In the penalty phase of a capital murder trial, one of the delicate issues of concern to jurors is how long the defendant will stay in prison if he is not executed. There is no mandatory death sentence: the jury (or in a few states the judge) always has to decide between a death sentence and a sentence to life imprisonment.

Most jurors are probably in enough contact with legal reality to believe that if they give a defendant a death sentence there is a good possibility, several years down the road, that he will be executed. But what if they give him life? What happens to him then?

The answer to this question varies greatly from state to state. The backdrop of life sentences is this. About two-thirds of the states allow no-parole life sentences for one or more crimes, meaning the defendant serves a true natural life sentence.¹ Florida, Pennsylvania, and Louisiana each have more than 2,000 natural lifers. But about a dozen states have fewer than 100 natural lifers each.

In only three states--Louisiana, Pennsylvania, and South Dakota--are all lifers natural lifers.² The other 31 states using no-parole life allow life with parole also. The sentencing authority, judge or jury, has to decide between parole-eligible and no-parole life sentences, in accord with the controlling state statutes, in individual cases.

For the nation as a whole, only about one in every seven lifers is serving a natural life sentence. The other six out of seven are parole eligible, having to serve a minimum period of years--typically from 15 to 25--to reach their parole consideration date.

Depending on state laws, then, first degree murderers may or may not be parole eligible. Twenty-six states, as of 1994, provided for no-parole life sentences as an alternative to the death penalty. But even in these states which use true life sentences as punishment for first degree murder, like Louisiana, lifers may still pursue release from prison through the governor's use of executive clemency.

The governor of every state in the United States has the theoretical authority--either acting on his own or through a state pardon board--to pardon or commute the sentence of any offender, including a no-parole lifer. While the practice of executive clemency is politically much more limited today, it remains the privilege of the executive. All states direct the clemency process by statute, thus making the governor's authority less than absolute and providing a mechanism for clemency that does not work in exactly the same way in any two states.

So what should juries in a death penalty trial be told, if they wonder about their state's practices and policies in releasing lifers? "Will this person ever get out of prison?" jurors may ask. "What will happen to him if we don't give him a death sentence?"

The U.S. Supreme Court's response, in considering the issues of parole and clemency, makes up an area of death penalty jurisprudence called "truth in sentencing." The basic answer is that the prosecutor, defense counsel, or judge can tell the jury whatever state law authorizes them to say about life sentences, so long as what they say is true. In some circumstances, the defendant's due process rights may require someone (counsel or judge) to point out that a defendant would be serving a no-parole life sentence, as an alternative to the death penalty.

In Louisiana, it is very clear that lifers, including first degree murder lifers, are not parole eligible. The first degree murder statute, LA R.S. l4:30, paragraph C provides:

Whoever commits the crime of first degree murder shall be punished by death or imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the determination of the jury.

Since the 1970s, anyone serving a life sentence has not been eligible for parole consideration.

What about executive clemency, then, the governor's power to pardon or commute sentences? For almost half a century, from 1926 until 1972, lifers were not only eligible for clemency, they also expected clemency, typically after serving ten-and-a-half years in prison.³ The "10-6 rule" was carefully explained to defendants being given the opportunity to plead guilty to capital crimes and receive sentences of life imprisonment. "Sure, we say life imprisonment," court officials would explain the verdict of "guilty without capital punishment," "but behave yourself and you'll be out in ten-and-a-half years." The 10-6 life sentence could be a pretty powerful inducement to plead guilty, especially when the alternative was to go to trial and risk the death penalty.

