Skip navigation
PYHS - Header

A Reexamination of Youth Involvement in the Adult Criminal Justice System in Wa Wa Coalition for the Just Treatment of Youth 2009

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
A Reexamination of Youth Involvement in the
Adult Criminal Justice System in Washington:

Implications of New Findings about Juvenile
Recidivism and Adolescent Brain Development

Washington Coalition for the Just Treatment of Youth

The Washington Coalition for the Just Treatment of Youth

is comprised of a network of juvenile justice advocates who believe that the trial, sentencing,
and incarceration of youth should reflect that youth are less capable than adults of assessing
risks, controlling impulsive behavior, and engaging in moral reasoning and are more
amenable than adults to rehabilitation.

WASHINGTON COALITION FOR THE JUST TREATMENT OF YOUTH ADVISORY BOARD
KIM AMBROSE, Clinical Professor, University of Washington
ROBERT BORUCHOWITZ, Professor, Seattle University School of Law
BRIAN BUCKLEY, DLA Piper
BETH COLGAN, Columbia Legal Services, Institutions Project
JAIME HAWK, Federal Public Defender, Eastern District
CHRISTIE HEDMAN, Washington Defender Association
JANA HEYD, Society of Counsel Representing Accused Persons
PAUL HOLLAND, Professor, Seattle University School of Law
TRACY LAPPS, The Defender Association
ANNE LEE, TeamChild
MELISSA LEE, Columbia Legal Services, Institutions Project
RUSSELL LEONARD, Federal Public Defender, Western District
LAURA MATE, Federal Public Defender, Western District
BRENT PATTISON, Thompson & Howle
JENNIFER SHAW, ACLU-WA
NICK STRALEY, Columbia Legal Services
GEORGE YEANNAKIS, TeamChild
The photos throughout this book are reprinted with permission from Steve Davis, whose photography
collection entitled “Captured Youth” was taken in juvenile detention facilities in the State of Washington
between 1997 and 2005. Mr. Davis’s photography can be viewed at http://stevedavisphotography.com/.
Portions of this report were originally published in the course materials for the Washington State Bar Association’s 15th
Annual Criminal Justice Institute, September 2008 under the title, “Treating Juveniles as Adults and Life Without Parole
Sentences for Juveniles – Where Do We Go from Here?”
ADDITIONAL COPIES OF THIS REPORT MAY BE OBTAINED AT HTTP://WWW.COLUMBIALEGAL.ORG.
January 2009

TABLE OF CONTENTS
I.

EXECUTIVE SUMMARY……………………………………………………1 #

II. WASHINGTON LAW REGARDING THE TRANSFER OF YOUTH FROM
JUVENILE COURT TO ADULT COURT………………………………………3 #
III. NEWLY AVAILABLE RESEARCH AND DATA RAISES QUESTIONS

REGARDING THE TREATMENT OF YOUTH IN THE ADULT CRIMINAL
JUSTICE SYSTEM…………………………………………………………5 #
a. Discoveries in Adolescent Brain Development…………………………5 #
b. Treating Adolescents as Adults Undermines Public Safety………………
8 #
c. Youth of Color Are Disproportionately Represented……………………9 #
d. The Unique Needs of At-Risk Girls Must Be Addressed…………………
10 #

IV. SENTENCING WASHINGTON YOUTH TO LIFE IN PRISON WITHOUT
THE POSSIBILITY OF PAROLE……………………………………………
12 #
a. Social Histories of the Youth Sentenced to Life in Prison
without the Possibility of Parole………………………………………
13 #
b. Analysis of the Performance of the Justice System When Youth Are
Sentenced to Life without the Possibility of Parole……………………..#
17
V. RECOMMENDATIONS…………………………………………………………..#
19
VI. ACKNOWLEDGEMENTS…………………………………………………
back cover

EXECUTIVE SUMMARY
In passing the Juvenile Justice Act of 1977,
Washington’s legislature intended to “[p]rovide for
punishment commensurate with the age, crime, and
criminal history of the juvenile* offender.”1 Public
policy shifted dramatically in the early 1990s, in
response to erroneous predictions of an impending
juvenile crime wave. As a result, numerous laws
were enacted that allowed adolescents to be tried,
sentenced, and incarcerated in the same manner as
adults, in many cases without any consideration of
their age or development. Although juvenile crime
rates have actually decreased since the mid 1990s2
and many proponents of these changes have now
admitted that their predictions regarding juvenile
crime were incorrect,3 these policies remain in
effect today.
A reexamination of those policies is appropriate
for several reasons. First, recent breakthroughs
in brain development research have shown that
due to anatomical differences in the adolescent
brain, youth are less able than adults to assess
risks, control impulsive behavior, and engage in
moral reasoning. These differences are all relevant
to assessing a juvenile’s culpability. This same
research also suggests that adolescents are more
amenable to rehabilitation than adults because
one’s character continues to form as the brain
matures. As such, adolescents typically “age
out” of delinquent behavior as they move toward
adulthood. For this reason, in Roper v. Simmons,
the United States Supreme Court explained: “From
a moral standpoint it would be misguided to equate
the failings of a minor with those of an adult, for
a greater possibility exists that a minor’s character
deficiencies will be reformed.”4
Second, evidence now exists that these policies
threaten, rather than protect, public safety. Recent
studies show that subjecting adolescents to the
adult criminal justice system may actually increase
future criminal behavior.5 This is likely due to
adolescents incarcerated in adult facilities having
reduced access to treatment and rehabilitative
services while at the same time being exposed to
an adult criminal culture rife with violence and
antisocial behavior. This experience—known
colloquially as “felon finishing school”—results in
many youth emerging from incarceration at higher
risk of offending than when they entered.

* THE TERMS “YOUTH,” “ADOLESCENT,” AND “JUVENILE” ARE USED IN THIS REPORT
TO REFER TO PEOPLE UNDER THE AGE OF EIGHTEEN.

1

Third, these policies have an unequal impact
on youth of color and girls. Youth of color are
disproportionately represented amongst adolescents
who are tried as adults. A recent study summarized
herein shows that this over representation cannot
be explained by higher arrest rates for youth of
color. The mandatory nature of many of these laws
and the lack of gender-responsive services also
have troubling consequences for girls who often
have unique needs and characteristics that support
individualized consideration.

