Comment: Use of juvenile records in adult sentencing is unjust

By Christopher Blackwell and Kevin Light-Roth / For The Herald

There was a time when evolution was considered crackpot science; there were laws against teaching it. Interracial marriages were once considered egregiously immoral; there were laws prohibiting them. But as science progresses and society’s morality matures, our laws eventually came to reflect those changes.

Science has now progressed regarding our understanding of brain science. We know the brains of children and young adults develop more slowly than we had previously thought, and now the causes of children’s impulsivity and immaturity have been charted in granular detail, thanks to the advancements of MRI technology. Nationally, public opinion has turned decidedly against the sort of brutal treatment the criminal legal system visited upon children during the “super-predator” heyday of the 1980s, ‘90s, and 2000s.

Regardless of these advances, Washington state remains one of nine states whose laws continue to reflect outdated junk science and a fear-driven pseudo-morality that the majority of Americans find reprehensible.

Beginning in the 1980s, the Washington state Legislature started enacting “tough on crime” legislation. Part of this trend eroded the distinction between juveniles and adults in the criminal legal system, including in the calculation of offender scores for sentencing. These distinctions were largely driven by misguided fears regarding “child super predators,” the false notion that all young offenders were dangerous and unable to be rehabilitated. These fears have now been empirically disproved. Studies have shown that these unwarranted fears — and the subsequent legislation enacted in response — resulted in massive racially unequal outcomes and have contributed to over-incarceration, especially in this state.

Over the last two years, Look2Justice has partnered with advocates and organizations — in free society and behind prison walls — to rectify some of the decades of previous damage to those targeted in their youth. House Bill 1324 would eliminate the use of juvenile adjudications to lengthen an adult’s prison or jail sentence, bringing sentencing laws a little closer to the present era in America.

Already in Washington, juvenile court outcomes are legally distinct from adult criminal convictions. This is due, in part, to crucial differences between the sophistication and essential culpability of children compared to adults and also because of significant procedural differences between juvenile and adult court. For example, juvenile courts do not allow jury trials, bail, or an appeals process through the state Appellate and Supreme courts, which essentially strips the youths of constitutionally protected due process rights.

It has been found that juvenile courts are notorious for relaxing, if not completely ignoring, due process standards. This has been allowed partly because the objective of juvenile justice isn’t to procure a criminal conviction, but to promote rehabilitation or what is in the best interest of the child.

But most critically, juvenile adjudications are distinct from adult convictions because of the physical layout of children’s brains and their ability to defend themselves in court. They are unable to understand the long-term effects that pleading guilty to a felony will have later in life. Children are just not equipped to make life-altering choices between the ages of 11 and 16; often the age range when children find themselves in juvenile courts. A child’s education level — especially in the impoverished communities of color that children are typically plucked from to participate in the juvenile system — places them at a severe disadvantage in defending themselves. Their impulsivity and immaturity impact the way they comport themselves in the courtroom. They are often forced to rely entirely on overwhelmed court-appointed attorneys who are often work to convince children to take plea-bargains so they can close cases as fast as possible. And in some cases, juvenile courts adjudicate defendants without providing counsel at all, provided the offender is not incarcerated, leaving them with a felony on their record.

Furthermore, the parents or guardians of children are rarely in courtrooms; and when they are, their understanding of court procedures are often not much better than the child’s, due to a lack of education and familiarity with the court system. Over time, these easily obtained juvenile convictions pile up, building a record that will surely have future ramifications.

Children are inherently less culpable than adults for their actions. When an adult brain receives novel or unexpected sensory input that information is sent first to the limbic system, the section of the brain that produces emotion and retrieves memories. There, the amygdala compares the incoming information to its storage bank. If the amygdala perceives danger, it sends a distress signal to the prefrontal cortex, the brain’s executive center. We experience this in real time as a startle response. In the instant between someone jumping out at you from around the corner and you realizing it is your cousin playing a prank and not a stranger attacking you, the amygdala and the prefrontal cortex have exchanged information. Your brain’s executive center has told the panicked crowd of your limbic system to relax, you’re safe, it’s only your cousin playing games.

The problem for children and adolescents is that the brain develops from back to front, with the prefrontal cortex developing last. When a child has to respond to a distressing situation, perceived danger, or peer pressure, the brain’s emotional center is on its own. The executive branch is still under construction; the framing is there but there are no walls, insulation or siding to protect the exposed boards. Without a voice of reason to calm the child or evaluate the potential outcomes of their actions, the unstable limbic system is on its own. The panicked crowd is in charge. So it’s no surprise that tragedies and impulsive choices often follow for children making decisions in high-stress situations without fully developed brains.

Modern neuroscience has taught us all of the above. And yet Washington remains one of nine states that still continues to use juvenile adjudications against defendants in adult courtrooms; frequently doubling or tripling prison sentences as a result.

This injustice is compounded by the fact that juvenile prosecutions are brought disproportionately against poor children and children of color. The statistics reveal a flagrantly discriminatory system. Dr. Chelsea Moore, executive director at Look2Justice, reviewed a random sample of the currently incarcerated population, finding the average number of juvenile felonies for white people is 0.6, whereas the average number for Black people is 1.5 and 1.8 for Native American people. When those juvenile crimes are counted in adult sentencing, people of color inevitably serve longer sentences than their white peers.

Many legislators have agreed that the use of juvenile records in adult court needs to be halted; that the practice is outdated and wrong. However, many say that making the law retroactive would be too difficult and costly to resentence those who were previously harmed; thus passing a non-retroactive bill into law is seen as a more agreeable route to go. But for who? It surely isn’t best for the hundreds of individuals our state is now beginning to recognize they harmed.

With the 2023 legislative session begun, advocates both on the inside of prison and in the community will once again work to educate policy actors and society around the harms that continue to plague impoverished communities and have for decades. We will fight to pass meaningful legislation, and refuse to accept anything that is not retroactive. It is impossible to fix a harm without going back to those who were first harmed and correcting their situation, many of whom still remain incarcerated due to the convictions they accrued as a child.

We ask the community to show its support for House Bill 1324, which will have a public hearing at 1:30 p.m. Monday before the House Public Safety Committee.

Prohibiting juvenile adjudications from being used in adult court is a positive step forward in making Washington a more just and equitable place. We say we are a progressive and forward-thinking state, and it is time we start acting like it. If 42 other states can recognize the progression of neuroscience and the harm caused by prosecutors unfairly wielding juvenile histories in adult court, Washington can do the same.

Christopher Blackwell is serving a 45-year prison sentence at the Washington Corrections Center in Shelton. He co-founded Look2Justice, an organization that provides civic education to system-impacted communities and works to pass sentence and policy reform legislation. He is currently working towards publishing a book on solitary confinement. His writing has been published by The Washington Post, The Boston Globe, Huff Post, Insider and other outlets. Follow him on Twitter @chriswblackwell.

Kevin Light-Roth, 39, is from Tacoma. He is currently incarcerated at a Washington prison, where he works to organize the prison community around legislative bills. He is a regular contributor to the Information For A Change legislative update page on Facebook.