Legislation Looks To Change Youth Sentencing, Offer Retroactive Relief

by Bunthay Cheam

A collection of proposed legislation working its way through the Washington State Legislature could substantially change sentencing of young offenders, as well as revise sentences for those currently incarcerated.

The bills include:

• HB 1413, which proposes to eliminate the use of prior juvenile felony convictions in calculating adult sentences and allows for resentencing

• SB 5164, which makes a 2019 law removing second-degree robbery from the Washington Three Strikes Law retroactive.

• HB 1344, which proposes to increase the age for a sentence review from under-18 to 25

• SB 5120, which seeks to codify youthfulness as a factor in sentencing.

• HB 1282/SB 5285, which expands "earned release time."

At the heart of these bills is a reimagining and redefinition of how the state defines youthful offenders and sentences them. These bills also offer the possibility of retroactive relief for adult prisoners sentenced, especially as juveniles, and also addresses legislation that was enacted during the 1990s "tough on crime" era that Black and Brown communities have been particularly vulnerable to.

"These bills carry with them a tremendous amount of hope because our system has changed over the last 30 years and it got very, very bad where we called Black and Brown people super-predators and every single place along the pathway of justice, we have infused [those points] with racism," said Senator Jeannie Darneille, who is the prime sponsor of SB 5120.

In King County, the state's largest and one of the most diverse, a 2017 study revealed that Youth of Color were nearly 6% more likely to be held in detention compared to white youth, excluding those charged as adults. Eighteen percent were Black and 12% were Hispanic, despite making up less than 10% each of the county's population.

"We have a huge issue in Washington where youth are being declined into the adult system. They're being charged as adults, even though they're children," said Karisa Morikawa, Director of Community Engagement and Systems Innovation at Choose 180.

In Washington State, prosecutors can petition to have youth tried as an adult, thereby declining them out of the juvenile court system and into the jurisdiction of the adult superior court system.

In addition, youth ages 16 and 17 are automatically declined to the adult court system when charged with certain felonies based on a law passed in 1994.

Being prosecuted in the juvenile court system versus the adult superior court system has drastic implications. Those convicted in the juvenile system are released from prison at the age of 21, while those convicted in the adult system are subject to standard sentencing ranges and mandatory minimums.

"Those sentencing ranges often come from things that we saw in the 1980s and 1990s, a tough on crime era … one of the policies that they put out was a minimum sentence for certain charges and we're still seeing the impact of that now," said Morikawa.

In 2018, the total population of those in Washington State prisons who were Black made up 18% despite making up only 5% of the state population, 13% were Latinx while making up 10% of the state population, and 5% were Indigenous despite being only 2% of the state population.

Organizing around some of these bills began inside Department of Corrections facilities across Washington by organizations such as the Black Prisoner Caucus (BPC) and the Asian Pacific Islander Cultural Awareness Group (APICAG), the Concerned Lifers Organization (CLO), Native American Circle, Look2Justice, and Free Them All WA.

This advocacy has its roots in movements seeking to re-establish Washington's parole system, which was abolished in 1984 along with a Parole Board with wide discretion in reviewing and reducing prison sentences. In its place, the Indeterminate Sentence Review Board (ISRB) was established in 1986, with narrower guidelines for review along with jurisdiction in cases where youth were sentenced as adults.

"What we realized was that many people that would be benefitting from a parole system in Washington State are people who [were] punished as kids," said Felix Sitthivong, a lead organizer and advisor for APICAG at Monroe Corrections Center.

While movements and organizing to re-establish a parole system have been going on for decades, Sitthivong and other organizers saw the pandemic and George Floyd protests in 2020 as an opening to reform the juvenile justice system at the legislative level. "A lot of the protests out there gave us the opportunity to come together and have these hard conversations, with that came an organic unity that didn't always exist. We were able to come together because when we saw the power [of the protests] … we were inspired," said Sitthivong.

That wave also affected their relationships with outside organizations and legislators.

"More recently, [incarcerated] people were able to rally around the Black Lives Matter movement and just come together where we were able to show a more united front, to where when we started contacting legislators for support and outside community organizations, it was a collective [effort]," said Sitthivong.

Many of the bills affect the state's sentencing guidelines. To determine sentencing, the state uses a table or grid based on a variety of aggravating and mitigating factors to calculate the amount of time served.

When being sentenced as an adult, juvenile felony convictions can be added as "points" that can contribute to longer prison sentences. HB 1413 proposes to retroactively eliminate the use of juvenile felonies in the calculation of adult sentences. It would also make adults eligible for resentencing if they had juvenile felonies factored into their sentences.

Likewise, SB 5164 would retroactively apply a 2019 Washington State Legislature decision to remove second-degree robbery from the Washington Three Strikes Law, which requires life sentences without parole after three felony convictions. There are at least 64 people serving life without parole because of a second-degree robbery conviction.

HB 1344 seeks to expand the pool of people eligible to have their sentences reviewed by the Washington State Indeterminate Sentence Review Board. Currently, anyone under the age of 18 who was tried and convicted as an adult are eligible to have their sentences reviewed by the ISRB; this bill extends that review to people who were convicted under the age of 25.

HB 1282/SB 5285 expands the calculation used toward "earned release time" to 33% of the total sentence that an individual serves. This can be accrued through good behavior and good performance. Currently, this calculation is capped at 15%.

Another bill SB 5120, proposes to codify into state law a Washington Supreme Court's decision that youthfulness and age be considered as mitigating circumstances in sentencing and allow judges discretion instead of relying solely on standard sentencing ranges and mandatory minimums to determine length of sentence. This is especially significant when youth are sentenced as adults.