.....due to anatomical differences
in the adolescent brain, youth are
less able than adults to assess
risks, control impulsive behavior,
and engage in moral reasoning.
This report summarizes the breakthroughs in
adolescent brain development, studies related to
recidivism rates of youth who are treated as adults,
and data regarding the use and implications of
current Washington laws that allow—and in some
cases require—that youth be treated as adults. In
particular, this report analyzes the cases of the
twenty-eight Washington youth in which the law
mandated that the youth be sentenced to life in
prison without the possibility of parole, the most
severe sentence for youth available in Washington.
Trial and appellate court records, as well as records
from the Department of Corrections and information
provided by the individuals sentenced in this
manner were analyzed for this report.
There are several important findings related to
the twenty-eight adolescents serving life in prison
without the possibility of parole. First, in every
single case, there were early warning signs that
were not addressed by social workers, probation
officers, educators, and other adults in these
youth’s lives. These signs included mental
health problems, chemical dependency, and
other conditions that are known to contribute to
criminal behavior but are treatable. If these signs
had been heeded, these crimes may well not have

occurred. Second, in every single case there were
mitigating factors. Each one of these youth had an
anatomically adolescent brain less capable than a
fully developed adult brain of controlling impulses
and engaging in moral reasoning. For many, the
effects of this undeveloped brain was compounded
by extensive abuse and instability. Third, because
of the mandatory nature of the sentence, none of
the mitigating factors could be considered by the
sentencing court. These findings do not excuse
the juveniles for their crimes, nor do they decrease
the loss experienced by the victims’ families,
friends, and communities. What the findings do is
present a strong critique of Washington’s current
laws related to treating youth as adults, particularly
the implications of sentencing that allows no
opportunity for youth to earn release if fully
rehabilitated.

This report concludes with a series
of recommendations for Washington
policymakers that are designed to address
the findings detailed herein regarding
adolescent brain development, the
public safety implications of punishing
adolescents like adults, and data
regarding the cost-effectiveness of
reducing recidivism through the use of
rehabilitative services.
1. Eliminate life in prison without the possibility of
parole as a sentence for adolescent offenders.

The review of these cases also revealed the
fallibility of the justice system. Two of the youth
were represented by a defense attorney who was
later disbarred; four more were represented by
attorneys who were later censured, reprimanded,
and/or suspended from the practice of law. Other
cases exhibited signs of ineffective representation
which were never raised on appeal. In one case
there is an appellate court finding of prosecutorial
misconduct. In two more, there were appellate
court findings of judicial error. Four of the cases
were tried in front of judges who were suspended
and one more in front of a judge who was later
admonished. For two of the youth, the judges were
removed from the bench during the course of their
proceedings.

2. Create a juvenile-specific review process
designed to promote rehabilitation that allows
for meaningful periodic review of youth
sentenced in the adult system.
3. Eliminate the automatic transfer of adolescents
to the adult criminal justice system.
4. Set fifteen as the age below which no
adolescent may be transferred to adult criminal
jurisdiction.
5. Create a system to transfer youth back to
juvenile court in appropriate cases.
6. Require that youth be held in juvenile
facilities both pre-trial and post-conviction
through the age of twenty-one absent exigent
circumstances.
7. Refocus efforts on prevention and
rehabilitation.
8. Ensure policies and practices are culturally
competent and gender-responsive.

2

WASHINGTON LAW
REGARDING THE TRANSFER
OF YOUTH FROM JUVENILE
COURT TO ADULT COURT
In Washington, youth may be transferred to adult
court for prosecution through a process known as
“declination” in which the court “declines”
to exercise juvenile court jurisdiction even though
the person charged is a juvenile. When these laws
were first enacted, all declinations resulted from
a discretionary act by the juvenile court; the laws
were later amended so that in the majority of cases
the transfer to adult court happens automatically.

automatically transferred for all future actions,
even if he or she is found not guilty in the
original matter (this is known as the “once an
adult, always an adult” rule).7 The autodeclination statute eliminates both prosecutorial
and judicial discretion over the treatment of
juveniles and forever prevents consideration of
the youth’s potential for rehabilitation or other
mitigating factors.

Under Washington’s
In contrast, under
Under Washington law, the majority of juveniles
auto-declination
the discretionary
statute, a youth
declination statute,
tried as adults are moved to adult court without
who is sixteen or
the juvenile court may
any consideration of their social histories
seventeen years
decline jurisdiction
old at the time of
and transfer a
the alleged offense
case to the adult
and without any consideration of the circumstances of
and is charged
court following a
with a specified
hearing if the court
the crime for which they are charged.
list of offenses is
determines that
automatically tried
doing so would be in
as an adult without a hearing.6 In other words,
the best interests of the youth or the public.8 At
no court is allowed to consider factors such as
the declination hearing, the court considers eight
the youth’s age, history of trauma, mental health
factors set out by the United States Supreme
issues, developmental delays, or other mitigating
Court in Kent v. United States, including whether
circumstances, nor is a court allowed to consider
the alleged offense was premeditated, the
whether the youth could be more amenable to
sophistication and maturity of the youth, and the
rehabilitation in the juvenile system. Additionally,
prospects that the youth can be rehabilitated if
once transferred to adult court, a youth is
retained in the juvenile system.9

such as childhood abuse or mental illness

Table 1: Youth Automatically Tried as Adults by Age
���

Table 2: Youth Tried as Adults after Discretionary Decline by Age
�� ���� ���

���
���
���

���

���

���

���

���
�� ���� ���

�� ��

�� ���� ���

�� ��

���

���
���

���
���
���
�

��

��

�
�� ��

�
�� ��

�

�

�

��

��

�� �� �� �� �� �� �� �� �� �� �� �� �� ��

�� ��

3

�� ��

�� ��

�� ��

�� ��

�� ��

In recent years, a youth as young as eleven years old
was tried as an adult in Washington
Once declined to the jurisdiction of an adult
criminal court, youth are subjected to adult
sentencing structures if convicted. In the seven
years included in the SGC Data Set, over 200 youth
were sentenced to serve prison terms between ten
years and life in prison without the possibility of
parole. Currently there is no standardized process
for reviewing the rehabilitative progress of those
youth during the term of that sentence to see if
early release is appropriate.
Table 3: Sentencing of Youth Tried as Adults

������
������
���� ���� � �����
������

� �� �� �����
�� ����� �� ����

Washington’s Sentencing Guidelines
Commission provided data regarding all youth
who were declined for trial and sentenced
in adult court between July 1, 1999
and June 30, 2007 (hereinafter referred

to as the “SGC Data Set”). In that time period,
1,558 youth were transferred to adult court
through either automatic declination (1,145 youth)
or discretionary declination (413 youth). The
two most prevalent crimes for auto declinations
are robbery (40%) and assault (27%); the two
most common crimes for discretionary decline are
property crimes (40%) then assault (23%).10
While the great majority of youth in the SGC Data
Set were in their late teens, those sent to be tried
in adult court included youth as young as eleven
years old.11

4

It is also worth noting that in the same time
period almost 75 percent of youth declined to the
adult system received a sentence of less than five
years, with many receiving sentences that would
be completed before their eighteenth birthday.
Because youth can be detained in the juvenile
system until the age of twenty-one,12 these figures
suggest that their transfer to the adult court was
unnecessary and that appropriate treatment of the
youth may have been afforded through retention in
the juvenile justice system.

