source: Caselaw Access Project

author: Justice Thomas Justice Stevens,

license: Public Domain

text:
    O’DELL v. NETHERLAND, WARDEN, et al.
    No. 96-6867.
    Argued March 18, 1997
    Decided June 19, 1997

      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, post, p. 168.

      Robert S. Smith, by appointment of the Court, 520 U. S. 1114, argued the cause for petitioner. With him on the briefs were Alan Effron and Michele J. Brace.

      Katherine R Baldwin, Assistant Attorney General of Virginia, argued the cause for respondents. With her on the brief were James S. Gilmore Ill, Attorney General, and David E. Anderson, Chief Deputy Attorney General.
   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 were consistent 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. 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 cer-tiorari. 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 was 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. 1050 (1996); see also ibid. (Scalia, J., respecting the grant of certiorari).

II

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. 518, 527 (1997). Next, the habeas court considers whether “‘a state court considering [the defendant’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 527. 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, supra, 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).

I — ! HH

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 for parole. 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 “[bjecause truthful information of parole inél-igibility 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:

“[The Court has] previously noted with approval... that ‘[m]any state courts 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.’ California v. Ramos, 463 U. S. [992, 1013, n. 30 (1983)]. The decision whether or not to inform the jury of the possibility of early release is generally left to the States.” Id., at 176.

The concurrence also distinguished Skipper, noting that Skipper involved an attempt to introduce “factual evidence” regarding the defendant himself, while Simmons “sought to rely on the operation of South Carolina’s sentencing law” to demonstrate that he did not present a future danger. 512 U. S., at 176. But the concurrence nonetheless concluded that, “[w]hen the State seeks to show the defendant’s future dangerousness,” the defendant “should be allowed to bring his parole ineligibility to the jury’s attention.” Id., at 177.

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.

A

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 Blaekmun’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). Justice Qins-BURG, 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.

1

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 deleted).

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 had no 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 demonstrating that 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.

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 to him. 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’Con-nor, J., concurring in judgment).

2

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. Respondents point 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, 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 judgment of state legislatures” that capital juries not learn of a Governor’s commutation power. Ibid. “Many state courts,” we pointed out, “have held it improper for the jury to consider or to be informed — through argument or instruction — of the possibility of commutation, pardon, or parole.” Id., at 1013, n. 30 (emphasis added); see also ibid, (citing, inter alia, Ga. Code Ann. § 17-8-76 (1982), and describing that statute as “prohibiting argument as to possibility of pardon, parole, or clemency” (emphasis added)). “We sit as judges, not as legislators, and the wisdom of the decision to permit juror consideration of possible commutation is best left to the States.” 463 U. S., at 1014. The dissenters in Ramos disputed the constitutionality of ever informing juries of the Governor’s power to commute a death sentence. See id., at 1018 (opinion of Marshall, J., joined by Brennan and Blackmun, JJ.); see also id,, at 1019-1020 (asserting that consideration by a capital sentencing jury of a defendant’s prospects for commutation or parole is unconstitutional).

The general proposition that the States retained the prerogative to determine how much (if at all) juries would be informed about the postsentencing legal regime was given further credence in Caldwell v. Mississippi, supra. In that case, the prosecution and the judge had, the Court concluded, improperly left the jury with the impression that a death sentence was not final because it would be extensively reviewed. Justice Marshall authored the opinion for the Court except for one portion. In that portion, Justice Marshall — writing for a plurality — concluded that, Ramos notwithstanding, sentencing juries were not to be given information about postsentencing appellate proceedings. Justice O’Connor, who provided the fifth vote necessary to the judgment, did not join this portion of Justice Marshall’s opinion. She wrote separately, stating that, under Ramos, a State could choose whether or not to “instruc[t] the jurors on the sentencing procedure, including the existence and limited nature of appellate review,” so long as any information it chose to provide was accurate. 472 U. S., at 342 (opinion concurring in part and concurring in judgment).

3

In light of Ramos and Caldwell, we think it plain that a reasonable jurist in 1988 would not have felt compelled to adopt the rule later set out in Simmons. As noted above, neither Gardner nor Skipper involved a prohibition on imparting information concerning what might happen, under then-extant law, after a sentence was imposed. Rather, the information at issue in each case was information pertaining to the defendant’s “character and record.” Although the principal opinions in Simmons found Skipper (which, in turn, relied on Gardner) persuasive, Justice O’Connor distinguished Skipper from the facts presented in Simmons on this very ground, see 512 U. S., at 176 (opinion concurring 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 post-sentence occurrences for the very reason that it did not constitute evidence concerning the defendant’s “character or the nature of his crime.” 463 U. S., at 1022 (opinion of Marshall, J.). In Caldwell, the plurality and Justice O’Connor contested whether the fact that “appellate review is available to a capital defendant sentenced to death” was “simply a factor that in itself is wholly irrelevant to the determination of the appropriate sentence” (as the plurality concluded, 472 U. S., at 336), or whether provision of that information was a constitutional “policy choice in favor of jury education” (as Justice O’Connor concluded, id., at 342 (opinion concurring in part and concurring in judgment)).

A reasonable jurist in 1988, then, could have drawn a distinction between information about a defendant and information concerning the extant legal regime. It would hardly have been unreasonable in light of Ramos and Caldwell for the jurist to conclude that his State had acted constitutionally by choosing not to advise its jurors as to events that would (or would not) follow their recommendation of a death sentence, as provided by the legal regime of the moment. Indeed, given the sentiments, expressed in Justice Marshall’s Ramos dissent and Caldwell plurality, that information about postsentence procedures was never to go to the jury and given that the decision whether to provide such 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 petitioner may not avail himself of it unless the rule of Simmons falls within one of the exceptions to Teague’s bar.

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 we have cited as an example of the sort of rule falling within Teague’s second exception, see Saffle, 494 U. S., at 495 — because “both cases rest upon this Court’s belief that certain procedural protections are essential to prevent a miscarriage of justice,” Brief for Petitioner 35 (citations omitted). We disagree. Unlike the sweeping rule of Gideon, which established an affirmative right to counsel in all felony cases, the narrow right of rebuttal that Simmons affords to defendants in a limited class of capital cases has hardly “ ‘ “altered] 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.

