For the Defense - Vol. 6 Issue 3 - 25

capacity is so core to the human condition, that all people,
regardless of their age, should have a basic human right
to pursue personal redemption. While everyone may not
choose to exercise this right, that does not mean that
they are not capable of redemption.
In the article, we document how Rell, Ghani, and other
members of the Right to Redemption Committee, a
group of men facing death by incarceration in a state
prison outside of Philadelphia, struggled to come to
terms with past wrongs, finding a path to redemption
in a legal system that saw none. Through this struggle,
the Committee discovered that redemption was not
something that the state could give or take away.
Rather, redemption, the Committee concluded, is only
realized through personal responsibility and growth.
While understanding that redemption is deeply personal
and individualized, they witnessed how the state, as the
custodian of liberty, had the power either to obstruct,
or alternatively to facilitate, a path toward redemption.
Our understandings of redemption and its attendant
rights aligns with and is enforced by international human
rights law and constitutional law in many jurisdictions
around the world. For instance, the European Court
of Human Rights (ECtHR) has grappled with whether
" hope " is a vital aspect of the human person and
determined that life sentences with no possibility of
review or release amount to inhumane and degrading
punishment.6
the
The Dodge
The mechanics of the Court's dodge should be
alarming to all who value the rule of law. As Justice
Sonia Sotomayor points out in her dissent, it is almost
impossible to square this ruling with the holdings of both
Miller and Montgomery v. Louisiana, the case that made
Miller retroactive.13
The majority in Jones hangs its hat on language in
Montgomery, which specifies that " a finding of fact
regarding a child's incorrigibility . . . is not required. " 14
Yet, in nearly the same breath, the Court added that the
fact that " Miller did not impose a formal factfinding
requirement does not leave States free to sentence a
child whose crime reflects transient immaturity to life
without parole. " 15
Rather, Miller obliges " a sentencer
[to] follow a certain process-considering an offender's
youth and attendant characteristics-before imposing a
particular penalty. " 16
Contrary to Jones, both Miller and Montgomery made
clear that mere discretion to hypothetically consider
youth at sentencing is not enough. First, discussing the
diminished justifications for sentencing a child to LWOP,
Miller noted that " [d]eciding that a juvenile offender
forever will be a danger to society would require
making a judgment that he is incorrigible " something
that is at odds with youth.17
Second, even more directly,
In stark contrast to these jurisdictions and
in contradiction to its human rights commitments,7
United States has taken a decidedly retributivist approach
to criminal punishment, unambiguously affirming that
LWOP is meant to deny hope eternally.8
But instead
of addressing
Justice
Alito's weighty
question about redemption, the Court in Jones v.
Mississippi dodges, engaging in judicial gymnastics to
avoid it. Reiterating its language in Roper v. Simmons,
the Court in Jones acknowledged that it " is difficult
even for expert psychologists to differentiate between
the juvenile offender whose crime reflects unfortunate
yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption. " 9
While recognizing that even experts have trouble
discerning someone's capacity for redemption, the Court
doubles down on LWOP, increasing the likelihood that a
child will obtain such a sentence. Specifically, the Court
concluded that courts need not consider whether a
juvenile is permanently incorrigible before sentencing
them to LWOP.10
If experts cannot discern the capacity
for redemption, then courts certainly cannot be expected
to do so, the Court seemed to reason. Rather, the Court
read Miller v. Alabama as requiring only that youth be
treated as a mitigating factor at sentencing factor.11
Even
more alarmingly, in my view, it held that if the sentencer
had discretion to consider youth, then it should be
assumed they did.12
Montgomery specified that a sentencer must " take
into account how children are different, and how those
differences counsel against irrevocably sentencing them
to a lifetime in prison. " 18
But even this alone is still not
enough. The Court went further, saying " [e]ven if a court
considers a child's age before sentencing him or her to a
lifetime in prison, that sentence still violates the Eighth
Amendment for a child whose crime reflects 'unfortunate
yet transient immaturity.' " 19
Indeed, it was on this basis that Montgomery found
Miller to be retroactive. In Montgomery, the Court
determined that the rule in Miller was substantive,
and thus retroactive, because it prohibited " a certain
category of punishment for a class of defendants because
of their status or offense. " 20
That category was not all
So the heart of
juveniles, but rather only those " whose crimes reflect
the transient immaturity of youth. " 21
the determination that Miller was retroactive turns on
Montgomery's assessment that Miller requires courts to
separate those who are immature from those who are
permanently incorrigible.22
this.
Why would the Court go to such lengths? Likely because
overruling Miller and Montgomery would require
addressing onerous stare decisis requirements that posed
too high a hurdle and would require undoing all the
releases of juvenile lifers post Miller.23
It was easier to
gut them, treating youth as a mitigating factor that does
Vol. 6, Issue 3 l For The Defense 25
But Jones washes over all of
For the Defense - Vol. 6 Issue 3

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