By: Jayna Peterson[1]

I. Introduction

Asserting one’s innocence or Constitutional rights and rehabilitating oneself are not mutually exclusive propositions. To hold otherwise is to present a youthful offender with a Hobson’s choice—give up your post-conviction rights and ‘accept responsibility’ or you will not have the opportunity to demonstrate your rehabilitation and seek early release.[2]

Phillip Anthony Montague (“Montague”) found himself in a “Hobson’s choice”[3] when he faced the denial of his sentence reduction under the Juvenile Restoration Act (“JRA”)[4] due to his claim of innocence.[5] In 1997, when Montague was only sixteen-years-old, he was convicted in Baltimore County of first-degree murder, attempted murder, first-degree assault, and unlawful use of a handgun in the commission of a felony.[6] Montague was sentenced to life in prison plus twenty years.[7]

26 years later, Judge Ballou-Watts denied Montague’s reduction, extensively addressing his maturity, rehabilitation, and fitness to reenter society.[8] Judge Ballou-Watts detailed some of the personal growth Montague had made while incarcerated but admonished him when he expressed concern for the victim’s family rather than remorse for his actions.[9] Judge Ballou-Watts stated that the absence of remorse is “deeply troubling” because “a [d]efendant’s willingness to accept responsibility for his crime is critical in determining whether he has been rehabilitated.”[10] Judge Ballou-Watts was unmoved by Montague’s expansive record of program participation and positive change while incarcerated.[11] While Judge Ballou-Watts acknowledged Montague’s claim of innocence, it did not change her determination that his lack of remorse made him a danger to society.[12]

On one side of this Hobson’s choice[13] is the incentive for innocent people to admit guilt in hopes of regaining freedom[14] and on the other side lies the defendant’s decision to maintain their claim of innocence and risk continuing incarceration.[15] Montague’s case illustrates this contrition conflict that many innocent juvenile lifers face; moreover, it demonstrates that inmates like Montague must bear the heavy burden of choosing whether to maintain their right to claim innocence or waive innocence in order to gain a sentence reduction.[16]

Before the JRA became law, many incarcerated individuals had little hope of returning home “because the Maryland Parole Commission appears to work outside its own criteria for granting parole and instead applies a calculus that resists objective analysis,” which prolongs incarceration.[17] Individuals asserting innocence face comparable obstacles in obtaining exoneration and release from incarceration as both processes are marked by significant delays—more than a decade to achieve exoneration on average.[18] Montague faced similar hurdles, spending over a decade asserting his innocence.[19] Montague filed a Petition for Post-Conviction Relief, which was denied in 2011.[20] His subsequent appeal of the denial was also denied.[21] In April of 2023, Judge Ballou-Watts denied Montague’s JRA reduction.[22] Since the denial of relief under the JRA, Montague appealed to the Appellate Court of Maryland, which agreed with Judge Ballou-Watts’ determination in an unreported opinion.[23] Appealing that ruling, the Maryland Supreme Court heard oral arguments on the matter in February 2025.[24]

Ultimately, the conflict persists for Montague as he is forced to partake in continuous litigation and consider foregoing a viable avenue of relief simply because an assertion of innocence potentially precludes release under the JRA.[25] In analyzing this issue under the JRA, Section II reviews the history of remorse as a proxy for rehabilitation in sentence calculations, sentence reductions, and parole hearings.[26] Section II also evaluates certain factors within the JRA, considering their alignment with the legislature’s concerns regarding advancements in juvenile neuroscience and the objective of eliminating racial injustice.[27] Section III discusses why mandating or considering remorse for movants claiming innocence has detrimental consequences[28] and is an imprecise measure for resentencing purposes.[29] Lastly, Section IV proposes a legislative remedy that grants defendants meaningful consideration for sentence reduction while preserving the legislature’s intent to release individuals who are no longer a threat to public safety.[30]

II. Background & Historical Developm

A. By Acknowledging Diminished Culpability of Juveniles and Deep Racial Disparities in the Juvenile Lifer Population, Maryland Paves the Way for Second Chance

1. Juvenile Life Without Parole Sentences

     In 2012, the United States Supreme Court struck down mandatory juvenile life without parole (“JLWOP”) sentences and mandated that courts consider emerging science on the brain development of juveniles.[31] The Court’s decision recognized the fundamental cognitive differences between children and adults: a tendency to pursue risky situations, a lack of emotional regulation, and an inability to appreciate the consequences of their actions.[32] In light of their repeated recognition[33] of adolescent neuroscience, the Supreme Court held that juvenile lifers[34] “must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”[35] Policy advocates subsequently led the long-standing movement to ban JLWOP across the country,[36] citing a juvenile’s propensity to reform during maturation.[37] In 2024, thirty-three states and the District of Columbia have passed legislation to ban the sentence.[38]

Despite legislative efforts, Black and Brown children are disproportionately sentenced to JLWOP across the United States.[39] When Maryland legislators proposed the JRA, over 400 people were eligible for a sentence review hearing under the proposed standards.[40] Eighty-seven percent of this population was Black,[41] which is unsurprising given that Maryland leads the country in incarcerating Black man— twice the national rate.[42]

2. The Juvenile Restoration Act

Following George Floyd’s death, policymakers sought to prioritize legislation dismantling Maryland’s systemic racial injustices.[43] The JRA was a timely addition to the 2021 legislative session’s initiatives,[44] offering “the potential to reduce the inequitable impacts on Black youth criminally charged as adults in the State.”[45] Applying a balance of age-appropriate guidelines with traditional notions of public safety, the legislature drafted a non-exhaustive list of factors to be considered by the court, including:

(1) the individual’s age at the time of the offense;

(2) the nature of the offense and the history and characteristics of the individual;

(3) whether the individual has substantially complied with the rules of the institution in which the individual has been confined;

(4) whether the individual has completed an educational, vocational, or other program;

(5) whether the individual has demonstrated maturity, rehabilitation, and fitness to reenter society sufficient to justify a sentence reduction;

(6) any statement offered by a victim or a victim’s representative;

(7) any report of a physical, mental, or behavioral examination of the individual conducted by a health professional;

(8) the individual’s family and community circumstance at the time of the offense, including any history of trauma, abuse, or involvement in the child welfare system;

(9) the extent of the individual’s role in the offense and whether and to what extent an adult was involved in the offense;

(10) the diminished culpability of a juvenile as compared to an adult, including an inability to fully appreciate risks and consequences; and,

(11) any other factors the court deems relevant.[46]

As a threshold matter for release, a judge must also find that the movant is “not a danger to the public and the interests of justice will be better served by a reduced sentence.”[47] In doing so, a judge is at liberty to assess any of the above factors.[48]

At issue in this comment is the judiciary’s ability to consider factors otherwise not explicitly outlined in the JRA.[49] For example, under the fifth factor, the judiciary may look to “intuitive signs of rehabilitation” and maturity, such as acceptance of responsibility and showing of remorse for the underlying crime.[50] Moreover, under the eleventh factor, the judiciary finds a catch-all provision to evaluate any other indicia they deem relevant, thereby creating opportunities to circumvent the purposes of the JRA.[51] 

B. Dimensions of Remorse in Sentencing Practices from Repentance to Rehabilitation

Use of remorse in sentencing or punishment dates back to Puritan courts, where remorse was a proxy for society’s religious purity.[52] Punishment in colonial times mirrored aspects of modern general deterrence, aiming to dissuade people from engaging in sinful behavior.[53] To that end, public punishment at the gallows was a mechanism for teaching the townsfolk to live a life of innocence, untarnished by even the smallest of infractions.[54] In its earliest form, remorse served as a tool of social utility rather than a means of changing the defendant’s morality.[55] 

In the 21st century, judges have considerable discretion in sentencing a criminal defendant, but courts largely agree that remorse is among the most crucial mitigating factors.[56] Remorse is utilized as a measure of rehabilitation in the eyes of the court because it demonstrates a person’s amenability to treatment.[57] Its use is further justified by the belief that its existence diminishes the likelihood of recidivism.[58] So significant is the notion of contrition that the United States Supreme Court held that a retrial was necessary where medication could affect a defendant’s ability to demonstrate remorse, especially during sentencing.[59] Additionally, federal sentencing guidelines allow for a reduction in the offense level if an individual “clearly demonstrates acceptance of responsibility”[60] because such an expression acts as the first step in reformation.[61] In the realm of sentence reductions and parole, taking responsibility for one’s actions is often cause for a reduced sentence or release.[62]

While the factors considered in sentencing and sentence reductions overlap, the implication of remorse in this context demonstrates a different character trait and goal within the criminal justice system—achievement of rehabilitation—giving judges a sense of comfort in their decision to modify a sentence.[63] Courts in Maryland recognize a judge’s authority to consider the “demeanor of the accused” in their sentencing.[64] When resentencing in Maryland, judges have the discretion to use a lack of remorse against those maintaining their innocence.[65]

III. The Absence of Remorse Should Not Preclude the Possibility of Sentence Reduction Under the JRA When the Applicant Has Ongoing Appeals Based on Innocence Claims

A. A Court of Last Resort: Incentive for Freedom Pressures Innocent People to Admit Guilt and Invalidate Exoneration Efforts

1. The Lure of Taking Responsibility

The traditional notions of maturity and rehabilitation commonly include considerations of remorse, but this practice is extremely harmful to individuals claiming innocence.[66] Understandably, a droplet of prospect freedom may be enough to persuade dehydrated juvenile lifers to abandon viable claims of innocence and years of exoneration efforts.