NEWLY AVAILABLE RESEARCH
AND DATA RAISES QUESTIONS
REGARDING THE TREATMENT
OF YOUTH IN THE ADULT
CRIMINAL JUSTICE SYSTEM

Discoveries in Adolescent
Brain Development

Developments in scientific and psychosocial
research in recent years suggest that Washington
laws that allow for the trial, sentencing, and
incarceration of youth in the adult system should
be reexamined.

The development of brain-imaging technology has
allowed scientists to better understand anatomical
immaturities in adolescent brains that have
significant implications for criminal justice.

As detailed herein, recent breakthroughs in brain
Scientists have discovered that the frontal cortex,
development research have shown that adolescent
the region of the brain associated with “impulse
brains are anatomically different than those of
control, risk assessment, and moral reasoning,”
adults. This anatomical immaturity renders
develops after late adolescence. Due to the
youth less able to assess risks,
control impulsive behavior, and
engage in moral reasoning—all
“Adolescents’ behavioral immaturity mirrors the anatomical
of which are implicated when
immaturity of their brains. To a degree never before
considering a youth’s culpability
for his or her actions. This
understood, scientists can now demonstrate that adolescents
same research also suggests
are immature not only to the observer’s naked eye, but in the
that adolescents are more
amenable to rehabilitation than
very fiber of their brains.”
adults because one’s character
continues to form as the brain
Medical and psychiatric experts’ briefing to the United States Supreme Court
matures. As such, adolescents
Roper v. Simmons
typically “age out” of delinquent
behavior as they move toward
adulthood.
anatomical immaturity of the frontal cortex, youth
utilize the amygdala, part of the “emotional center”
Recent studies have also shown that subjecting
of the brain, which is “associated with aggressive
adolescents to the adult criminal justice system
and impulsive behavior,” rather than the prefrontal
may actually increase future criminal behavior.13
cortex, which “is associated with a variety of
This is likely due to adolescents incarcerated in
cognitive abilities, including decision making, risk
adult facilities having reduced access to treatment
assessment, ability to judge future consequences,
and rehabilitative services while at the same time
evaluating reward and punishment, behavioral
being exposed to an adult criminal culture rife
inhibition, impulse control, deception, responses to
with violence and antisocial behavior.
positive and negative feedback, and making moral
judgments.”14
Finally, data collected by Washington’s
Sentencing Guidelines Commission shows that
As a result, even fully functioning older adolescents
youth of color—particularly African American
are less capable than adults at assessing risks,
and Native American boys and girls and Asian
controlling impulsive behavior, and moral
American girls—are disproportionately represented
reasoning. The impairments are likely to be
amongst adolescents who are tried as adults. This
even more severe for youth with developmental
data highlights the need for culturally competent
disabilities, mental illness, brain injury, or chaotic
and gender-responsive services for at-risk youth.
social histories.15

5

Treating Adolescents as Adults
Undermines Public Safety
Treating adolescents as adults may actually
increase crime and therefore negatively impact
public safety. A November 2007 Morbidity and
Mortality Weekly Report released by the Centers
for Disease Control concluded that “[a]vailable
evidence indicates that transfer to the adult
criminal justice system typically increases rather
than decreases rates of violence among transferred
youth.”18 The study, conducted by the Task
Force on Community Preventive Service, reviewed
available rigorous analyses regarding deterrence
of future criminal activity by the particular youth
subjected to the adult system (specific deterrence)
and by all youth who may become involved in
the criminal justice system in the future (general
deterrence). The Task Force concluded:

The recent advances in brain development
research also provide important insight into the
amenability of youth to rehabilitation. Due to the
incomplete formation of the adolescent brain, the
personality traits of youth are in flux, leaving time
for additional character formation. As the brain
continues to develop, most youth “age out” of
delinquent behavior as they move
toward adulthood.16
In 2005, the United States Supreme Court
considered adolescent brain and psychosocial
development in relation to criminal behavior in
Roper v. Simmons. The Roper Court agreed with
scientific experts and drew three distinctions
between adolescents and adults. First, the Court
recognized that youth are comparatively more
immature than adults and that their immaturity
may lead to reckless behavior. Second, the
Court noted that youth are more susceptible
than adults to negative influences such as peer
pressure. Third, the Court recognized that the
personality traits of youth are in flux, leaving
time for additional character formation.17 Each
of these conclusions has repercussions for the
manner in which Washington tries, sentences and
incarcerates youth as adults.

“The findings in this report indicate that transfer
policies have generally resulted in increased arrest
for subsequent crimes, including violent crime,
among juveniles who were transferred compared
with those retained in the juvenile justice
system. To the extent that transfer policies are
implemented to reduce violent or other criminal
behavior, available evidence indicates that they
do more harm than good.” 19

“The reality that juveniles still struggle to define their identity means it is less
supportable to conclude that even a heinous crime committed by a juvenile is
evidence of irretrievably depraved character. From a moral standpoint it would
be misguided to equate the failings of a minor with those of an adult, for a greater
possibility exists that a minor’s character deficiencies will be reformed. Indeed,
‘[t]he relevance of youth as a mitigating factor derives from the fact that the
signature qualities of youth are transient; as individuals mature, the impetuousness
and recklessness that may dominate in younger years can subside.’”
United States Supreme Court
Roper v. Simmons

6

“The theory that trying youth as adults reduces violence is false. The Task Force
found strong evidence that shows that youth who have been previously tried as
adults are, from available evidence, 34 percent more likely to commit violent
crimes than youth retained in the juvenile system.”
Dr. Robert A. Hahn

Centers for Disease Control
Task Force on Youth and the Criminal Justice System 20

The distinction in outcomes for youth treated as
juveniles versus those treated as adults is not
surprising given the research regarding the anatomy
of the adolescent brain. The underdeveloped
frontal cortex of the adolescent brain renders
adolescents both more amenable to rehabilitation
and more susceptible to negative influences. As
detailed below, transferring youth to the adult
system runs counter to both of these scientific
findings, and undermines the original rationale for
trying adolescents as adults: public safety.
The amenability of youth to rehabilitation supports
retention in the juvenile system. The juvenile
detention system is designed for the primary
purpose of rehabilitating youth, whereas adult
facilities are more punitive in nature. In the adult
system, rehabilitative services and programs are
fewer and farther between. For example, youth
in adult facilities are less likely to have access to
mental health treatment.21 Although mandated
to provide educational services to youth,22 adult
jails and prisons are less equipped than juvenile
facilities to provide appropriate educational
programming. The lack of access to rehabilitative
programming and pro-social activities is highly
detrimental to adolescents.

