Award Recipient
Top 100 Trial Attorneys in the United States
Contact Us for a Free Consultation
Is a Pardon or Commutation the Only LWOP Option?
If one is sentenced to life in prison without the possibility of parole (LWOP), it is often understood that the only option to regain one’s freedom is to overturn the sentence or conviction, receive a pardon (forgiveness) from the Governor or a be granted a commutation (reduction) of the sentence, perhaps to life in prison, also from the Governor.
When a direct appeal of the conviction and sentence is unsuccessful and a petition for a writ of habeas corpus meets a similar fate, one certainly can seek a pardon and a commutation, but both of these requests are rarely granted.
There are three additional avenues for release, however, that must be evaluated if the person is qualified.
First, if one was sentenced to LWOP for a crime or crimes committed when the person was under age 18, that person will be considered for a youth offender parole hearing after serving part of his or her sentence. Penal Code § 3051. It should be understood that a youth offender parole hearing is not available to a youthful offender sentenced under the Two or Three Strikes Law (Penal Code § 667(b) – (i)) or under the “One Strike” law involving particularly heinous sex offenses (Penal Code § 667.61).
People serving LWOP terms for crimes occurring when he or she was under age 18 will be considered for parole in their 25th actual year of prison. Penal Code § 3051(b). The twenty-five year mark is not affected by any pre-sentence, post-sentence or in person credits the person may have earned.
Youth Offender Parole consideration is conducted in generally the same way as a regular parole hearing. Penal Code § 3041(a); Penal Code § 3051(c). The standard for release is the same as for regular parole: the Board of Parole Hearings “shall” grant parole unless consideration of public safety requires a longer period of incarceration. The Board of Parole Hearing is required to give “great weight” to the diminished culpability of people with juvenile offenses and to any subsequent growth or maturity, both in the Board of Parole Hearing risk assessment (psychological evaluation) and at the parole hearing. Penal Code § 3051(f), Penal Code § 4801(c).
A person who is found suitable for Youth Offender Parole will be released if and when the Board of Parole Hearing decision becomes final (after review by the full Board of Parole Hearing or, in some cases, review by the Governor). This finding of suitability for release may be reached even if the prisoner has a consecutive determinate term for an in-prison offense to serve after the LWOP term. In re Trejo (2017) 10 Cal. App. 4th 972, 216 Cal. Rptr. 3d 855 (Trejo had a four-year term to serve consecutive to his LWOP term, but when found eligible for parole, he was eligible immediately despite the consecutive term).
If the Board of Parole Hearing denies parole, it should then set a date for a further parole hearing under the rules that apply to people with life sentences, with continued consideration of the special traits of juveniles. Penal Code § 3051(g), Penal Code § 4801(c).
Second, people would have LWOP sentences for crimes they committed while they were under age 18 may petition for resentencing in the court under Senate Bill 9 (codified at Penal Code § 1170(d)(2) after serving at least 15 years of actual time in prison.
There are certain exclusions from eligibility under § 1170(d)(2). A person convicted of torture or any crime in which the victim was a public safety official is ineligible. Penal Code § 1170(d)(2)(A).
If resentencing is granted, the sentence will change to 25 years to life. If the petition is denied, the person can refile the resentencing petition after serving 20 and 25 actual years. Penal Code § 1170(d)(2)(H).
Lastly, a person sentenced to LWOP for crimes committed when they were under age 18 can file a petition for a writ of habeas corpus for resentencing if the sentencing court did not consider factors relating to the person’s youthfulness. See Miller v. Alabama (2012) 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 3s 407; Montgomery v. Alabama (2016) 577 U.S. 190, 136 S. Ct. 718, 193 L. Ed. 2d 599; People v. Gutierrez (2014) 58 Cal. 4th 1354, 1379, 171 Cal. Rptr. 3d 421.
