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SCOTUS Dodges on Human Redemption, Leaves It to States

June 11, 2021, 8:01 AM

“Do you think that there are any human beings who are not capable of redemption?” inquired Justice Samuel Alito during oral argument for Jones v. Mississippi, a recent case decided by the U.S. Supreme Court. In its majority opinion, the court concluded that determining someone else’s potential for redemption is illusive, essentially unknowable.

Redeemability was pertinent to the case, because Brett Jones, the petitioner in the case— who was sentenced to life without the possibility of parole (LWOP) at 15 years old—asked the court to adopt a rule that would require courts to make a finding that a child is “permanently incorrigible,” lacking any hope for rehabilitation, before imposing that sentence.

The legal question presented by this case is deeply personal to Terrell “Rell” Carter and Kempis “Ghani” Songster, my co-authors of Redeeming Justice, a forthcoming piece in the Northwestern University Law Review.

Three decades ago, they were both sentenced to LWOP, which they aptly call death by incarceration. Ghani was released following Miller v. Alabama, a U.S. Supreme Court decision that held that laws requiring the mandatory sentencing of children to LWOP are cruel and unusual. But Rell, who was 22 years old at the time of his crime in 1992, remains behind bars to this day.

The U.S. Supreme Court has said that their sentence, effectively an order to die in prison, represents a legal determination that they were irredeemable. To use the Supreme Court’s own words in Graham v. Florida, their sentence “forswears altogether the rehabilitative ideal” and represented “an irrevocable judgment about [their] value and place in society.”

Despite this decade-old precedent, writing for the majority, Justice Brett Kavanaugh acknowledges the near impossibility of judging a juvenile to be irredeemable, yet remains steadfast in preserving sentences that do precisely that. Ironically, Brett Kavanaugh shares more than a first name with Brett Jones. Like Jones, Kavanaugh was accused of committing a violent crime when he was a teenager.

They also share this experience with my co-author Ghani, who like Brett Jones was sentenced to LWOP for a crime he committed at age 15. Once deemed so dangerous that he could never be free, Ghani now works in conjunction with the Philadelphia district attorney to develop restorative justice initiatives to divert kids who have been arrested out of the criminal legal system in order to give them an opportunity to repair harms they caused.

Like most juvenile lifers who were released after Miller, Ghani has never committed another crime. Indeed, according to a recent study, only 1.14% of the 174 released in Philadelphia post-Miller have recidivated.

Ghani’s experience, coupled with this study’s findings, thus raises considerable doubt about the state’s ability to make determinations about a human’s potential redemption at the time of sentencing.

All People Should Have Basic Human Right to Pursue Redemption

For all these reasons, Ghani, Rell, and I believe that all humans have the inner capacity to forgive and be forgiven, to transform and be transformed, and that the law should reflect these innate qualities. In sum, it is our conviction that the capacity for change is so core to the human condition, that all people, regardless of their age, should have a basic human right to pursue personal redemption.

At a bare minimum, this means that no sentence should be imposed that reflects 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.

It would seem that Kavanaugh shares our fundamental belief in the human capacity for change. In response to allegations that he targeted inebriated girls for sexual assault, Kavanaugh told a reporter that “people generally in high school—I think all of us have probably done things we look back on in high school and regret or cringe a bit.”

In Jones, however, Kavanaugh went a different, decidedly crueler direction than the one set forth in our article. Put in simple terms, writing on behalf of the court, he concluded that it is impossible for courts to determine whether kids are permanently incorrigible, so courts are not required to do so before throwing them away for the rest of their lives.

Rather, if the sentencer had discretion to consider youth, then it should be assumed they did. This is counterfactual to the realities of most sentencing hearings and will make future appeals based on the failure to consider youth, as required by Miller, basically null.

States Have the Chance to Redeem Justice

Yet, redeeming justice is still possible. As underscored in Jones, state courts and legislatures still have broad discretion to adopt their own limits to LWOP sentences as well as review procedures that comport with the right to redemption.

Since the laws and practices of other nations and international treaties have been instructive to past Eighth Amendment inquiries, the aforementioned international and foreign case law prohibiting death by incarceration opens the door to a redemptive reading of the Eighth Amendment.

In essence, we contend that the law should instill hope that change is always possible, rather than deny it. After Jones, states now have this chance at redeeming justice.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Rachel Lopez is an associate professor of law at Drexel University, Kline School of Law and a Fellow at the Carr Center for Human Rights Policy at the Harvard Kennedy School. She also directs the Andy and Gwen Stern Community Lawyering Clinic.

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