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Editor’s Note: On Monday, June 12, the Supreme Court said Virginia killer Bobby Lee Ramdass’s death sentence was valid. Full Story

Jury misperceptions and the death penalty by Stephen Garvey FindLaw Contributor Special to CNN Interactive

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(FindLaw) -- Before the end of this year's term, the U.S.Supreme Court will decide the fate of Bobby Lee Ramdass, who in all likelihood sits on death row because the jury that condemned him never received a straight answer to a simple question.

Ramdass' case might seem one of a kind. In fact, it represents one example of how a jury's misconceptions about parole eligibility often lead to a sentence of death.

The Ramdass case

Ramdass was sentenced to death after he was convicted of murdering a store clerk during the robbery of a Virginia 7-11. At the end of the murder trial, the jury -- after agreeing that Ramdass was guilty of murder -- had to choose between a sentence of life imprisonment and a sentence of death by lethal injection.

Worried that a sentence of "life imprisonment" might actually mean that Ramdass would someday be paroled, the jury asked the judge, "[I]f the defendant is given life, is there a possibility of parole at some time before his natural death?" The judge should have told them "no."

At the time of Ramdass' sentencing hearing, he had two convictions: one for the murder of the store clerk and one for a prior armed robbery. Under Virginia's "three strikes" law, these two "strikes" meant that one more and Ramdass would spend the rest of his life in prison without possibility of parole. And Ramdass did have another strike: he had already been found guilty of a second armed robbery that preceded the murder.

A "no" answer would have quieted the jury's fear that Ramdass, a three-time criminal, would someday be back on the streets. However, instead of explaining that Ramdass would never be released from prison if sentenced to life, the judge told the jury, "[You] are not to concern yourselves with what may happen [after you impose the sentence you think is just]."

Answer based on a technicality

That wasn't much of an answer. For one thing, it didn't address the jury's obvious concern. For another, it was based on a technicality. At the time the jury was deliberating on the sentence he should receive for the murder, Ramdass' third strike for the second armed robbery had not yet been formally entered. Thus, Ramdass technically had only two "strikes" against him, not three. Officially, therefore, Virginia's "three strikes" law did not yet apply.

Nevertheless, in reality, there was no question that the third and final conviction would be entered in a few weeks (in a ministerial, rubber-stamp procedure), which would trigger the "three strikes" law and make Ramdass ineligible for parole for life.

On appeal to the Fourth Circuit, Ramdass argued that the trial judge's actions violated his right to due process. In Simmons v. South Carolina, decided in 1994, a plurality of the Supreme Court held "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."

Fourth Circuit ruling

According to Ramdass, the trial judge's reply to the jury's inquiry violated his rights under Simmons. The Fourth Circuit disagreed. Reading Simmons narrowly, the panel emphasized that at the time Ramdass was sentenced to death, Virginia law did not -- strictly speaking -- "prohibit [his] release on parole."

The case is now pending in the Supreme Court, which could follow the Fourth Circuit and affirm Ramdass' death sentence. It could read Simmons narrowly, such that a jury will be told the facts about a capital defendant's parole eligibility only under limited circumstances.

For example, the court might say due process requires an instruction to the jury about a defendant's parole ineligibility only if, as in Ramdass' case, a prior conviction has been formalized; or only if the period of ineligibility is life (and nothing less); or only if the state makes the defendant's future dangerousness an issue at trial. Any of these limitations is possible.

But the court should impose none of these limitations. A capital defendant should have an unfettered right to inform the jury about his ineligibility for parole. The court must recognize that Ramdass' case is but one manifestation of a larger, more widespread, and worrisome problem.

Because of the Capital Jury Project, a nationwide research effort to examine the decision making process of capital jurors, we now know that the decision between life and death often turns on what jurors think about a defendant's eligibility for parole. The Capital Jury Project's research, incorporating sophisticated statistical models, has shown that fear of future dangerousness dominates juror deliberations in capital cases -- and weighs heavily in favor of death.

Misplaced worries

Accordingly, capital jurors naturally worry that if they don't impose a death sentence, the defendant will be released on parole, only to repeat his crime. But these worries are often misplaced and even more often exaggerated.

Most jurors believe that life imprisonment really means eventual parole. Yet when three strikes or similar laws are on the books, as is the case in Ramdass, that perception is wrong. Life imprisonment means death in prison. Moreover, even when parole is possible, jurors dramatically underestimate the amount of time the defendant will serve before he becomes eligible for parole. The less time a juror thinks the defendant will spend in prison before he might be released, the more likely the juror is to vote for death.

So what should the court do in Ramdass? It should give capital defendants the right---with no limitations---to tell the jury how long they will spend in prison if not sentenced to death. Otherwise, a jury's decision to sentence a defendant to death will not represent a judgment that death is the punishment he truly deserves. It will instead represent the jury's often-erroneous belief that death was the only way to keep the defendant from doing future harm.

Bobby Lee Ramdass may very well deserve the death penalty for his crimes. Yet the jury that condemned him never made that decision. It decided merely that, so far as its members knew, death was the only way to guarantee he would never be released from prison. But in reality death was not the only way. The court should remand the case so that a new jury---with the knowledge that Ramdass will never be paroled---can decide his fate fully informed of all the facts.

Stephen Garvey, a professor of law at Cornell Law School, is the author or co-author of several articles on the South Carolina segment of the Capital Jury Project. Garvey is also a FindLaw contributor.

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