(concurring in result):
I agree with the conclusion in Part III that the charge outlined in State v. Atkins, 293 S.C. 294, 360 S.E. (2d) 302 (1987) does not accurately reflect the parole ineligibility of this defendant, should he receive a life sentence. Cf. Caldwell v. Mississippi, 472 U.S. 320, 336, 105 S. Ct. 2633, 2643, 86 L. Ed. (2d) 231, 243-44 (1985). I write separately because I believe we should reconsider Atkins and reinstate earlier precedent prohibiting capital sentencing juries from being informed about parole.
For forty years prior to Atkins this Court’s decisions consistently disapproved the practice of placing the subject of parole before the jury in a death penalty case.
In State v. Hinton, 210 S.C. 480, 43 S.E. (2d) 360 (1947), capital convictions were reversed, in part, upon the solicitor’s closing argument to the effect “that if the defendants were found guilty of murder, but recommended to life imprisonment, that this would not necessarily mean . . . they would serve a life sentence.” Id. at 488, 43 S.E. (2d) at 363. We could find no justification for such argument, which suggested to the jury that a verdict of death “should be rendered because some other department of the state government might shorten or commute a life sentence.” Id.
More than twenty years later, State v. Atkinson, 253 S.C. 531, 172 S.E. (2d) 111 (1970) addressed the appropriate response to a capital jury’s question about the possibility of pardon or parole in the event of a life sentence.2 We adopted “[t]he prevailing view . . . that a jury charged with the responsibility of assessing the penalty to be suffered by an accused should not be invited, by instruction or argument, to *56speculate on the possible effect of pardon or parole upon the execution of the sentence imposed.” Id. at 534, 172 S.E. (2d) at 112. The rationale for this view was expressed as follows:
‘The Legislature committed to the jury the responsibility to determine in the first instance whether punishment should be life or death. It charged another agency with the responsibility of deciding how a life sentence shall be executed. The jurors perform their task completely when they decide the matter assigned to them upon the evidence before them. What happens thereafter is no concern of theirs____’'
Id. at 535, 172 S.E. (2d) at 112 [quoting State v. White, 27 N.J. 158, 177-78, 142 A. (2d) 65, 76 (1958)].3
The holding in Atkinson served as a basis for numerous decisions concerning the introduction of parole into the sentencing phase of the bifurcated trial provided under our present death penalty law.4 All these decisions unequivocally state that parole is not a proper consideration for capital sentencing juries.
In State v. Goolsby, 275 S.C. 110, 268 S.E. (2d) 31 (1980), we held that the trial court’s charge to the jury erroneously included reference to parole eligibility. The error was cured, however, by further instruction that the jury was to determine sentence without regard to parole. See also State v. Plath, 277 S.C. 126, 284 S.E. (2d) 221 (1981) (curing reference to parole by codefendant’s counsel).5
*57Other decisions went further, holding that, in the absence of the jury’s inquiry, the defendant was not entitled to a charge prohibiting the jury from considering parole eligibility in making its sentencing determination. State v. Butler, 277 S.C. 543, 290 S.E. (2d) 420 (1982); State v. Copeland, 278 S.C. 572, 300 S.E. (2d) 63 (1982); State v. South, 285 S.C. 529, 331 S.E. (2d) 775 (1985). In Copeland, supra, we explained:
The jurors were instructed to base their decisions solely upon the evidence adduced at trial and the law as instructed by the trial judge. While it is true that possibility of parole should not be considered by the jury, it is not the duty of the trial court to anticipate or speculate that jurors might consider it in their deliberations and instruct them accordingly. To do so may, in fact, inject consideration of parole into their deliberations where it may not before have been.
278 S.C. at 585, 300 S.E. (2d) at 71.
Finally, State v. Norris, 285 S.C. 86, 328 S.E. (2d) 339 (1985) set out the proper response to jurors’ inquiry about parole eligibility:
When the issue is raised, the Court should instruct the jury that it shall not consider parole eligibility in reaching its decision, and that the terms “life imprisonment” and “death sentence” should be understood in their ordinary and plain meaning.
