In its decision in Simmons v South Carolina 512 U.S. 154 (1994) the US Supreme Court held that where the State is seeking the death penalty and argues that the defendant represents a future danger to society, and where state law prohibits the release on parole of a person sentenced to life imprisonment the due process clause of the Fourteenth Amendment requires the court to instruct the jury that the defendant is parole eligible.
It is clear from the transcript that the jury in Simmons imposed the death penalty because they were worried that the defendant might eventually be paroled. After deliberating for an hour and a half they sent a note to the judge asking the question “does the imposition of a life sentence carry with it the possibility of parole?” The true answer would have been “No”. Instead, the jury were then instructed by the judge that they were not to consider the question of parole or parole eligibility and that this was not a proper consideration for them as the jury. 25 minutes later the jury returned with a sentence of death.
In case anyone hadn’t quite understood the significance of the decision in Simmons, it wasn’t long before the Supreme Court got another chance to emphasise its ruling. In Shafer v. South Carolina 532 U.S. 36 (2001), the jury, having been in retirement for almost 3 ½ hours, sent a note to the judge asking if there was “any remote chance” of parole. In spite of repeated requests from Shafer’s counsel that the judge should tell the jury what the South Carolina Code actually says about the meaning of a life sentence, the judge’s response was to instruct them that “parole eligibility or ineligibility is not for your consideration.”
With that unhelpful instruction ringing in their ears, which probably left the jury believing that Shafer would be paroled if given a life sentence, the jury then sentenced Shafer to death. The Supreme Court, following its earlier decision in Simmons, again overturned that direction. It is clear that in both cases the jury’s decision to vote for death was strongly influenced by the fact that they believed that this was the only way to be sure that the defendant would never be released. It also seems reasonable to conclude that in both cases, the jury might well have voted for a life sentence if they had been reassured that South Carolina law meant a life sentence did not carry with it any prospect of parole.
Granted that it is a long way from Washington to Arizona it is still curious that the Arizona Supreme Court in Lynch v Arizona 357 P. 3d 119 (2015) felt that the Simmons decision and its progeny did not apply in that state. The Arizona Supreme Court found that the State had put Shawn Patrick Lynch’s future dangerousness at issue during his capital sentencing proceeding and acknowledged that Mr Lynch’s only alternative sentence to death was life imprisonment without parole, 357 P. 3d 119, 138 (2015). But the court nonetheless concluded that Mr Lynch had no right to inform the jury of his parole ineligibility.
This was in fact the third time that Mr Lynch had been sentenced to death for offences committed in 2001. It is worth noting that after Mr Lynch had been convicted, before the penalty phase trial began, the State moved to prevent his counsel from informing the jury that the only alternative sentence to death was life without the possibility of parole. The court granted the motion. Mr Lynch’s first penalty phase jury failed to reach a unanimous verdict. A second jury was convened and sentenced Lynch to death. On appeal, the Arizona Supreme Court vacated the sentence because the jury instructions improperly described Arizona law. The court did not address Mr Lynch’s alternative argument that the trial court had violated Simmons. On remand, a third penalty phase jury sentenced Mr Lynch to death.
The Arizona Supreme Court affirmed, this time considering and rejecting Mr Lynch’s Simmons claim. The court agreed that, during the third penalty phase the State argued that Mr Lynch could be dangerous. The court also recognised that Mr Lynch was parole ineligible under Arizona law because parole is available only to individuals who committed a felony before January 1, 1994, and Mr Lynch committed his crimes in 2001. Nevertheless, while “[a]n instruction that parole is not currently available would be correct,” the court held that “the failure to give the Simmons instruction was not error.” 357 P. 3d, at 138.
The Arizona Supreme Court thought Arizona’s sentencing law sufficiently different from the others this Court had considered that Simmons did not apply. It relied on the fact that, under state law, Lynch could have received a life sentence that would have made him eligible for “release” after 25 years. But under state law, the only kind of release for which Lynch would have been eligible—as the State does not contest—is executive clemency. And Simmons expressly rejected the argument that the possibility of clemency diminishes a capital defendant’s right to inform a jury of his parole ineligibility.
On 31st May 2016, in a 6-2 vote, the US Supreme Court held that the conclusion of the Arizona Supreme Court conflicts with the Supreme Court’s precedents including Simmons and Shafer. Since the Arizona Supreme Court confirmed that parole was unavailable to Mr Lynch under its law, the decision in Simmons and its progeny establish Mr Lynch’s right to inform his jury of that fact. Accordingly the judgment of the Arizona Supreme Court was reversed, and the case was remanded to the Arizona courts for further proceedings not inconsistent with the Court’s opinion.