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, and stated that petitioner had “forfeited his right to live 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), recognized the fundamental unfairness of the restrictive procedure followed in this case. As Justice O’Connor’s opinion, which has been treated as expressing the narrowest ground on which the decision rested, explained:

“ ‘Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause,’ Clemons v. Mississippi, 494 U. S. 738, 746 (1990), and one of the hallmarks of due process in our adversary system is the defendant’s ability to meet the State’s case against him. Cf. Crane v. Kentucky, 476 U. S. 683, 690 (1986). In capital cases, we have held that the defendant’s future dangerousness is a consideration on which the State may rely in seeking the death penalty. See California v. Ramos, 463 U. S. 992, 1002-1003 (1983). But ‘[w]here the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, . . . the elemental due process requirement that a defendant not be sentenced to death “on the basis of information which he had no opportunity to deny or explain” [requires that the defendant be afforded an opportunity to introduce evidence on this point].’ Skipper v. South Carolina, 476 U. S. 1, 5, n. 1 (1986), quoting Gardner v. Florida, 430 U. S. 349, 362 (1977) (plurality opinion); see also 476 U. S., at 9-10 (Powell, J., concurring in judgment).” ‘Id., at 175 (opinion concurring in judgment).

Thus, this case is not about whether petitioner was given a fair sentencing hearing; instead, the question presented is whether, despite the admittedly unfair hearing, he should be put to death because his trial was conducted before Simmons was decided. Because the Court regards the holding in Simmons as nothing more than a novel “court-made rule,” ante, at 156, it rejects petitioner’s plea. In my view, our decision in Simmons applied a fundamental principle that is as old as the adversary system itself, and that had been quite clearly articulated by this Court in two earlier opinions. Accordingly, I respectfully dissent.

I

My analysis begins where the majority tersely ends — with petitioner’s contention that the rule in Simmons implicates “the fundamental fairness and accuracy-of the criminal proceeding,” Saffle v. Parks, 494 U. S. 484, 495 (1990), and therefore should be retroactively applied even if it would constitute a “new” rule under Teague v. Lane, 489 U. S. 288, 307 (1989).

Our decision in Teague recognized two exceptions to the general rule of nonretroactivity. The relevant exception for our purposes establishes that “a new rule should be applied retroactively if it requires the observance of ‘those procedures that . . . are “implicit in the concept of ordered liberty.’”” Ibid. (quoting Mackey v. United States, 401 U. S. 667, 693 (1971) (Harlan, J., concurring in judgments in part and dissenting in part), in turn quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)). In the opinion that provided the basis for the limitations on collateral review adopted in Teague, Justice Harlan emphasized the importance of protecting “bedrock procedural elements” that are “essential to the substance of a full hearing.” Mackey, 401 U. S., at 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.

Since Teague was decided, this Court has never found a rule so essential to the fairness of a proceeding that it would fall under this exception. In my view, the right in Simmons — the right to respond to an inaccurate or misleading argument — is surely a bedrock procedural element of a full and fair hearing. As Justice O’Connor recognized in her opinion in Simmons, this right to rebut the prosecutor’s arguments is a “hallmar[k] of due process,” 512 U. S., at 175 (opinion concurring in judgment). See also id., at 174 (Ginsburg, J., concurring) (“This case is most readily resolved under a core requirement of due process, the right to be heard”). When a defendant is denied the ability to respond to the state’s case against him, he is deprived of “his fundamental constitutional right to a fair opportunity to present a defense.” Crane v. Kentucky, 476 U. S. 683, 687 (1986).

The Court today argues that Simmons defined only a “narrow right of rebuttal [for] defendants in a limited class of capital cases,” ante, at 167, and therefore that the rule cannot be in that class of rules so essential to the accuracy of a criminal proceeding that they are excepted from Teague’s nonretroactivity principle.

The majority appears not to appreciate that the reason Simmons’ holding applied directly to only a narrow class of capital defendants is because only a very few States had in place procedures that allowed the prosecutor to argue future dangerousness while at the same time prohibiting defendants from using “the only way that [they] can successfully rebut the State’s case.” 512 U. S., at 177 (O’Connor, J., concurring in judgment). The prevailing rule in the States that provided a life-without-parole sentencing alternative required an instruction explaining that alternative to the jury.

Although the majority relies on the limited impact of the Simmons rule to discount its importance, the broad consensus in favor of giving the jury accurate information in fact underscores the importance of the rule applied in Simmons. The rule’s significance is further demonstrated by evidence of the effect that information about the life-without-parole alternative has on capital jury deliberations. For example, only 2 death sentences have been imposed in Virginia for crimes committed after January 1, 1995 — whereas 10 were imposed in 1994 alone — and the decline in the number of death sentences has been attributed to the fact that juries in Virginia must now be informed of the life-without-parole alternative. See Green, Death Sentences Decline in Virginia, Richmond Times-Dispatch, Nov. 24,1996, p. Al. 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 the accuracy 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 rule needed explicit articulation by this Court, they clearly had been expressed well before petitioner’s 1988 sentencing proceeding.

II

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).” 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 .... [Petitioner'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 (internal quotation marks omitted).

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, 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. Moreover, in his 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 “indicating] 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 162. 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 rebut arguments 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 petitioner 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 decisionmaking on the part of the sentences

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. 463 U. S., 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.

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 163-164, 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 166, 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 comment on 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 165. 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. 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.

       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.

       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 ride 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).

       Our conclusion that the rule of Simmons was new finds support in the decisions of the state courts and the lower federal courts. See Butler, 494 U. S., at 415. By 1988, no state or federal court had adopted the rule of Simmons. In fact, both before and after Skipper v. South Carolina, 476 U. S. 1 (1986), several courts had upheld against constitutional challenge practices similar, if not identical, to that later forbidden in Simmons. See, e. g., Turner v. Bass, 753 F. 2d 342, 354 (CA4 1985), rev’d on other grounds sub nom. Turner v. Murray, 476 U. S. 28 (1986); O’Bryan v. Estelle, 714 F. 2d 365, 389 (CA5 1983), cert. denied sub nom. O’Bryan v. McKaskle, 465 U. S. 1013 (1984); King v. Lynaugh, 850 F. 2d 1055, 1057 (CA5 1988) (en banc), cert. denied, 488 U. S. 1019 (1989); Peterson v. Murray, 904 F 2d 882, 886-887 (CA4), cert. denied, 498 U. S. 992 (1990); Knox v. Collins, 928 F 2d 657, 660, 662 (CA5 1991); see also Turner v. Commonwealth, 234 Va. 543, 551-552, 364 S. E. 2d 483, 487-488, cert. denied, 486 U. S. 1017 (1988); Mueller v. Commonwealth, 244 Va. 386, 408-409, 422 S. E. 2d 380, 394 (1992), cert. denied, 507 U. S. 1043 (1993). In addition, several of the courts to consider the question have, along with the Fourth Circuit in this case, concluded that the rule of Simmons was new. See, e. g., Johnson v. Scott, 68 F. 3d 106, 111-112, n. 11 (CA5 1995), cert. denied sub nom. Johnson v. Johnson, 517 U. S. 1122 (1996); Mueller v. Murray, 252 Va. 356, 365-366, 478 S. E. 2d 542, 548 (1996); Commonwealth v.
        Christy, 540 Pa. 192, 215-217, 656 A. 2d 877, 888-889, cert. denied, 516 U. S. 872 (1995).

