Friday, November 20, 2020
Rachel Lopez, Terrell Carter and Kempis Songster (Drexel University Thomas R. Kline School of Law, Villanova University and Amistad Law Project) have posted Redeeming Justice on SSRN. Here is the abstract:
Approximately three decades ago, two co-authors of this Article were sentenced to die in prison. According to the United States Supreme Court, this sentence represented a determination that they were irredeemable. This article will interrogate the legal determination that there are some human beings who are incapable of redemption. In doing so, the article grapples with a basic, yet weighty question. Specifically, it examines whether, as a matter of law, the capacity for change is so core to the human condition that all people have an inalienable right to pursue personal redemption. It also documents the dehumanizing effect of codified condemnation and the struggle for humanity in the face of a legal system that has said: you are not worthy.
Drawing from human rights law and the lived experience of the co-authors, this Article argues that the capacity for redemption is an innate human characteristic, fundamentally intertwined with the legal concept of human dignity. Taking a pragmatic approach to human rights jurisprudence, it will contend that all humans have a right to redemption and that this right is embedded in the Eighth Amendment through the latent concept of human dignity.
Such a reading of the Eighth Amendment would require a dramatic re-imagination of our criminal legal system. One that elevates humanity, not deprives it. One that creates opportunities for healing and human development, not denies it. As a starting point, it will require that the law never make impermeable decisions about the human capacity for redemption. Rather, the law should restore hope that change is always possible.