Dick Wheelan is a private practitioner in Houston, Texas. In practice for
15 years, he concentrates on criminal law, homicide, sexual assault and controlled
substances cases. A Director of the Harris County Criminal Lawyers Association
and member of the Texas Criminal Defense Lawyers Association, he is a member of the
American Bar Association Sentencing Guideline Committee. He was lieutenant
of detectives for the City of White Plains (NY) Police Department.
In June 1994, the United States Supreme Court handed down its decision in Simmons v. South Carolina.1 For the capital case practitioner, the significance of Simmons is immense, and the rationale behind the Court's ruling should form an essential element of trial counsel's strategy on punishment.
Jonathan Simmons was convicted of the capital murder of an elderly woman shortly after pleading guilty to two other assaults on elderly victims. Consequently, he was rendered ineligible for parole under state law. If he were to receive a life sentence instead of death, he would remain in prison for the rest of his life. The prosecution, asserting that Simmons was a future danger to society, argued for the death penalty at the sentencing phase of the capital case.
Simmon's counsel was not allowed to offer evidence in front of the jury of his client's ineligibility for parole, but he wisely preserved the issue by getting evidence on the record outside the presence of the jury. The defense's contention was simple: If the state is allowed to argue that the defendant will be a future danger to society, due process requires that the defendant be allowed to rebut the prosecution's argument by showing that he will be in prison for life, thus permanently removed from the whole of society. Simmons was sentenced to death, but on direct appeal the Supreme Court reversed his conviction.
The Court reiterated prior rulings which held that due process entitles a criminal defendant to a complete defense and held that the failure to admit evidence of the defendant's ineligibility for parole violated due process, since the state had emphasized his future dangerousness.2 In short, when the state makes an issue of future dangerousness, due process requires that the defendant be able to inform the sentencing jury that he is ineligible for parole.3
Since the decision in Simmons, many lower courts have been asked to extend its holding. Simmons was completely ineligible for parole, but what if your 32-year-old client, charged with capital murder and facing death or life, will be parole eligible in 30 or more years if he receives life? Do you want the jury to know that if he ever sees the light of day as a free man, he will be at least 62 years old?
Although some courts have modestly extended Simmons, most have limited its holding to cases with identical facts and ruled that a defendant must be completely ineligible for parole before he is entitled to inform the jury what a life sentence means in that jurisdiction. For example, the Fifth Circuit has opined that it ". . . would not extend Simmons beyond cases in which the sentencing alternative to death is life without parole."4 The Supreme Court of Virginia has handed down a similar opinion.5
Other courts have employed procedural hurdles to avoid Simmons issues. The Supreme Court of Pennsylvania has declined to apply Simmons retroactively.6 Virginia's Supreme Court held that a Simmons claim was barred because the defendant failed to preserve error when the judge responded to the jury's inquiry about the effects of parole.7
Clearly there are instances in which counsel for the capital defendant will want to let a sentencing jury know just how long his client must spend in prison before even becoming eligible for parole if given a life sentence. Sometimes, however, the opposite is true.
One Texas defense lawyer tells of a recent case wherein he was defending an 18-year-old accused of a particularly grisly murder. The lawyer sought to voir dire the jury on the Texas requirement that a person sentenced to life in a capital case is required by statute to spend a minimum of 40 years in prison before becoming parole eligible.8 Counsel believed that the court would probably deny the request and thereby create an appellate issue, but he also believed that it would help his client, if the request were granted, to tell the jury that a life sentence in a capital case does not mean, as most jurors believe, that a defendant will get out of prison after serving only a few years.
The court granted the request and the parole information was imparted to prospective jurors. The defendant was sentenced to death, and several jurors later told counsel that the fact that the defendant might get out of prison at the "young" age of 58 helped them to decide in favor of death.
If you decide that you want to give the jury information about parole eligibility, it is necessary to analyze the Simmons rationale and to examine subsequent cases which raise the same issue: What does a life sentence really mean in this instance, and should the jury be informed accordingly?