       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.

       During his closing statement at the sentencing proceeding, the prosecutor observed: “Isn’t it interesting that he is only able to be outside of the prison system for a matter of months to a year and a half before something has happened again?” App. 61. And, after drawing out the parallels between the Virginia murder and a kidnaping and robbery for which petitioner had been convicted in Florida some years earlier, the prosecutor said: “We are a society of fair, honest people who believe in our government and who believe in our justice system; and I submit to you there was a failure in the Florida criminal justice system for paroling this man when they did.” Id., at 64.
      The prosecutor concluded his argument by saying: “[Y]ou may still sentence him to life in prison, but I ask you ladies and gentlemen[,] in a system, in a society that believes in its criminal justice system and its government, what does this mean? . . . [A]ll the times he has committed crimes before and been before other juries and judges, no sentence ever meted out to this man has stopped him. Nothing has stopped him, and nothing ever will except the punishment that I now ask you to impose.” Id., at 66.

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

       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.

       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).

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

       See id., at 167, n. 7 (listing the States whose capital punishment schemes in one way or another require the jury to be informed that life without parole is either the only available alternative sentence or one of the options from which the jury is free to choose).

       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 & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum. Hum. Rts. L. Rev. 211 (1987).

       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).

       “Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett [v. Ohio, 438 U. S. 586 (1978),] and Eddings [v. Oklahoma, 455 U. S. 104 (1982),] 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).

       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., at 1009, n. 23 (quoting American Law Institute, Model Penal Code § 210.6 (Prop. Off. Draft 1962)).

       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., California v. Ramos, 463 U. S. 992, 998-999 (1983); Beck v. Alabama, 447 U. S. 625, 637-638 (1980).


author: Justice Breyer Justice Scalia,

text:
    KLEHR et ux. v. A. O. SMITH CORP. et al.
    No. 96-663.
    Argued April 21, 1997
    Decided June 19, 1997

      Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part III. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined, post, p. 196.

      Charles A. Bird argued the cause for petitioners. With him on the briefs were Mary R. Vasaly, Michael C. McCarthy, and Malcolm McCune.

      Bruce J. Ennis, Jr., argued the cause for respondents. With him on the brief were Frederick W. Morris, Blake Shepard, Jr., Jeffrey E. Grell, Nory Miller, and Kathleen M. Massey.

      Briefs of amici curiae urging reversal were filed for the National Association of Securities and Commercial Law Attorneys by Kevin P. Roddy, G. Robert Blakey, Patrick E. Cafferty, Bryan L. Clobes, and Jonathan W. Cuneo; and for Plaintiffs’ Executive Committee, MDL No. 1069, et al. by Richard B. McNamara, Gregory A. Holmes, Stephanie A. Bray, Martin J. Oberman, Alice W. Ballard, Michael M. Baylson, Charles Barnhill, Jr., Judson Miner, and Edward R. Garvey.

      Briefs of amici curiae urging affirmance were filed for the National Association of Manufacturers by Alfred W. Córtese, Jr., Daniel I. Prywes, Michael F. Wasserman, Jan S. Amundson, and Quentin Riegel; for the National Hockey League by Michael A. Cardozo, Steven C. Krane, and William L. Daly; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.

        Philip Allen Lacovara, Evan M. Tager, and Phillip E. Stano filed a brief for the American Council of Life Insurance et al. as amici curiae.

   Justice Breyer

delivered the opinion of the Court.

The petition in this case asked us to consider two aspects of “statute of limitations” law. One concerns the date upon which a civil action accrues under the Racketeer Influenced and Corrupt Organizations Act and the limitations period starts to run. The other concerns “fraudulent concealment,” a doctrine that extends the time for a plaintiff to file suit. In respect to the first, we focus upon, and disapprove, an accrual rule followed in the Third Circuit called the “last predicate act” rule. In respect to the second, we hold that a plaintiff may not rely upon “fraudulent concealment” unless he has been reasonably diligent in trying to discover his cause of action.

I

The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§ 1961-1968, among other things, makes it a crime “to conduct” an “enterprise’s affairs through a pattern of racketeering activity.” § 1962(c). The phrase “racketeering activity” is a term of art defined in terms of activity that violates other laws, including more than 50 specifically mentioned federal statutes, which forbid, for example, murder-for-hire, extortion, and various kinds of fraud. § 1961(1). The word “pattern” is also a term of art defined to require “at least two acts of racketeering activity,. .. the last of which occurred within ten years ... after the commission of a prior act of racketeering activity.” § 1961(5).

A special RICO provision — commonly known as civil RICO — permits “[a]ny person injured in his business or property by reason of a violation” of RICO’s criminal provisions to recover treble damages and attorney’s fees. § 1964(c). RICO does not say what limitations period governs the filing of civil RICO claims. But in Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 156 (1987), this Court held that civil RICO actions are subject to the 4-year limitations period contained in § 4B of the Clayton Act (Antitrust), as added by 69 Stat. 283, and as amended, 15 U. S. C. § 15b — the statute of limitations that governs private civil antitrust actions seeking treble damages;

Marvin and Mary Klehr, the petitioners here, are dairy farmers. They filed this civil RICO action on August 27, 1993, claiming that A. O. Smith Corporation and A. O. Smith Harvestore Products, Inc. (whom we shall simply call “Harvestore”), had committed several acts of mail and wire fraud, 18 U. S. C. §§ 1341, 1343, thereby violating RICO and causing them injury. Their injury, they said, began in 1974, when Harvestore sold them a special “Harvestore” brand silo, which they used for storing cattle feed. The Klehrs alleged that they bought the silo in reliance on Harvestore’s representations, made through advertisements and a local dealer, that the silo would limit the amount of oxygen in contact with the silage, thus preventing moldy and fermented feed, and thereby producing healthier cows, more milk, and higher profits. The representations, they claim, were false; the silo did not keep oxygen away from the feed, the feed became moldy and fermented, the cows ate the bad feed, and milk production and profits went down. They add that Harvestore committed other acts — consisting primarily of additional representations made to them and to others and sales made to others — over a period of many years after 1974.