The practice of considering one’s remorse has affected Maryland exonerees, prolonging their incarceration simply for maintaining their innocence.[67] For example, Ransom Watkins (“Watkins”) served 36 years in prison for a murder he did not commit.[68] He entered prison at the age of sixteen and maintained his innocence throughout his incarceration.[69] Watkins recounted his failed parole attempts and the board’s indifference to his claims, citing that a “‘lack of remorse’ hurt his chances . . . but his lack of guilt meant he had nothing to feel remorseful about—except his own circumstance.”[70] Similarly, Eric Simmons (“Simmons”) went to prison when he was twenty-one years old and maintained his innocence throughout his 24 years sentence.[71] A Maryland parole board warned Simmons to never come back up for parole if he would not show remorse for the underlying crime.[72] These cases underscore Maryland’s need to reevaluate their system of penalizing individuals who have no reason to be remorseful.

2. Systemic Injustice Causes Lengthy Exoneration Efforts

Even in cases of wrongful conviction, legal efforts may not yield a successful exoneration due to systemic challenges and procedural hurdles.[73] Maryland prosecutors opposing the JRA argued that this sentence reduction, creating the potential for three additional attempts for post-conviction relief, was unnecessary because offenders have numerous avenues to challenge their conviction and/or sentence.[74] However, opponents of this sentence reduction fail to appreciate the difficulties in overturning a wrongful conviction. Post-conviction matters take no less than a decade[75] of expensive litigation,[76] often at the mercy of prosecutors who must be willing to reexamine or challenge the previous investigation.[77] The criminal legal system should not find comfort in a practice that asks someone to sacrifice their innocence claim only to potentially find relief under the JRA. Furthermore, it is essential to recognize that claims under the JRA and assertions of innocence are separate; one should not preclude or invalidate the other.

America’s criminal legal system is no stranger to injustice and egregious errors by law enforcement and prosecutors.[78] While wrongful convictions are by no means endemic to Maryland, the problem is rooted in racial inequities[79] and official misconduct rates uniquely prevalent throughout the state.[80] Since 1989, fifty-four people in Maryland have been exonerated and spent approximately 761 years behind bars for crimes they did not commit.[81] Thirty-nine of those exonerations involved official misconduct contributing to the conviction.[82] Far exceeding the national average,[83] the state of Maryland committed Brady violations[84] in 80% of Baltimore’s exoneration cases,[85] casting doubts on the ability of the court to effectuate true justice.[86] In the United States as of 2022, Black Americans account for more than half of the National Registry’s documented exonerations.[87] Alarmingly, misconduct occurs in the wrongful murder convictions of Black individuals in the U.S. 78% of the time.[88] During a national reckoning on racism,[89] such as with the intent of the JRA,[90] Maryland courts and lawmakers must recognize the impact of racial bias and institutional discrimination on wrongful convictions.

Moreover, the key to a successful exoneration is not always in hiring the most skilled defense attorney or having the “best case” factually;[91] instead, what pushes a case beyond this threshold is based on an “often random blend of circumstances in their cases that fall outside of [an incarcerated person’s] control.”[92] While not determinative on these factors, this anomaly also requires considerable financial contributions and a diligent legal team willing to dedicate extensive time to a post-conviction defense.[93] Given the complexities in attaining exonerations, it is unreasonable for the legal system to demand that juvenile lifers forfeit innocence claims as a prerequisite for the mere possibility of release the JRA grants.

Typically, the legal avenues available to sufficiently present a complete picture of innocence do not exist.[94] Once direct appeals are exhausted, individuals must rely on other avenues of relief like getting leave to appeal their conviction.[95] In Maryland, courts deny most motions for leave to appeal with minimal guidance on the standard.[96] Even in cases with overwhelming evidence of wrongful conviction, Maryland insulates wrongdoers and upholds decisions at distressing rates without repercussions.[97] Put simply, “once you are found guilty, the legal system is not designed to find truth after that point. It is designed to uphold whatever that verdict was regardless of new evidence, regardless of new people coming to light and coming forward.”[98] The JRA is often an innocent individual’s last opportunity for freedom. Maryland’s current system allows judges to ask that these movants perjure themselves in furtherance of that goal.

Arguably, one of Maryland’s most infamous cases is Adnan Syed (“Syed”), who has battled for exoneration since his conviction in 2000.[99] After exhausting most of his post-conviction avenues over his twenty-three years behind bars, Mr. Syed sought a sentence reduction under the JRA.[100] With fresh eyes on the case and discovery of Brady material, the state filed a motion to vacate his conviction.[101] However, the Appellate Court reinstated the conviction six months later because of a procedural error.[102] The Maryland Supreme Court affirmed this decision.[103] Three years after Baltimore City State’s Attorney Mosby’s administration vacated his conviction, State’s Attorney Ivan Bates withdrew the motion to vacate but supported Mr. Syed’s JRA petition.[104] Despite the opportunities for various reviews of sentences and convictions, procedural and system-placed barriers render them moot. The lack of legal remedy has prompted individuals to seek freedom through alternative means like the JRA, which may not be feasible given considerations of remorse.[105]

B. Requiring Remorse from a JRA Applicant Defies the Legislature’s Intent in Creating a Second Chance at Redemption

Maryland legislators created and passed the JRA because they believed people deserve a chance to be redeemed, and subsequent cases echoed their intent.[106] Legislators specifically did not require remorse as a factor within the bill because it could become an unintended barrier to release.[107] In fact, legislators questioned the absence of remorse as a factor during the JRA’s Judiciary Committee hearing.[108] In response to the inquiry, advocates of the JRA explained that “if indicia of remorse were a prerequisite to demonstrating suitability for release, those wrongfully convicted will never come home.”[109] In essence, denying an innocent movant’s sentence reduction based on remorselessness deems a person more of a danger to society than someone who committed a crime but rehabilitated themselves thereafter. Leaving this trend only serves to confuse movants and the community about the ability of the courts to adequately apply laws set forth by the General Assembly.

C. Considering Remorse for Individuals Maintaining Their Innocence is Counterproductive to Goal of Public Safety

Juvenile lifers are consistently the safest population for early release.[110] While national recidivism rates for adult offenders exceed thirty percent,[111] juvenile lifers recidivate at a rate less than two percent.[112] This rate is partially explained by recent developments in the study of juvenile brain science and the ability of individuals to grow and mature.[113] Growth is even more apparent with participation in educational programming, counseling, and/or mentorship programs while incarcerated.[114] The over 800 juvenile lifers released since the Supreme Court’s decision in Miller v. Alabama[115] exemplify this data, with diminutive recidivism rates reported across the country since their respective releases.[116] Maryland’s juvenile lifers released under the JRA follow a similar pattern.[117]

Studies find there is only a small likelihood[118] that offenders who show remorse will not recidivate.[119] Today, this data undermines the policy concerns of juvenile reform opponents who argued that legislation like the JRA would release violent criminals, thereby jeopardizing public safety.[120] Moreover, little is known about remorse in sentencing and parole hearings because the concept is difficult to define for empirical data collection.[121] Some commentators suggest that determinations “probably rest on ‘gut feelings’ more than anything else.”[122] Additionally, the judiciary must be cognizant of the fact that an offender may feel shame rather than remorse, thereby increasing the likelihood of recidivism.[123] Further research is warranted to decipher the correlation between genuine showing of remorse and recidivism rates beyond human factors that disrupt the data.[124]  

