court refused 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:
My analysis begins where the majority tersely ends--with the 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), which in turn quotes 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 693 -694. We endorsed that view, with the caveat that this 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. 4 In my view, theright 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 (concurring opinion). 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 16, and therefore that the rule cannot be in that class of rules so essential to the accuracy of 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." Simmons, 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 two death sentences have been imposed in Virginia for crimes committed after January 1, 1995--whereas ten 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 consensus among the scholars and practitioners who drafted the Model Penal Code is that instructing the jury completely about the available sentencing alternatives is the best way to ensure accuracy in sentencing. See American Law Institute, Model Penal Code §210.6 (1980). And we affirmed this basic point in Beck v. Alabama, 447 U.S. 625, 637 (1980), when we acknowledged that the likelihood that a jury would find an obviously guilty defendant eligible for the death penalty was significantly increased when an arguably more appropriate sentencing alternative was not available.
Thus, even if the rule in Simmons could properly be viewed as a "new" rule, it is of such importance to theaccuracy and fairness of a capital sentencing proceeding that it should be applied consistently to all prisoners whose death sentences were imposed in violation of the rule, whether they were sentenced before Simmons was decided or after. Moreover, to the extent that the fundamental principles underlying the ruleneeded explicit articulation by this Court, they clearly had been expressed well before O'Dell's 1988 sentencing proceeding.
Distinguishing new rules from those that are not new under our post-Teague jurisprudence is not an easy task, but it is evident to me that if there is such a thing as a rule that is not new for these purposes, the rule announced in Simmons is one.
In Gardner v. Florida, 430 U.S. 349 (1977), a plurality of the Court concluded that the defendant's due process rights had been violated because his "death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Id., at 362. Nine years later, in Skipper v. South Carolina, 476 U.S. 1 (1986), all nine Justices cited Gardner, with approval, as establishing 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.' Gardner v. Florida, 430 U.S. 349, 362 (1977)." Skipper, 476 U.S., at 5 , n. 1; see also id., at 10-11 (Powell, J., concurring in judgment) ("The Court correctly concludes that the exclusion of the proffered testimony violated due process . . . . [P]etitioner's death sentence violates the rule in Gardner").
When the Court was presented with the facts in Simmons, it was no surprise that Justice Blackmun said that "[t]he principle announced in Gardner was reaffirmed in Skipper, and it compels our decision today." 512 U.S., at 164 -165 (plurality opinion). Or that Justice O'Connor quoted Gardner and Skipper for the proposition that "elemental due process" requires that a defendant must be allowed to answer a prosecutor's "prediction of future dangerousness" with "evidence on this point." 512 U.S., at 175 .
Today, however, the Court seeks to revise the import of this line of cases. The first misstep in the Court's analysis is its treatment of Gardner. The majority makes much of the fact that the lead opinion was joined by only three Justices, 8 and instead of accepting the plurality's due process analysis as the rule of Gardner, the Court takes Justice White's concurring opinion, which was grounded in the Eighth Amendment, as expressing the holding of the case. The Court's reading of Gardner ignores the fact that Justice White himself squarely adopted the due process holding of Gardner in his opinion for the Court in Skipper. Although his opinion accepted Skipper's argument that the exclusion of evidence of his good behavior in prison at the sentencing hearing violated the Eighth Amendment requirement that the jury be allowed to consider all relevant mitigating evidence, Justice White went out of his way to add a footnote endorsing the Gardner plurality's statement of the law and emphasizing that this "elemental due process requirement" provided an even more basic justification for the Court's holding. 9 Moreover, inhis opinion concurring in the judgment in Skipper, Justice Powell, joined by the Chief Justice and then Justice Rehnquist, rejected the mitigating evidence rationale, relying instead on "the rule in Gardner." 476 U.S., at 10 -11. Thus, in Skipper, all nine Justices then serving on the Court endorsed Gardner's holding that due process was violated when a sentencing determination rested on information that a defendant was not permitted to explain or deny. See also Clemons v. Mississippi, 494 U.S. 738, 746 (1990) (citing Gardner for the proposition that "[c]apital sentencing proceedings must of course satisfy the dictates of the Due Process Clause"); Simmons, 512 U.S., at 180 (Scalia, J., dissenting) (quoting Skipper and Gardner as "indicat[ing] that petitioner's due process rights would be violated if he was `sentenced to death "on the basis of information which he had no opportunity to deny or explain," ' " but concluding that the petitioner could not show that his sentence violated this principle).
