414
Ginsburg, J., dissenting
or life without the possibility of release should not be recommended.
. . . . . "In order to bring back a verdict recommending the punishment of death or life without the possibility of release, all twelve of you must unanimously vote in favor of such specific penalty." App. 43-45.
Those instructions misinformed the jury in two intertwined respects: First, they wrongly identified a "lesser sentence" option; 14 second, the instructions were open to the reading that, absent juror unanimity on death or life without release, the District Court could impose a lesser sentence.
The Fifth Circuit, and the United States in its submission to this Court, acknowledged the charge error. See 132 F. 3d, at 248; ante, at 387, n. 8. Section 1201, which defines the crime, governs. It calls for death or life imprisonment, nothing less, and neither parole nor good-time credits could reduce the life sentence. See Brief for United States 13-14, n. 2 ("[W]e agree with petitioner that the only sentences that could have been imposed are death and life without release (because the kidnapping statute, 18 U. S. C. [§ ]1201, authorizes only death and life imprisonment, and neither parole nor good-time credits could reduce the life sentence)."). The third option listed in the FDPA provision, "some other lesser sentence," § 3593(e), is available only when the substantive statute does not confine the sentence to life or death. The Fifth Circuit found the error "not so obvious, clear, readily apparent, or conspicuous." 132 F. 3d, at 248. I disagree
14 The verdict forms compounded the error by allowing the jurors to return as their decision the statement: "We the jury recommend some other lesser sentence." App. 59.
Jones does not press the District Court's identification of a lesser sentence option as an independent ground for reversal. That error, however, is an essential component of his argument that the misinformation conveyed by the District Court led the jury to believe that deadlock could result in a less-than-life sentence.
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