Harvestore, pointing out that the Klehrs had filed suit almost 20 years after they had bought the silo, moved to dismiss the lawsuit on the ground that the limitations period had long since run. The Klehrs could not file suit, Harvestore said, unless their claim had accrued within the four years prior to filing, i. e., after August 25, 1989, or unless some special legal doctrine nonetheless tolled the running of the limitations period or estopped Harvestore from asserting a statute of limitations defense. See Holmberg v. Armbrecht, 327 U. S. 392, 396-397 (1946); Bailey v. Glover, 21 Wall. 342, 349-350 (1875); Cada v. Baxter Healthcare Corp., 920 F. 2d 446, 450-451 (CA7 1990), cert. denied, 501 U. S. 1261 (1991).

The Klehrs responded by producing evidentiary material designed to support a legal justification for the late filing. Essentially they claimed that Harvestore had covered up its fraud — preventing them from noticing the silo’s malfunction — for example, by means of an unloading device that hid the mold by chopping up the feed instantly as it emerged; through continued dealer misrepresentations; with advertisements that tried to convince farmers that warm, brown, molasses-smelling feed was not fermented feed, but good feed; and even by hanging on the silo itself a plaque that said:

“DANGER DO NOT ENTER NOT ENOUGH OXYGEN TO SUPPORT LIFE”

Not until 1991, say the Klehrs, did they become sufficiently suspicious to investigate the silo, at which time, by opening the silo wall and chopping through the feed with an ice chisel, they discovered “ ‘mold hanging all over the silage.’ ” Brief for Petitioners 16.

The District Court, after examining the Klehrs’ evidence, found their lawsuit untimely. The Eighth Circuit affirmed the dismissal, and said that a civil RICO action accrues

“ ‘as soon as the plaintiff discovers, or reasonably should have discovered, both the existence and source of his injury and that the injury is part of a pattern.’ ” 87 F. 3d 231, 238 (1996) (quoting Association of Commonwealth Claimants v. Moylan, 71 F. 3d 1398, 1402 (CA8 1995)).

After examining the Klehrs’ evidence de novo, the Circuit held that they failed to satisfy the standard. It said they had suffered “one single, continuous injury . . . sometime in the 1970s”; and that they should have discovered “the existence and source of [their] injury,” as well as any related “pattern,” well before August 1989. 87 F. 3d, at 239. The Circuit refused to find “fraudulent concealment” because, among other things, the Klehrs had not been sufficiently “diligen[t].” Id., at 238, 239, n. 11.

We granted certiorari in this case to consider the Klehrs’ claim in light of a split of authority among the Courts of Appeals. Two other Circuits, like the Eighth Circuit here, have applied forms of an “injury and pattern discovery” civil RICO accrual rule. Bivens Gardens Office Building, Inc. v. Barnett Bank, 906 F. 2d 1546, 1554-1555 (CA11 1990), cert. denied, 500 U. S. 910 (1991); Bath v. Bushkin, Gaims, Gaines & Jonas, 913 F. 2d 817, 820 (CA10 1990). Other Circuits have applied forms of an “injury discovery” rule, i. e., without the “pattern.” See Grimmett v. Brown, 75 F. 3d 506, 511 (CA9 1996), cert. dism’d as improvidently granted, 519 U. S. 233 (1997); McCool v. Strata Oil Co., 972 F. 2d 1452, 1464-1465 (CA7 1992); Rodriguez v. Banco Central Corp., 917 F. 2d 664, 665-666 (CA1 1990); Bankers Trust Co. v. Rhoades, 859 F. 2d 1096, 1102 (CA2 1988), cert. denied, 490 U. S. 1007 (1989); Pocahontas Supreme Coal Co. v. Bethlehem Steel Corp., 828 F. 2d 211, 220 (CA4 1987); see also Riddell v. Riddell Washington Corp., 866 F. 2d 1480, 1489-1490 (CADC 1989) (assuming, but not deciding, that injury discovery rule applies). One court, the Third Circuit, has applied a “last predicate act” rule, which we shall discuss below. We also agreed to decide the Klehrs’ argument that “reasonable diligence” is not a necessary component of the doctrine of “fraudulent concealment.”

For reasons we shall describe, we affirm the judgment of the Court of Appeals.

II

A

We shall first discuss the Third Circuit’s accrual rule — the “last predicate act” rule — for it is the only accrual rule that can help the Klehrs. Like the Eighth Circuit, the Third Circuit believes that the limitations period starts to run when a plaintiff knew or should have known that the RICO claim (including a “pattern of racketeering activity”) existed, but the Third Circuit has added an important exception, which it states as follows:

“[If], as a part of the same pattern of racketeering activity, there is further injury to the plaintiff or further predicate acts occur, . . . the accrual period shall run from the time when the plaintiff knew or should have known of the last injury or the last predicate act which is part of the same pattern of racketeering activity. The last predicate act need not have resulted in injury to the plaintiff but must be part of the same pattern.” Keystone Ins. Co. v. Houghton, 863 F. 2d 1125, 1130 (1988).

For purposes of assessing the rule’s lawfulness, we assume, as do the Klehrs, that this rule means that as long as Harvestore committed one predicate act within the limitations period (i. e., the four years preceding suit), the Klehrs can recover, not just for any added harm caused them by that late-committed act, but for all the harm caused them by all the acts that make up the total “pattern.” We also assume that they can show at least one such late-committed act. Finally, we note that the point of difference between the Third Circuit and the other Circuits has nothing to do with the plaintiff’s state of mind or knowledge. It concerns only the accrual consequences of a late-committed act. Consequently, we can consider the merits of the rule on the simplifying assumption that the plaintiff is perfectly knowledgeable.

We conclude that the Third Circuit’s rule is not a proper interpretation of the law. We have two basic reasons. First, as several other Circuits have pointed out, the last predicate act rule creates a limitations period that is longer than Congress could have contemplated. Because a series of predicate acts (including acts occurring at up to 10-year intervals) can continue indefinitely, such an interpretation, in principle, lengthens the limitations period dramatically. It thereby conflicts with a basic objective — repose—that underlies limitations periods. See Wilson v. Garcia, 471 U. S. 261, 271 (1985) (citing Adams v. Woods, 2 Cranch 336, 342 (1805)); Crown, Cork & Seal Co. v. Parker, 462 U. S. 345, 352 (1983). Indeed, the rule would permit plaintiffs who know of the defendant’s pattern of activity simply to wait, “sleeping on their rights,” ibid., as the pattern continues and treble damages accumulate, perhaps bringing suit only long after the “memories of witnesses have faded or evidence is lost,” Wilson, supra, at 271. We cannot find in civil RICO a compensatory objective that would warrant so significant an extension of the limitations period, and civil RICO’s further purpose — encouraging potential private plaintiffs diligently to investigate, see Malley-Duff, 483 U. S., at 151—suggests the contrary.

