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. Sentencing power lies almost entirely in the hands of individual judges, granting them broad discretion in the calculus, and thus creating a risk of disparate sentences from bench to bench. 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. By contrast, judges have almost complete and solitary discretion when imposing all non-capital sentences, including life without parole (“LWOP”) sentences.

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 sentences. Part III more closely examines LWOP sentences, the current sentencing procedures in place for imposing LWOP sentences, and recent case law regarding 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 sentencing 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.

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