However, research suggests that signs of remorse could be inferred from the rehabilitative actions of offenders while incarcerated.[125] While an individual may not verbalize their remorse, evidence of their contrition may be “hiding in plain sight in offender rehabilitation.”[126] This may suggest a chance that even where remorse is absent from the record, an individual may be safe to release if they have participated in rehabilitative programming which teaches similar concepts, but further research is required.[127]

D. Fate in the Hands of Judges: Remorse is Ill-Defined and Immeasurable

Referred to as an “internal phenomenon,” remorse[128] is too vague of a concept to leave to the whims of judges.[129] Typically, judges expect visible reactions or verbal expressions of remorse, such as a defendant’s crying or apologizing for their actions.[130] Remorse is regarded as sincere when the offender’s nonverbal expressions match the inflection of their apology because any potential uncertainty is largely resolved.[131] Courts often see a defendant as cold and remorseless if these hallmarks are absent, but their absence may be a marker of youth, pressures of a formal court environment,[132] cultural norms,[133] or mental illness.[134] Moreover, the subjective nature of remorse leaves it susceptible to misinterpretation,[135] especially where judges depend more on nonverbal cues like demeanor, which are “the ‘most elusive and least articulated of all criteria.’”[136] Despite the lack of determinative legal measurement, the legal system still values remorse as “the true window to the person’s essence.”[137]

The likelihood for inaccurate assessments of remorse and implicit bias increases when the defendant and the judge differ in race or culture.[138] Researchers point to the prevalence of racial stereotypes that Black individuals are more prone to violence or criminality as a source of bias.[139] When ambiguities arise, implicit prejudice may unconsciously reconcile uncertain factors to help a judge determine whether a person is safe to release, such as for the JRA.[140] To address these problems, Maryland’s Rules Committee has recommended a new rule that requires courts to generally recognize the potential for implicit racial bias in the judiciary.[141]

As introduced in the preceding subsection, empirical data investigating the concept of remorse in re-sentencing and probation is also flawed because of uncontrollable factors like implicit bias and stressors of re-entry.[142] Re-entry hardships affect all returning citizens and leads to recidivism regardless of remorse.[143] Studies find that viewpoints on the relationship of remorse to sentencing decisions vary significantly between judges.[144] A 2013 Yale study cites judicial disagreement on whether remorse is “legally relevant,” even suggesting that it should not be outcome-determinative.[145] The same research points to varied salience of remorse dependent on the judge’s punitive goals, e.g., deterrence versus rehabilitation.[146] Judges addressed the dilemma of guilt or innocence, emphasizing that “defendants must be free to assert their innocence . . . and a defendant cannot be expected to show remorse if he does not even admit the crime.”[147]   

The consequences of remorse considerations for cases of actual innocence are too grave to ignore. While Montague’s potential freedom depends on the outcome of his appeals,[148] other innocent Marylanders received sentence reductions under the JRA.[149] For example, a Baltimore City Circuit Court judge, with support from the State’s Attorney’s Office, deemed Kenneth Bond (“Bond”) safe to reintegrate into society despite his innocence claims due to “personal transformation, education, and his potential to contribute positively to his community.”[150] In February 2023, Bond walked free after twenty-seven years in prison with the help of Georgetown’s Making an Exoneree Program.[151] Bond’s conviction included the markers of wrongful conviction, including ineffective assistance of counsel, and he spent decades contesting the conviction until the JRA provided him a pathway to release.[152] In comparison, the Bond case highlights the necessity to reevaluate how innocence claims are addressed under the JRA to promote consistency in judicial decision-making.

E. The Paradox of Victim’s Rights

To many prosecutors, sentence reductions, even for juvenile lifers, infringe upon the rights of victims.[153] Calling the JRA the “16th look back act,” opponents claimed the reduction hearing would drag victims back into court to relive their trauma.[154] While victim participation is not required during JRA hearings, the possibility of reopening wounds is crucial to recognize in any discussion of criminal justice reform.[155]

However, claims of innocence are not in tension with victim’s rights. The healing of crime victims is simply not served by the continued incarceration of innocent individuals, which leaves true justice unobtainable.[156] Certainly, those in charge of the courts and public safety would rather the guilty party find themselves behind bars than freely walking the streets.[157] The current structure, which upholds victim’s rights and their closure on a pedestal of possibly faulty convictions, communicates a belief that goes against the conventional understanding of the criminal justice system’s goals.

Even where innocence is not a concern, some jurisdictions have begun to push for restorative justice in facilitating closure for victims.[158] While victims may not be open to this practice initially, some families eventually see resentencing hearings as a way to set themselves free from the pain they held onto following the criminal event.[159] For example, Darryl Green forgave Kimyon Marshall during a resentencing hearing, feeling as though he could finally leave his “prison of hatred” after the murder of his brother.[160] Ultimately, the Harford County Circuit Court released Kimyon.[161] JRA hearings could foster the same opportunity for victims to experience forgiveness if they choose.[162]

IV. Solution

A. Statutory Amendment Following the Incarceration Reduction Amendment Act

The Maryland General Assembly should amend the JRA to preclude considerations of remorse or a failure to assume responsibility in cases where the applicant claims innocence, based upon the District of Columbia’s approach under the Incarceration Reduction Amendment Act (“IRAA”). In 2016, the District of Columbia passed the IRAA, which considers factors similar to the JRA, such as public safety, the defendant’s childhood, and demonstrations of rehabilitation.[163] Later, the Omnibus Public Safety and Justice Amendment Act of 2018 and the Second Look Amendment Act of 2019 modified the IRAA, adding provisions for a more inclusive application of the law.[164] In the District of Columbia today, individuals convicted of an offense that occurred before the age of 25 are eligible for review after they serve 15 years of that sentence.[165] These amendments originated from the District of Columbia Council’s commitment to public safety in light of the developmental distinctions of youthful and emerging adult offenders[166] possessing a unique capacity for positive growth.[167] 

Judges in subsequent IRAA sentence reductions throughout the District of Columbia have refused to deny a movant’s reduction where a lack of remorse stems from innocence claims.[168] Judge ­Robert Rigsby specifically contended that allowing remorse to block a sentence reduction would punish defendants for asserting their constitutional rights and put them in a position where they would have to choose between claiming innocence and satisfying the court’s need for guilt to receive that reduction.[169] The District of Columbia Superior Court stated that acceptance of guilt is not a factor under the IRAA, and requiring a showing would be counterproductive to the defendant’s strategy given his post-conviction petition, even if remorse could factor into rehabilitation determinations.[170] Further, the expression of sadness for the loss of life and its impact on the victim’s family was enough to dissuade the court from denying the sentence reduction based on an absence of responsibility.[171] If Montague were convicted in the District of Columbia, merely forty miles south of Baltimore, his showing of “sincere sympathy” for the victim and his family may have been enough to receive a sentence reduction or even release under the IRAA.[172]

B. Impact on Maryland’s Judiciary

While a fix to the statutory language could come by a recommendation from the Committee on Rules of Practice and Procedure,[173] the Justices may not vote favorably on such a proposal.[174] In 2021, the Supreme Court of Maryland considered an expansion of the JRA’s scope to include individuals aged 25 and under.[175] Maryland Justices chose to defer to the General Assembly as “state lawmakers are better positioned to enact such a sweeping change” given the complexity of procedural questions created by the change.[176] Considering the similarities in the objectives and statutory language of the IRAA and its expansions, Maryland’s General Assembly should amend the JRA to adopt the same approach to sentence reductions.[177]

In asking judges to follow the District of Columbia’s practice of refusing to hold a claim of innocence against applicants,[178] the General Assembly will likely consider the impact this change in discretionary power will have on judges.[179] In Maryland, judges have broad revisory power for criminal sentences and some would likely oppose a reduction of their discretion.[180] However, if the judiciary finds that this change in the interest of society, there may be less resistance.[181] In 2004, a victim’s rights movement to restrict the timing of sentence reductions was successful because, as Chief Judge Bell claimed, “judges don’t react to public clamor . . . but, we do react to what is good for the system and society as a whole.”[182]

Maryland already reacted to the predicament of remorse where innocence is a concern during initial sentencing.[183] While Maryland believes contrition is a valuable consideration to sentencing, its scope is minimized where the demeanor is “linked to a defendant’s prior claim of innocence.”[184] The General Assembly should not find it a substantial reach to extend the same analytical framework to reductions.

