The fight goes on.

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What Juries Need to Know Before Deciding on Death

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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How much should a jury know before it sentences a prisoner to death? The Supreme Court clarified its rules on that question on Tuesday, striking down the sentencing of an Arizona defendant because his jury wasn’t clearly told that he could be imprisoned for life without the possibility of parole as an alternative to a capital sentence. Two justices dissented – and you can probably guess which ones those were.

The court’s basic rule goes back to the 1994 case of Simmons v. South Carolina. In that case, the court held  that if the prosecution argues that a person should be executed because he'd be dangerous in the future, then the jury should be told that he could also be sentenced to life behind bars without becoming eligible for parole.

In Tuesday’s case, an Arizona judge found a clever way around that rule. The prosecution was trying to convince the jury to execute Shawn Patrick Lynch for a 2001 murder, arguing that Lynch would be a public menace otherwise. Lynch's lawyers wanted the jury to be told that it could sentence him to spend the rest of his life in prison without coming up for parole.

Instead, the judge told the jury that if it didn’t impose a death sentence, Lynch would get “either life without the possibility of release until at least 25 calendar years in prison are served, or ‘natural life,’ which means the defendant would never be released from prison.”

The reason the judge used this language was that, under Arizona law, the governor can exercise clemency to free a murder convict after 25 years in prison unless the defendant had been explicitly sentenced to prison for his “natural life.” Thus, reasoned the trial judge, he could tell the jury that Lynch might get out in 25 years even without the possibility of parole.

Arizona’s Supreme Court agreed, ruling that the trial judge didn't have to explain that Lynch would not have been eligible for parole.

The Supreme Court rejected that position in an unsigned opinion. It held that the jury should have been told that Lynch would never be eligible for parole. (The court didn’t say whether it would be all right for the jurors also to be told that executive clemency was a possibility.)

Justice Clarence Thomas dissented, joined by Justice Samuel Alito. Notably, Chief Justice John Roberts didn’t join them, as he hasn’t joined most of their joint dissents this spring. It’s as if Roberts has drawn a line between himself and the court’s hard-core conservatives.

Thomas first said that the Arizona jury instruction was fine, because it was true. He deplored the court’s “micro-managing” of state death penalty instructions. But Thomas’s bigger point was that the Simmons precedent is wrong. To Thomas, juries choose the death penalty out of moral revulsion, not concern about whether somebody might endanger the public.

“In Simmons,” he wrote, “the defendant beat and raped three elderly women — one of them his own grandmother — before brutally killing a fourth.” Quoting Justice Antonin Scalia’s dissent, which he himself also signed, Thomas wrote that “The notion that a jury’s decision to impose a death sentence would have been altered by information on the current state of the law concerning parole (which could of course be amended) is ... far-fetched to say the least.”

What Thomas fails to recognize is, of course, that it’s the prosecution that warns that a criminal would be dangerous if not executed. Once that idea is in the mix, the jury should hear that there's another way to deal with the danger: a life sentence without the possibility of parole. If Thomas is so certain that a jury will impose death anyway, he should have no objection to that jury instruction.

Alito has now replaced Scalia as the court’s other death penalty conservative. The fact that Thomas is sticking by his guns more than 20 years after Simmons is a sign that he won’t budge -- even if the world moves on.

  1. In a plurality opinion with concurrences that specify the holding.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net