Comment: Let state judges correct past wrongs on sentences

By Theresa Doyle and André Peñalver / For The Herald

Last year, the state Legislature made a wise policy decision to end the outdated practice of automatically lengthening a person’s sentence because of offenses the person committed as a teenager.

That change reflected a growing body of science that the human brain does not stop forming until about the age of 25. The last part of the brain to form — the prefrontal cortex — is responsible for good judgment and impulse control. We all know what such youthful impulsivity looks like.

Now, that same sensible policy must apply to those already in prison serving longer terms because of their juvenile records. House Bill 2065 would do just that. It would allow a judge, with certain limitations, to impose a lower sentence without artificial extension because of any juvenile history. The bill passed out of the House on Tuesday, 56-41, and is now before the Senate Law and Justice Committee.

When a judge sentences a defendant, the judge first calculates a sentencing range based on the seriousness of the offense and the defendant’s criminal history (known as points). The judge can then consider several factors to decide on a sentence within that range. These include the facts of the offense, effect of the crime on the victim and community, risk of reoffense, potential for rehabilitation, deterrence and punishment. Absent extraordinary circumstances justifying a higher or lower sentence, the judge must impose a term within the standard range. Nothing in HB 2065 changes that practice, but by removing juvenile points, a judge will not be required to impose a longer sentence due to old juvenile history.

The bill does not create amnesty. Juvenile history does not disappear under HB 2065. A judge may consider all such history in choosing an appropriate sentence within the standard range. It’s just that a person’s juvenile offenses would no longer automatically mandate a longer sentence; that would be left to the judge’s sound discretion after considering all the circumstances. This is what judges do in a myriad of decisions every day in courtrooms across the state.

HB 2065 also brings a measure of equity to the criminal justice system. The old law was based on the 1990s myth of the irredeemably violent youth, the “superpredator,” a term applied disproportionately to Black, brown and indigenous teens. The state Department of Corrections reports that a shocking 41 percent of Native Americans incarcerated in our prisons have juvenile history that has automatically lengthened their sentences. This has decimated tribal communities, who have joined in one unified voice in support of HB 2065.

Judges in Washington have acknowledged the role of courts and judges in creating the racial disproportionality and injustice that plagues our legal system. In 2020, in the wake of George Floyd’s death, we collectively committed to work to dismantle the systemic racism so embedded in our system. HB 2065 is a step toward making good on that solemn promise.

Reform is never without costs. Resentencing hearings will mean more work for judges, prosecutors, and defenders. But hearings are what judges do, even while addressing the needs of victims. The number of hearings necessitated by HB 2065 — between 800 and 1,400 statewide — is not so large as to overwhelm the courts. To place it in perspective, that amounts to four to seven resentencings per judge in this state, spread over months or years. And such administrative concerns do not outweigh our moral imperative: Here is our chance to right one historic wrong.

Theresa Doyle is a retired King County Superior Court judge. André Peñalver is a Pierce County Superior Court judge. Both are members of the Washington State Minority and Justice Commission.

Update: Since this commentary’s publication on Feb. 12, the bill has passed the House and is now under consideration in the Senate.