August 2012 Bar Bulletin
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August 2012 Bar Bulletin

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The End of Life without Parole for Minors

By Richard Mitchell


The U.S. Supreme Court's recent decision in Miller v. Alabama, holding unconstitutional the sentence of life without parole for minors in homicide cases, was long overdue. For years, children's rights advocates, international organizations such as Human Rights Watch, civil liberties organizations, lawyers and judges alike have openly wondered about the penological wisdom of treating children as adults.

For many, especially those who have raised children, the common experience has been that children often act irrationally and sometimes do horrific things - such as committing murder. In either instance, that common experience has been coupled with another very common experience; that is, unlike hardened criminals, children are more likely to change and demonstrate rehabilitation over time.

Why then have we remained one of a handful of nations to sentence children to life without parole for so long? According to the Child Welfare League of America, only Somalia and the U.S. have failed to ratify the U.N. Convention on the Rights of the Child. It is astonishing that we are one of two, out of the United Nations' 154 member countries, to have not taken action on this issue.

By most standards, we are one of the most progressive and forward-thinking nations. Yet we have allowed both the death sentence and, its functional equivalent, life without parole to be meted out against children under the age of 18 for decades.

Writing for the majority, Justice Elena Kagan pointed out the foundational basis of the Court's recent decisions relating to juvenile sentencing.1 Justice Kagan wrote: "Our decisions rested not only on common sense - on what any parent knows - but on science and social science as well."2 I paused as I read that sentence, and reflected on the 30-plus years it has taken to partially reverse a long-standing trend. What is now "common sense" has been uncommon for a while.

In the late 1970s, state legislatures reacted to escalating crime by enacting policies designed to be "tough on crime." The phrase "child predator" seeped into our criminal justice and everyday parĀ­lance. Politicians established their public safety credibility in part by eradicating any notion that a child's age and circumstances reduced their moral culpability, thereby exposing them to long sentences, if not death and life without parole.

Yes, being tough on crime makes for good politics. But when dealing with children, the question has always been whether it is good public policy. When we sentence children as adults, have we tipped the scales in favor of retribution and punishment, while completely removing rehabilitation and forgiveness?

However one answers that question, one thing is clear. In recent decades, our nation's prison population has exploded with an ever-increasing younger generation of child offenders. With its own data, the U.S. Department's Bureau of Justice Statistics points out that from the mid-1970s to the present the number of persons incarcerated in state prisons jumped dramatically from around 470,000 to nearly 2.2 million prisoners. And incarcerated children have only learned how to be better criminals. Now, hopefully, with the Roper, Graham and Miller decisions, our nation and state will find the bipartisan will to pass reforms in sentencing minors.

Until then, one can only wonder about the fate of the 20 or so juveniles sentenced as adults in Washington - juveniles such as Barry Massey. Charged as a felony accomplice, Massey was convicted of aggravated first-degree murder and sentenced to life without parole in 1989. At the time of the crime, he was 13 years old.

In 1987, Massey and another boy who was 15 at the time, Michael Harris, entered Steilacoom Marina intent on stealing. The marina owner, Paul Wang, who offered no resistance, was shot twice and stabbed seven times. It was a horrific and senseless crime.

Two psychologists, one for the prosecution and the other for the defense, determined that Massey was a slow learner and possessed the mental age of a 9.9-year-old. Despite Massey's level of immaturity, lack of development and lack of prior contact with the criminal justice system, his sentence was absolute.

At trial, the prosecution did not prove which of the two boys killed Wang. In fact, the mental state of either boy did not matter, as both were charged as accomplices to an aggravated felony murder. Massey, who was developmentally delayed and a first-time offender, and Harris received the same sentence - life without parole.