Washington’s youth may be exposed to this
environment even before being found guilty; under
Washington law, youth transferred to adult court for
trial may be incarcerated with adults.24 Whether
or not youth are housed with adults while awaiting
trial varies from county to county. Of those youth
who are convicted, many serve the first years of
their sentence in a juvenile facility, but often go on
to serve time in an adult prison.
Along with exposure to serious antisocial behavior,
youth incarcerated in adult facilities are at
significant risk of psychological harm. Youth
incarcerated with adults are nearly twenty times
more likely than other adolescents to commit
suicide, with an unknown number of additional
non-lethal suicide attempts.25 Even brief periods
of confinement with adults can result in suicidal
behavior; nearly one quarter of suicide attempts
take place on the first or second day in jail.26
Along with often pre-existing mental health
problems, this suicidal behavior can be explained
in part by the significant risk of physical and
sexual victimization. Physical violence takes many
forms, including individual assaults, gang attacks,
riots, and murders.27 Sexual assault of youth
confined in adult facilities is also widespread. In
implementing the Prison Rape Elimination Act
of 2003, the United States Congress found that
“[j]uveniles are 5 times more likely to be sexually
assaulted in adult rather than juvenile facilities—
often within the first 48 hours of incarceration.”28
The exposure to sexual violence may itself be a
death sentence for these juveniles. By year end
2005, tens of thousands of state and federal
prisoners, and an untold number in local jails, were
infected with sexually transmitted diseases such as
HIV/AIDS and hepatitis C.29

The greater susceptibility of youth to negative
influences highlights the danger of transferring
youth to adult correctional settings where they
will be exposed to an adult criminal culture rife
with violence and antisocial behavior. As a result,
“adult institutions may socialize juveniles into
becoming chronic offenders when they otherwise
would not have.”23 This process is known
colloquially as “felon finishing school.”

7

Faced with the near constant threat of assault,
youth in adult facilities have limited options.
Many engage in disruptive behavior, such as
participating in gang activities, in order to obtain
protection from other inmates. Others seek
attention and intervention by corrections staff
through misbehavior.30 Both options create safety
and security concerns for corrections staff and
the youth themselves. The remaining alternative
is to request placement in protective custody,
which in Washington typically means solitary
confinement (known as “segregation”) for up to
twenty-three hours a day. That isolation can have
devastating consequences for youth. Confinement
in segregation can prevent youth from participating
in rehabilitative and pro-social activities, such as
education, chemical dependency treatment, and
vocational training. Prolonged isolation can result
in serious mental health issues and is particularly
dangerous for those youth who already suffer
from mental illness. One federal court described
placing a mentally ill person in isolation as “the
mental equivalent of putting an asthmatic in a
place with little air to breathe.”31 Washington’s
Department of Corrections has recently recognized
that prolonged isolation can increase recidivism by
making it difficult for releasing inmates to adjust
to reentering society.32
Accordingly, when considering changes to law and
policy related to transferring youth to the adult
system, consideration should be given to the risks
of doing so to both the youth and to public safety.

8

Youth of Color are
Disproportionately Represented
Youth of color are disproportionately represented
in the justice system. The reason for this disproportionality is unknown, but it cannot be explained
by higher arrest rates for youth of color. In a May
2008 report, Human Rights Watch compared arrest
and sentencing rates, showing that Washington was
one of ten states where African American youth
arrested for murder are significantly more likely to
be sentenced to life in prison without the possibility of parole than white youth arrested for murder.
According to the report, for every 11.60 African
American youth arrested for murder in Washington,
one is serving life in prison without the possibility
of parole, while for every 17.31 white youth arrested for murder in Washington, one is serving life
in prison without the possibility of parole.33

of the juvenile population and 5.65 percent of
all declinations—Asian American girls are over
represented, making up 15.22 percent of all girls
who are declined.
There are also distinctions regarding the type
of crimes for which youth of color are declined.
According to Washington’s Sentencing Guidelines
Commission: “African-Americans have received
more Robbery sentences while Hispanics had more
Assault sentences, and are also the sole group with
Drug sentences. Whites had the largest number of
Sex sentences of any known race/ethnicity.”36

The SGC Data Set shows that in Washington, the
largest disparity is in the declination of African
American youth. Although African American
youth make up only 5.54 percent of Washington’s
juvenile population,34 they make up nearly 25
percent of auto-declinations and over 15 percent
of discretionary declinations.35 Native American
youth are also over-represented, making up less
than 2 percent of the state juvenile population,
but 3.14 percent of auto-declinations and 4.60
percent of discretionary declinations. Although
Asian American youth are underrepresented in
juvenile declinations—making up 7.33 percent

Racial disproportionality carries over from
declination into the sentencing of juveniles who are
tried as adults. Of juveniles sentenced to less than
ten years, African American and Native American
youth are significantly over-represented, making
up 21.61 percent and 3.39 percent respectively.
That disproportionality increases when looking at
sentences between ten years and life without the
possibility of parole. African American youth make
up 23.76 percent and Native American youth make
up 4.46 percent of youth receiving the longest
sentences. Regardless of the sentence range,
youth of color are over represented. Youth of color
make up only 29.35 percent of Washington’s youth
population, but 40.05 percent of youth sentenced
as adults.

Table 4: Washington’s Youth Population by Race

Table 5: Youth Automatically Tried as Adults by Race

�����

�����
�����
������

������

�����

������

������� ��������
�����

������� ��������
�����

��������

��������

������ ��������

������

�����

�����
�����
�����

9

������ ��������
�����
�������

The Unique Needs of At-Risk
Girls Must Be Addressed
While objective data leaves no doubt that youth
of color are disproportionately represented from
arrest through incarceration, those figures do not
reveal why that disproportionality exists. The
problem may stem from policies and practices
within the justice system, macro level societal
factors outside of the justice system (i.e.,
increased levels of poverty), or some combination
of the two. The task of clearly understanding the
causes of disproportionate minority contact with
juvenile and adult criminal justice systems should
be undertaken as soon as possible, as this is a
critical component of preventing crime, bettering
rehabilitative systems, and improving the lives of
youth of color. Research should be conducted to
determine the causes so that a meaningful strategy
can be developed toward that end.

