5.6 Instructions Concerning Parole Eligibility

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

5.6 INSTRUCTIONS CONCERNING PAROLE ELIGIBILITY

Section 19.2-264.4(A) provides that "[u]pon request of the defendant, a jury shall be instructed that for all Class 1 felony offenses committed after January 1, 1995, a defendant shall not be eligible for parole if sentenced to imprisonment for life."

Bell v. Commonwealth ²⁰² is the Virginia Supreme Court's most extensive discussion of how trial courts are to properly instruct juries about the meaning of life imprisonment. Because of its importance, the court's analysis is set forth below in detail.

During the penalty phase deliberations, the jury inquired, "Understanding that imprisonment for life means no possibility of parole, is there any other way to be released from prison?" Recognizing that geriatric release is not available to a defendant convicted of capital murder, the court's proposed answer was, "No. Not when the Defendant has been convicted of capital murder."

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Bell agreed with this response, but the Commonwealth objected because there could be other ways for a defendant convicted of capital murder to be released early, such as by an act of executive pardon or clemency. To answer the question truthfully would therefore require that the jury be informed about such things, argued the Commonwealth. Concluding that the Commonwealth's position was correct, the court told the jurors that they "would have to rely on the evidence that they heard, and the instructions already presented in deciding the punishment."

The issue is how the jury's question in this case should have been answered "so that [the jury could be] properly informed and [could] render a fair trial to both parties while preserving . . . the separation of" the judicial branch's function of assessing punishment and the executive branch's function of administering the punishment.

. . . .

If the jury had inquired about a specific form of early release, such as geriatric release, then the court could have answered that question accurately and dispelled any possible speculation by the jury. Here, however, the question was general and could not have been accurately answered without telling the jury about executive clemency or pardon. Yet, we have never allowed a jury to have that information because of the potential for jury speculation resulting in a harsher sentence than would otherwise be warranted.

So, the only response that would have comported with our precedent was to instruct the jurors that...