We recognize that RICO’s criminal statute of limitations runs from the last, i. e., the most recent, predicate act. But there are significant differences between civil and criminal RICO actions, and this Court has held that criminal RICO does not provide an apt analogy. Id., at 155-156 (declining to apply criminal RICO’s 5-year statute of limitations to civil RICO actions and noting “competing equities unique to civil RICO actions or, indeed, any other federal civil remedy”).

Second, the Third Circuit rule is inconsistent with the ordinary Clayton Act rule, applicable in private antitrust treble damages actions, under which “a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U. S. 321, 338 (1971); Connors v. Hallmark & Son Coal Co., 935 F. 2d 336, 342, n. 10 (CADC 1991); 1 C. Corman, Limitation of Actions § 6.5.5.1, p. 449 (1991) (hereinafter Corman); 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 338b, p. 145 (rev. ed. 1995) (hereinafter Areeda). We do not say that a pure injury accrual rule always applies without modification in the civil RICO setting in the same way that it applies in traditional antitrust eases. For example, civil RICO requires not just a single act, but rather a “pattern” of acts. Furthermore, there is some debate as to whether the running of the limitations period depends on the plaintiff’s awareness of certain elements of the cause of action. As we said earlier, however, for purposes of evaluating the Third Circuit’s rule we can assume knowledgeable parties. Hence the special problems associated with a discovery rule, see Part II — B, infra, are not at issue. And we believe, in these circumstances, the Clayton Act analogy is helpful.

In Malley-Duff, this Court indicated why the analogy is useful. It concluded

“that there is a need for a uniform statute of limitations for civil RICO, that the Clayton Act clearly provides a far closer analogy than any available state statute, and that the federal policies that lie behind RICO and the practicalities of RICO litigation make the selection of the 4-year statute of limitations for Clayton Act actions . . . the most appropriate limitations period for RICO actions.” 483 U. S., at 156 (citing 15 U. S. C. § 15b).

The Court left open the accrual question. But it did not rule out the use of a Clayton Act analogy. As the Court has explained, Congress consciously patterned civil RICO after the Clayton Act. 483 U. S., at 150-151 (comparing 15 U. S. C. § 15(a) with 18 U. S. C. § 1964(c)); see also Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 489 (1985). And by the time civil RICO was enacted, the Clayton Act’s accrual rule was well established. See Crummer Co. v. DuPont, 223 F. 2d 238, 247-248 (CA5), cert. denied, 350 U. S. 848 (1955); Foster & Kleiser Co. v. Special Site Sign Co., 85 F. 2d 742, 750-751 (CA9 1936), cert. denied, 299 U. S. 613 (1937); Bluefields S. S. Co. v. United Fruit Co., 243 F. 1, 20 (CA3 1917).

The Clayton Act helps here because it makes clear precisely where, and how, the Third Circuit’s rule goes too far. Antitrust law provides that, in the case of a “continuing violation,” say, a price-fixing conspiracy that brings about a series of unlawfully high priced sales over a period of years, “each overt act that is part of the violation and that injures the plaintiff,” e. g., each sale to the plaintiff, “starts the statutory period running again, regardless of the plaintiff’s knowledge of the alleged illegality at much earlier times.” 2 Areeda ¶ 338b, at 145 (footnote omitted); see also Zenith, supra, at 338; Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 502, n. 15 (1968); DXS, Inc. v. Siemens Medical Systems, Inc., 100 F. 3d 462, 467 (CA6 1996). But the commission of a separate new overt act generally does not permit the plaintiff to recover for the injury caused by old overt acts outside the limitations period. Zenith, supra, at 338; Pennsylvania Dental Assn. v. Medical Serv. Assn., 815 F. 2d 270, 278 (CA3), cert. denied, 484 U. S. 851 (1987); Hennegan v. Pacifico Creative Serv., Inc., 787 F. 2d 1299, 1300 (CA9), cert. denied, 479 U. S. 886 (1986); National Souvenir Center v. Historic Figures, Inc., 728 F. 2d 503, 509 (CADC), cert. denied sub nom. C. M. Uberman Enterprises, Inc. v. Historic Figures, Inc., 469 U. S. 825 (1984); Imperial Point Colonnades Condominium, Inc. v. Mangurian, 549 F. 2d 1029, 1034-1035 (CA5 1977); Crummer Co., supra, 247-248. Cf. 2 Areeda ¶ 338b, at 149.

Similarly, some Circuits have adopted a “separate accrual” rule in civil RICO cases, under which the commission of a separable, new predicate act within a 4-year limitations period permits a plaintiff to recover for the additional damages caused by that act. But, as in the antitrust cases, the plaintiff cannot use an independent, new predicate act as a bootstrap to recover for injuries caused by other earlier predicate acts that took place outside the limitations period. See, e. g., Grimmett, 75 F. 3d, at 512-514; McCool v. Strata Oil Co., 972 F. 2d, at 1465-1466, and n. 10; Bivens Gardens Office Building, Inc. v. Barnett Bank, 906 F. 2d, at 1552, n. 9; State Farm Mut. Auto. Ins. Co. v. Ammann, 828 F. 2d 4, 5 (CA9 1987) (Kennedy, J., concurring). But see Bingham v. Zolt, 66 F. 3d 553, 560 (CA2 1995) (citing Bankers Trust, 859 F. 2d, at 1103). Thus, the Klehrs may point to new predicate acts that took place after August 1989, such as sales to other farmers or the printing of new Harvestore advertisements. But that fact does not help them, for, as the Court of Appeals pointed out, they have not shown how any new act could have caused them harm over and above the harm that the earlier acts caused. 87 F. 3d, at 239. Nor can the presence of the new act help them recover for the injuries caused by pre-1989 acts, for it is in this respect that we find the Third Circuit’s rule incorrect.