It is of critical importance that policymakers pay
attention to girls at risk of entering or remaining
in the criminal justice system. Although in
Washington girls make up only 5.91 percent of all
youth in the SGC Data Set who were transferred
to adult court, in recent years arrest rates for girls
have been increasing nationally. According to the
U.S. Bureau of Justice, Office of Juvenile Justice
and Delinquency Prevention: “juvenile arrests
generally decreased between 1996 and 2005, but
the decrease was greater for boys than for girls;
the exception to the general trend was arrests for
simple assault, which increased for girls while
decreasing for boys.”37

The reasons that adolescent girls become involved
in the juvenile or adult criminal justice systems
are often distinct from their male peers. For
example, “[a] substantial body of
research indicates that regardless
of race and age, female offenders
“As many as 92% of girls in detention report
have higher rates of mental health
having been victims of abuse.”
problems, both internalizing
and externalizing, than male
Reported by the Child Welfare League of America
offenders.”38 Depression and lowlevels of self-worth are common
amongst adolescent girls.39 Girls
who commit offenses are also more
likely than boys to have experienced childhood

Table 6: Youth Tried as Adults after Discretionary Decline by Race

�����

�����

������

������

������� ��������

�����

������

Table 7: Girls Tried as Adults by Race

������
�����

������� ��������

�����

�����

��������

��������

������ ��������

���

�����
�������

������ ��������
������
�����
�����

10

�����
�������

The Unique Needs of At-Risk Girls.... (continued)

abuse; girls are “typically abused before
their first offense.”40 Indeed, “[a]s many
as 92% of girls in detention report having
been victims of abuse.”41 These problems
often lead to failure in school, association
with antisocial peers, drug abuse, and a high
incidence of runaway behavior.42
Although these unique needs and
characteristics are directly tied to a girl’s
culpability and amenability to rehabilitation,
those factors cannot be considered for cases
where automatic transfer to adult court is
required. That was true for 63 percent of
girls transferred to adult court in the SGC
Data Set. The treatment of girls as adults
despite their individual circumstances
highlights the importance
of considering the individual characteristics
of all youth rather than requiring
automatic transfer.
These characteristics also underscore the
importance of providing gender-responsive
treatment and services. Services available in both
the community and in juvenile and adult detention
facilities typically are not designed to be responsive
to the special needs of girls.43 Programs which
focus on “control rather than the provision of
effective support for girls to become successful”
are largely ineffective.44
If girls are to be successful in these environments
they must be provided services that account for
gender differentiation and that are responsive to
their individual cultural and mental health needs.
Just as it is ineffective to homogenize the services
provided to girls with those driven by the needs of
boys, it is also inappropriate to create a rigid set
of services under the assumption that all girls are
the same.

Additional consideration should be given to
diverting girls from incarceration settings entirely,
as researchers have found that: “Diverting
female offenders with mental health problems
to community-based treatment programs would
not only improve individual outcomes, but allow
the juvenile justice system to focus on cases that
present the greatest risk to public safety.”45
Addressing these gender differences is important not
just for the safety and health of the girls themselves,
but also the community at large. “A review of twenty
studies on the adult lives of antisocial adolescent
girls found higher mortality rates, a variety of
psychiatric problems, dysfunctional and violent
relationships, poor educational achievement,
and less stable work histories than among
non-delinquent girls.”46 Providing a nurturing
environment where girls can obtain meaningful
services early on is critical to providing at-risk
girls with the tools they need to have safe and
productive adult lives.

11

SENTENCING WASHINGTON
YOUTH TO LIFE IN PRISON
WITHOUT THE POSSIBILITY
OF PAROLE
The most extreme form of sentencing for youth in
Washington is the sentence of life in prison without
the possibility of parole. There are at least twentyeight adolescents serving life in prison without the
possibility of parole in Washington State.47 There
are numerous other adolescents who are serving
sentences that, due to their length (e.g., fifty
years), are actually life sentences.48
In each of the twenty-eight Washington cases,
life in prison without the possibility of parole was
the only sentence available to the court. In other
words, the court was required by law to sentence
the youth to life in prison without the possibility
of parole and was not allowed to consider any
mitigating circumstances, including the type

that are implicated by discoveries related to
adolescent brain development, the youth’s age,
history of trauma, mental health, or amenability
to rehabilitation. This report is the first time
these twenty-eight cases have been analyzed
for that purpose.
This report also presents the first global analysis
of the performance of the justice system in cases
involving youth where sentences of life in prison
without the possibility of parole were mandatory.
A review of these cases reveals that youth facing
the most severe sentence they may receive are
often deprived of quality representation and other
assurances of a fair and just process and outcome.

12

Social Histories of the Youth
Sentenced to Life in Prison
without the Possibility of Parole

Age:

The sentence of life in prison without the
possibility of parole in these cases was mandatory
regardless of the age of the youth. Washington is
one of only six states that has a prisoner serving
life in prison without the possibility of parole who
was as young as thirteen at the time of the crime.52
The breakdown of age at the time of the crime for
the twenty-eight juveniles in Washington is as follows: one was thirteen years old, three were fourteen years old, five were fifteen years old, seven
were sixteen years old, and twelve were seventeen
years old.

Due to the mandatory nature of the sentence of
life in prison without the possibility of parole
in the twenty-eight cases, no court was allowed
to consider mitigating factors when sentencing
these youth. In fourteen of the cases, the youth
was also transferred to an adult court without a
hearing,49 so there was no opportunity at any time
for a court to consider factors such as a youth’s
age, maturity, or amenability to rehabilitation.
In order to determine whether such factors may
exist, trial and appellate court records, as well as
records from the Department of Corrections and
information provided by the individuals sentenced
to life in prison without the possibility of parole
as youth were analyzed for this report.50 These
records revealed that in each of the twenty-eight
cases, there were extreme stressors in the lives
of these youth that should have been recognized
and addressed long before the youth was involved
with crime. Each of these youth had adults who
could have intervened, including social workers,
educators, and juvenile justice professionals. Had
these youth been protected from childhood abuse,
provided needed treatment and services, and
afforded some degree of stability in their lives,
these crimes may have been avoided.
The difficulties experienced by these youth do not
excuse the crimes for which they were convicted.
These crimes are tragic, and undoubtedly
devastating for the victims’ families, friends, and
communities. When considering appropriate
sentencing, it is incumbent upon society to
consider the experiences of victims.51 It is
also essential that society recognize the unique
characteristics of adolescents, including
incomplete brain development. This review
provides a tool to measure the latter, by
identifying the mitigating circumstances that
courts could not consider. The lives of these
young men also provide us direction, giving
specific insight about just what types of
changes must be made in the social safety
net in order to prevent future juvenile crime
and better protect both our communities and
Washington’s youth.

