Life Without the Possibility of Parole

A Guide by Criminal Appeals Attorneys

A sentence to life without the possibility of parole is a sentence imposed by a judge requiring a convicted defendant to spend the remainder of his or her natural life in prison without being provided the prospect of being released by way of parole or otherwise.

In this article, California criminal appeals attorney Matthew Barhoma, founder of Power Trial Lawyers, provides information on this prison sentence, including:

1. What is an LWOP Sentence?
2. When May a Court Impose an LWOP Sentence?
3. Common Ways to Modify or Reduce LWOP Sentences Post-Conviction
4. How a California Appeals Attorney Can Help

1. What Is an LWOP Sentence?

A sentence to life without the possibility of parole, also referred to as an “LWOP” sentence, is a prison term utilized in California and many other states¹ that permits a judge to sentence a defendant convicted of certain crimes, or who has certain enhancements found to be true, to spend the remainder of his or her life in prison without being ever provided the opportunity to be paroled.

An LWOP sentence is different from a death penalty or capital sentence in that a person sentenced to an LWOP term will not be executed by the state but will rather be obligated to spend the remainder of his or her natural life in prison. It also differs from determinate sentences (e.g., 25 years in prison), indeterminate sentences (e.g., 25 years to life), and life with the possibility of parole sentences, as when someone has been sentenced to LWOP, they do not have any chance to ever be released absent a sentencing modification (as discussed below), whereas, with the other sentences, the individual will have an opportunity to either be released at the end of their sentence or to come before the California Department of Corrections and Rehabilitation’s (“CDCR”) Board of Parole Hearings and have their suitability for release assessed.

2. When May a Court Impose an LWOP Sentence?

The court does not have unfettered discretion to impose LWOP sentences. Rather, it may only do so where permitted by law, as described below.

A. Statutorily Permitted LWOP Sentences
An LWOP sentence may only be applied to certain convictions, such as when a defendant is convicted of certain crimes, including first-degree murder (Penal Code §§ 187, 190), as well as rape and other serious sex crimes where certain factors in aggravation are present (see, e.g., Penal Code §§ 261, 289, 288).

Further, if a defendant was convicted under the “felony-murder” rule, he or she may also be sentenced to an LWOP prison term (see Senate Bill 1437).

B. Sentencing Enhancements Authorizing LWOP Sentences
A court is also authorized to impose an LWOP sentence where certain sentencing enhancements are found to be true in connection with the defendant’s base crime. For example, Penal Code § 667.61, permits for an LWOP term where a defendant is convicted of an enumerated sex offense and certain aggravating circumstances are found to be true.

C. Age-Based Exceptions to LWOP Sentencing
Despite these general rules, in recent years, the United States Supreme Court and, resultantly, California, have deemed it largely unconstitutional for juveniles, i.e., those persons under the age of 18 at the time of their crime(s), to be sentenced to life without the possibility of parole. See Graham v. Florida (2010) 560, U.S., 48; Miller v. Alabama (2012) 567 U.S. 460; Montgomery v. Louisiana (2016) 577 U.S. __, 136; see also Senate Bill 9 (2012). There is an exception permitting this sentence to be applied to a juvenile in homicide cases, but only after the court conducts an individualized review of mitigating age-related factors.

D. Obtaining Relief from an LWOP Sentence
An experienced LWOP lawyer can ensure that you or your loved one’s LWOP sentence was properly secured and assess whether it might be subject to reversal. Using a knowledgeable attorney will ensure the greatest chances of identifying any sentencing errors or relevant changes in the law. Where these factors exist, as well as in certain limited other circumstances, an LWOP sentence may be vacated and a lesser sentence imposed.

As an experienced California criminal appeals attorney, Matthew Barhoma of Power Trial Lawyers is familiar with LWOP sentencing and stays on top of modifications to sentencing laws around the country and state. Power Trial Lawyers can review your case to assess whether any of the below-discussed options for relief may be available based upon the facts of your conviction.