Even in the 10-6 era, however, prosecutors and judges could not tell the jury about the governor's clemency powers, or that a life sentence would mean only about a decade at Angola. In the celebrated 1940 capital murder trial of Annie Beatrice "Toni Jo" Henry, the only woman ever electrocuted in Louisiana, prosecutor Coleman Reed's remarks to the jury about someone in Oakdale who had gotten a pardon after serving only four years of a life sentence were cited by the Louisiana Supreme Court as one of the grounds for reversal of her first death sentence. It took two more trials to finally get a death sentence that held up, leading to her execution in 1942.⁴

This approach--the "say nothing about clemency" rule--applied to the trial of Louisiana capital cases through the 1980s. Two cases from the 1980s, State v. Lindsey and State v. Willie, dealt directly with clemency issues. In Lindsey, the prosecutor's closing argument referred to a previous pardon granted the defendant. Then in the middle of deliberation, the jury asked for a definition of life imprisonment. The judge explained the mechanics of getting a commutation or a pardon, suggested that the defendant would be eligible to apply in "about eight to ten years," but added that the governor could commute the life sentence "to any amount of time."

In overturning Lindsey's death sentence, the court said:

The primary emphases at the (sentencing) hearing are the circumstances of the offense and the character and propensities of the offender. Speculation as to the actual length of a life sentence is not even remotely related to this goal.⁵

The court cited two problems of allowing the jury to speculate about what a governor might do years in the future. First, citing the 1964 California case of People v. Morse, it pointed out that the future is unpredictable.⁶ "Premised upon the unknown, the question asks for an answer that cannot be intelligently rendered. The jury is precipitated into a judgment upon the imponderable." Second, referring to the constitutional basis of the governor's clemency powers, the court said that fear of the governor's abuse of clemency could lead to a preemptive strike--giving the defendant a death sentence so as not to worry about future improprieties. This would defeat the constitutional design.

In State v. Willie the next year, the court ruled:

An argument based on the law governing pardon and commutation or its administration by the governor and other executive officers is entirely inappropriate to a capital sentencing proceeding. . . . Jurors are thereby encouraged to consider the vicissitudes of executive clemency instead of the clear, objective, and specific standards enacted for the purpose of channeling their discretion.⁷

The constitutional design giving the governor clemency authority had already been challenged by the legislature a decade earlier. When Louisiana's death penalty statutes were rewritten post-Furman in 1973, Article 817 of the Louisiana Code of Criminal Procedure was changed to provide for a sentence of "life without benefit of parole, probation, commutation or suspension of sentence." The Louisiana Supreme Court, in State v. Varice, found this statute an unconstitutional infringement upon the governor's authority to grant clemency. It wrote that "the pardoning power has been held to be an executive function which cannot be restricted by the legislature."⁸ Commutation was thus removed from the statute and returned to the governor's office, where it properly belonged.

While the Louisiana Supreme Court was taking the position that the jury was not entitled to specific information about the meaning of life imprisonment, the U.S. Supreme Court was taking a different stand. In the 1983 case of California v. Ramos, the court ruled permissible a jury instruction informing the jury that a sentence of life imprisonment without the possibility of parole could be commuted by the governor to a sentence of life with parole eligibility.⁹

The Briggs Instruction, as it was known from the 1978 initiative that added it to the California Constitution, had been declared unconstitutional by the California Supreme Court. "Put it back," the U.S. Supreme Court said in Ramos. The instruction did not violate the U.S. Constitution. It was all right to speculate about the defendant's possible return to society (as future dangerousness had already been declared a legitimate jury concern in 1976 in Jurek v. Texas.¹⁰) And it corrected "the misconception conveyed by the phrase `life imprisonment without possibility of parole,' presenting an accurate statement of a potential sentencing alternative."

Justice Marshall strongly dissented in Ramos, joined by Justices Brennan and Blackmun and Justice Stevens in a separate dissent (the vote was 5-4). Justice Marshall wrote:

In my view, the Briggs Instruction is unconstitutional for three reasons. It is misleading. It invites speculation and guesswork. And it injects into the capital sentencing process a factor that bears no relation to the nature of the offense or the character of the offender.¹¹

California v. Ramos remains the controlling case authorizing the jury to be informed of the governor's possible use of his clemency powers, but it seems clear that the use of the instruction (and thus the jury's specific knowledge of the defendant's possible release from life imprisonment) was to be left up to the states. For the instruction to be given, it had to be authorized in a specific state law or constitutional provision.