Scholars and judges attempted to create a solution to this issue in the context of parole, suggesting that, while refusing to admit guilt should not preclude release, a potential parolee should “provide a compelling reason” for this decision.[185] Going further, the recommendation required “significant factual reasons for casting doubt on their convictions.”[186] While this seems like a logical compromise for the competing interests in a sentence reduction, creating the aforementioned policy in Maryland would burden a reviewing judge’s fact finding objectives. However, in JRA hearings, judges are not determining culpability.[187] Rather, judges are determining fitness to re-enter society.[188] 

As the General Assembly contemplates the Maryland Second Look Act, legislation to allow a comparable sentence reduction hearing to any person after serving at least twenty years of their sentence is crucial to reconcile the issue of remorse requirements presented in this comment.[189] A greater number of applicants seeking reduction could introduce more innocence claims to judges, thereby increasing the likelihood that a lack of remorse could serve as a barrier to release. It is imperative for legislators to approach sentencing reforms while carefully considering the consequences and obstacles created by previous bills.

V. Conclusion

     Given the rising awareness of wrongful convictions and the decades of barriers to overturning them, Maryland must reimagine its response to innocent movants pursuant to the JRA. Finality in convictions is a cornerstone of the criminal justice system, but it should never eclipse the rights of defendants to hold the system accountable. Allowing remorse to keep innocent people in prison for life creates an imbalance of justice that diminishes the power and purpose of the JRA.  

The General Assembly’s passed the JRA to establish a pathway for juvenile lifers to prove their evolution, achieving a new beginning where hope otherwise did not exist. Following other jurisdictions that recognize the pitfalls of such a requirement would align Maryland with justice for all involved—allowing redemption for those who have earned a second chance choosing to acknowledge possible prosecutorial failures and giving closure to victims through possible rightful prosecution. Achieving justice does not require the courts to place one ideal over another; it is not a zero-sum game that places convictions above all else and holds mercy over the heads of those willing to pursue the truth.

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[1]Jayna Peterson: J.D. Candidate, May 2025, University of Baltimore School of Law; B.A.S., University of Michigan. First, I am deeply grateful to my friends and family for their unwavering support over the last three years. I also want to thank Professor Jaros for his valuable guidance during the development of this comment. Last and certainly not least, I would like to express my gratitude to my Volume 55 Law Forum staff. Your hard work and dedication brought this publication to life and made my tenure as Editor-in-Chief truly rewarding. Special recognition to Jessica Kweon and Emmett Hallameyer for not only being my sounding board but the best, most diligent Articles Editors I could have.

[2] Ord. Granting Def. Motion for Reduction of Sentence Under the Incarceration Reduction Amend. Act at 10–11, United States v. Wendell Poole, 1999 FEL 7782 (D.C. Super. Ct. Dec. 11, 2019) (No. 7782-99) [hereinafter Wendell Poole Order].

[3] Referred to as having “no choice at all.” Hobson’s Choice, Merriam-Webster, https://www.merriam-webster.com/dictionary/Hobson%27s%20choice (last visited Dec. 19, 2023).

[4] Md. Code Ann., Crim. Proc. § 8-110 (LexisNexis 2023).

[5] Brief for Appellant at 5, Montague v. State, No. 409, Sept. Term, 2024 WL 2746018 (Md. App. Ct. May 29, 2024) [hereinafter Montague Appeal] (citing to Order Denying Defendant’s Motion for Reduction of Sentence Pursuant to the Juvenile Restoration Act at 7–8, State of Md. v. Phillip Anthony Montague, No. 03-K-97-00262 (Cir. Ct. for Balt. Cnty. Apr. 6, 2023) [hereinafter Ballou-Watts Order], reprinted in id. at App. 1–11), cert. granted, 489 Md. 155 (2024).

[6] Montague Appeal, supra note 4, at 1–2.

[7] Id. at 1.

[8] Ballou-Watts Order, supra note 4, at 5.

[9] Id. at 7.

[10] Id. at 7–8.

[11] Id. at 4, 7 (“The Defendant has taken positive steps toward his education and skill development since his incarceration. He has also made behavioral changes . . . . However, the Defendant committed a senseless murder of one victim and the attempted murder of a second victim . . . .”).

[12] Id. at 5–8.

[13] See Merriam-Webster, supra note 2.

[14] Daniel Medwed, The Innocent Prisoner’s Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings, 93 Iowa L. Rev. 491, 497, 519 (2008) (expounding on the notion that an inmate’s admission of guilt would be “disastrous” for his appeals).

[15] Id. at 497.

[16] See Nat’l Registry of Exonerations, Race and Wrongful Convictions in the United States 4 (Samuel R. Gross & Barbara O’Brian eds., 2022), https://exonerationregistry.org/sites/exonerationregistry.org/files/documents/Updated%20CP%20-%20Race%20Report%20Preview.pdf (demonstrating that exoneration can take years, if not decades).

[17] Margaret Martin Barry, Opinion: No Place for Redemption in Maryland’s Criminal System, Md. Matters (Dec. 30, 2020, 8:10 AM), https://www.marylandmatters.org/2020/12/30/opinion-no-place-for-redemption-in-marylands-criminal-system/ (citing that chances of parole are “slim to none”).

[18] See Nat’l Registry of Exonerations, supra note 15.

[19] Ballou-Watts Order, supra note 4, at 6.

[20] Id.

[21] Id.

[22] Id. at 11.

[23] Montague v. State, No. 409, Sept. Term, 2024 WL 2746018 (Md. App. Ct. May 29, 2024),cert. granted, 489 Md. 155 (2024).

[24] See Rachel Konieczny, MD Supreme Court Hears Arguments on Sentence Reductions Under Juvenile Restoration Act, Daily Rec. (Feb. 6, 2025), https://thedailyrecord.com/2025/02/06/md-supreme-court-hears-arguments-on-sentence-reductions-under-juvenile-restoration-act/ [https://archive.ph/vPj67].

[25] Id. (pointing to the fact that Montague faces continuous denials of relief under the JRA due to his innocence claims).

[26] See discussion infra Section II.A.1.

[27] See discussion infra Section II.A.2.

[28] See discussion infra Section III.A.1–III.A.2.

[29] See discussion infra Section III.D.

[30] See discussion infra Section IV.B.

[31] Miller v. Alabama, 567 U.S. 460 (2012) (banning mandatory life without parole sentences for juveniles but leaving the possibility of JLWOP in rare cases where the court deems a child irredeemable).

[32] Laurence Steinberg, Adolescent Brain Science and Juvenile Justice Policymaking, 23 Psych., Pub. Pol’y, & L. 410, 413 (2017).

[33] See Graham v. Florida, 560 U.S. 48 (2010); see also Miller, 567 U.S. 460; see also Montgomery v. Louisiana, 577 U.S. 190 (2016).

[34] Juvenile Life Without Parole (JLWOP), Restore Just., https://www.restorejustice.org/issues/sentencing/juvenile-life-without-parole/ (last visited Feb. 22, 2024) (“[A] child 17 years old or younger [sentenced] to life in prison without the possibility of parole.”).

[35] Montgomery, 577 U.S. at 213 (writing for the majority, Justice Kennedy explained their finding that a ban on juvenile life without parole should be retroactive).

[36] A Majority of U.S. States Have Abandoned Sentencing Children to Die in Prison, Campaign for the Fair Sent’g of Youth, https://cfsy.org/ (last visited Nov. 10, 2023) (referencing the map that illustrates where legislation has banned JLWOP and where states still allow the sentence).

[37] Campaign for the Fair Sent’g of Youth, Tipping Point: A Majority of States Abandon Life-without-Parole Sentences for Children 4 (2018), https://cfsy.org/wp-content/uploads/Tipping-Point.pdf [hereinafter JLWOP Movement]; see also Mariam Arain et al., Maturation of the Adolescent Brain, 9 Neuropsychiatric Disease and Treatment 449, 451 (2013) (explaining that the prefrontal cortex of the brain continues to develop until the age of 25). 

[38] Campaign for the Fair Sent’g of Youth, supra note 35.

[39] JLWOP Movement, supra note 36, at 10 (noting that Black children make up seventy-two percent of juvenile life without parole sentences since the Miller decision).

[40] Campaign for the Fair Sent’g of Youth, Juvenile Restoration (HB409/SB494) Factsheet (2021), https://cfsy.org/wp-content/uploads/HB409_SB494_JuvenileRestorationAct_FACTSHEET-1.pdf.