Holding in Simmons
Trial counsel for Simmons, over objection, was ordered by the judge not to question prospective jurors during voir dire concerning parole or their understanding of what a life sentence was.9 In closing argument, the prosecutor emphasized future dangerousness, claiming that Simmons was a threat, and that the death penalty would be a form of self-defense. Defense counsel tried to rebut by presenting evidence that the defendant's particular psychology made him a threat only to elderly women, and that he conformed well to a structured prison setting. Jailers testified that Simmons had adjusted well to his pretrial incarceration, and a mental health expert who had worked for the department of corrections testified that he thought Simmons would successfully adapt to prison.10Defense counsel asked the judge to instruct the jury that a life sentence would mean that Simmons would never be paroled. Outside the presence of the jury, defense counsel submitted the results of a recent statewide survey which showed that the overwhelming majority of state residents believed that someone sentenced to life in their state would not serve a full life term.11
Simmons was represented by David Bruck, an NACDL member, who built an excellent record at the Simmons trial: (1) The defendant would never be eligible for parole; (2) The prosecutor had emphasized future dangerousness; (3) The defendant did well in a structured, custodial setting; and, (4) Most state residents who would form the jury pool believed a life sentence meant something less than life. David Bruck asserted that under these facts Simmons was entitled to rebut the prosecutor's allegation of future dangerousness. Each of the foregoing factors figured into the Supreme Court decision, and, though they overlap, each should play a part in the strategy of the lawyer defending the capital case.
Ineligibility for Parole
In most cases, ineligibility for parole will present the most difficult hurdle. State law either provides for lifelong parole ineligibility or it doesn't. Most states, however, provide at least that capital life means incarceration for a specific number of years before becoming eligible for parole. Given the popularity of frequent offender statutes today, a defendant's prior convictions, if any, will almost undoubtedly dictate that if sentenced to life he will either actually serve a life sentence or a long term of years before becoming parole eligible.Of course, if state law requires the capital defendant to stay in prison for life, this is something you will almost certainly want a sentencing jury to know. Moreover, the first requirement for a Simmons instruction is automatically satisfied. If state law requires incarceration for only 15 or 20 years before reaching parole eligibility, a strict interpretation of Simmons would not require such an instruction. Most important, you may not wish the jury to know that your client could conceivably get out that quickly. Additional factors may come into play. For example, if state law calls for a 25 or 30-year minimum, and the defendant is 48 years old, you would probably want to tell the jury that if he gets out at all, your client will be at the extreme end of his natural life span. If state law requires incarceration for only 20 years, but the accused is HIV positive or has another terminal disease, it would be appropriate to give this information to the jury if at all possible.
A strict reading of Simmons indicates that unless your client is completely ineligible for parole, you may not be entitled to address the question of parole eligibility at all. Indeed, this is the position that most appellate courts are adopting.12 Therefore, if you decide you wish to inform the jury of the length of time your client will be required to spend in prison before becoming parole eligible, you must be resourceful. If your client is 18 and a capital life sentence under state law only means 20 years, you are probably not going to invoke Simmons, nor, would you wish to do so.
As capital practitioners are aware, most capital defendants are young. However, if your client is over 40 and state law requires that he serve a 40-year minimum before becoming parole eligible, you can certainly argue that your client's situation is factually indistinguishable from that of the defendant in Simmons, since your client will most likely die in prison or soon after release. The younger your client and the lower the statutory minimum, the more difficult the argument, and the less reason you have to urge it.
The New Mexico Supreme Court is one of the few courts to give Simmons a broad reading.13 The defendant was sentenced to death for the kidnaping and murder of a young girl. At trial, the prosecutor had argued for the death penalty by stating that the defendant would claim additional victims if not given the death penalty. "Whether it's ten years from tomorrow, twenty years from tomorrow, or longer, she's out there, or she will be out there."14 In fact, the defendant, who was 41, would not have been eligible for parole until age 86 if he had received a life sentence instead of death. The court ruled that the jury should have been told that the defendant would have to spend more than 40 years in prison before becoming parole eligible.
The length of incarceration facing a capital defendant before he can be considered for parole as an alternative to a death sentence, is information that must be provided to a jury before it deliberates on the capital charge if the defendant decides it is in his best interest to have the jury apprised of this information. To withhold this information after it is requested violates the petitioner's due process right to have accurate information presented to the jury to rebut the prosecutor's case for death.15
Harris County, Texas, which encompasses Houston, sends more people to death row than any other jurisdiction in the United States. Houston judges are routinely allowing defense attorneys to inform prospective jurors about the 40-year minimum for parole eligibility in capital cases despite decisions from the Texas Court of Criminal Appeals holding that Simmons does not apply to the Texas parole scheme. An informal review of capital cases tried in Houston after the ruling in Simmons indicates that informing a jury of the 40-year minimum does not heavily influence a jury's decision on punishment, but this sampling is too small to be statistically significant. One might conclude that Houston judges would prefer to give the jury the requested information rather than risk reversal.