Table 8: Youth Sentenced to Life in Prison
without the Possibility of Parole by Age

�
��

�� ���� ���

�

�� ���� ���
�

�� ���� ���
�� ���� ���

�

�� ���� ���

Washington is one of only six states
that has a youth who was as young
as thirteen at the time of the crime
serving life without the possibility of
parole. Washington’s thirteen year
old had a mental age of 9.9 years at
the time of the crime.

13

Childhood Abuse:

Abuse is uniquely difficult to calculate because many victims do not
report their abuse, particularly sexual abuse. Even
with that limitation, records reveal that 60 percent
of the youth were victims of child abuse and/or
severe neglect, with some of these youth suffering
multiple forms of abuse. At least 36 percent of the
youth were physically abused, nearly 18 percent
were sexually abused, 21 percent were psychologically abused, and over 14 percent suffered serious neglect. The U.S. Department of Justice has
determined that children who suffer such abuse are
significantly more likely than their peers to become
involved in delinquent and criminal behavior.53

“One longitudinal study revealed that ‘being
abused or neglected as a child increased the
likelihood of arrest as a juvenile by 59 percent,
as an adult by 28 percent, and for a violent
crime by 30 percent.”
Reported by the Child Welfare League of America 54

Mental Illness:

Developmental Delays:

A quarter of
the youth functioned in the low average range to
borderline mentally retarded range at the time of
the crime. Records also indicate that another 18
percent showed indications of developmental
delays, including provision of special education
services. As noted above, developmental delays
can exacerbate the behaviors associated with immature brain development, such as assessing risks,
controlling impulsive behavior, and moral reasoning. Typically, Washington law would allow a sentencing judge to consider whether a “defendant’s
capacity to appreciate the wrongfulness of his
or her conduct, or to conform his or her conduct
to the requirements of the law, was significantly
impaired”56 but that could not occur in these cases
because of the sentence of life in prison without
the possibility of parole was mandatory.
Developmental delays also may make it even more
difficult for youth to meaningfully negotiate the
criminal justice system and make decisions related
to that process. Significantly, in every case where
the youth was questioned, not one had a parent
or attorney present during interrogation by the
police. An expert on interrogations and confessions
analyzed one of these interrogations and found
that a borderline mentally retarded youth had likely
provided a false confession, which was evident
because the details of the confession did not
match the forensic evidence in the case.

Records show that 43
percent of the youth suffer from mental illness.
Evidence of their mental illness was often apparent
long before the youth were convicted. We cannot
know whether intervention in these
juveniles’ lives and mental health
treatment would have prevented their
“I think there were red flags. … [I]f someone, especially
crimes, but it is a reasonable possibility.
if it were a counselor-type person, a Boy Scout leader, a
As a result of severe under-funding of
church advisor, youth advisor, somebody like that might
community mental health services and
a critical absence of such services in
have called the mental health professional and this kid
many areas of Washington state,55 youth
would have been committed involuntarily, if he didn’t want
like these receive little to no mental
to go to the psychiatric hospital voluntarily. … He’d be in
health treatment or only treatment that
the mental hospital now.”
is not designed to address their actual
mental health needs. These adolescents
often find themselves embroiled in the
Testimony of psychiatric expert in trial of one youth now
criminal justice system.

serving life in prison without the possibility of parole

14

Substance Abuse:

At least 71 percent of the
youth had significant substance abuse problems. Several were intoxicated at the time of the crime. Only a
few of the youth had any sort of treatment prior to the
commission of the crime. One who did receive treatment had to drop out of the program when his family’s
insurance ran out. Again, it is reasonable to conclude
that if there had been meaningful intervention and
treatment provided to these youth, these crimes may
never have occurred.

Housing Instability:

At least 68 percent of
the youth had a history of homelessness and/or runaway behavior. The relationship between homelessness and criminal activity is not fully understood, but
some available statistics indicate that there is a connection, particularly when the person who is homeless
is also mentally ill.57 Additionally, “homeless youth
are at a higher risk for anxiety disorders, depression,
posttraumatic stress disorder (PTSD), and suicide
because of increased exposure to violence while living
on their own. Overall, homeless youth are also likely
to become involved in prostitution, to use and abuse
drugs, and to engage in other dangerous and
illegal behaviors.”58

Parental Instability:

Parental histories
were not consistently provided in the records reviewed
for this study, so the data in this area is particularly
limited. Nonetheless, the records did show that 14
percent of the youth had one or both parents who were
mentally ill and 36 percent had one or both parents
who were chemically dependant. At least 18 percent
of the youth had previously been in foster care, 7
percent had parents who had been murdered, and
another 21 percent had parents who were in prison.
This type of instability has been directly correlated
with future criminal activity. For example, youth with
a parent in prison are five to six times more likely than
their peers to be incarcerated.59

Education:

The educational histories of many
of the youth were chaotic. One dropped out of
school in the fourth grade; eleven others only made it
through grades in middle school. Several of the youth
bounced around from school to school—one was in as
many as fourteen schools by the eighth grade. Another
dropped out in the eighth grade so he could stay home
to protect his sister from being molested by his father.
Despite the young age at which these youth left the
school system, their departures appear to have gone
unnoticed. Again, intervention may have made a
difference. The Washington State Institute for Public
Policy has determined that programs
that increase adolescent access to
““My mother and father split up when I was very
education services are a cost-effective
young. My dad used to beat us so bad that my mother
way of reducing crime.60

thought that my father would some day beat us to
death. So she left him. We saw him for a while, until
one of his neighbors killed him.”

Description of the childhood by one youth sentenced to
life in prison without the possibility of parole

15

Degree of participation in the crime:
As is discussed below, a number of these youth were
charged along with co-defendants and therefore
had varying levels of participation in the crime. For
example, according to prosecutors, two of the adolescents were present at the time of the crime but did
not actually commit the murders for which they are
now being punished by a term of life in prison without
the possibility of parole. The court was not allowed
to consider the level of participation in imposing the
mandatory sentence.

Lack of criminal history: A third of the

twenty-eight adolescents were first time offenders
with no prior juvenile or adult record. Again, due to
the mandatory nature of the sentence, the courts had
no opportunity to consider whether these crimes were
aberrations in otherwise law-abiding youth who might
be able to successfully reenter society at some point
without threat of further offense.