Id. at 95, 328 S.E. (2d) at 344 (citation omitted). See also State v. Peterson, 287 S.C. 244, 335 S.E. (2d) 800 (1985); State v. Johnson, 293 S.C. 321, 360 S.E. (2d) 317 (1987); State v. Plemmons, 296 S.C. 76, 370 S.E. (2d) 871 (1988); State v. Smith, 298 S.C. 482, 381 S.E. (2d) 724 (1989) (omission of “no concern” language harmless error).
In Atkins, this Court followed established precedent, holding the defendant’s request for instructions on parole eligibility was properly refused. Without discussion, the Court proceeded to set out the following guidelines, to be applied prospectively:
In all death penalty cases which proceed to trial after this opinion is published, if requested by the defendant, the *58trial judge shall charge the jury that the term “life imprisonment” is to be understood in its ordinary and plain meaning.
In death penalty cases controlled by the Omnibus Criminal Justice Improvements Act of 1986, 1986 S.C. Acts 2955, which proceed to trial after this opinion is published, if the defendant so requests, he may have the following charge given in lieu of the “life imprisonment is to be understood in its plain and ordinary meaning” charge:
A person who is convicted of murder must be punished by death or by imprisonment for life. When the state seeks the death penalty and a statutory aggravating circumstance is specifically found beyond a reasonable doubt, and a recommendation of death is not made, the trial court must impose a sentence of life imprisonment without eligibility for parole until the service of thirty years. When a statutory aggravating circumstance is not found beyond a reasonable doubt, the defendant shall be sentenced to life imprisonment and he shall not be eligible for parole until the service of twenty years. No person sentenced under either of the sentencing schemes just explained may receive any work-release credits, good-time credits, or any other credit that would reduce the mandatory imprisonment.
293 S.C. at 300, 360 S.E. (2d) at 305-306. (Emphasis in original).
These instructions are incompatible not only with the rationale of the substantiál body of law preceding Atkins, but also with that of our decisions which followed.
In State v. Matthews, 296 S.C. 379, 373 S.E. (2d) 587 (1988), this Court held that the trial court properly refused the defendant’s ex post facto application of increased time for parole eligibility. See also State v. Jones, 298 S.C. 118, 378 S.E. (2d) 594 (1989); State v. Smith, supra. We specifically rejected the notion that “the punishment for a crime can serve as a mitigating sentencing consideration.” Matthews, supra, at 386, 373 S.E. (2d) at 592. We stated:
*59That appellant would serve ten additional years before parole eligibility provides no evidence from which “the jury could have drawn favorable inferences ... regarding [his] character and his probable future conduct if sentenced to life in prison.” Skipper v. South Carolina, 476 U.S. 1, 4, 106 S. Ct. 1669, 1671, 90 L. Ed. (2d) 1, 6 (1986). The judge’s refusal to apply the amendment here and instruct the jury on parole eligibility in no way “impeded the sentencing jury’s ability to carry out its task of considering all relevant facets of the character and record of the individual offender.” Id. at 8, 106 S. Ct. at 1673, 90 L. Ed. (2d) at 9.
Id. 296 S.C. at 386-87, 373 S.E. (2d) at 592.
Similarly, State v. Patterson, 299 S.C. 280, 384 S.E. (2d) 699 (1989) held that “information regarding requirements for parole eligibility is not mitigating evidence and is irrelevant to a defendant’s adaptability to prison life.” Id. at 286, 384 S.E. (2d) at 703. There, we also noted that “whether a jury is given information regarding reduction of a . . . sentence by commutation, pardon, or parole is a matter of state law.” Id. [citing California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. (2d) 1171 (1983)].6
These two recent decisions reaffirm the principle, uniformly followed prior to Atkins, that parole is irrelevant to the determination of a capital sentence. Thus, they support the conclusion that parole should at no time enter into the jury’s deliberations.