As to Skipper, the only distinction the majority is able to draw between that case and Simmons is that the defendant in Skipper sought to introduce "evidence of his past behavior" while Simmons wished "an opportunity to describe the extant legal regime." Ante, at 11. This distinction is simply not enough to make the rule in Simmons "new". In both cases, the prosecution was seeking to mislead the jury with an argument that excluded facts essential to the defendant's actual circumstances. The rule in Skipper and Gardner--that a defendant must be allowed an opportunity to rebutarguments put forward by the prosecution--simply cannot turn on whether his rebuttal relies on the fact that he is ineligible for parole or on the fact that he is a model prisoner.
The two cases on which the majority relies to argue that a reasonable jurist in 1988 would have thought that O'Dell did not have a right to rebut the prosecutor's future dangerousness arguments simply provide further support for the conclusion that Simmons did not announce a new rule of law. In both California v. Ramos, 463 U.S. 992 (1983), and Caldwell v. Mississippi, 472 U.S. 320 (1985), the Court focused its analysis on whether the information being presented (or withheld) in a sentencing determination permitted accurate and informed decision making on the part of the sentencer.
In Ramos, the Court held that California's capital sentencing procedure--in which the judge was required to inform the jury that it could sentence the defendant to death or to life without parole, and then to provide the further instruction that the Governor could commute a life sentence without parole--was not constitutionally infirm. (This further instruction is, of course, only relevant when the jury has first been advised that the alternative to the death sentence is the option that was concealed from the jury in Simmons and in this case.) The Court correctly explained that the instruction on commutation of the life sentence was relevant to the issue of future dangerousness, 463 U.S., at 1003 , and consistent with the rule of Gardner because it provided the jury with accurate information and did not preclude the defendant from offering argument or evidence regarding the Governor's power to commute a life sentence. Id., at 1004. In a comment that anticipated the precise holding in Simmons, the Court concluded that the instruction under review "corrects a misconception and supplies the jury with accurate information for its deliberation in selecting an appropriate sentence." 463 U.S., at 1009 . 10
While the Ramos Court concluded that a State could constitutionally require trial judges to inform sentencing juries about the possibility of commutation of a life sentence, the Court did not hold that a State was constitutionally compelled to do so. The majority today, ante, at 12, suggests that the Ramos Court's endorsement of that option--involving a choice between two nonmisleading instructions, one mentioning and the other not mentioning the remote "possibility" of parole--might have led reasonable state judges to conclude that they could allow juries to be misled on the future dangerousness issue by concealing entirely the legal certainty of parole impossibility. But the general rule applied in Ramos simply permits state courts to give accurate instructions that will prevent juries from being misled about sentencing options in capital cases. In order to decide Simmons correctly, there was no need to "carv[e] out an exception," ante at 14, from that rule.
The Court's reading of Caldwell is equally unpersuasive. In that case, the prosecutor had urged the jury not to view itself as finally determining whether the defendant would die, because the death sentence was subject to appellate review. As Justice O'Connor's controlling opinion explained, the prosecutor's remarks were improper "because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility." 472 U.S., at 342 . Because Justice Marshall's plurality opinion suggested that any commenton appellate review was "wholly irrelevant" to the sentencing determination, id., at 336, the Court today suggests that state judges might reasonably have concluded "that information about postsentence procedures was never to go to the jury." Ante, at 14. Apart from the fact that an instruction describing a sentencing alternative does not relate to "postsentence procedures," I see no basis for assuming that concerns about describing the process of appellate review to a jury might have anything to do with the necessity for providing the jury with accurate information about sentencing options when the prosecutor makes the misleading argument that the death penalty is the only way to prevent a defendant's future dangerousness "outside of the prison system."
The Court has consistently, and appropriately, shown a particular concern for procedures that protect the accuracy of sentencing determinations in capital cases. 11 Today, the majority discards this concern when it relies on a nonexistent tension between Gardner and Skipper on the one hand and Ramos and Caldwell on the other to justify its refusal to apply the rule in Simmons to this case.
I respectfully dissent.
[ Footnote 1 ] The Virginia Supreme Court concluded that the jury's recommendation of a death sentence was based only on the first aggravating factor--petitioner's future dangerousness. O'Dell v. Commonwealth, 234 Va. 672, 706, 364 S. E. 2d 491, 510 (1988). Only that aggravating factor is before us.
[ Footnote 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 rule of Simmons was not new--i.e., that it was "dictated" by then existing 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).
[ Footnote 3 ] 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. ___ (1996); Mueller v. Murray, 252 Va. 356, 365-366, 478 S. E. 2d 542, 548 (1996); Commonwealth v. Christy, 540 Pa. 192, 215-217, 656 A. 2d 877, 888-889, cert. denied, 516 U. S. ___ (1995).
[ Footnote 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.
[ Footnote 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 the 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 afailure 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.
