Washington State Bill Would Undo ‘Superpredator’-Era Sentencing Scheme
Under state law, adult prison sentences are automatically enhanced based on prior youth adjudications. New legislation would rein in the practice and allow for reconsideration of extreme sentences.
Chelsea Moore, Christopher Blackwell Mar 27, 2023
This piece is a commentary, part of The Appeal’s collection of opinion and analysis.
Brandin Thomas grew up in West Seattle, Washington, in the 1990s. Like many kids growing up in impoverished communities, he was exposed to overpolicing, drugs, gangs, and violence at an exceptionally young age.
“When I was 10, I started hanging around gang members,” Thomas recalled in an interview with The Appeal. “My sister’s boyfriend, who was always at the house, became a key person in my life. Having no older brothers, and a dad in and out of prison my whole life, I looked for a strong male role model. He offered that.”
It wasn’t long before Thomas was running the streets with older boys. In 1998, at the age of 13, he was arrested for the first time and charged with second-degree theft after getting caught stealing clothes from a department store in downtown Seattle.
“It wasn’t that my mom didn’t make sure I had clothes,” Thomas said. “I was just following other people. I wanted to fit in. I was trying to find my place.”
Thomas was offered a plea deal that would allow him to do community service in lieu of juvenile detention. The choice seemed obvious. What kid wouldn’t take a deal to go home? But at the time, he didn’t understand that he’d copped to a felony conviction that would remain on his record for the rest of his life.
Years later, when Thomas got caught up in the adult courts, his juvenile record would come back to haunt him, thanks to a state law that automatically enhances sentences based on people’s youthful indiscretions. In 2004, at the age of 18, Thomas was sentenced as an adult to 32 years in prison.
But now, legislation under consideration in Washington State could rein in this unjust sentencing practice, bringing it in line with the majority of U.S. states. The measure would also give people like Thomas a chance to have their draconian sentences reconsidered.
In 1997, a year before Thomas’s first arrest, the Washington State Legislature enacted a comprehensive juvenile justice reform act that expanded the ability of the state to try children as adults and increased the sentences for juvenile offenses. The bill eroded the distinction between children and adults in the criminal legal system and reflected the power and prevalence of the “superpredator” myth at the time—a racially coded, now debunked theory that defined some children who committed crimes as inherently violent and unable to be rehabilitated.
At the start of the 1997 legislative session, then-Governor Gary Locke issued an inaugural address that would set the tone for the bill’s passage: “We have waited too long to fix our juvenile justice system, a system that lets kids get away with too much; that misses too many opportunities to turn kids around; and that leaves too many of us vulnerable to violent and dangerous young criminals,” he remarked.
One of the less discussed but very consequential aspects of the legislation involved expanding the inclusion of juvenile adjudications in adult sentencing calculations. In other words, the bill ensured that people like Thomas would automatically receive longer sentences in the adult system because of their prior involvement in the juvenile legal system.
In the quarter century since, this practice in Washington has been a silent driver of both extreme sentencing and broader racial disparities in sentence length. Nearly one in three people currently incarcerated in state prisons has at least one juvenile felony conviction on their record, according to data provided by the Washington State Department of Corrections (DOC).
Black and Indigenous people, who are much more likely to be caught in the juvenile system in Washington, are significantly overrepresented among those with juvenile felony convictions on their records. In total, 41 percent of Indigenous people and 39 percent of Black people currently incarcerated in the state’s adult prisons have at least one juvenile felony on their record, compared to just 26 percent of white people.
Between convictions, warrants, and probation violations, Thomas was arrested at least 30 times as a kid. By the time he was 18, he had four juvenile felony convictions and two misdemeanor convictions. He had spent around three years of his young life incarcerated in juvenile institutions.
Thomas said pretty much all the kids in his predominantly Black community had similar experiences of being arrested and sent to a juvenile detention center. “It’s like a rite of passage in the neighborhood,” he recalled.
The push to treat children like adults in the legal system largely ignored the fact that these are designed to be different systems with distinct procedures and purposes. Unlike the adult system, the juvenile system is not meant to be adversarial—its primary purpose is not to determine guilt and impose punishment but instead to focus on assistance, treatment, and rehabilitation.
The various terms used in the juvenile system reflect this difference—“adjudication” instead of “conviction,” for example, or “disposition” rather than “sentencing.”
The use of juvenile adjudications to automatically enhance adult sentences has served to pull the youth legal system further from its purported rehabilitative intent. Some juvenile prosecutors say these enhancements have even given them perverse incentives to stack charges in anticipation of future crimes.