[41] Dylan Segelbaum, ‘It Means Everything:’ How the Juvenile Restoration Act Has Provided a Second Chance for People Sentenced as Children to Prison in Maryland,  Balt. Banner (Oct. 3, 2022, 6:00 AM), https://www.thebaltimorebanner.com/community/criminal-justice/it-means-everything-how-the-juvenile-restoration-act-has-provided-a-second-chance-for-people-sentenced-as-children-to-prison-in-maryland-HDCZ6OY2TFAR3G4IUK6VKUTJUM/.

[42] Just. Policy Inst., Rethinking Approaches to Over Incarceration of Black Young Adults in Maryland 3 (2019), https://justicepolicy.org/wp-content/uploads/2022/02/Rethinking_Approaches_to_Over_Incarceration_MD.pdf.

[43] Baltimore Sun Editorial Board, Maryland’s House Speaker Crafts Ambitious ‘Black Agenda’ to Close Equity Gaps, Balt. Sun (Jan. 22, 2021, 6:10 PM), https://www.baltimoresun.com/opinion/editorial/bs-ed-0121-speaker-equity-plan-20210121-6bnzuqxirvcn5dnuwozft23bge-story.html; see also Tyler Waldman, General Assembly to Conduct Racial Impact Reviews of Criminal Justice Bills, WBAL News Radio (Feb. 1, 2021), https://www.wbal.com/general-assembly-to-conduct-racial-impact-reviews-of-criminal-justice-bills/ (recognizing systemic inequities and the impact of criminal justice legislation to combat them). 

[44] Elizabeth Weill-Greenberg, Maryland Bans Sentencing Children to Life Without Parole, Appeal (Apr. 13, 2021), https://theappeal.org/politicalreport/maryland-bans-sentencing-children-to-life-without-parole/.

[45] See generally Md. Dep’t of Legis. Servs., Fiscal & Policy Note, S.B. 494, 442d Sess. (2021), https://mgaleg.maryland.gov/Pubs/BudgetFiscal/2021rs-SB494-REIN.pdf.

[46] Md. Code Ann., Crim. Proc. § 8-110(d) (LexisNexis 2021); S.B. 494, 442nd Gen. Assemb., Reg. Sess. (Md. 2021).

[47] § 8-110(c)(1)–(2).

[48] § 8-110(d).

[49] See infra notes 49–50 and accompanying text.

[50] M. Eve Hanan, Remorse Bias, 83 Mo. L. Rev. 302, 316 (2018); Medwed, supra note 13, at 512–13; see also § 8-110(d)(5).

[51] See § 8-110(d)(11); see discussion infra Section III.A.1; see also Montague Appeal, supra note 4.

[52] Rocksheng Zhong, So You’re Sorry? The Role of Remorse in Criminal Law 4 (Jan. 2013) (Ph.D. thesis, Yale University) (on file with Yale Medicine Thesis Digital Library).

[53] Id. (“Defendants, particularly those sentenced to death, were expected to confess and repent so that religious sermon delivered at their public execution could instill righteousness among the townsfolk.”); see also Bryan H. Ward, Sentencing without Remorse, 38 Loy. U. Chi. L.J. 131, 137 (2006) (“Minor sins were commonly punished, however, ‘severity was not the point of punishing minor sins. The point was repentance and a good swift lesson.’”); see also Athula Pathinayake, Should We Deter Against General Deterrence?, 9 Wake Forest J.L. & Pol’y 63, 78 (2018) (“General deterrence can be described as deterring the general public through awareness of the punishments inflicted for the offense.”).

[54] Ward, supra note 52.

[55] Though, the expression of remorse was not considered effective for the defendant. Id. 

[56] Id. at 131.

[57] Id. at 138.

[58] Susan A. Bandes, Remorse and Criminal Justice, 8 Emotion Rev. 14, 17 (2016).

[59] Riggins v. Nevada, 504 U.S. 127, 144 (1992) (Kennedy, J., concurring) (explaining that a defendant’s unaffected demeanor is important during sentencing because the court “must attempt to know the heart and mind of the offender”).

[60] 18 USCS Appx § 3E1.1 (LexisNexis 2023).

[61] Richard Weisman, Showing Remorse: Reflections on the Gap Between Expression and Attribution in Cases of Wrongful Conviction, 46 Canadian J. Crim. and Crim. Just. 121, 124 (2004).

[62] Lovashni Khalikaprasad, Remorse, Not Race: Essence of Parole Release?, 9 J. Race, Gender, & Ethnicity 131, 131 (2020).

[63] See Hanan, supra note 49, at 312 (“[E]xpressions of remorse signal that the defendant has undergone an internally driven ‘moral reform.’ Someone who expresses deep regret for his actions seems unlikely to commit the same crime again.”).

[64] Saenz v. State, 95 Md. App. 238, 249 (1993) (quoting United States v. Grayson, 438 U.S. 41, 50 (1978)).

[65] Jennings v. State, 339 Md. 675 (1995).

[66] See Medwed, supra note 13 passim (discussing the dilemma behind innocent inmates admitting guilt to receive early release).

[67] Bruce DePuyt, ‘This Can’t Keep Happening:’ Top Lawmakers Rally to Help Exonerees, Md. Matters (Jan. 15, 2020, 6:43 PM), https://www.marylandmatters.org/2020/01/15/this-cant-keep-happening-top-lawmakers-rally-to-help-exonerees/.

[68] Id.

[69] Id.

[70] Id. (explaining that his word meant nothing, but he never gave up on the truth).

[71] Tim Prudente, Baltimore Brothers Set Free After 24 Years in Prison for Wrongful Murder Conviction, Balt. Sun (Jun. 29, 2019, 5:39 PM), https://www.baltimoresun.com/2019/05/03/baltimore-brothers-set-free-after-24-years-in-prison-for-wrongful-murder-conviction/.

[72] Ovetta Wiggins, Maryland Brothers Awarded $3.8 million after being wrongfully jailed for 24 years, Wash. Post (Jun. 17, 2020), https://www.washingtonpost.com/local/md-politics/maryland-exonerees-2-million/2020/06/17/db4832a6-b0b6-11ea-8f56-63f38c990077_story.html (“In 2010, he said, the parole board told him, ‘Never come back. You’ll never get parole.’”); Interview with Eric Simmons, in Falls Church, Va. (Mar. 22, 2024).

[73] See, e.g., Michele Nethercott, Finality, Fairness, and the Problem of Innocence in Maryland,52 U. Balt. L. Rev. 33, 35–36 (2022) (“[E]ighteen years after the presentation of this alibi evidence, and after several rounds of litigation at the trial and appellate level, [George Seward’s] conviction remained intact because of the appellate court’s characterization of the performance of his trial attorney.”); see also Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments,38 U. Chi. L. Rev. 142, 147–48 (1970)(calling exoneration efforts “self-defeating” where few individuals find freedom through post-conviction).

[74] See infra note 153 (laying out avenues for relief as (1) Motion for a new trial; (2) motion to modify or reduce sentence; (3) motion to modify based on illegal sentence, fraud, mistake or irregularity; (4) three judge panel to reduce or modify; (5) appeal to the Appellate Court of Maryland; (6) leave to appeal to the Supreme Court of Maryland; (7) Post-conviction; (8) Writ of Coram Nobis; (9) Writ of Habeas Corpus; (10) Writ of Actual Innocence; (11) Motion to vacate judgement; (12) Post-conviction DNA testing; and (13) Parole system).

[75] See Explore the Numbers: Innocence Project’s Impact, Innocence Project, https://innocenceproject.org/exonerations-data/ (last visited May 3, 2025) (noting that their clients spent an average of 16 years in prison before exoneration).

[76] Id. (indicating that DNA testing for one case can cost between $5,000 and $50,000 alone).

[77] Medwed, supra note 13, at 531–32 (“The main ingredients in the exoneration stew include situations where: (1) there is either biological evidence appropriate for DNA testing that has not been degraded, destroyed, or lost over time or otherwise compelling, available, and newly discovered non-DNA evidence; (2) the inmate is serving a sufficiently lengthy sentence on a serious crime so as to provoke a lawyer or legal organization into reviewing the case and championing the inmate’s cause; (3) the posture of the case enables the defense team to dodge procedural default; and or (4) the assigned prosecutor or judge demonstrates openness to the allegations”). The issue becomes even more complicated when one administration believes in a person’s innocence and the next does not. See Dylan Segelbaum, Baltimore State’s Attorney Abandons Motion to Throw Out Adnan Syed’s Conviction, Balt. Banner (Feb. 25, 2025, 7:39 PM), https://www.thebaltimorebanner.com/community/criminal-justice/adnan-syed-motion-to-vacate-ivan-bates-T3PW5EDUKNHV7C7CV5TKMJQ5FQ/.