A decade later, the case of Simmons v. South Carolina returned to truth-in-sentencing from a different perspective. In Simmons evidence of the defendant's future dangerousness was presented in the penalty phase of the trial. The court refused defense counsel's proposed instruction that under state law the defendant was ineligible for parole. The South Carolina Supreme Court affirmed.

The U.S. Supreme Court reversed and remanded, finding that "where a defendant's future dangerousness is at issue, and state law prohibits his release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible." The seven-justice majority filed four separate concurring opinions. Justice Blackmun's, the most strongly worded, said that "the State may not create a false dilemma by advancing generalized arguments regarding the defendant's future dangerousness while, at the same time, preventing the jury from learning that the defendant will never be released on parole."¹²

While the U.S. Supreme Court was dealing with "fair play" as a national issue, the Louisiana District Attorneys' Association was doing its part to promote truth in sentencing at home. Act 436 of the 1993 legislature (passed on June 9, 1993) amended Code of Criminal Procedure Article 905.2, which defines the procedure and evidence of the death penalty sentencing hearing, by adding a new paragraph, paragraph B, which read:

Notwithstanding any provision to the contrary, the court shall instruct the jury that under the provisions of the state constitution, the governor is empowered to grant a reprieve, pardon, or commutation of sentence following conviction of a crime, and the governor may, in exercising such authority, commute or modify a sentence of life imprisonment without benefit of parole to a lesser sentence including the possibility of parole, and may commute a sentence of death to a lesser sentence of life imprisonment without benefit of parole. The court shall also instruct the jury that under this authority the governor may allow the release of an offender either by reducing a life imprisonment or death sentence to the time already served by the offender or by granting the offender a pardon. The defense may argue or present evidence to the jury on the frequency and extent of use by the governor of his authority.¹³

Right away some death penalty defense practitioners questioned the fair play motives of the district attorneys who sponsored this legislation. They pointed out that the obvious intent was to scare the jury, who were already very angry with the defendant, into thinking that if they did not vote to execute him he would probably get out of prison one day. What the DAs wanted was not really fair play, after all, it was more death sentences (this following on the state's switch to lethal injection as a more humane method of execution in 1991).

Opponents of the instruction also pointed out that the wording of the instruction was misleading, perhaps deliberately so, in that it exaggerated the power of the governor to set criminals free. The pardon board and the parole board were also important elements in this process, and they were not mentioned in the instruction. Their omission made the governor's intervention appear excessively arbitrary and powerful, opponents maintained. In their view, this was not truth in sentencing, but a distortion intended to create fear.

The commutation instruction was attacked in an Orleans Parish first-degree murder case, State of Louisiana v. Lester Jones, which combined pre-trial motions from other pending death penalty cases across Louisiana into one hearing. In this hearing, defense counsel presented extensive evidence about the likely negative impact of the commutation instruction.

A survey conducted by Dr. James Wright of Tulane University showed that jurors who had heard the instruction would be more likely to impose death than those who had not. The survey also showed that most respondents did not trust the governor (Governor Edwin Edwards at the time) to exercise his clemency powers honestly and fairly.

Counsel also presented testimony from Thomas Ann Hollins, the Pardon Board's administrative specialist, who discussed the criteria used by the board to screen inmates for clemency. She described the board's evaluation of some inmates as being more deserving of clemency than others, leading to an interesting legal conundrum: the better the inmate does in prison, the more likely he is to get a commutation and eventually go free; ergo, the jury would give death sentences to "better inmates" for fear that they might be the ones to eventually get out of prison.