Given the Miller decision, if Massey was being sentenced today, the court would be able to take into consideration the significant differences between children and adults, principally a lack of maturity, vulnerability and the child's character. As the Miller decision makes clear, citing both Roper and Graham, individualized and proportionate sentencing of minors requires that courts consider a child's differences and diminished capacity for the purposes of sentencing.3

Not too long after Massey's trial, the prosecutor expressed concern with the underlying policy that led to his sentence. Deputy Prosecutor Thomas Felnagle, now the Honorable Thomas Felnagle (Pierce County Superior Court), suggested after Massey's declination hearing, conviction and sentence that the result was a function of deficiencies in the juvenile justice system. In 1989, he said, "As it stands now the ... only options are staying in the juvenile system until they're 21 and then being released outright or going all the way to life without the chance of parole. Maybe we ought to explore if there is some in- between ground here."4

Then in 2000, Judge Felnagle again commented on Massey's case and expressed the need for society to reevaluate sentencing alternatives for children convicted of murder, saying, "Kids don't think like adults do. Their brains don't work the same way."5 The key, then and now, was the process of declination, whether it is automatic or discretionary declination from juvenile to adult court, which leads to children being sentenced as adults.

I first learned about this area of the law in 2006 while serving as Gov. Chris Gregoire's general counsel. The more I looked into Massey's case, the more I was surprised to learn that when a child at 16 or 17 is charged with a certain crime, the law does not have to consider them a minor. They can be automatically diverted to adult court and possibly adult penitentiaries.

This process is called automatic declination. Both the judge and the public defender are powerless to compel consideration in juvenile court. Only the prosecutor can do that. However, when a child younger than 16 commits a certain crime, they go through a discretionary declination process, where the juvenile court possesses discretion to retain jurisdiction. This is perhaps the most critical time for a juvenile offender, given the implications of an adult sentence.

After looking further into the very law that embodies this declination process, I was further surprised to discover film footage of a legislator who remembered the passage of the 1977 Juvenile Reform Act. In 1990, former legislator and Superior Court Judge Janice Niemi had this to say about juvenile declination proceedings:

I think the intent of the 1977 Juvenile Reform Act was good. Somehow that intent has been subverted. Frankly, as I look at the statute again from the point of view of a legislator, I can almost figure out what happened. They forgot something!

The 1977 Juvenile Reform Act was intended to prevent what is going on now in the state of Washington. It specifies that there shall be a hearing on a decline of jurisdiction for 16- and 17-year- olds, and it doesn't touch anyone under 16. And

I think the intent was that we would not have decline hearings for anyone under 16. But because we were silent on that, the assumption was that it was optional for those under 16....

I wasn't in the Legislature at the time. I was a judge then. But I think we thought we were reforming the law, and that we would not have decline hearings on younger juveniles. That's not what happened. And yes, we'd better take another look at it. And if we mean to consider only juveniles that are 16 or 17, we need to take another look at it.6

Clearly, many have sensed for some time that something was wrong in our juvenile justice system. With the Miller case decided, the opportunity for reforms, such as those proposed in 2009 by the Washington Coalition for the Just Treatment of Youth, is here.

It is time to:

  • create a juvenile-specific review process for youth sentenced in the adult system;
  • eliminate automatic declinations;
  • create a system to transfer youth back to juvenile court when appropriate;
  • hold youth offenders in juvenile facilities until age 21; and
  • focus on prevention and rehabilitation.

We need to take look at it!

1 Roper v. Simmons, 543 U.S. 551 (2005) (invalidating the death penalty for all juvenile offenders under the age of 18); Graham v. Florida, 560 U.S. __ (2010) (holding unconstitutional the sentence of life without parole on juvenile non-homicide offenders).

2 Miller, 567 U.S. ___, slip op. at 8.

3 Id., slip op. at 27.

4 "Reflections of Violence," KTPS-TV 28 film broadcast, Nov. 12, 1990, at 49:21 minutes.

5 Ruth Teichroeb, "A Door Slammed Shut on Youth," Seattle P.I., Oct. 5, 2000, available at:

6 "Reflections of Violence" at 49:40.


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