[78] See Hannah Gaskill, Bill Would Open the Door for Investigations in Wrongful Conviction Cases, Md. Matters (Feb. 2, 2022, 6:35 AM), https://www.marylandmatters.org/2022/02/02/bill-opens-the-door-for-investigations-in-wrongful-conviction-cases/ (“Armbrust noted a case where police coerced a false confession from a developmentally disabled person after threatening him with the death penalty, untruthfully telling him that he failed a polygraph examination and interrogating him throughout the night while withholding food and sleep.”); The court explained Joseph Cassilly’s disbarment after conduct contributing to and in furtherance of Josh Huffington’s wrongful conviction as “a lawyer who, in his capacity as a prosecutor, knowingly and intentionally failed to disclose for more than a decade exculpatory evidence that came to light after a defendant’s conviction, discarded the evidence, knowingly made false statements of fact to a court and defense counsel concerning the content of the evidence, opposed the defendant’s postconviction petitions and sought to have forensic evidence that was the subject of the defendant’s post-trial request for review destroyed, and, during bar counsel’s investigation, failed to comply with a subpoena to provide a statement under oath.” See also Kathryn Rubino, ‘I Don’t Give a Damn,’ Says Disbarred Attorney in Outrageous Ethics Case, Above Law (Oct. 27, 2021, 2:44 PM), https://abovethelaw.com/2021/10/i-dont-give-a-damn-says-disbarred-attorney-in-outrageous-ethics-case/.

[79] See discussion supra Section II.

[80] Gaskill, supra note 77 (noting that Shawn Armbrust of the Mid-Atlantic Innocence Project says, “exoneration cases in Maryland have higher than average rates of official misconduct.”).

[81] The National Registry of Exonerations, Univ. of Mich., https://exonerationregistry.org/Exonerations-in-the-United-States-Map#crimeState (use map to click “Maryland”) (last visited May 3, 2025).

[82] Id. (click on “Maryland”; then filter for “official misconduct”).

[83] The authors note that Brady violations occurred in 63% of the wrongful convictions, which means Maryland misconduct far exceeds the average. See Nat’l Registry of Exonerations, supra note 15 at 6; see also Chouleng Soun, The Rising Tide of Wrongful Convictions: The Shortcomings of Brady and the Need for Additional Safeguards,56 New Eng. L. Rev. 221, 234–45 (“Brady disclosures are necessary to an impartial criminal justice system because they contribute to an accurate determination of guilt or innocence. Unfortunately, the National Registry of exonerations found that official misconduct contributed to a wrongful conviction in 56% of 2,991 cases since 1989.”).

[84] Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). 

[85] Professor Erica Suter explains that while prosecutorial misconduct, such as withholding evidence, has led to many exonerations, there isn’t just one factor that contributes to wrongful prosecution. See Abby Zimmardi & Shannon Clark, Release of Adnan Syed Focuses Attention on Maryland Wrongful Prosecutions, Md. Matters (Sept. 26, 2022, 6:50 AM), https://www.marylandmatters.org/2022/09/26/release-of-adnan-syed-focuses-attention-on-maryland-wrongful-prosecutions/.

[86] Brief of the Law Enforcement Action Partnership and the National Police Accountability Project as Amici Curiae Supporting Petitioner, at 17, Reed v. Goertz, (No. 21-442) (“Erroneous convictions undermine public confidence in the fairness of the criminal legal system.”); Robert J. Norris et al., The Criminal Costs of Wrongful Convictions: Can We Reduce Crime by Protecting the Innocent?, 19 Criminology & Pub. Pol’y 1, 2 (2019).

[87] Nat’l Registry of Exonerations, supra note 15, at 1.

[88] Id. at 6.

[89] See discussion supra Section II.A.1.

[90] Weill-Greenberg, supra note 43.

[91] Medwed, supra note 13, at 532 (explaining the random nature of what actually brings about an exoneration, not just the merits of the case itself).

[92] Id.

[93] Medwed, supra note 13, at 520–21 (explaining the team of people, including a group of law students who were required to help reinvestigate a wrongful conviction).

[94] Nethercott, supra note 72, at 38.

[95] Md. Rule 8-204; See  Md Ct. Spec. App., A Guide for Self-Representation 3 (2018), https://www.courts.state.md.us/sites/default/files/import/cosappeals/pdfs/cosaguideselfrepresentation.pdf,(explaining that in cases where direct appeal is not an attainable option, individuals must file an “application for leave to appeal”).

[96] Steve Klepper, Maryland’s Discretionary Standard for Applications for Leave to Appeal, Md. App. Blog (Mar. 2, 2022), https://mdappblog.com/2022/03/02/marylands-discretionary-standard-for-applications-for-leave-to-appeal/.

[97] Nethercott, supra note 72, at 37–39; see also Zimmardi & Clark, supra note 84.

[98] Hunter Parnell, The Wrongful Conviction of Cyrus Wilson with Cyrus Wilson and Dawn Deaner, Pub. Defenseless (July 13, 2022) (downloaded using Spotify).

[99] See Lea Skene, How Two New Maryland Laws Paved the Way for Adnan Syed’s Long-Awaited Release from Prison, Balt. Sun (Sep. 25, 2022, 9:00 AM), https://www.baltimoresun.com/2022/09/25/how-two-new-maryland-laws-paved-the-way-for-adnan-syeds-long-awaited-release-from-prison/ (calling Syed’s vacatur “an extraordinary confluence of events”).

[100] Id. (citing “alarming discoveries, including alternative suspects, disclosure issues[,] and unreliable evidence used at trial”).

[101] Alex Mann, Baltimore Prosecutors Move to Vacate Adnan Syed Conviction in 1999 Murder Case Brought to National Fame in ‘Serial’ Podcast, Balt. Sun (Sep. 14, 2022, 6:57 PM), https://www.baltimoresun.com/2022/09/14/baltimore-prosecutors-move-to-vacate-adnan-syed-conviction-in-1999-murder-case-brought-to-national-fame-in-serial-podcast/.

[102] See generally Lee v. State, 257 Md. App. 481 (2023); see also Skene, supra note 98; see also Michael Levenson & Abbie Vansickle, Court Reinstates Adnan Syed’s Murder Conviction in ‘Serial’ Case and Orders New Hearing, N.Y. Times (Mar. 28, 2023), https://www.nytimes.com/2023/03/28/us/adnan-syed-serial-conviction-reinstated.html; see also Daniella Silva & Julia Jester, Adnan Syed Returns to Courts as Maryland Supreme Court Weights Victims’ Rights, NBC News (Oct. 5, 2023, 4:21 PM), https://www.nbcnews.com/news/us-news/adnan-syed-serial-podcast-subject-returns-court-maryland-supreme-court-rcna119063.

[103] See generally Syed v. Lee, 488 Md. 537 (2024) (remanding the case to the Baltimore City State’s Attorney’s office to redo the vacatur hearing because the Lee family did not receive proper notice to attend the hearing); see also Danielle J. Brown, Maryland Supreme Court Reinstates Adnan Syed’s Murder Conviction, Orders New Hearing, Md. Matters (Aug. 30, 2024, 10:55 PM), https://marylandmatters.org/2024/08/30/maryland-supreme-court-reinstates-adnan-syeds-murder-conviction-orders-new-hearing/.

[104] See Segelbaum, supra note 76.

[105] See e.g., Amanda Engel, Adnan Syed Files for Relief under the Juvenile Restoration Act, WMAR2News

 (Dec. 23, 2024, 2:42 PM), https://www.wmar2news.com/infocus/adnan-syed-files-for-relief-under-the-juvenile-restoration-act (”[O]ur concerns are focused on Adnan’s liberty . . . . This filing is a small step toward ensuring that Adnan’s custody status is stabilized[,] and his freedom is safeguarded.”).

[106] See Segelbaum, supra note 40 (citing that Senator West “strongly believe[s] that each of us inside us, whether it’s our soul or our conscience or our heart or whatever, has the capacity for redemption.”); Sexton v. State, 258 Md. App. 525, 588 (2023) (quoting written testimony of Senator Christopher West submitted to the House Judiciary Committee concerning the JRA).

[107] See infra notes 107–108.

[108] Juveniles Convicted as Adults – Sentencing – Limitations and Reduction (Juvenile Restoration Act): Hearing on H.B. 409 Before the H. Jud. Cmte., 2021 Reg. Sess. (Md. 2021) (question from Luke Clippinger, Committee Chairman).

