Before the verdict, should a jury know all the options?

Supreme Court weighs whether jurors must be informed about possibility of life without parole.

Serving on a jury in a death-penalty case is one of the most challenging civic responsibilities any American may encounter.

But it is made even more difficult when jurors are kept in the dark about possible alternative sentences of a convicted murderer facing death.

Today, the contentious debate over capital punishment moves to the US Supreme Court, where the justices are considering how much information jurors in death-penalty cases must receive to ensure they are not misled - or even tricked - into believing that a death sentence is the only appropriate verdict.

The case, Shafer v. South Carolina, arises at a time when the death penalty is under intense scrutiny nationwide. Sixteen death-row inmates have been exonerated over the past two years in large part through DNA testing that proved their innocence. Illinois has suspended executions, pending a review of the fairness and accuracy of capital-punishment trials and procedures, and some cities and counties have passed resolutions in favor of a moratorium.

The South Carolina case turns on a more narrow legal issue that arose in the trial of Wesley Aaron Shafer Jr., who was sentenced to die for his role in the 1997 death of a convenience-store clerk.

The jurors in Mr. Shafer's case were never told that, if they failed to return a verdict of death, Shafer nonetheless would spend the rest of his life in prison with no possibility of parole.

His lawyer says that extra bit of information might have resulted in a different verdict, essentially saving his client's life.

Prosecutors in South Carolina say information about parole should play no part in jury deliberations in capital-murder cases. It is for judges, corrections officials, and state lawmakers to decide when parole may or may not be appropriate.

But criminal-justice researchers have found that most jurors worry about a convicted murderer being released on parole and are more likely to vote for death to prevent it from happening.

"This should be a reasoned, moral choice," says William Bowers, director of the Capital Jury Project at Northeastern University in Boston. "What you have instead is this debate [during jury deliberations] infused with misinformation and mistaken assumptions about what the alternatives are."

Mr. Bowers adds, "It means the death penalty is infected with a severe bias."

National polls show that while two-thirds of Americans support capital punishment, less than half support it when given the option of sending convicted killers to prison for the rest of their lives.

The case before the Supreme Court focuses on an issue in capital-murder trials that comes up in two states, South Carolina and Pennsylvania. All other states where murder defendants may also face life without parole inform jurors of that option prior to the panel's deliberations.

The other states took action after a 1994 US Supreme Court decision. The high court ruled 7 to 2 that, whenever prosecutors made the future dangerousness of a defendant an issue in the trial, the jury must be informed of the life-without-parole sentencing option.

The decision said in part that to fail to disclose the life-without-parole option would create a false choice in the minds of jurors, who might vote for death because of a mistaken assumption that the defendant might become eligible for early release from prison.

In Shafer's case, prosecutors say they never argued that Shafer might be released early and pose a danger to the community.

But defense lawyers and others counter that juries make that assumption anyway, and that the prosecutor in the Shafer case said enough to trigger those fears.

"The best rule here is honesty," says Sheri Lynn Johnson of the Death Penalty Project at Cornell University in Ithaca, N.Y., in a friend-of-the-court brief. "If a capital defendant not sentenced to death will never see the light of day, the jury should be told that simple truth."

She adds in an interview, "We ought not to be executing people based on juror misperception."

Studies of jurors in murder trials by Professor Bowers, Johnson, and others show that 60 to 70 percent of jurors worry about the possibility of the early release of a murder defendant - even when prosecutors don't mention it.

In the Shafer case, the jury sent a note to the trial judge asking whether there was "any remote chance for someone convicted of murder to become eligible for parole." The judge told the panel that parole eligibility was not an issue for consideration.

Eighty minutes later, the jurors voted to sentence Shafer to death.

Richard Dieter of the Death Penalty Information Center in Washington says concerns about the fairness and accuracy of capital-punishment cases mean "juries are going to be looking for a middle road. Life without parole is the middle road between death and the defendant maybe getting out at some point."

(c) Copyright 2001. The Christian Science Publishing Society

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