Aside from this logical inconsistency, the Atkins instructions present practical problems in their application. *60The trial court is, in effect, required to rule upon a particular defendant’s eligibility for parole before sentence has even been imposed. This determination may involve novel issues of law7 or statutory provisions which have not been interpreted.8 Moreover, there is no way to be assured that the Parole Board would reach the same conclusion as the court.
For all of the stated reasons, I would overrule Atkins to the extent it permits the introduction of parole into the capital sentencing decision.
Gregory, C.J., and Harwell and Toal, JJ., concur.In State v. Morris, 243 S.C. 225, 133 S.E. (2d) 744 (1963), the issue was mentioned but not decided since the jury’s question was not viewed as seeking information regarding the possibility of parole. The Court did state, however, that “[h]ad the [trial] court... given the jury information as to the possibility of parole, it could well be argued that the court erred in doing so to the prejudice of [the defendant].” Id. at 232, 133 S.E. (2d) at 747.
See also State v. Plath, 281 S.C. 1, 15, 313 S.E. (2d) 619, 627 (1984), decided under the current death penalty statute:
Such determinations as the time, place, manner, and conditions of execution or incarceration, as well as the matter of parole are reserved by statute and our cases to agencies other than the jury. As we have repeatedly stated, the sole function of the jury in a capital sentencing trial is the individualized selection of one or the other penalty, based upon the circumstances of the crime and characteristics of the individual defendant.
In the interim, this Court held in State v. Brooks, 271 S.C. 355, 247 S.E. (2d) 436 (1978) that in determining guilt or innocence the jury must not be instructed regarding parole eligibility.
In State v. Drayton, 293 S.C. 417, 361 S.E. (2d) 329 (1987), we held that a curative instruction for the jury not to consider parole was unnecessary since the reference to parole was in the context of the defendant’s commission of prior crimes, not to its possibility in the event of a life sentence on the crime charged. See also State v. Middleton, 295 S.C. 318, 368 S.E. (2d) 457 (1988).
Matthews and Patterson are in accord with the weight of authority. Two courts have specifically rejected parole ineligibility as mitigating evidence. King v. Dugger, 555 So. (2d) 355 (Fla. 1990); State v. Clark, 108 N.M. 288, 772 P. (2d) 322 (1989). Other courts have generally upheld the constitutionality of prohibiting parole as a sentencing consideration. Peterson v. Murray, 904 F. (2d) 882 (4th Cir. 1990); Turner v. Bass, 753 F. (2d) 342 (4th Cir. 1985), rev’d on other grounds sub nom. Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. (2d) 27 (1986); Andrade v. McCotter, 805 F. (2d) 1190 (5th Cir. 1986); O’Bryan v. Estelle, 714 F. (2d) 365 (5th Cir. 1983); Johnson v. Thigpen, 623 F. Supp. 1121 (S.D. Miss. 1985), aff’d, 806 F. (2d) 1243 (5th Cir. 1986); Kirkpatrick v. Blackburn, 597 F. Supp. 1562 (E.D. La. 1984), vacated in part on other grounds, 777 F. (2d) 272 (5th Cir. 1985); State v. Robbins, 319 N.C. 465, 356 S.E. (2d) 279 (1987).
For example, in the Atkins resentencing the trial court was faced with deciding the effect of consecutive life sentences on parole eligibility. See State v. Atkins, 399 S.E. (2d) 760 (S.C. 1990).
7 The statute involved in this case is not entirely clear. It provides in pertinent part that “[t]he Board shall not grant parole nor is parole authorized to any prisoner serving a sentence for a second or subsequent conviction, following a separate sentencing for a prior conviction, for violent crimes as defined in § 16-1-60.” S.C. Code Ann. § 24-21-640 (1989).