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303.12 Death Penalty: Meaning Of Sentencing Options

    303.12.1 Instruction As To Meaning Of Life Without Parole: Sample Argument To The Jury In Cases Where Instruction Is Refused
    303.12.2 Instruction As To Meaning Of Life Imprisonment Without Parole
    303.12.3 Whether Jury May Consider The Unlikelihood of Executive Clemency
    303.12.4 Instruction As To Meaning Of Life Without Parole
    303.12.5 Death Penalty: Confusing Jury Instruction Regarding Possibility Of Parole
    303.12.6 Death Penalty: Improper For Commutation Instruction To Imply The Question Of Release Will Automatically Come Before The Governor
    303.12.7 Death Penalty: Meaning Of Life Without Parole – Presentation Of Statistical Information Relating To Commutation
    303.12.8 Instruction On Meaning Of Life Imprisonment: Empirical Evidence Of Prejudice

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PRACTICE NOTE: People v. Holt (CA 1997) 15 C4th 619, 689 [63 CR2d 782] rejected the defendant's argument that the term life without possibility of parole is a technical term requiring sua sponte definition by the trial court. In so doing, the court quoted with approval the following argument of defense counsel regarding the issue:

See Capital Punishment Handbook [4.5.4a. Possibility Of Commutation Or Parole: General Principles And Authorities].

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RATIONALE: Empirical studies have shown that, without specific instruction as to the meaning of life imprisonment, the jurors often assume that the defendant will be released from prison. Therefore, instruction on this point may be necessary to reduce the likelihood that the jury will make such an erroneous assumption.

POINTS AND AUTHORITIES: Empirical studies indicate that a substantial majority (almost 25%) of death-qualified jurors erroneously believe that a sentence of life without possibility of parole will allow the parole or judicial system to release the defendant in less than 10 years due to overcrowding and other factors. (See "Fatal Misconception: Convincing Capital Jurors That LWOP Means Forever," California Attorneys For Criminal Justice FORUM (1994) Vol. 21, No. 2, pp. 42-45; see also Haney, Sontag and Costanzo, "Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death," 50 Journal of Social Sciences No. 2 (Summer 1994) ["Four of five death juries cited as one of their reasons for returning a death verdict, the belief that a sentence of life without parole did not really mean that the defendant would never be released from prison ..."].) Moreover, a juror's belief as to the meaning of the sentences is the single most important reason for voting for a particular verdict. (California Attorneys For Criminal Justice FORUM,  Vol. 21 at p. 45.)

    Hence, because Simmons v. South Carolina (1994) 512 US 154, 161-71 [114 SCt 2187; 129 LEd2d 133] teaches that the jury's accurate understanding of the sentencing alternatives is compelled by federal due process principles and the 8th Amendment, instruction as to the meaning of a life without parole sentence should be given upon request. (See also California v. Ramos (1983) 463 US 992, 1012 [103 SCt 3446; 77 LEd2d 1171]; McLain v. Calderon (9th Cir. 1998) 134 F3d 1383, 1384; Coleman v. Calderon (9th Cir. 1998) 150 F3d 1105, 1118 [a commutation instruction is unconstitutional when it is inaccurate]; Hamilton v. Vasquez (9th Cir. 1994) 17 F3d 1149, 1160-62 [conviction reversed when confusing commutation instruction given over objection by defense counsel]; but see People v. Arias (CA 1996) 13 C4th 172-173 [51 CR2d 770] [nothing in Simmons requires that the jury be instructed beyond the fact that its choice is between death and life without possibility of parole].) The court also held that Simmons does not "suggest the jury must be instructed in a manner that affirmatively conceals the possibility of commutation or pardon." (Arias, 13 C4th at 173.)    

    See also NCJIC Chapter 285. 

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.5].

Evidence And/Or Instruction That No LWOP Prisoner Has Been Released. It is safe to say that no person sentenced to LWOP since reinstatement of the death penalty after Furman have been paroled. Such a release would surely be the subject of extensive media attention should it ever occur. It should be possible to obtain records to support this proposition.

Whether Jury May Consider Likelihood of Executive Clemency. See NCJIC 303.12.3 [Whether Jury May Consider The Unlikelihood of Executive Clemency].

Argument As To Unlikelihood Of Executive Clemency. Counsel may wish to argue that Simmons allows the jury to consider the likelihood or unlikelihood of Executive Clemency in order to permit argument to the jury on this point. The jurors will likely be aware of the severe political consequences which attach to the release of any violent offender and on this basis they may be brought to understand just how remote Executive Clemency would be in a special circumstance first degree murder case. [Whether evidence could or should be brought on the likelihood of Executive Clemency is another matter which may warrant consideration.]

    See also NCJIC 303.12.3 [Whether Jury May Consider The Unlikelihood Of Executive Clemency].

"Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases," by Stephen P. Garvey, Sheri Lynn Johnson and Paul Marcus (January 2002):

(http://www4.law.cornell.edu/working-papers/open/garvey/weeks.html)

See Capital Punishment Handbook [3.6 a. Instructions On Commutation: Authorities].

See Capital Punishment Handbook [4.5.4a. Possibility Of Commutation Or Parole: General Principles And Authorities].