3. Common Ways to Modify or Reduce LWOP Sentences Post-Conviction

While the options are somewhat limited, there are ways in which someone sentenced to an LWOP term may modify their sentence. Some of the prime examples of ways to modify an LWOP sentence are as follow:

A. Direct Appeal
The first and most direct opportunity a defendant has to challenge a life without the possibility of parole conviction is on direct appeal from the trial court’s judgment. A challenge on direct appeal is based solely upon the happenings of the trial court proceedings, including any transcripts, exhibits, and motions. If something was not raised during the trial, it may not be later introduced on appeal².

Further, direct appeals are time-restricted; a “notice of appeal” must be filed with the Superior Court within 60 days of the defendant’s sentencing. Additionally, a defendant may directly appeal from his conviction and sentence only once.

If there were issues present at your trial that should have reduced your sentence, they can be raised on direct appeal. A thorough review of your record by an experienced appellate attorney will apprise you of any and all options for challenging your sentence on direct appeal.

B. A Writ of Habeas Corpus
If you have either already filed an appeal, have missed the deadline to file an appeal, or wish to challenge your sentence and conviction based upon something not in the trial court’s record, you are not prevented from seeking review of the court. However, if this is the case, you can challenge your sentence by way of a petition requesting that the court issue a “writ of habeas corpus,” or an order that you be released due to your unlawful imprisonment. The writ of habeas corpus is an “extraordinary remedy” that is used in only extreme and unusual circumstances. In re Clark (1993) 5 Cal.4th 750, 764.

While technically there are no strict time requirements on filing a petition for writ of habeas corpus, they must be filed “as promptly as the circumstances of the case allow.” In re Stankewitz (1985) 708 P. 2d 1260, fn.1. The courts do sometimes bar habeas petitions from being heard if they deem too much time has passed, therefore, it is important to file them as promptly as possible despite the lack of a strict bright-line time rule. Further, there is a general rule that each defendant may file only one petition and that any filed successive to that should be dismissed. In re Connor, (1940) 16 Cal.2d 701, 705. Therefore, all arguments must be raised in the first instance.

In appropriate circumstances, however, filing a petition for writ of habeas corpus provides a defendant sentenced to life without the possibility of parole with the chance to have their sentence vacated, although a new trial may follow.

C. Clemency
Finally, even where there are no legal challenges present to a conviction and sentence, any person incarcerated in state prison – even those sentenced to LWOP terms – may apply to the Governor for a grant of clemency, specifically asking that their sentence be commuted. This is a character-based application and does not modify the conviction, but rather reduces or eliminates a prisoner’s sentence.

An application for commutation of a sentence is based upon numerous factors, including behavior while incarcerated, changes in statutory or case law that are not available to the applicant but would have likely resulted in a different sentence had the crime occurred today, mitigating circumstances present in the prisoner’s case, changes to legislative intent or trends since the applicant’s sentencing, and other evidence of rehabilitation and likely success if released.

D. Other Available Options
There are other ways in which a defendant’s case can be recalled for resentencing, which would permit the court to modify a life without the possibility of parole term, such as petitions for resentencing under Penal Code § 1170, subd. (d)(1) or Assembly Bill 2942 (also based upon character like clemency), among others.

4. How an Appeals Attorney Can Help

A California Criminal Appeals Lawyer and LWOP lawyer can assist you in the following: identifying issues applicable to you or your loved one’s sentence, advising on any relevant changes in sentencing law, and compiling documentation and effectively advocating on you or your loved one’s behalf in any of the post-conviction sentencing modification procedures described above.

Power Trial Lawyers has significant experience and a track record of success with post-conviction relief efforts, including modifying or reducing LWOP sentences. Contact California criminal appeals lawyer Matthew Barhoma today for a thorough and candid assessment of your case.

¹ While LWOP sentences are imposed in other states as well, this article is specific to California law. For advice on LWOP sentences in other states, you should consult with an attorney licensed therein.
² While direct appeals are limited to the record, they remain among the strongest attacks on a sentence. Further, while the appeal is limited to the trial court records, a Petition for a Writ of Habeas Corpus is not as limited and may introduce new and additional evidence, as discussed below and more at length here.