Rebutting Future Dangerousness
This is probably the easiest prong to satisfy if you are looking for a Simmons instruction. Few prosecutors can resist telling a jury that your capital client is a homicidal sociopath who will kill repeatedly unless subjected to the ultimate penalty. Some states such as Texas,16 Oregon,17 and Colorado18 actually require a sentencing jury in a capital case to determine if there is a probability that the defendant would continue to commit criminal acts of violence that would constitute a continuing threat to society. Most states do not list future dangerousness as an aggravating factor to be considered at sentencing but may allow the prosecutor to argue future dangerousness or may allow the defense to assert, as a mitigating factor, that the defendant is not a continuing threat to society. Thus, in these jurisdictions, future dangerousness will be an issue.Despite the fact that in many states the law may not require a showing of future dangerousness, it is an area which is ripe for prosecutorial exploitation. Indeed, vengeance and future dangerousness are two of the sharpest arrows in the prosecutor's quiver. No matter how they are clothed, these two themes will invariably arise in a death penalty prosecution.
Performance in a Custodial Setting
This prong is closely related to future dangerousness since many prosecutors will seek to circumvent a Simmons issue by arguing that a defendant will pose a future danger to society, and prison populations are included in the definition of society, thus enabling a court to rule that parole eligibility is irrelevant in assessing future dangerousness. In United States ex rel. Collins v. Welborn,19 the prosecutor had argued that Collins would pose a future danger to other prisoners or to the rest of society if he should ever escape. There was no intimation that he would eventually be released. The court observed:In the present case, the prosecution argued that petitioners would be dangerous to others at the prison or if they escaped from prison . . .; there was never any argument that they would represent a danger if released or paroled from prison. Therefore, being a danger because released on parole was not an issue raised by the prosecution.20
The federal district court held on habeas that under those facts, due process did not require that the jury be informed as to defendant's parole eligibility should he be sentenced to imprisonment for life.
Does this mean that all a prosecutor has to do, if he wishes to argue future dangerousness, yet avoid a Simmons issue, is to argue that the definition of society includes prison inmates? Although this might appear to be so at first glance, it flies in the face of Justice Blackmun's opinion in Simmons:
In assessing future dangerousness, the actual duration of the defendant's prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not.21
This is only logical. Despite prosecutorial protestations to the contrary, common sense dictates that an otherwise dangerous man is less of a threat to society when in prison. First, all of society, save the prison population, is now distanced from the risk. More accurately, the threat is now isolated from the greater part of society.
Second, prison personnel and inmates are aware of the risks within the prison walls, and therefore should be better prepared to avoid them. Prisons have very effective methods of dealing with the dangerous individual. This is fertile soil for the defense attorney who wants a Simmons instruction. If counsel can locate a former or even a current employee of the state corrections system, such as a psychologist, high-ranking guard, or administrator, this individual can testify about the chilling procedures which are in place to manage a violent inmate. Administrative segregation, entailing complete isolation, the total absence of human contact, and forced medication, is fairly similar from state to state. Testimony from such experts not only helps to show the stark reality of prison life to a juror, it can also make the vengeful juror wonder if a life sentence might not in fact be a more severe punishment than death. A prison psychologist can relate the devastating effects of such isolation in graphic terms, and he can explain how quickly and completely the individual deteriorates in such a setting.
Third, many individuals who easily lose control when left to their own devices often function very well in a supervised, structured setting. Many capital defendants are recidivists, and all sit in jail for a year or more awaiting trial in a death penalty case. If a defendant has a record as a good inmate -- or no record as a troublesome inmate -- it is essential to get a guard or some appropriate official to testify that he functions well in a custodial setting.