Petitioners also point to Zenith, a case in which this Court considered antitrust damages that were so “speculative” or “unprovable,” 401 U. S., at 339, at the time of a defendant’s unlawful act (and plaintiff’s initial injury) that to follow the normal accrual rule (starting the limitations period at the point the act first causes injury) would have left the plaintiff without relief. This Court held that, in such a case, a claim for the injuries that had been speculative would accrue when those injuries occurred, even though the act that caused them had taken place more than four years earlier. Id., at 339-340. This case does not help the petitioners here, however, for their injuries — the harm to their farm — have always been specific and calculable.

B

We recognize that our holding in Part II-A does not resolve other conflicts among the Circuits. For' example, the Circuits have applied “discovery” accrual rules, which extend accrual periods for plaintiffs who could not reasonably obtain certain key items of information. The use of a discovery rule may reflect the fact that a high percentage of civil RICO cases, unlike typical antitrust cases, involve fraud claims. See Sedima, supra, at 499, n. 16 (most civil RICO claims involve underlying fraud offense); 1 A. Mathews, A. Weissman, & J. Sturc, Civil RICO Litigation, p. 1-6 (2d ed. 1992) (citing Report of the Ad Hoc Civil RICO Task Force of the ABA Section of Corporation, Banking and Business Law 243 (1985)) (as of 1985, approximately 90% of civil RICO cases resulting in a published decision involved mail, wire, or securities fraud as a predicate offense); cf. Connors, 935 F. 2d, at 342 (federal courts generally apply discovery accrual rule when statute does not call for a different rule); 1 Corman § 6.5.5.1, at 449 (same). Moreover, different Circuits have applied discovery accrual rules that differ, one from the other, in important ways. Compare, e. g., Bankers Trust, supra, at 1103 (civil RICO cause of action accrues when the plaintiff discovers or should have discovered his injury), with 87 F. 3d, at 238 (civil RICO cause of action accrues when, in addition, plaintiff discovers or should have discovered the “source” of injury and a “pattern”).

We further realize that, contrary to our assumption in Part II-A, supra (where we discussed a legal issue in respect to which knowledge was irrelevant), the Klehrs did claim that they lacked knowledge of the faulty silo — the “source” of their injury. But that particular “lack of knowledge” claim does not require us to consider the various “discovery rule” differences among the Circuits, because the Klehrs failed the “knowledge” test that favors them the most — the Eighth Circuit’s “injury plus source plus pattern” rule. That rule would have found the Klehrs’ action timely had it not been the case that the Klehrs reasonably “should have discovered” all of those elements prior to 1989. 87 F. 3d, at 239. If the Klehrs cannot fit their case through the Eighth Circuit’s larger hole, they cannot squeeze it through a smaller one.

In addition, the major difference among the Circuits— whether a discovery rule includes knowledge about a “pattern” — is clearly not at issue here. Harvestore marketed and sold its “oxygen-limiting” silos for many years before the Klehrs purchased theirs, and the Klehrs have not claimed lack of knowledge of a “pattern.” Nor has anyone argued any other legal differences among the Circuits’ various tests that would affect the outcome in this case.

In these circumstances, we believe we should not consider differences among the various discovery accrual rules used by the Circuits. The legal questions involved may be subtle and difficult. Compare id., at 238 (claim accrues with discovery of existence and source of injury, plus pattern), with Bivens Gardens, supra, at 1554 (claim accrues with discovery of injury and pattern); see also Cada, 920 F. 2d, at 451 (describing differences among various discovery rules and doctrines of “equitable tolling” and “equitable estoppel”). And the facts of this case do not force focused argument as to how the traditional Clayton Act “injury” accrual rule, principles of equitable tolling, and doctrines of equitable estoppel should interact in circumstances where the application of one, or another, of these different limitations doctrines would make a significant legal difference. To say this is not, as the concurrence claims, to advocate a “mix-and-match” statute of limitations theory. Post, at 200, n. 3. Rather, it is to recognize that the Clayton Act’s express statute of limitations does not necessarily provide all the answers. We shall, at the very least, wait for a case that clearly presents these or related issues, providing an opportunity for full argument, before we attempt to resolve them.

Finally, the Klehrs have asked us to review the Eighth Circuit’s application of its rule in this case. Doing so would involve examining an evidentiary record of several thousand pages to determine the validity of the independent conclusion of each of two lower courts that the Klehrs should reasonably have discovered the silo’s flaws before 1989 (and that a reasonable factfinder could not conclude to the contrary). That conclusion is highly fact based, depending not only upon how much mold the Klehrs noticed in their silage and when, but also upon such matters as the effect of the Klehrs’ failure to consult the herd performance records they were continu-. ously sent, and whether their having done so would have led them to tell veterinarians a more revealing story, to question Harvestore’s representatives more fully, or to investigate the silo sooner. See 87 F. 3d, at 234. We have no reason to believe that there is any very obvious or exceptional error below. And our writ of certiorari commits us to decide only the purely legal question whether or not a claim accrues “where the Respondent continues to commit predicate acts” in the 4-year period immediately preceding suit. Pet. for Cert. i. We have answered that question in Part II-A. And we shall not go beyond the writ’s question to reexamine the fact-based rule-application issue that the Klehrs now raise, and which the Eighth Circuit decided in Harvestore’s favor.

Ill

Our writ of certiorari contained one further question, namely, whether

“affirmative continuing acts of fraud . . . coupled with active cover up of the fraud, act to equitably toll the statute of limitations ... whether or not Petitioners have exercised reasonable diligence to discover their claim.” Ibid. (emphasis added).

This question refers to the doctrine of “fraudulent concealment,” which some courts have said “equitably tolls” the running of a limitations period, see, e. g., Grimmett, 75 F. 3d, at 514, while other courts have said it is a form of “equitable estoppel,” see, e. g., Wolin v. Smith Barney Inc., 83 F. 3d 847, 852 (CA7 1996). Regardless, the question presented here focuses upon a relevant difference among the Circuits in respect to the requirement of “reasonable diligence” on the part of the plaintiff. Some Circuits have held that when a plaintiff does not, in fact, know of a defendant’s unlawful activity, and when the defendant takes “affirmative steps” to conceal that unlawful activity, those circumstances are sufficient to toll the limitations period (or to “estop” the defendant from asserting a limitations defense) irrespective of what the plaintiff should have known. See, e. g., id., at 852-853. Other courts have held that a plaintiff who has not exercised reasonable diligence may not benefit from the doctrine. See, e. g., Wood v. Carpenter, 101 U. S. 135, 143 (1879); Bailey, 21 Wall., at 349-350; J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F. 3d 1245, 1252-1255 (CA1 1996) (diligence required for fraudulent concealment under federal law); Urland v. Merrell-Dow Pharmaceuticals, Inc., 822 F. 2d 1268, 1273-1274 (CA3 1987) (same with respect to Pennsylvania law); see also 2 Corman § 9.7.1, at 56-57, 60-61, 64-66.