Stephan Thomas began his eight-year career as a prosecutor in the juvenile court in Washington’s King County. He recalled his first-ever case, prosecuting a 15-year-old Black boy who had been accused of breaking into a house and stealing a TV.
“My supervisors wanted me to take the case to trial because they had labeled this young man as an up-and-coming gang member, and they wanted to get him some criminal history so that when he became an adult, they could send him to prison for as long as possible,” Thomas said during a 2021 legislative hearing.
This aggressive approach to prosecution ultimately overshadowed any efforts to help a child who was clearly in crisis.
“My supervisors never took the time to discuss the root causes of this young man’s behavior or how we could equip him with the tools to turn his life around,” Thomas said. “I was told we were there to do justice, but it just seemed like we were chasing after felony points. I quickly learned that so much of our charging decisions, plea negotiations, and trial tactics were designed to maximize the number of points.”
Beyond the longer-term consequences, this approach served to funnel children into juvenile institutions often plagued with violence and abuse.
Dennis Repp, 37, has been incarcerated for 19 years of his life, starting at the age of 14. He told The Appeal that “being in the juvenile system was some of the scariest time” he’d ever done.
“I ended up joining a gang while there, so I wasn’t on my own,” said Repp. “Being on your own is dangerous. When I was there, I felt I needed a weapon just to survive. During my time in one of the juvenile institutions, I was stabbed twice, once in the arm and once in the side. I’ve seen people sold for sex. It was an environment I was just trying to survive. I didn’t like hurting people, but I also didn’t want to be a victim, and many people were.”
Many young people who enter the juvenile system often come out much worse than when they entered. The trauma they face, coupled with the lack of meaningfully rehabilitative programming, only makes it more difficult to escape the legal system, especially as they become young adults.
Washington’s continued use of juvenile adjudications in adult sentencing, especially of young adults, runs counter to the now well-established wealth of scientific research showing that a person’s brain is rarely fully developed until around the age of 25. This lack of development, particularly of the prefrontal cortex, means that young people are more susceptible to peer pressure and impulsivity and have a more difficult time fully understanding the future consequences of their actions.
In recent years, a number of federal and state court decisions have successfully challenged youth sentencing practices based on this understanding. But Washington law limits the ability of judicial actors to take into account brain science as a mitigating factor in sentencing and, in fact, explicitly denies judges discretion over whether to include prior juvenile adjudications in sentencing-range calculations.
Theresa Doyle, who spent more than 15 years as a Washington State Superior Court judge before retiring in 2020, recalled presiding over a case involving two young men, aged 19 and 20, who had juvenile adjudications in their criminal histories. Both were facing felony charges related to a nonfatal gang shootout in which a rival was struck in the leg. The prosecutor charged each of the men with multiple offenses, which, together with sentencing enhancements and their prior juvenile adjudications, resulted in mandatory prison sentences of 43 and 50 years.
“These were effectively life sentences for nonhomicide crimes due, in part, to crimes they had previously committed as younger teens,” Doyle wrote in testimony submitted to the Legislature this year. “Current law fails to take into account this reduced teen culpability because of limited brain development. Simply put, teenagers tend to grow out of the dangerous criminal behavior. Yet, instead of rehabilitation, some end up in prison for most of their lives.”
The Washington State Legislature is currently considering a bill, House Bill 1324, that would repeal the practice of using prior juvenile adjudications to enhance sentences in adult court. The bill would also allow individuals who faced sentence enhancements due to juvenile adjudications to apply for resentencing. As many as 1,437 incarcerated people—including one of the authors of this piece—could be impacted, according to data from the Washington State DOC analyzed by the Superior Court Judges’ Association.
HB 1324 is sponsored by state Representative David Hackney, a Democrat and former federal prosecutor. The legislation, which is being heard in the state Senate’s Law and Justice Committee this week, has garnered support from a broad range of labor organizations, medical associations, judicial commissions, juvenile justice groups, and several tribes across Washington State.
Judge André M. Peñalver, a sitting Superior Court judge in Pierce County, Washington, recently spoke out in support of the measure, saying its retroactive application was necessary “to fix a historical wrong.”
“Certainly, the need for resentencing will create additional caseloads for the courts. But that should not dissuade anyone,” he said. “Holding hearings is what we do … If these sentences are too unjust for future cases, then they are also unjust for those already serving sentences based on the same mistake. It is our responsibility to make sure the people serving those sentences have access to justice.”
Dr. Chelsea Moore leads the Smart Justice Policy work for the ACLU of Washington. In addition, she is the co-director of Look2Justice and a lecturer in Law & Society at the University of Washington.
Christopher Blackwell is a Washington-based, award-winning journalist currently incarcerated at the Washington Corrections Center, where he is serving a 45-year prison sentence.
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