There is another critical piece of evidence that you should try to place before the jury. Virtually every study on the subject indicates that violent behavior drops off dramatically as a person ages. It is less likely to occur when an individual passes 30, and the likelihood decreases steadily as one approaches 40. By the time a person reaches 50, the probability is almost nonexistent. Most psychologists can testify about such studies. This is particularly significant in those jurisdictions which eventually allow the capital life inmate to become parole eligible. For example, the Texas capital defendant who is 25 will be parole eligible at 65, since Texas law imposes a 40-year minimum. Therefore, if you can show that the defendant functions well in a custodial setting and will be well over 50 by the time he is released, you have, at least to some extent, successfully rebutted the prosecutor's arguments of future dangerousness.
You can, therefore, improve your chances of getting Simmons information before a sentencing jury by showing the court that even though prisoners may be part of society, your client poses less of a threat to society as a whole if he is in prison. Moreover, prisons have draconian means of dealing with violent inmates, and your client has never been a problem when incarcerated. Finally, the older convict is much less likely to engage in violent behavior if he is eventually released. There is a reason why only young people are sought for the military. Building a thorough record in this regard is very important; if you are unsuccessful in persuading the trial court to allow you to inform the jury of the real meaning of a life sentence in your case, you will at least have partially foreclosed one possible escape route for the appellate courts. Obviously, if your client has a history of assaulting guards or other inmates, this avenue will not be available to you.
Jurors' Ignorance
Jurors' incorrect beliefs concerning life sentences can pose a challenge. David Bruck worked with a local Death Penalty Resource Center to secure a statewide survey conducted by the University of South Carolina's Institute for Public Affairs. The survey revealed that most citizens were misinformed about the meaning of a life sentence. Those surveyed also said that if they served on a capital jury, the amount of time a defendant would actually spend in prison if sentenced to life would be an important factor in choosing life or death.22Counsel in most jurisdictions will not be so fortunate as to have available a recent study on the subject conducted by such a credible institution, however, it is worthwhile to check with area Resource Centers and organized groups which oppose the death penalty. They may be able to point counsel toward such a survey, or they may be willing to undertake one. Graduate school and law school organizations might also be approached. Students may be willing to volunteer to organize and conduct a small local survey. If no local studies can be secured, there are national studies available. Anything on the record in this regard is better than nothing. We all know that jurors think defendants who receive long sentences serve very little time, all we have to do is find a way to document the fact. If all else fails, request funds from the court to conduct such a survey.
If your request to place parole information before the jury has been denied by the court, you must have available at voir dire a prepared list of detailed questions directed at the venireman's belief as to what a life sentence means, and what effect, if any, the length of years a defendant would really serve might have on the venireman's sentencing decision. If foreclosed from asking these questions, you must get them on the record by making a bill of exceptions.
An Afterthought: Simmons in Mitigation
Formerly, the Supreme Court defined mitigating evidence as any evidence that would mitigate in favor of a life sentence rather than a death sentence.23 This definition would support as mitigating the admission of evidence that a defendant would serve 30 or 40 years before becoming parole eligible. Unfortunately the court subsequently limited the definition of mitigating evidence to include only " . . . evidence mitigating in favor of a life sentence that relates to a defendant's background, character, or the circumstances of the offense."24 Since parole eligibility does not relate to a defendant's background or character, or to the circumstances of the offense, it is unlikely that an informed trial court will admit such evidence as mitigating.The Texas Court of Appeals, following the Penry definition of mitigating evidence, has ruled that it was not error for a trial court to refuse to instruct the jury on parole as mitigating. The defendant maintained that such failure meant he did not receive an individualized determination of his capital sentence, in violation of the Eighth Amendment, but the appellate court held the matter of parole eligibility is not a proper consideration for a jury's deliberations.25
Summary: Building a Record
Most states -- even those with long minimum terms short of life without parole -- do not deny defendants the right to provide the jury with accurate information on the alternative to a death sentence. Not all jurisdictions are so enlightened, however. At least one state, Texas, requires non-capital juries to be instructed on parole eligibility, but prohibits such an instruction in capital cases.As noted earlier, many factors which support giving a jury information on parole eligibility are closely intertwined and frequently overlap. Evidence you would use to build a record for a Simmons instruction is generally favorable information you would wish to impart to a capital jury on punishment even if the court has readily granted an instruction on parole eligibility. If you are trying a capital case in one of those jurisdictions which do not provide parole eligibility information to capital juries, you may with to consider the following:
1. Decide whether it is in your client's interest to inform the jury about parole eligibility? Like many issues in death penalty sentencing, an instruction on parole eligibility can be a double-edged sword. Your first step is to analyze your client's situation and decide what effect such evidence or instruction may have. If your client is young and state law only requires 10 or 15 years of a capital life sentence to be served before becoming eligible for parole, you will not likely be able to secure the court's permission to place parole eligibility information before the jury, and you probably would not wish to do so even if the court would allow it. If your client is HIV positive or has another life-threatening condition, be sure to include that in your analysis.