A report by the National Research Council at the National Academies reports that "during adolescence the brain is still immature; adolescents are less able to regulate their behavior, they are more sensitive to external influences (such as peer pressure and immediate reward), and they show less ability to make judgments and decisions."

The State Supreme Court Case State of Washington v. Zyion Houston-Sconiers potentially affects hundreds across the state, and has drawn national attention as people who were under 18 and convicted as an adult prior to 17 have been citing it to seek resentencing to shorten their prison sentences.

People that could potentially get their sentences reviewed because of the Washington v. Zyion Houston-Sconiers ruling are disproportionately from communities of color. In King County, 46% are Black, and over 80% are People of Color.

The Washington Supreme Court relied on Miller vs. Alabama, where the U.S. Supreme Court ruled in 2012 that mandatory life sentences without the possibility of parole are unconstitutional for juvenile offenders. This opened the door to reexamine how those who are convicted under the age of 18 are sentenced across the country.

In response to that ruling, King County Prosecutor Dan Satterberg and Pierce County Prosecutor Mary Robnett filed a writ of certiorari to the U.S. Supreme Court in Decemberto overturn the Washington Supreme Court rulings that include Washington v. Zyion Houston-Sconiers challenging the jurisdiction of the court.

"Because they've [Washington State Supreme Court] cited federal law … it does call into question if that was in fact the federal law and the ultimate arbiter of federal law is the United States Supreme Court," said Satterberg in an interview with Converge Media.

Satterberg stressed that there is already a system in place to review these cases via the ISRB.

"When you go back to court for re-sentencing these cases are going to be scattered back to the original counties to all sorts of different judges, there's going to be no standards about what is an appropriate sentence, how much mitigation should the court take into account," said Satterberg.

Morikawa argues that re-sentencing via the ISRB can be avoided by giving more discretion to judges during sentencing.

"If someone was charged with murder, for something that they did when they were as young as eight years old, you have to do 20 years first before you can go before a parole hearing. And so that still has, underneath it, this underlying belief that people need to be punished and in prison for a significant amount of time for decades before they have that opportunity, which I would say youthfulness should be taken into account before they're sentenced in the first place," argued Morikawa.

Organizers including Morikawa and Choose 180 mobilized in response to Satterberg and Robnett's writ of certiorari, which has resulted in SB 5120.

"We have to fight for our rights to be youth … it's crazy to me," said BL Sawej, an advocate and organizer for Formerly Incarcerated Group Healing Together (FIGHT) during a call with newly- elected State Senator T'wina Nobles regarding the importance of bills like SB 5120.

Sawej was part of a delegation meeting with Senator Nobles during API Legislative Week organized by the Asian Pacific Islander Coalition (APIC).

"One of my friends got sentenced to 13 years, he was only 16 when he was sentenced," he said.

"Systemically there's a lot at play when we talk about how we treat our youth and I think there's this culture of fear in not understanding how to appropriately serve certain communities that's because the folks who are in power don't reflect the communities that are most impacted," said Senator Joe Nguyen, a sponsor of SB 5120.

"We know that the current system doesn't work, the way that we've approached criminal justice, especially for our youth is wrong, if the supreme court agrees with us, if the science agrees with us, let's codify that into law … It makes sense to treat youth differently, it also acknowledges the fact that we have a better understanding of brain development now than we did before," he said.

Fourteen states have come out in support of the writ of certiorari, highlighting its national implications. In the event that the U.S. Supreme Court takes up the writ of certiorari and sides with Satterberg and Robnett, prosecutors across the nation could use the ruling to limit the court's power in determining sentencing.

"What I think it really comes down to is an issue of power in that prosecutors hold the power when there are sentencing ranges, because they choose which charge this young person is going to face, which means they're choosing the sentencing range. If the person who is being charged knew [they] could go before a judge and they could go below that minimum sentence and they [couldn't] be bullied or forced into plea bargains as much as they currently are, meaning the prosecutors would lose some of their power. And to me, that's really what this decision is about, is them trying to maintain their power of discretion." said Morikawa.

The current Washington State Legislative session ends April 25; each bill mentioned is currently in committee and has yet to make it to the floor.

Community leaders and organizations will discuss urgent criminal justice legislation on Saturday, Feb. 20, from 1-2 p.m. during a Leading With Racial Justice & Redressing Harms stakeholder meeting.

The event is open to everyone via streaming on Representative David Hackney's Facebook page. Participants include:

Nikkita Oliver, Creative Justice

Dominique Davis, Community Passageways

Sean Goode, Choose 180

Martina Kartman & Devon Adams, Collective Justice

Emijah Smith, Community Queens Collective

David Heppard, Freedom Project

Judge Saint Clair, King County

Chelsea Moore (Me), Look2Justice

The dialogue will be moderated by Dr. Megan Ming Francis and is hosted by Rep. Hackney. The bills discussed will be: HB 1413, HB 1344, HB 1282, SB 5164, & SB 5120.

Bunthay Cheam was born in the Khao I Dang refugee camp. He is a storyteller, activist, and lifelong resident of South Park.

📸 Featured Image: Members of the Black Prisoner's Caucus (BPC) and the Asian Pacific Islander Cultural Awareness Group (APICAG) at Stafford Creek Corrections Center pose following their 2019 Deportation Town Hall. Groups like these are active across many Washington State DOC facilities and are instrumental in the inception and organizing around bills circulating in the 2021 legislative session. Photo by Bunthay Cheam.