Simmons v. South Carolina, 512 U.S. 154 (1994), holds that a defendant is entitled to a penalty-phase jury instruction that (if true) life-sentenced prisoners will never be eligible for parole. For many years, the Arizona Supreme Court held that Simmons does not apply in Arizona because LWOP prisoners are entitled to apply for executive clemency. The ASC was summarily reversed on this point in Lynch v. Arizona, 578 U.S. 713 (2016).
Moreover, the instruction is required notwithstanding the hypothetical possibility that a future law will create parole eligibility that does not now exist. Ramdass v. Angelone (2000) 530 U.S. 156, 171 (plurality opinion). (Justices Thomas and Alito dissenting.)
Nevertheless, the CSC has consistently rejected Simmons arguments:
“We repeatedly have held, however, that trial courts are not required—either upon request, or on the court’s own motion—to instruct that a sentence of life without possibility of parole will inexorably be carried out, because such an instruction would be an incorrect statement of the law. [Citations.] We likewise have rejected the suggestion that Simmons v. South Carolina (1994) 512 U.S. 154, and its progeny mandate such an instruction. [Citations.]” ( People v. Whalen (2013) 56 Cal.4th 1, 88.) We have held that CALJIC No. 8.84, which was given in this case, adequately informs the jury that a defendant sentenced to life without the possibility of parole is ineligible for parole. (People v. Duenas (2012) 55 Cal.4th 1, 28.) We are not persuaded to revisit these prior holdings.
People v. Adams (2014) 60 Cal.4th 541, 581
Despite the CSC’s consistent rejection of such instructions there remain important strategic and tactical matters to consider.
- Strategic Considerations. A complete explanation of the meaning of LWOP would seem to require discussion of the Governor’s commutation powers and the Legislature’s power to revise the sentencing statute. So far the courts have been unwilling to authorize an instruction that LWOP means the defendant will never be released. (See People v. Cox (1991) 53 C3d 618, 680-81.) Since most instructions which fail to mention the Governor’s commutation powers would at least imply that the defendant will never be released, it may be necessary for counsel to agree that the commutation power be addressed in the instruction. The only way a sentence of life without parole or a sentence of death may ever be reduced is by an act of Executive Clemency by the Governor of California [upon recommendation of a majority of the California Supreme Court]. For example, in People v. Chessman (1951) 38 C2d 166, 189-90, it was held that the jury was properly instructed that release from an LWOP sentence could occur by gubernatorial pardon or commutation or by legislative revision of the sentencing statute. Obviously the decision of whether to agree to such an instruction requires consideration of the potential prejudicial effect of referring to the Governor’s commutation power (see People v. Cudjo (1993) 6 C4th 585, 630-33) against the countervailing prejudice accruing from the jurors misunderstanding about the power of the courts and/or parole authorities to release the defendant after serving only 10 to 20 years. Given the apparent pervasiveness of this misunderstanding and its substantial impact on the verdict, this matter warrants close attention. Note also that this issue should be considered in light of how counsel will argue this point to the jury. It may be preferable to allow jury consideration in order to argue that the chance of Executive Clemency is remote. (See below.)
- Whether Jury May Consider Likelihood Of Executive Clemency. People v. Ramos (1984) 37 C3d 136, 159 fn 12 holds 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, which suggests that the jury should have a full and accurate understanding of the sentencing alternatives, that the jury should consider the unlikelihood of Executive Clemency. (See Gallego v. McDaniel (9th Cir. 1997) 124 F3d 1065 [failure of commutation instruction to explain the remoteness of executive clemency for a life sentence was constitutional error].)
- 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.]
- Whether To Broach Public Misconception As To LWOP On Voir Dire–CAVEAT: A voir dire discussion of juror misconceptions about the meaning of LWOP may result in the entire panel learning about the governor’s commutation power.
- Argument On Nature Of LWOP In Lieu Of Instruction. People v. Gutierrez (2002) 28 C4th 1083 stated that counsel may properly argue “the full nature of a sentence of life in prison without the possibility of parole.” This may be a better approach than a jury instruction which could lessen the sense of personal responsibility the jurors should have, particularly given the fact that the defense argues last in a penalty trial.
- Instruction As To Meaning Of LWOP: Sample Argument When Instruction Refused. People v. Holt (1997) 15 C4th 619, 689 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:
“‘[the defendant] is going to spend the rest of his life in prison and life without parole means what it says …,’ Counsel also told the jury that notorious murderers who had received parole hearings did so under the old law, under the present law defendant would not have parole hearings and ‘[h]e will not get out.’”
Accordingly, under the authority of Holt, counsel should be permitted to make such arguments, especially if defendant’s request to define life without parole is rejected. (See e.g., FORECITE PG VI(C)(10) Discussing Or Reciting Legal Principles During Argument As Alternative To Refused Instruction
See also FORECITE F 8.84c Juror Misconceptions About Parole From Pre-1978 Cases.