[109] Mr. Shipp responds to Chairman Clippinger’s question about why remorse is not a required factor, citing to previous testimony by Rabia Chaudry and Former Baltimore City State’s Attorney Marilyn Mosby about the prevalence of wrongful convictions in Maryland and how legislation like this could also contribute to the release of innocent inmates who otherwise can’t get home. Id.

[110] Tarika Daftary-Kapur & Tina M. Zottoli, Montclair St. Univ., Reentry Experiences of Released Juvenile Lifers in Philadelphia 2 (2022), https://www.msudecisionmakinglab.com/lifers-policy-brief; Juveniles Convicted as Adults – Sentencing – Limitations and Reduction (Juvenile Restoration Act): Hearing on H.B. 409 Before the H. Jud. Cmte., 2021 Reg. Sess. (Md. 2021) (statement of bill sponsor, Del. Jazz Lewis).

[111] The recidivism rate was 30.7% after one year, 48.6% after three years, and 60.7% after ten years. See Matthew Clarke, Justice Department Releases Ten-Year Recidivism Study, Prison Legal News (Mar. 1, 2022), https://www.prisonlegalnews.org/news/2022/mar/1/justice-department-releases-ten-year-recidivism-study/. After three years, the recidivism rate was 31.55% in Maryland. See also Dep’t of Pub. Safety and Corr. Serv., Recidivism Report 9 (2022), https://dpscs.maryland.gov/publicinfo/publications/pdfs/2022_p157_DPSCS_Recividism%20Report.pdf.

[112] See Daftary-Kapur & Zottoli, supra note 109; Juveniles Convicted as Adults – Sentencing – Limitations and Reduction (Juvenile Restoration Act): Hearing on H.B. 409 Before the H. Jud. Cmte., 2021 Reg. Sess. (Md. 2021) (statement of bill sponsor, Del. Jazz Lewis).

[113] See discussion supra Section II.

[114] See discussion supra Section II.

[115] See generally Miller, 567 U.S. 460 (2012) (holding that mandatory life without parole sentences are unconstitutional for juveniles); see also Cara H. Drinan, The Miller Trilogy and the Persistence of Extreme Juvenile Sentencing 58 Am. Crim. L. Rev. 1659, 1659–60 (2021).

[116] Daftary-Kapur & Zottoli, supra note 109, at 2; A Study of Michigan Suggests Released ‘Juvenile Lifers’ Rarely Reoffend, Imprint (Aug. 23, 2021, 11:44 AM), https://imprintnews.org/news-briefs/michigan-released-juvenile-lifers-rarely-reoffend/58122.

[117] See Md. Off. of the Pub. Def., The Juvenile Restoration Act Year One—October 1, 2021 to September 30, 2022 12–13 (2022). As of October 2022, 24 people have been released under the JRA, and none have recidivated or violated parole. Id.

[118] Nicole Bronnimann, Remorse in Parole Hearings: An Elusive Concept with Concrete Consequences, 85 Mo. L. Rev. 321, 330 (2020) (“It is thus fair to say that there is at least some empirical support for the notion that expression of remorse correlates with reduced recidivism. But that relationship is far from well-established . . . .”).

[119] Allison Maxwell & Gabrielle Morris, Family Group Conferences and Reoffending, in Restorative Justice for Juveniles: Conferencing, Mediation, and Circles 243, 246 (2001).

[120] Eddie Kadhim, The Push to Stop Putting Juveniles Away for Life, WMAR (Jan. 20, 2021, 6:35 AM), https://www.wmar2news.com/news/local-news/the-push-to-stop-putting-juveniles-away-for-life (statement of National Organization of Victims of Juvenile Murderers) (“While many juvenile offenders have the potential for positive change, there are many who are psychopaths. Psychopaths will always pose a danger because there is no cure or treatment for psychopathy . . . . Life without parole may be necessary to protect the public.”).

[121] Bronnimann, supra note 117.

[122] Id. at 330.

[123] Id. at 329.

[124] Id. at 330 (suggesting that data supporting a correlation between remorse and decreased recidivism could be faulty based on (1) parole commissioner’s difficulty distinguishing sincere remorse from a psychopath’s counterfeit remorse; and (2) outside pressures like drug addiction and relationship issues outweigh genuine remorse for a crime); see also discussion infra Section III.D.

[125] Michael Proeve, Addressing the Challenges of Remorse in the Criminal Justice System, 30 Psychiatry, Psych. & L. 68, 70 (2023).

[126] Id.

[127] Id.

[128] Bandes, supra note 57, no. 1, at 15 (defining remorse to “include several characteristics: a recognition that one has caused harm; an acceptance of responsibility for causing that harm; an associated internal strife; a desire to atone or make things right; a desire to be forgiven; and perhaps some actions in furtherance of atonement and reparation.”).

[129] Ward, supra note 52, at 135–36 (“[R]emorse is an entirely internal phenomenon which may not be amenable to refutation by countervailing external evidence.”).

[130] See Hanan, supra note 49, at 304–05.

[131] See Hanan, supra note 49, at 320 (indicating that if a defendant apologizes but does not show “true remorse” through nonverbal behavior, the apology will be “ineffective and may even be harmful.”); see also Emily P. Corwin et al., Defendant Remorse, Need for Affect, and Juror Sentencing Decisions, 40 J. Am. Acad. Psychiatry L. 41, 41 (2012).

[132] See Hanan, supra note 49, at 322–23.

[133] See Ward, supra note 52, at 134.

[134] Zhong, supra note 51, at 12 (“Given that psychiatric disorders can alter . . . expression of remorse, persons with mental illness may be further disadvantaged in this regard.”).

[135] See Hanan, supra note 49, at 305–06, 321 (commenting on “remorse bias” because of subjectivity in expression and interpretation); see also Eve Hanan, Bias and the Remorse Discount, 43 Champion 16, 17 (2019)(“[T]here is ‘little to no evidence that remorse can be accurately evaluated based on demeanor or body language.’”).

[136] Nonverbal cues or behaviors from a defendant in sentencing are, for example, crying, frowning, having an unsteady voice, eye contact, looking at the floor, covering your face, etc. See Emily P. Corwin et al., Defendant Remorse, Need for Affect, and Juror Sentencing Decisions, 40 J Am Acad. Psychiatry L. 41, 42 (2012) (providing that nonverbal cues or behaviors from a defendant in sentencing are, for example, crying, frowning, having an unsteady voice, eye contact, looking at the floor, covering your face, etc.); see also Bandes, supra note 57, at 14.

[137] Bandes, supra note 57, at 14.

[138] See Joseph W. Rand, The Demeanor Gap: Race, Lie Detection, and the Jury, 33 Conn. L. Rev. 1, 4 (2000); see also Implicit Bias, Am. Psych. Ass’n., https://www.apa.org/topics/implicit-bias (last visited Feb. 19, 2024) (“Implicit bias, also known as implicit prejudice or implicit attitude, is a negative attitude, of which one is not consciously aware, against a specific social group.”).

[139] See Hanan, supra note 49, at 329–30 (citing a heightened “association between African Americans and criminality and dangerousness.”); see also Danielle Macedo, What Kind of Justice is This? Overbroad Judicial Discretion and Implicit Bias in the American Criminal Justice System, 24 J. Gender Race & Just. 43, 47 (2021) (“’[W]hether because of conscious bias, unconscious stereotypes linking race with crime, or colorblind application of racially tinged policies . . . [judicial] sentencing [decisions] are not racially neutral’ overall.”); see also Belton v. State, 483 Md. 523, 528 (2023) (concerning the Appellate Court’s opinion which “compared Belton—an African American man—to Grendel, the mythical monster in the Old English epic, Beowulf.”). 

[140] Hanan, supra note 49, at 334; see Anthony G. Greenwald et al., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test 74 J. Personality & Soc. Psych. 1464, 1474 (1998).

[141] Standing Comm. On Rules Of Prac. And Proc., Rep. No. 221, Notice Of Proposed Rules Changes 14 (2024).

[142] See supra notes 129–132 and accompanying text.

[143] The Leadership Conf. On Civ. & Hum. Rts., Fact Sheet – Barriers to Successful Re-Entry of Formerly Incarcerated People 1 (2017), https://civilrightsdocs.info/pdf/criminal-justice/Re-Entry-Fact-Sheet.pdf.

[144] See Zhong, supra note 51, at 16 (citing remorse groupings as (1) the legal relevance of remorse in criminal justice; (2) the time and place for remorse; (3) expressions of remorse; and (4) remorse and mental illness).