[ Footnote 2 ] In the years following our decision in Furman v. Georgia, 408 U.S. 238 (1972), 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.
[ Footnote 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.
[ Footnote 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).
[ Footnote 5 ] See Simmons, 512 U.S., at 168 , n. 8.
[ Footnote 6 ] See id., 512 U.S., 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).
[ Footnote 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 to death"); Paduano & Stafford Smith, Deathly Errors: Juror Misconceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum. Hum. Rts. L. Rev. 211 (1987).
[ Footnote 8 ] The Court ignores the fact that Justice Brennan and Justice Marshall agreed with the plurality's conclusion that sentencing a defendant based on information he was not permitted to deny or explain violated due process, but refused to join the judgment insofar as it permitted further proceedings that could lead to another death sentence. See Gardner v. Florida, 430 U.S. 349, 364 -365 (1977) (opinion of Brennan, J.); id., at 365 (Marshall, J., dissenting).
[ Footnote 9 ] "Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not onlythe rule of Lockett and Eddings that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also 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.' Gardner v. Florida, 430 U.S. 349, 362 (1977)." Skipper v. South Carolina, 476 U.S. 1, 5 , n. 1 (1986).
[ Footnote 10 ] The Court cited with approval the provision of the Model Penal Code recommending that the jury be advised of "the nature of the sentence of imprisonment that may be imposed, including its implication with respect to possible release upon parole, if the jury verdict is against sentence of death." California v. Ramos, 463 U.S. 992, 1009 , n. 23 (1983) (quoting American Law Institute, Model Penal Code §210.6 (Prop. Off. Draft 1962)).
[ Footnote 11 ] See Gardner, 430 U.S., at 357 -358 ("From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion"). See also, e.g., Ramos, 463 U.S., at 998 -999; Beck v. Alabama, 447 U.S. 625, 637 -638 (1980).
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The record loss of Arctic sea ice this summer will echo throughout the weather patterns affecting the U.S. and Europe this winter, climate scientists said on Wednesday, since added heat in the Arctic influences the jet stream and may make extreme weather and climate events more likely.
The "astounding" loss of sea ice this year is adding a huge amount of heat to the Arctic Ocean and the atmosphere, said Jennifer Francis, an atmospheric scientist at Rutgers University in New Jersey. "It's like having a new energy source for the atmosphere." Francis was one of three scientists on a conference call Wednesday to discuss the ramifications of sea ice loss for areas outside the Arctic. The call was hosted by Climate Nexus.
The extent of Arctic sea ice on Aug. 26, 2012, the day the sea ice dipped to its smallest extent ever recorded in more than three decades of satellite measurements. The line on the image shows the average minimum extent from the period covering 1979-2010. Click on the image for a larger version. Credit: NASA/JPL.
On August 26, Arctic sea ice extent broke the record low set in 2007, and it has continued to decline since, dropping below 1.5 million square miles. That represents a 45 percent reduction in the area covered by sea ice compared to the 1980s and 1990s, according to the National Snow and Ice Data Center (NSIDC), and may be unprecedented in human history. The extent of sea ice that melted so far this year is equivalent to the size of Canada and Texas combined.
The loss of sea ice initiates a feedback loop known as Arctic amplification. As sea ice melts, it exposes darker ocean waters to incoming solar radiation. The ocean then absorbs far more energy than had been the case when the brightly colored sea ice was present, and this increases water and air temperatures, thereby melting even more sea ice.
Peter Wadhams, the head of the polar ocean physics group at the University of Cambridge in the U.K., told BBC News on September 6 that the added heat from sea ice loss is equivalent to the warming from 20 years of carbon dioxide emissions. Carbon dioxide is the main greenhouse gas that is causing manmade global warming.
During the fall, when the sun sets once again and the Arctic Ocean begins to refreeze, the heat in the ocean gets released back into the atmosphere. Since the jet stream, which is a corridor of strong winds at upper levels of the atmosphere that generally blows from west to east across the northern mid-latitudes, is powered by the temperature difference between the Arctic and areas farther south, any alteration of that temperature difference is bound to alter the jet stream — with potentially profound implications. It just so happens that the jet stream steers day-to-day weather systems.
Francis published a study last year in which she showed that Arctic warming might already be causing the jet stream to become more amplified in a north-south direction. In other words, the fall and winter jet stream may be getting wavier. A more topsy-turvy jet stream can yield more extreme weather events, Francis said, because weather and climate extremes are often associated with large undulations in the jet stream that can take a long time to dissipate.
"We know that certain types of extreme weather events are related to weather that takes a long time to change," Francis said.
While there are indications that the jet stream is slowing and may be more prone to making huge dips, or "troughs," scientists have a limited ability to pinpoint how this will play out in the coming winter season.
