Sentenced to Life Without Parole: The Need to Apply Capital Sentencing Procedures to Current LWOP Sentencing Schemes

• Author: Rachel Demma
• Position: J.D., Georgetown University Law Center (expected 2023); B.A., Johns Hopkins University (2017)
• Pages: 627-647

Sentenced to Life Without Parole: The Need to

Apply Capital Sentencing Procedures to Current

LWOP Sentencing Schemes

RACHEL DEMMA*

“The State does not execute the offender sentenced to life without parole, but

the sentence alters the offender’s life by a forfeiture that is irrevocable. It

deprives the convict of the most basic liberties without giving hope of

restoration.”

1

While the Constitution guarantees all criminal defendants the right to a jury

trial and promises that no life or liberty will be taken without due process, it is

silent on the role juries should play in the sentencing scheme.

2

Sentencing power

lies almost entirely in the hands of individual judges, granting them broad discre-

tion in the calculus, and thus creating a risk of disparate sentences from bench to

bench.

3

The exception is for capital cases, where jurors must play an active role

at the sentencing stage for a defendant to be sentenced to death.

4

By contrast,

judges have almost complete and solitary discretion when imposing all non-capi-

tal sentences,

5

including life without parole (“LWOP”) sentences.

6

This Note examines the procedures used to impose LWOP sentences, especially

in comparison to capital sentencing procedure, and identifies Constitutional pitfalls

with LWOP sentencing. Part I gives a brief general introduction. Part II provides an

overview of sentencing procedure in federal courts, its evolution in recent years, and

the role that judges and jurors play in determining both capital and non-capital sen-

tences. Part III more closely examines LWOP sentences, the current sentencing pro-

cedures in place for imposing LWOP sentences, and recent case law regarding

* J.D., Georgetown University Law Center (expected 2023); B.A., Johns Hopkins University (2017).

© 2022, Rachel Demma. The author would like to thank Professor Mark MacDougall, whose Sentencing Law

class helped inspire this Note, as well as Cynthia Karnezis and the rest of the GJLE staff for their revisions. The

author would also like to thank Gregory Morril for suggesting the idea for this Note and for his assistance

throughout the process.

1. Justice Kennedy, Graham v. Florida, 560 U.S. 48, 69–70 (2010).

2. See U.S. Const. amend. VI; see also U.S. Const. amend. V.

3. See Williams v. New York, 337 U.S. 241, 251 (1949); see also MARVIN E. FRANKEL, CRIMINAL

SENTENCES: LAW WITHOUT ORDER, 7 (1972) (arguing that the wide discretion given to judges at sentencing

creates disparate results).

4. See Ring v. Arizona, 536 U.S. 584, 585 (2002); see also Hurst v. Florida, 577 U.S. 92, 98-99 (2016).

5. See Williams, 337 U.S. at 251–52 (finding that a judge was within his authority to utilize information not

used at trial to make a sentencing determination without jury input).

6. See Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (refusing to extend enhanced procedures similar to

capital sentencing procedure to the imposition of an LWOP sentence).

627

juvenile LWOP sentencing that hints at the Court’s acknowledgment that LWOP

and capital sentences are closely tied. Finally, Part IV argues that jurors should play

a similar role in deciding LWOP sentences as they do for death sentences, advocates

for enhanced procedure for LWOP sentencing, and discusses the ethical issues for

both criminal defense attorneys and prosecutors within the current LWOP sentenc-

ing scheme. Ultimately, this Note argues that LWOP sentences carry similar Sixth

Amendment and due process implications as capital cases, and the current LWOP

sentencing procedure does not provide sufficient safeguards to protect defendants’

constitutional rights.

INTRODUCTION

The climactic moment in any good trial movie or television show occurs when

the jury enters the courtroom to deliver their final verdict: guilty or not guilty. By

contrast, a case in an actual courtroom and not on television does not end with the

jury’s verdict. Soon after the conviction, often with less fanfare, the judge

imposes a sentence that could range from financial penalties and community serv-

ice to life imprisonment without the possibility of parole or even death.

7

See United States Department of Justice, Sentencing (last visited Mar. 19, 2022) https://www.justice.gov/

usao/justice-101/sentencing [https://perma.cc/LL9E-GY9W].

The

United States Sentencing Commission (“USSC”) provides courts with advisory

sentencing guidelines, but judges are given broad discretion in determining an

individual’s sentence and immense latitude in what factors they can consider

when imposing a sentence.

8

While fact finding is usually a juror’s job, for non-

capital

cases the jury is dismissed after the verdict has been read, leaving the rest

to the judge.

9

Capital cases where the defendant’s life is at stake are the exception to this, as

death penalty cases typically require a unanimous jury vote to impose the death

penalty.

10

In 2016, the Supreme Court ruled in Hurst v. Florida that a Florida-

state law allowing a judge to give a death sentence beyond what the jury recom-

mended violated the criminal defendant’s right to a jury trial under the Sixth

Amendment.

11

The Court held under the Sixth Amendment and the Due Process

Clause that any law that gives the judge the power to make the factual findings

necessary to impose the death sentence is unconstitutional.

12

Defendants, the

Court declared, are entitled to have a jury decide the facts necessary to increase

punishment to a death sentence.

13

This is consistent with general death sentencing

procedure, which typically comprises bifurcated trials where jurors undergo two

7.

8. See Williams, 337 U.S. at 241.

9. See id.

10. See Ashley Nellis, Tinkering with Life: A Look at the Inappropriateness of Life Without Parole as an

Alternative to the Death Penalty, 67 UNIV. MIAMI L. REV. 439, 445 (2013).

11. Hurst v. Florida, 577 U.S. 92, 97–99 (2016).

12. Id. at 102–103.

13. Id.

628 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:627