Racial Disproportionality:

As with declination and other sentencing, the sentencing of youth
to life in prison without the possibility of parole in
Washington is racially disproportionate. Of the twenty-eight youth serving life in prison without the possibility of parole, fourteen are white, three are African
American, four are Asian, three are Hispanic, three
are Native American, and one is African American/
Native American. Youth of color make up just over
29 percent of Washington’s youth population,61 but
50 percent of youth sentenced to life in prison
without the possibility of parole.

16

“In light of the disproportionate
imposition of life imprisonment
without parole on young
offenders—including
children—belonging to racial,
ethnic and national minorities,
the Committee considers
that the persistence of such
sentencing is incompatible with
article 5 (a) of the Convention.
The Committee therefore
recommends that the State
party discontinue the use of life
sentence without parole against
persons under the age of
eighteen at the time the offence
was committed, and review the
situation of persons already
serving such sentences.”
United Nations Committee on the
Elimination of Racial Discrimination 62

Analysis of the Performance of
the Justice System When Youth
Are Youth Sentenced to Life
without the Possibility of Parole
Records related to the twenty-eight cases where youth
were sentenced to life in prison without the possibility
of parole reveal troubling information related to the
quality of defense, prosecution, and judicial action, as
well as the treatment of the youth as compared to the
treatment of co-defendants. This information provides
another reason for reconsideration of the sentencing
of the youth serving life in prison without possibility
of parole.

Quality of Representation:

Two of the
youth were represented by a defense attorney who
was later disbarred. For one of those youth, a federal
court determined that the lawyer failed to provide
effective assistance of counsel (but the youth did not
receive a new trial due to limitations on the federal
courts’ ability to grant relief). Five other youth had
defense attorneys who were later censured, reprimanded and/or suspended from the practice of law.
The court records also included deficiencies in
representation that were never raised on appeal (in
some cases this occurs because the trial attorney and
appellate attorney are one in the same). For example,
in one case defense counsel failed to have a mental
health evaluation done, did not call a single witness
at the hearing to determine whether the youth would
be tried as a juvenile or an adult, spent no more than
five hours with the client between the transfer to adult
court and the trial, spent only two hours interviewing
witnesses, and called no experts at trial. In another
case, the youth’s attorney failed to present forensic
evidence that, given the angle of entry of the bullet,
his client was too short to have been the shooter,
proving that the co-defendant and not his client was
the person who actually committed the homicide.
If not for these problems some of these youth may
have been retained in juvenile court or received lesser
convictions and shorter sentences even if moved to
adult court. For example, one defense attorney who
advised his client to agree to be tried in adult court
and plead to a sentence of life in prison without the
possibility of parole was later disbarred.

17

Prosecutorial Misconduct: Appellate

courts have found that prosecutors engaged in misconduct during the trial of one of the youth. In the
case, the prosecutor threatened witnesses with
possible criminal action if they spoke with defense
counsel without the prosecutor present. Such
behavior is improper and undermines confidence
in the fairness of the process and outcome.

Judicial Conduct:

In two cases, appellate
courts found that the trial courts had committed errors during the trials by allowing in improper evidence
that should have been excluded. Four of the cases
were tried before judges who were censured and/or
suspended, and another was tried before a judge who
was later admonished on two separate occasions.
These actions were taken for behaviors such as “failing to maintain, enforce, and observe high standards
of judicial conduct so that the integrity and independence of the judiciary would be preserved.” For two
of the youth, judges were removed from the bench
during the course of their proceedings, but the majority of the decisions made by the judges prior to their
removal were not reconsidered.

Treatment of Co-Defendants:

Six of the youth had adult co-defendants. Two of
the adults received significantly lower sentences; one
received a sentence of 13.5 years, the other received
a sentence of 29.75 years. Several of the youth had
juvenile co-defendants. In many cases, the juvenile
co-defendants also received significantly lower sentences, typically in exchange for testifying against
their peer. Many of these sentences ranged between
six and twenty-five years for practically the same behavior, suggesting that a sentence of a term of years
less than life in prison without the possibility of parole
can both protect society and allow for a youth’s amenability to rehabilitation.
This data raises serious questions about the fairness
of the process by which these youth were convicted
and sentenced. That is particularly troubling given
that these youth faced the most severe sentence
youth may receive anywhere in this country—indeed
in this world—a sentence of life in prison without the
possibility of parole.

-,

\!

II
,

•

I
/'
~'

•

.,

.~

"

18

..
"-'"

RECOMMENDATIONS
As this report notes, scientific evidence shows that
the anatomical immaturity of adolescent brains render
youth less capable than adults of assessing risks,
controlling impulsive behavior, and engaging in moral
reasoning as well as more amenable to rehabilitation
than adults. At the same time, subjecting youth to the
adult criminal justice system has been shown to have
a detrimental effect on public safety. For the good of
both the public and the youth, Washington lawmakers
should review the manner in which many youth are
tried, sentenced, and incarcerated as adults, and
consider renewing the ideals of crime prevention and
rehabilitation central to the juvenile justice system.

A survey conducted by the John D. and
Catherine T. MacArthur Foundation in
September 2007 found:
• 90% of the Washington public feels
that “almost all youth who commit
crimes are capable of positive growth
and have the potential to change for
the better.”

• “The public feels that programs
and services are very effective in
rehabilitating youth. The public feels that
juvenile and adult facilities are not.”

•

“The public favors reallocating
government funds from incarceration
of youth offenders to counseling,
education and job training.” 63

Sentencing a youth to spend the rest of his or her
life in prison until death is an extraordinarily severe
sentence that is not commensurate with the youth’s
age or brain and psychosocial development. The
sentence fails to recognize adolescent amenability to
rehabilitation by prohibiting release from prison even
where a youth is fully rehabilitated. Further, imposing
this term of imprisonment results in youth being more
severely punished than their adult counterparts;
by the very fact of their young age, adolescents
will typically end up serving a longer sentence than
an adult sentenced to life without parole. As of the
date of publication, four of the twenty-eight youth
serving life in prison without the possibility of parole
had served more than twenty years in prison (twenty
years is a possible sentence for adults who are
convicted of murder64); a third of the youth had
served more than half of their lives in prison.
Although this reform would eliminate the most extreme
sentence available for youth, Washington law could
still allow for lengthy sentences for some adolescents
where there are strong aggravating factors.65 In doing
so, Washington would restore judicial discretion in
sentencing, retain a strong mechanism for protecting
public safety, and allow recognition of the distinctions
between adolescents and adults. This reform should
apply retroactively as well as prospectively.

• 80% feel “that incarcerating youth
offenders without rehabilitation is the
same as giving up on them.”

• “The public favors programs and
services over incarceration.”