2. Decide when to raise the issue of parole eligibility? If state law requires the prosecutor to prove future dangerousness, you may want to raise a Simmons issue before trial. If state law does not require such a showing, your argument for a Simmons instruction does not arise until and unless the prosecutor actually argues future dangerousness. An attempt to raise the issue before trial would only serve to telegraph your intentions to the prosecutor, thus enabling him to tailor his argument accordingly in order to prevent you from using parole information in rebuttal. Of course, there is another side to the ambush strategy. You may wish to raise the specter of Simmons pretrial in order to manipulate the prosecutor into either abandoning future dangerousness altogether or at least treading softly when addressing the issue. If this strategy is successful, then Simmons will have served you well.
If the prosecutor tries to sidestep a Simmons issue by disclaiming any intent to argue future dangerousness, insist on a stipulation from the prosecution and a jury instruction from the court removing future dangerousness as a basis for imposition of the death penalty.26
3. Show why a prison inmate is not a danger to society. In order to rebut future dangerousness by placing parole information with the jury, you must assume that the prosecutor will stress the fact that prison inmates are part of society. You must be prepared to show that prisons have drastic and effective means of controlling violent inmates. You must also show that your client adopts well to a custodial setting. If your client has been to prison before, get his prison record and locate some official who can testify to his good behavior. If he has never before been incarcerated, locate some jail official who can testify to his good behavior in jail during the pendency of the case. If it isn't possible to locate anyone who can testify favorably about your client's conduct in jail or prison, a psychologist may be able to testify that in his opinion, the defendant would adapt well to prison life. Also, you must find a credible psychologist who can testify that violent behavior drastically declines as people age.
4. Get information on the record which demonstrates that potential jurors have incorrect ideas about parole eligibility. Find or develop a survey which shows that citizens who form the jury pool are misinformed about what a life sentence really means. The survey should also show that the amount of time to be served is a factor which would affect the life or death decision that the potential juror would be called upon to make.
One of the Few
In recent years, the Supreme Court has not handed down many opinions which benefit the capital defendant. The Simmons opinion is one of the few. Many members of the criminal defense bar believe that the Court eventually will have to clarify its ruling in Simmons and revisit the question of a capital defendant's right to rebut allegations of future dangerousness with information about parole eligibility. The procedures suggested in this article may enable you to preserve the issue for appeal.
Notes
1. 114 S. Ct. 2187.2. Id. at 2193-95.
3. Id. at 2190.
4. Kinnamon v. Scott, 40 F.3d 731 (5th Circuit 1994).
5. Joseph v. Commonwealth, 452 S.E. 2d 862 (1995).
6. Commonwealth v. Christy, 656 A. 2d 887 (1995).
7. Chandler v. Commonwealth, 455 S.E. 2d 219 (1995).
8. Tex. Code Crim. Proc. Ann. art. 42.18 8 (b) (2).
9. Id.. at 2190.
10. Id.. at 2191.
11. Id. at 2191.
12. See Kinnamon and Joseph, supra.
13. See Clark v. Tansy, 882 P. 2d 527 (N.M. 1994).
14. Id. at 530.
15. Id. at 533 (emphasis in original).
16. Tex. Code Crim. Proc. Ann. art. 37.071(b)(2).
17. Or. Rev. Stat. 163.150 (1) (b).
18. Colo. Rev. Stat. 16-11-103.
20. 868 F. Supp. 950 (N.D. Ill. 1994).
21. Id. at 993.
22. Simmons at 2194 (emphasis added).
23. See Simmons at 2191.
24. Skipper v. South Carolina, 476 U.S. 1 (1986).
25. Penry v. Lynaugh, 492 U.S. 302 (1989).
26. Willingham v. State, 897 S.W. 2d 351 (1995).
27. See State v. Southerland, 447 S.E. 2d (S.C. 1994).