For the Defense - Vol. 6 Issue 3 - 26

not have to be expressly considered on the record. Even
Justice Thomas, whose opinions typically could not be
more divergent than those of Justice Sotomayor, agrees
that the majority's opinion in Jones requires overruling
Montgomery.24
The result is that sentencing juveniles to LWOP will
become easier, instead of the uncommon occurrence
that Miller and Montgomery contemplated.
Punt to the States
Yet, also as underscored in Jones, state courts and
legislatures still have broad discretion to adopt their
own rules and review procedures in the cases of juvenile
defendants facing LWOP.25
the Supreme Court has in the past looked to the laws
and practices of other nations as well as international
treaties as instructive to its Eighth Amendment analyses,
this opens the door to a redemptive reading of the
Eighth Amendment.30
We thus contend that the right
to redemption could be read into the latent concept of
human dignity in the Eighth Amendment-intertwining
conceptions of human dignity worldwide.
The Court is careful to note
all the ways that states can be more protective than the
anemic standard laid out in Jones. States can still impose
additional limits to, or even categorically prohibit LWOP
for all juveniles, require additional factual findings
or a formal explanation for why LWOP is appropriate
notwithstanding the defendant's youth, or establish
other more demanding forms of appellate review.26
But what would this mean in practice? At a bare
minimum, this means that no sentence should impose
a stagnant view of redemption. This perspective on
redemption accords with the jurisprudence of most
countries around the world, as well as human rights
law, which have concluded that life sentences are
inhumane and cruel if review and release on the basis of
rehabilitation is not possible.
The better alternative, the one suggested in our
article, would be for such irrevocable determinations
not to be made at sentencing. Even if you believe that
some people are permanently incorrigible (which we
don't), could such determination ever be accurately
This finding raises considerable doubt about the state's aptitude for assessing
future dangerousness at the time of sentencing. For all these reasons, we
believe that instead of damning someone to death by incarceration at
sentencing, all human beings should have an opportunity to demonstrate
their redemption at regular intervals throughout their sentence with the
added benefit of a record that reflects their current human development.
Pennsylvania already has a more rigorous standard,
outlined in Justice Sotomayor's dissent, that Jones
does not disturb. Namely, Pennsylvania reserved LWOP
sentences only for those juveniles who are determined
to " be forever be incorrigible, without any hope for
rehabilitation. " 27
made prospectively, especially in the case of children?
Empirical evidence suggests not. A 2020 study conducted
by researchers at Montclair State University found that
only 1.14% of the 174 individuals released in Philadelphia
post-Miller have recidivated.31
In other words, the state's
It has also adopted a rebuttable
presumption against juvenile LWOP. These measures
have made juvenile LWOP what Miller and Montgomery
intended it to be: rare. As noted by Justice Sotomayor
in her dissent in Jones, " [f]ewer than 2 percent of
resentencings in Pennsylvania have resulted in the
reimposition of LWOP. " 28
Redeeming Justice
While applauding these decarceral advances in
Pennsylvania, we think that states have good reason to
go further still. We believe that affirming that all people
have the capacity for redemption is possible under the
Eighth Amendment.
In our article, we argue for bringing a human rights
frame to U.S. constitutional understandings of cruel and
unusual punishment, locating it in the latent concept of
human dignity which the Court regularly portrays as the
central concept that underlies all Eighth Amendment
inquiries.29
Since human dignity is also the foundation
of the right to redemption in other jurisdictions and
26 For The Defense l Vol. 6, Issue 3
initial
instinct about these offenders' possibility for
redemption at sentencing was wrong nearly 99% of the
time. This finding raises considerable doubt about the
state's aptitude for assessing future dangerousness at the
time of sentencing. For all these reasons, we believe that
instead of damning someone to death by incarceration at
sentencing, all human beings should have an opportunity
to demonstrate their redemption at regular intervals
throughout their sentence with the added benefit of a
record that reflects their current human development.
We recognize that our reading of the Amendment is
aspirational and would require a dramatic re-imagination
of the U.S. criminal legal system as it currently stands.
But as calls to reimagine the U.S. criminal legal system
abound, we feel an urgency and desire for this redemptive
reading of the Eighth Amendment. In this moment,
( " many seem to " ) (or just " many " ) yearn for a justice
that facilitates healing and human development, rather
than one that employs incarceration as the solution to
all societal harms. In closing, we urge states to redeem
Jones v. Mississippi by adopting laws that instill hope that
change is always possible, not deny it.
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https://digitalcommons.montclair.edu/justice-studies-facpubs/84/ https://www.npr.org/2020/11/03/930892945/supreme-court-examines-when-juveniles-may-be-sentenced-to-life-without-parole?t=1604835753796 https://perma.cc/P5GX-BXDH https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3728752 https://echr.coe.int/documents/reports_recueil_2013-iii.pdf https://echr.coe.int/documents/reports_recueil_2013-iii.pdf https://perma.cc/8DDS-HA6Z
For the Defense - Vol. 6 Issue 3

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