See generally, NCJIC 305.5.2 [Empirical Research].

    If a defendant is sentenced to life without parole, neither the courts nor the parole authorities will have the power to release [him] [her]. There are no "loopholes" which permit the courts or parole authorities to release a defendant sentenced to life without parole no matter how strongly they may want to do so due to overcrowding or for any other reason. [No person sentenced to life without parole [under the current statutory scheme] has ever been released on parole.]

[Source: NCJIC.]

    A sentence of life without parole means that under the law defendant will not ever be eligible for parole.

[Source: NCJIC.]

    The words "imprisonment for life" mean imprisonment for life without possibility of parole.

[See Simmons v. South Carolina (1994) 512 US 154, 161-71 [114 SCt 2187; 129 LEd2d 133]; see also VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 33.126 [Capital Murder -- Ineligibility For Parole] (Lexis, 1998).]

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PRACTICE NOTE: People v. Ramos (CA 1984) 37 C3d 136, 159 fn 12 [207 CR 800] held that the jury may not consider the possibility of executive clemency. This could justify instructing the jury that "You must not consider the possibility of executive clemency in determining the appropriate sentence."

    However, it could be argued under the logic of Simmons (Simmons v. South Carolina (1994) 512 US 154, 166-69 [114 SCt 2187; 129 LEd2d 133]), which suggests that the jury should have a full and accurate understanding of the sentencing alternatives, that the jury may consider the unlikelihood of executive clemency. (See Gallego v. McDaniel (9th Cir. 1997) 124 F3d 1065, 1075-76 [failure of commutation instruction to explain the remoteness of executive clemency for a life sentence was constitutional error].)

    Hence, it may be argued that Simmons allows the jury to consider the unlikelihood of executive clemency in order to permit argument to the jury and/or the presentation of evidence on this point. The jurors will likely be aware of the severe political consequences which attach to the release of any violent offender and on this basis they may be brought to understand just how remote executive clemency would be in a special circumstance first degree murder case.

CAVEAT: This approach requires careful strategic evaluation of whether broaching the matter of executive clemency will unduly highlight the matter. However, if the empirical studies are correct (see NCJIC 301.8.7 [Death Penalty: Prosecutorial Misconduct During Summation Or Argument To Jury]; see also NCJIC 303.1.5 [Juror Misunderstanding Of Instructions In Death Cases Has Been Demonstrated]), the jury will likely, on its own volition, falsely assume that the defendant will be released on parole. If this is true, there is little to lose and much to gain by directly confronting the issue with the jury.

See Capital Punishment Handbook [4.5.4a. Possibility Of Commutation Or Parole: General Principles And Authorities].

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    See NCJIC 303.12.2 [Instruction As To Meaning Of Life Imprisonment Without Parole].

See Capital Punishment Handbook [4.5.4a. Possibility Of Commutation Or Parole: General Principles And Authorities].

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    303.12.5    Death Penalty: Confusing Jury Instruction Regarding Possibility Of Parole

PRACTICE NOTE: In Hamilton v. Vasquez (9th Cir. 1994) 17 F3d 1149, 1160-62, the Ninth Circuit reversed a California death judgment based on the giving of an instruction which the court interpreted as incorrectly suggesting that if given life without parole, the defendant would nevertheless be eligible for release. (See also McLain v. Calderon (9th Cir. 1998) 134 F3d 1383, 1385.)

APPELLATE PRACTICE NOTE: The defense counsel in Hamilton eventually consented to the modified instruction. (17 F3d at 1161.) Nevertheless, the majority relied on the defense objection to any parole instruction to conclude that the defendant "had to settle for a modified instruction." (Ibid.) This aptly illustrates how trial counsel's objection below may mean the difference between life or death when the case is reviewed on federal habeas corpus years later.

    See also NCJIC 299.1 [Preserving Federal Constitutional Claims: General Principles].

See Capital Punishment Handbook [4.5.4a. Possibility Of Commutation Or Parole: General Principles And Authorities].

    See also NCJIC 299.1 [Preserving Federal Constitutional Claims: General Principles].

See Capital Punishment Handbook [4.5.4a. Possibility Of Commutation Or Parole: General Principles And Authorities].

    303.12.7    Death Penalty: Meaning Of Life Without Parole – Presentation Of Statistical Information Relating To Commutation

PRACTICE NOTE:  See Commonwealth v. Trivigno (PA 2000) 750 A2d 243, 256-57 [when Simmons instruction required, trial court should relay any available statistical information relating to the percentage of life sentences that have been commuted within the last several years].

    303.12.8    Instruction On Meaning Of Life Imprisonment: Empirical Evidence Of Prejudice

PRACTICE NOTE: In Coleman v. Calderon (9th Cir. 2000) 210 F3d 1047, 1051, the court cited Theodore Eisenberg and Martin T. Wells, Deadly Confusion: Jury Instructions in Capital Cases, 79 Cornell L.Rev. 1, 4 (1993), on the issue of prejudice. The cited study concluded as follows: "Our data confirm that jurors’ deliberations emphasize dangerousness and that misguided fears of early release generate death sentences."