The Louisiana Supreme Court agreed that the commutation instruction improperly shifted the jury's focus to speculation about what a future governor might do, pointing out that "clemency is shrouded in mystery and often fraught with arbitrariness." By a 6-1 vote in Jones, the commutation instruction was declared unconstitutional.¹⁴

The District Attorneys' Association, having been bested in a fair fight, simply retired from the field, right? Wrong. The most expedient way to get around a finding of unconstitutionality is to have the questionable provision added to the constitution; once approved by the voters and added to the body of the constitution, it is by definition constitutional (unless it is in conflict with the U.S. Constitution, as determined by the Supreme Court). This is what the DAs did.

In the 1995 legislature, Act 551 recreated the commutation instruction, again as Article 905.2.B of the Code of Criminal Procedure, but this time had the language of the statute submitted to the voters as a constitutional amendment under Act 1322 of the same legislative session. The constitutional amendment, to Article I, Section 16, was approved at the election held November 18, 1995, and became effective December 23, 1995.

The commutation instruction, now a part of the Louisiana Constitution, was again attacked by defense counsel, this time as part of the legal maneuvering preceding Alvin Scott Loyd's third death penalty sentencing trial. On February 13, 1997, the Louisiana Supreme Court ruled that juries can be informed of the governor's authority to reduce a prisoner's sentence. The court said, "The commutation instruction is simply a statement of law which does not change the elements of the offense or the amount of its punishment."¹⁵

Some district courts around Louisiana had begun using the commutation instruction as soon as the constitutional amendment took effect at the end of 1995. Others, particularly in dealing with cases that had originated prior to the effective date of the amendment, had waited on the Supreme Court ruling as it might apply to retroactivity. The Supreme Court's ruling left no doubt that judges should start using the commutation instruction immediately. Some anecdotal evidence suggests that here and there a district judge or two have dragged their feet in compliance, but for the most part the instruction had been institutionalized as part of the penalty phase proceedings in capital murder trials by the end of 1997.

What effect has the commutation instruction had on death penalty trials? Is it an important issue? Are more death penalties resulting from the instruction? Let me resort to the researcher's traditional evasiveness here by responding that it is too early to tell. The number of death penalties is up, but it was already going up before the commutation instruction took effect. Many death penalty defense attorneys believe that juries are more willing to give death penalties now than they were a few years ago, resulting in a climb in the average number of death sentences per year in Louisiana from six or eight a decade ago to twelve or thirteen a year at present. Most of the cases where defendants have gotten death sentences with the commutation instruction appear to be the sort in which they would have gotten death sentences without the commutation instruction.

The strongest position I would take at this point is that the commutation instruction probably enhances the likelihood of a death sentence in marginal cases, where there is substantial juror disagreement, by giving the death-prone jurors one more tool to use in their arguments to persuade the holdouts to see things their way. "If we don't give him death, this guy may get out of prison one day. Do you want that to happen?" This can be a fairly strong emotional appeal, in the midst of everything else that is being dumped on these jurors in a closed deliberation.

What should defense counsel do about the commutation instruction--present contradictory evidence, as the law allows, or simply ignore it and hope no one notices. In my view, the commutation instruction has a limited impact, certainly not enough impact by itself, among the many aggravating and mitigating circumstances that make up a penalty phase proceeding, to determine life or death. The worst cases will proceed to a nearly automatic death sentence (absent a holdout juror or two); a greater number of cases will result in a nearly as automatic life sentence, usually because of the presence of strong mitigation factors--such as youth, child abuse, lack of a prior criminal history, work record, or mental defect.

It is the in-between cases, the ones that could go either way, where the question of dealing with the commutation instruction becomes more critical. In these cases, I would suggest that defense counsel should stress three elements in penalty phase preparation:

1. In voir dire, the attorney who will handle the penalty phase should question prospective jurors in detail about their views on the meaning of life imprisonment. A 1993 Loyola Death Penalty Resource Center statewide survey found that over 70% of prospective jurors believed that a life-sentenced inmate would be released from prison, with the average length of time served before released being in the range of 15 to 20 years. As a death penalty defense counsel, you do not want these people on your jury. You want people who believe that "life means life"--even if they are going to be instructed otherwise.

