Noticing Languishing Lifers: LWOP Defendants Deserve Attorney Qualification Requirements Similar to Death Penalty Defendants

• In Event: The Law in Action: Sentencing Policies and Guidelines on the Ground

Abstract

Life-without-parole (LWOP) sentences have become increasingly popular; both capital punishment abolitionists and law-and-order champions advance LWOP. A penalty that for a century was relatively rare has exploded in use. Every state except Alaska applies it. The penalty that prevents individuals from leaving prison due to premature death, however, has scrupulous standards for its attorneys. In contrast, the penalty that prevents individuals from leaving prison until they depart in a coffin at the end of their natural lives has many fewer standards. Standards for LWOP attorneys are arguably more important than in death penalty cases, because in death penalty convictions the appellate review will be much more vigorous; as Justice Scalia opined in 2015, “[t]he reality is that any innocent defendant is infinitely better off appealing a death sentence than a sentence of life imprisonment. . . . The capital convict will obtain endless legal assistance from the abolition lobby (and legal favoritism from abolitionist judges), while the lifer languishes unnoticed behind bars.” Glossip v. Gross, 576 U.S. 863, 895 (2015) (Scalia, J., concurring). This presentation examines standards for LWOP counsel in the various states and recommends what standards could be adopted in states lacking them.

Author

• Andrew Falk, Indiana Public Defender Commission