[145] Id. at 17.

[146] Id. at 17–18.

[147] Id. at 18.

[148] See discussion supra Section I.

[149] See Kenneth Bond, Wrongfully Convicted, Freed After 27 Years, Georgetown Prisons and Just. Initiative, https://prisonsandjustice.georgetown.edu/news/kenneth-bond-wrongfully-convicted-freed-after-27-years/ [hereinafter Bond JRA] (last visited Jan. 5, 2024).

[150] Id.

[151] See Making an Exoneree, Georgetown, https://prisonsandjustice.georgetown.edu/programs/makinganexoneree/ (last visited Jan. 5, 2024).

[152] Bond JRA, supra note 148.

[153] See Steven Grossman & Stephen Shapiro, Judicial Modification of Sentences in Maryland, 33 U. Balt. L. Rev. 1, 28–29 (2003) (citing that allowing sentence reductions “deprives victims of closure.”); see also Guest Commentary, State’s Attorney: Sentencing Rule Changes Would Retraumatize Victims. That Shouldn’t Happen., Md. Matters (Apr. 7, 2021, 6:25 AM), https://www.marylandmatters.org/2021/04/07/sheriff-sentencing-rule-changes-would-retraumatize-victims-that-shouldnt-happen/.

[154] Juveniles Convicted as Adults – Sentencing – Limitations and Reduction (Juvenile Restoration Act): Hearing on S.B. 494 Before the S. Jud. Proc. Cmte., 2021 Reg. Sess. (Md. 2021) (written statement of Scott Shellenberger, State’s Att’y for Baltimore County) (explaining that Maryland has 13 avenues for challenging a conviction and finding relief, but the JRA would add three more).

[155] Md. Code Ann., Crim. Proc. § 8-110 (LexisNexis 2021).

[156] Jennifer N. Weintraub & Kimberly M. Bernstein, Identifying and Charging True Perpetrators in Cases of Wrongful Convictions, 1 Wrongful Conviction L. Rev. 181, 182 (2020).

[157] The goals of punishment are retribution, deterrence, rehabilitation, and incapacitation. See Weintraub & Bernstein, supra note 155. These goals, specifically those like retribution, are predicated on the person receiving the punishment being one who committed a crime. Id. Where no crime has been committed, the goals of punishment serve no purpose in protecting the public or changing the person’s behavior. Id.; see also Doris L. Mackenzie, Sentencing and Corrections in the 21st Century: Setting the Stage for the Future 1 (2001), https://www.ojp.gov/sites/g/files/xyckuh241/files/archives/ncjrs/189106-2.pdf

[158] See Restorative Justice Program, Off. of the Att‘y Gen. for the D.C., https://oag.dc.gov/public-safety/restorative-justice-program (last visited Mar. 17, 2024) (defining restorative justice as a “theory of justice that emphasizes repairing the harm caused by criminal behavior); see also Jane C. Murphy, Restorative Justice: Healing Victims and Reducing Crime, Balt. Sun (Jan. 24, 2018, 9:07 AM), https://www.baltimoresun.com/2018/01/24/restorative-justice-healing-victims-and-reducing-crime/.

[159] Caitlin Keating, How One Man Forgave His Brother’s Killer—and Helped Him Be Released from Prison, People (Jun. 1, 2023, 10:55 AM), https://people.com/darryl-green-deep-forgiveness-man-forgave-brothers-killer-exclusive-7506937; The grieving process is complicated, but participation in resentencing like to JRA could allow victims to heal and move on. See also Juveniles Convicted as Adults – Sentencing – Limitations and Reduction (Juvenile Restoration Act): Hearing on S.B. 494 Before the S. Jud. Proc. Cmte., 2021 Reg. Sess. (Md. 2021) (statement of Becky Feldman) (explaining that most victims in Baltimore City are neutral when it comes to resentencing efforts, but some even want to help facilitate their release, citing specific victims who even run reentry programs) [hereinafter Feldman Testimony].

[160] Keating, supra note 158.

[161] Id.

[162] See, e.g., Feldman Testimony, supra note 158.

[163] D.C. Code § 24-403.03(c)(1)–(11) (2021).

[164] Id.

[165] Charles Stimson & GianCarlo Canaparo, D.C. Is Poised to Triple Down on Early Release of Violent Criminals, Heritage Found. (Sep. 19, 2019), https://www.heritage.org/crime-and-justice/commentary/dc-poised-triple-down-early-release-violent-criminals; The New Law: The Second Look Amendment Act, Pub. Def. Serv. for the D.C., https://www.pdsdc.org/resources/client-resources/second-look-amendment (last visited Jan. 13, 2024).

[166] See Elizabeth S. Scott et al., Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev. 641, 642 (2016) (explaining that emerging adults, aged 18 to 21, are still developing and susceptible to the same impulsivity and immaturity as adolescents).

[167] See Walter Pavlo, DC Superior Court Giving Second Chances to Prisoners, Forbes (Oct. 14, 2023, 3:56 PM), https://www.forbes.com/sites/walterpavlo/2023/10/14/dc-superior-court-giving-second-chances-to-prisoners/?sh=3990ca964b43; see also Leah Sakala & Leigh Courtney, The New DC Second Look Amendment Act is a Step in the Right Direction, and Community Supports for Young Adults Can Build on This Progress, Greater D.C. Blog (Dec. 17, 2020), https://greaterdc.urban.org/blog/new-dc-second-look-amendment-act-step-right-direction-and-community-supports-young-adults-can.

[168] See Wendell Poole Order, supra note 1, at 10–11; Ord. Granting Def. Motion to Supplement Amend Motion to Vacate Convictions on the Ground of Actual Innocence with Claim to Reduce Sentence Under D.C. Code § 24-403.03 at 11, United States v. Troy D. Burner, 1993 FEL 003980 (D.C. Super. Ct.) [hereinafter Burner Order]; Ord. Granting Def. Motion for Reduction of Sentence Under the Incarceration Reduction Amend. Act at 12–13, United States v. Warren Allen, 2000 FEL 006780 (D.C. Super. Ct.).

[169] Wendell Poole Order, supra note 1, at 10–11.

[170] Burner Order, supra note 167, at 11.

[171] Id. at 12.

[172] Id.; see also Ballou-Watts Order, supra note 4, at 7.

[173] The Standing Committee of Rules of Practice and Procedure is a group of lawyers and other system actors appointed by the Supreme Court of Maryland to review proposed changes to law and then make recommendations for favorable changes to the court for Maryland Procedure; see generally Standing Committee on Rules of Practice and Procedure, Md. Cts., https://www.mdcourts.gov/rules (last visited Dec. 28, 2023); see also Md. Code Ann., Cts. & Jud. Proc. § 13-301 (LexisNexis 2023).

[174] Phil Davis, Maryland’s Highest Court Takes No Stand on Proposal That Could Trim Prison Sentences for Long-Serving Inmates, Balt. Sun (Aug. 27, 2021, 2:39 PM), https://www.yahoo.com/now/maryland-highest-court-takes-no-183900313.html.

[175] Id.

[176] Id.

[177] Compare D.C. Code § 24-403.03 (2021), with Md. Code Ann., Crim. Proc. § 8-110(d) (LexisNexis 2021). 

[178] § 24-403.03.

[179] See Grossman & Shapiro, supra note 152, at 1, 2–3 (explaining that the study of judicial discretion in sentence modifications was conducted after the General Assembly wanted a clearer understanding of procedure).

[180] Id. at 1–2, 28 (citing opposition from “virtually all trial judges” in Maryland for a bill limiting timing for sentence modifications); see also Md. Rule 4-345.

[181] Guest Commentary, supra note 152.

[182] Id.

[183] See generally Saenz v. State, 95 Md. App. 238 (1993).

[184] Id. at 250–51.

[185] Paul Cassell, The Parole System Needs a Small Safety Valve for the Innocent, N.Y. Times (Dec. 4, 2014, 10:46 AM), https://www.nytimes.com/roomfordebate/2014/11/13/parole-when-innocence-is-claimed/the-parole-system-needs-a-small-safety-valve-for-the-innocent.

[186] Id.

[187] See discussion supra Section II.A.2.

[188] See discussion supra Section II.A.2.

[189] See S.B 145, 446th Gen. Assemb., Reg. Sess. (Md. 2024); 2024 Legislative Priorities for Criminal Justice Reform in Maryland, Md All. for Just. Reform, https://www.ma4jr.org/initiatives-2024/ (last visited Feb. 25, 2024).