2. In the penalty phase, the mitigation evidence should give the jurors valid reasons to give the defendant a life sentence. Defense counsel should present an active case for life, centering on a coherent theory of mitigation, rather than simply parading across the witness stand a line of emotional but sometimes inarticulate, confused, ill-prepared relatives and friends. Get some experts who know what they are doing (and whose advice you respect) and develop specific evidence to be presented in the penalty phase. Know what you are going to do--and know what your witnesses are going to say in support of your arguments. The penalty phase should not be left to emotional happenstance.

3. If defense counsel is going to present evidence "on the frequency and use by the governor" of his clemency authority, as the commutation instruction provides, counsel must call either a knowledgeable pardon board official or an expert witness who can discuss the history and current practice of granting clemency to first-degree murderers.

Recent research indicates that the life sentences served by first-degree murderers are conclusive. The commutation rate for these offenders is only about 2%; the crimes for these few (20 altogether in 25 years) most often involve personal crimes of violence against friends and family rather than predatory acts against strangers. The prison release rate for first-degree lifers is 1%.¹⁶

From the jury's perspective, 99 out of every 100 defendants convicted of first-degree murder in Louisiana in the past 25 years are either still in prison or dead. If anyone knows of a more effective or more fully-implemented public policy--in criminal justice or elsewhere--please advise.

The district attorneys who promoted the commutation instruction probably thought that clemency statistics would show that large numbers of lifers were getting commutations and being released from prison. This is simply not the case. For first-degree murderers in Louisiana, life really does mean life, and for jurors in a difficult case--carefully selected and presented with effective mitigation evidence--the extremely slim possibility of a commutation on a life sentence ought to work against the death penalty.

If this happens, over time, the DAs' sense of fair play might lead them to eradicate the commutation instruction and return to the earlier era--in which the jury speculated in deliberation about the meaning of life imprisonment but could not be provided with specific information by the court. The U.S. Supreme Court is apparently willing to allow either practice to prevail. "Truth in sentencing" is left to the pleasure of the states.

¹Su Perk Davis, "8.2% Serving Life Sentences," Corrections Compendium, January 1993: 5-11.

²Pennsylvania Prison Society, "Parole for Lifers," The Angolite, November/December 1994: 14-21.

³Ronald G. Wikberg, "A Graphic and Illustrative History, 1879 to 1979, Life Sentences in Louisiana," 1979, mimeographed. Discussed in Burk Foster, "The Meaning of Life: The Evolution and Impact of Natural Life Sentences in Louisiana," The Angolite, July/ August 1995: 16-23.

⁴Burk Foster, "`Goodbye, Toni Jo:' The Electrocution of Annie Beatrice Henry," The Angolite, May/June 1995: 24-39.

⁵State v. Lindsey, 404 So. 2d 466 (La. 1981).

⁶People v. Morse, 60 Cal. 2d 631 (Cal. 1964).

⁷State v. Willie, 410 So. 2d 1019 (La. 1982).

⁸State v. Varice, 292 So. 2d 703 (La. 1974).

⁹California v. Ramos, 103 S. Ct. 3446 (1983).

¹⁰Jurek v. Texas, 96 S. Ct. 2950 (1976).

¹¹California v. Ramos.

¹²Simmons v. South Carolina, 114 S. Ct. 2187 (1994).

¹³Louisiana Code of Criminal Procedure, Article 905.2 (B).

¹⁴State v. Jones, 639 So. 2d 1144 (La. 1994)

¹⁵Baton Rouge Advocate, February 14, 1997.

¹⁶See Burk Foster, "When Mercy Seasons Justice: Executive Clemency of First-Degree Murderers in Louisiana, 1973-1994," The Angolite, November/December 1995: 18-29.