We limit our consideration of the question to the context of civil RICO. In that context, we conclude that “reasonable diligence” does matter, and a plaintiff who is not reasonably diligent may not assert “fraudulent concealment.” We reach this conclusion for two reasons. First, in the related antitrust context, where the “fraudulent concealment” doctrine is invoked fairly often, relevant authority uniformly supports the requirement. Professor Areeda says, for example, that “[t]he concealment requirement is satisfied only if the plaintiff shows that he neither knew nor, in the exercise of due diligence, could reasonably have known of the offense.” 2 Areeda ¶ 338, at 152; see also I. Scher, Antitrust Adviser § 10.27, p. 10-62 (4th' ed. 1995). We have found many antitrust cases that say the same, and none that says the contrary. See, e. g., Conmar Corp. v. Mitsui & Co., 858 F. 2d 499, 502 (CA9 1988), cert. denied sub nom. VSL Corp. v. Conmar Corp., 488 U. S. 1010 (1989); Texas v. Allan Constr. Co., 851 F. 2d 1526, 1533 (CA5 1988); Pinney Dock & Transport Co. v. Penn Central Corp., 838 F. 2d 1445, 1465 (CA6), cert. denied sub nom. Pinney Dock & Transport Co. v. Norfolk & Western R. Co., 488 U. S. 880 (1988); New York v. Hendrickson Bros., Inc., 840 F. 2d 1065, 1083 (CA2), cert. denied, 488 U. S. 848 (1988); Berkson v. Del Monte Corp., 743 F. 2d 53, 56 (CA1 1984), cert. denied, 470 U. S. 1056 (1985); Charlotte Telecasters, Inc. v. Jefferson-Pilot Corp., 546 F. 2d 570, 574 (CA4 1976).

Second, those courts that do not require “reasonable diligence” have said that the “fraudulent concealment” doctrine seeks to punish defendants for affirmative, discrete acts of concealment; the behavior of plaintiffs is consequently irrelevant. See Wolin, supra, at 852; Robertson v. Seidman & Seidman, 609 F. 2d 583, 593 (CA2 1979); cf. Urland, supra, at 1280-1281 (Becker, J., dissenting). Whether or not that is so in the legal contexts at issue in those cases (which were not antitrust cases), it is not so in respect either to antitrust or to civil RICO. Rather, in both of those latter contexts private civil actions seek not only to compensate victims but also to encourage those victims themselves diligently to investigate and thereby to uncover unlawful activity. See Malley-Duff, 483 U. S., at 151. That being so, we cannot say that the “fraudulent concealment” is concerned only with the behavior of defendants. For that reason, and in light of the consensus of authority, we conclude that “fraudulent concealment” in the context of civil RICO embodies a “due diligence” requirement.

In their brief on the merits, petitioners have asked us to examine whether the Eighth Circuit properly applied the “due diligence” requirement to the evidentiary materials before it. That fact-based question, however, is beyond the scope of our writ; and for reasons similar to those discussed earlier, see supra, at 193, we shall not consider it.

The judgment of the Court of Appeals is

Affirmed.

Justice Scalia,

with whom Justice Thomas joins, concurring in part and concurring in the judgment.

Twice this Term we have received full briefing and heard oral argument on the question of when a civil Racketeer Influenced and Corrupt Organizations Act (RICO) cause of action accrues; when we rise for our summer recess, the question will remain unanswered. We did not reach it in Grimmett v. Brown, 519 U. S. 233 (1997), because we dismissed the writ of certiorari as improvidently granted. And we do not reach it today for no particular reason except timidity — declining to say what the correct accrual rule is, but merely rejecting the only one of the four candidates under which these petitioners could recover. We thus leave reduced but unresolved the well-known split in authority that prompted us to take this case. There will remain in effect, in some Circuits, one of the three remaining accrual rules— the one that their Courts of Appeals or District Courts have adopted; in the remaining Circuits litigants will have to guess which of the three to follow; and in all of the Circuits no one will know for sure which rule is right — until, at some future date, we receive briefing and argument a third or fourth time, and finally summon up the courage to “unravel,” as one commentator has put it, “the mess that characterizes civil RICO accrual decisions,” Abrams, Crime Legislation and the Public Interest: Lessons from Civil RICO, 50 SMU L. Rev. 33, 70 (1996).

Worse still, the reason the Court gives for regarding the accrual issue as too complex (“subtle and difficult,” ante, at 192) to be decided on only the second try is a reason that implicates the merits, and that in my view gets the merits wrong. One cannot, the Court says, leap impetuously to the conclusion that the antitrust “injury” accrual rule applies, rather than a “discovery” accrual rule, because civil RICO cases are unlike antitrust cases, in that “a high percentage” of them “involve fraud claims.” Ante, at 191. This erases, it seems to me, the one clear path back out of the current forest of confusion, which is the proposition that RICO is similar to the Clayton Act. This is the proposition that caused us to adopt the Clayton Act statute of limitations in the first place, specifically rejecting the argument the Court now finds plausible, that the preponderance of fraud claims under RICO makes the Clayton Act an inappropriate model. We said the similarity was close enough: “Although the large majority of civil RICO complaints use [fraud] as the required predicate offenses, a not insignificant number of complaints allege criminal activity of a type generally associated with professional criminals such as arson, bribery, theft and political corruption.” Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. 143, 149 (1987) (rejecting for this reason the use of state-law fraud statutes of limitations). Elsewhere in today’s opinion, curiously enough, the Court is quite willing to say that what is good for antitrust is good for RICO — even with respect to a matter much more intimately connected with fraud than the accrual rule, namely, whether invocation of the “fraudulent concealment” rule requires “reasonable diligence” on the plaintiff’s part. On this point the Court finds arguments taken from “the related antitrust context” entirely persuasive. Ante, at 194. (Apart from that illogical reliance, it seems to me also illogical even to resolve the question whether a statute should be tolled by fraudulent concealment without having resolved the antecedent question of when the statute begins to run.) Similarly, the Court relies heavily on the antitrust injury accrual rule in its analysis rejecting the Third Circuit’s last predicate act rule. Ante, at 188-191.