"The locations of those waves really depends on other factors," Francis said, such as El Niño and a natural climate pattern known as the Arctic Oscillation. "I can only say that it's probably going to be a very interesting winter," she said.
Francis' work has linked Arctic warming to the unusually cold and snowy winters of 2009-10 and 2010-11, during which the U.S. East Coast and parts of Europe were pummeled by fierce winter storms and experienced cooler-than-average conditions. The winter of 2011-12 was much milder, by comparison, but Francis said it, too, was consistent with her research. Not all meteorologists agree on the Arctic connection theory, but that may change with time.
Jim Overland, an oceanographer at NOAA's Pacific Marine Environmental Laboratory, said the inconsistency of the past three winters doesn't mean the Arctic connection hypothesis is invalid.
"People like direct causality, [the notion that] if you lose the ice every year it will cause the same effect," Overland said. But the chaotic nature of the atmosphere means that all that scientists can say with a high degree of confidence is that "the number of [extreme] events somewhere are destined to increase" as a result of rapid Arctic climate change, Overland said.
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The National Oceanic and Atmospheric Administration (NOAA) Thursday switched on two new supercomputers that are expected to improve weather forecasting.
The "go live" switch over to the new systems was made today without any fanfare, just a box of donuts on hand to mark 18 months of preparation and testing. The new IBM systems are now responsible for producing forecast data that's relied on in the U.S. and around the world.
The agency had planned to go live next Tuesday, but strong storms now in the Pacific and Atlantic Oceans prompted the decision to move the date up, said Ben Kyger, director of central operations at the National Centers for Environmental Prediction.
NOAA's National Weather Service (NWS) runs the two identical, or clone systems, one in Reston, Va., and in Orlando, Fla. They can switch over in about six minutes.
The supercomputers are each 213 teraflop systems, running a Linux operating system on Intel processors. The U.S. is paying about $20 million a year to operate the leased systems.
"These are the systems that are the origin of all the weather forecast you see," said Kyger. The computing system is called the Weather and Climate Operational Supercomputing System or WCOSS.
The two previously used four-year-old IBM supercomputers, also identical, run IBM's AIX operating system and Power 6 chips, and are each capable of 74 teraflops. The upgrade will continue to improve weather forecasting over time.
It's been a complicated process to get to this point. The NWS has had to ensure that the software running on the new system is producing scientifically correct results. It had been running the old and new systems in parallel for months, and comparing the output.
This comparative testing involved examining output data to determine whether it is numerically reproducible out to five decimal places. There is also a statistical analysis of weather predictions on the new system against the actual weather conditions.
The process wasn't just an examination of numerical data. NWS scientists also studied the weather products and examined them for subtle differences. "There is a lot of human, highly experienced, subjective evaluation," said Kyger.
There are computational differences involved in switching to new chips and a new operating system. They are subtle, and appear in decimal places six through 12.
As you go further out in a forecast, the differences compound.
The changes may appear in the fifth day of an extended, five-day forecast as a difference of one degree.
The NWS has a new hurricane model, Hurricane Weather Research and Forecasting (HWRF), which is 15% more accurate in day five of a forecast both for forecast track and intensity. That model is now operational and running on the new systems. That's important, because U.S. is expecting a busy hurricane season.
"That is a huge improvement, and we can't make those kinds of improvements unless we have a bigger computer," said Kyger, of the 15% gains.
More compute power allows for higher resolution, which enables scientists to look at forecasting impacts over much smaller areas.
Right now, the NWS global forecasting system runs at a resolution of 27 kilometers, with 64 vertical levels, which shows the atmospheric conditions at various heights.
Last fall, when Hurricane Sandy struck, there was a belief that the European Centre for Medium-Range Weather Forecasts (ECMWF) had a better storm track model further out.
Criticism over the U.S. forecasting ability has followed post Sandy.
The European model "did a better job at some points in the storm track that the U.S. models did," said Barry Lee Myers, the CEO of AccWeather Inc., at a House hearing in May on "Restoring U.S. Leadership in Weather Forecasting."
During Sandy, the European Center had computers capable of producing resolution at 16 kilometers, with 130 vertical levels, according to NWS officials.
In nine months, the NWS expects to be at 13 kilometers resolution.
The increased resolution is "going to improve the lead time for all significant weather events," said Kyger.
In June, ECMWF announced that it had signed a contract to purchase two Cray XC30 systems. The speed of these systems is not being disclosed but a Cray spokesman said "it will be a petascale system."
Kyger referred to the Europeans as "teammates" and said they use each other's models. "I would call it friendly competition," he said.
Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov, or subscribe to Patrick's RSS feed . His email address is email@example.com.
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