I would resolve the Circuit split we granted certiorari to consider, and would hold that, of the four main accrual rules (injury, injury discovery, injury and pattern discovery, and last predicate act), the appropriate accrual rule is the Clayton Act “injury” rule — the “cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business.” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U. S. 321, 338 (1971) (referring, of course, to “an act” that violates the governing statute). In Malley-Duff, we held that the appropriate statute of limitations for civil RICO actions is the 4-year limitations period found in the Clayton Act. We reasoned that “RICO was patterned after the Clayton Act,” 483 U. S., at 150, and that the purpose, structure, and aims of the two schemes were quite similar, id., at 151-152. Although we expressly acknowledged in Malley-Duff that we “ha[d] no occasion to decide the appropriate time of accrual for a RICO claim,” id., at 157, it takes no profound analysis to figure out what that decision must be. “Presumably the accrual standards developed by the lower federal courts in . . . civil antitrust litigation should be equally applicable to civil enforcement RICO actions.” 1 C. Corman, Limitation of Actions § 6.5.5.1, pp. 447-448 (1991).

We have said that “[a]ny period of limitation ... is understood fully only in the context of the various circumstances that suspend it from running against a particular cause of action.” Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 463 (1975). It is just as true, I think, that any period of limitation is utterly meaningless without specification of the event that starts it running. As a practical matter, a 4-year statute of limitations means nothing at all unless one knows when the four years start running. If they start, for example, on the 10th anniversary of the injury, the 4-year statute is more akin to a 14-year statute than to the Clayton Act. We would thus have been foolish, in Malley-Duff, to speak of “adopting” the Clayton Act statute, and of “patterning” the RICO limitations period after the Clayton Act, if all we meant was using the Clayton Act number of years.

We have recognized this principle in our more established practice (first departed from in DelCostello v. Teamsters, 462 U. S.151 (1983)) of borrowing state rather than federal statutes of limitations. We have consistently followed “[sjtate law ... in a variety of cases that raised questions concerning the overtones and details of application of the state limitation period to the federal cause of action. Auto Workers v. Hoosier Corp., 383 U. S. [696,] 706 [(1966)] (characterization of the cause of action); Cope v. Anderson, 331 U. S. [461,] 465-467 [(1947)] (place where cause of action arose); Barney v. Oelrichs, 138 U. S. 529 (1891) (absence from State as a tolling circumstance).” Johnson, supra, at 464. See also, e. g., Chardon v. Fumero Soto, 462 U. S. 650, 657, 662 (1983). “In virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling, revival, and questions of application. Courts thus should not unravel state limitations rules unless their full application would defeat the goals of the federal statute at issue.” Hardin v. Straub, 490 U. S. 536, 539 (1989) (internal quotation marks and citation omitted). There is no conceivable reason why the same principle should not apply to the borrowing of an analogous federal, rather than state, limitations period.

Both the allurement and the vice of the “mix-and-match” approach to statutes-of-limitations borrowing (the possibility of which the Court today entertains) is that it provides broad scope for judicial lawmaking. We should have resisted that allurement today, as we resisted it in the past: “[W]e find no support in our cases for the practice of borrowing only a portion of an express statute of limitations. Indeed, such a practice comes close to the type of judicial policymaking that our borrowing doctrine was intended to avoid.” Lampf Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350, 362, n. 8 (1991) (emphasis added). It is, in other words, no wonder that the Court finds the question it has posed for itself today “subtle and difficult”; judicial policywonking is endlessly demanding, and constructing a statute of limitations is much more complicated than adopting one. Finding the most analogous cause of action whose limitations provision can be adopted is relatively simple (for the cause of action before us, we did it in Malley-Duff); but limiting the adoption to merely the term of years set forth in the limitations provision, and then selecting, to go with that term of years, the precise accrual rule, tolling rule, es-toppel rule, etc., that will clothe the limitations-naked statute with an ensemble of policy perfection — well that is, I concede, a task that should not be attacked all at once, but rather undertaken piecemeal, over several decades, as the Court has chosen to do today. I prefer to stand by the ruder, humbler, but more efficient and predictable practice we have followed in the past: When we adopt a statute of limitations from an analogous federal cause of action we adopt it in whole, with all its accoutrements. Perhaps (though I am dubious) there is room for an exception similar to the one made in our state-borrowing practice, see Hardin, supra, that would permit rejection of an element that “would defeat the goals of the federal statute at issue,” 490 U. S., at 539. But unless this exception is to gobble up the rule, nothing so extreme is represented by the Clayton Act accrual rule.

Applying the Clayton Act accrual rule, I agree with the Court that petitioners’ cause of action accrued more than four years before the filing of this action on August 27,1993. See ante, at 192. Since the Court of Appeals determined, under a more relaxed accrual rule, that petitioners should have discovered all of the RICO elements (which would include their injury) prior to 1989, it follows, a fortiori, that under the Clayton Act injury accrual rule, petitioners’ cause of action is untimely.

I also agree with the Court that petitioners are not entitled to invoke the fraudulent concealment doctrine. As the Court persuasively demonstrates, in the antitrust context “ ‘[t]he concealment requirement is satisfied only if the plaintiff shows that he neither knew nor, in the exercise of due diligence, could reasonably have known of the offense.’”

Ante, at 195 (quoting 2 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 338b, p. 152 (rev. ed. 1995)). I therefore join Part III of the Court’s opinion.

For the foregoing reasons, I concur in the judgment of the Court. ,

       The Court’s opinion could be read to suggest that there are only three different possible accrual rules — last predicate act, injury discovery, and injury and pattern discovery. See ante, at 185-186, 191-193. In fact, as is alluded to in its rejection of the Third Circuit’s last predicate act rule, see ante, at 188-189, there is a fourth accrual rule — the Clayton Act “injury” rule.

       “Both RICO and the Clayton Act are designed to remedy economic injury by providing for the recovery of treble damages, costs, and attorney’s fees. Both statutes bring to bear the pressure of ‘private attorneys general’ on a serious national problem for which public prosecutorial resources are deemed inadequate; the mechanism chosen to reach the objective in both the Clayton Act and RICO is the carrot of treble damages. Moreover, both statutes aim to compensate the same type of injury; each requires that a plaintiff show injury ‘in his business or property by reason of’ a violation.” 483 U. S., at 151.

       The Court disclaims any intent to adopt a “mix-and-match” approach, ante, at 193, but that seems to me inconsistent with its repeated references to the possibility of a discovery accrual rule — which is (and has been thought to be) the antithesis of the Clayton Act injury accrual rule. If the Court merely means to say that it is not sure how the Clayton Act accrual rule would apply in this case, then it should simply say so— thereby going a long way toward resolving the Circuit split and rendering this concurrence unnecessary.