1. Eliminate life in prison without the
possibility of parole as a sentence for
adolescent offenders.

This reform would also bring Washington in line with
several other American states and the international
community. The United States is the only country in
the world where youth are serving life in prison without
the possibility of parole.66 In 2006 and 2007, the
United Nations General Assembly voted on resolutions
to prohibit the sentencing of youth to life in prison
without the possibility of parole.67 The United Nations
Human Rights Committee determined that the U.S.
was not in compliance with the Convention on Civil
and Political Rights due to the sentencing of youth to
life in prison without the possibility of parole,68 and
the United Nations Committee Against Torture stated
that sentencing youth to life in prison without the
possibility of parole “could constitute cruel, inhuman,
or degrading treatment or punishment” in violation of
that treaty. 69 Although not a signatory, the United
States is also in violation of the United Nations
Convention on the Rights of the Child, which prohibits
the sentencing of youth to life in prison without the

19

2. Create a review process designed to
promote rehabilitation that allows for
meaningful, periodic review of youth
sentenced in the adult system.
possibility of parole.70 Further, in March 2008, the
Committee on the Elimination of Racial Discrimination
recommended that due to racial disparity, the U.S.
should discontinue the sentencing of youth to life in
prison without the possibility of parole and review the
sentences of all youth serving such sentences.71
The elimination of life without the possibility of parole
sentencing for adolescent offenders is also important
given the financial burden such sentencing creates
for the public. As of the date of this publication, the
yearly cost of incarcerating a single person in an adult
prison in Washington averaged just over $35,000
per year.72 Utilizing that figure, the cost to date to
incarcerate just the twenty-eight youth sentenced to
life without the possibility of parole has been almost
$13 million dollars. Assuming that each reaches a
modest life expectancy and assuming a minimal yearly
increase in prison costs, it will cost Washington at
least another $46 million dollars to incarcerate those
young men. That figure will increase if other youth
are sentenced to life in prison without the possibility
of parole.

Adolescent brain science shows that adolescent character development is in flux, making it likely that most
youth will age out of delinquent behavior as they progress toward adulthood.73 In order to account for these
changes and ensure that youth have an opportunity
to reenter society when rehabilitation has occurred,
Washington should provide a mechanism for meaningful, periodic review of sentences received by youth in
adult court. Such a review process should prove to be
cost effective by leading to the release of people who
are fully rehabilitated and who do not pose a threat
to the community. This reform is supported by the
American Bar Association.74
To ensure meaningful review, any commission
established for this purpose should be staffed
with members who have expertise in adolescent
development and rehabilitation. Additionally, reviews
should occur at regular intervals, both so that the
youth has an opportunity to prove rehabilitation, and
to encourage the youth to continually progress.75

“Whatever the appropriateness of parole eligibility for forty-year-old career criminals
serving several life sentences, quite different issues are raised for fourteen-year-old first
time offenders sentenced to prison. They may have committed essentially the same acts
and have been convicted of the same offenses, but 14-year-olds, certainly as compared to
forty-year-olds, are almost certain to undergo dramatic personality changes as they age from
adolescence to middle-age. Sentences for such offenders should not conclude today what kind
of adults these adolescents will be many years from now. As any parent knows, predicting what
teenagers will become by next week, let alone when they are grown adults, is nearly impossible.
The key decision should wait to be made until adolescents have reached adulthood and can be
assessed more accurately at that stage of their lives. If they have evolved into promising and
non-threatening adults, strong consideration should be given to various forms of release on
parole for those juvenile offenders.” 76
American Bar Association, Criminal Justice Section
Report to the House of Delegates

20

3. Eliminate the automatic transfer
of adolescents to the adult criminal
justice system. Washington’s auto-declination

laws prevent courts from considering whether a youth’s
age, mental capacity, culpability, and prospects for
rehabilitation make it appropriate to retain the youth
in the juvenile justice system. Given evidence that
transferring youth to adult court is likely to increase
future criminal activity, it is in the public’s interest to
ensure that declination is limited to only those cases
where sufficient evidence shows that the youth cannot
be rehabilitated in the juvenile system.

4. Set fifteen as the age below which
no adolescent may be transferred to
adult criminal jurisdiction. Evidence
showing that youth are more amenable to rehabilitation than previously thought supports retaining
youth in the juvenile system. This is particularly
true for youth who, by virtue of being in childhood
or early adolescence, will have several years within
the juvenile system to obtain treatment and
rehabilitative programming.

The advantage to discretionary declination is that
while the nature of the offense still plays a central role
in the decision—five of the eight prescribed criteria
relate to the charged crime—the inquiry does not end
there. Unlike with automatic transfer, courts are given
the discretion to balance the charged offense with
other relevant factors.
This reform should include the elimination of all
forms of automatic declination, including the “once
an adult, always an adult” rule, which requires
automatic transfer to the adult court if a youth has
ever previously been transferred.77 This rule creates
two problems. First, if the youth is found not guilty of
the crime charged, the courts are still required to treat
the youth as an adult if he or she is later charged with
a new offense. There is no other place in Washington
law where penalties attach even where a defendant
is found not guilty. Second, a subsequent charge
may be for a lesser offense that by its nature is better
addressed within the juvenile system. As currently
written, however, the court would have no discretion
to consider that fact and the youth would be
automatically moved to the adult court.

21

5. Create a system to transfer youth
back to juvenile court in appropriate
cases. The decision of whether to retain an ado-

lescent in the juvenile system or transfer jurisdiction
to the adult court is made at the beginning of a case
either automatically or following a hearing. As a case
progresses, evidence may be uncovered which suggests that the defendant and public would be better
served if the youth was returned to the juvenile system
(for example, evidence of a mental illness or developmental delay better treated in a more rehabilitative setting). There is no existing mechanism for the
court to consider whether a youth should be returned
to the juvenile court after declination has occurred.
Washington laws should be amended to create such
a mechanism to ensure that those youth that can be
rehabilitated in the juvenile system are retained.

The American Correctional
Association, the National
Commission on Correctional
Health Care, the American
Jail Association, the Council
of Juvenile Correctional
Administrators and the
American Bar Association Task
Force on Youth in the Criminal
Justice System all recommend
against incarcerating juveniles
with adults.

6. Require that youth be held in juvenile
facilities both pre-trial and post-conviction through the age of twenty-one
absent exigent circumstances. Youth
incarcerated while awaiting trial should not be placed
in adult facilities where they may be preyed upon and
exposed to adult criminal behaviors. Isolating youth
in an adult facility is not a sufficient solution, as this
can cause significant psychological harm. Washington law prohibits the pre-trial incarceration of youth
with adults absent exigent circumstances, but once
a youth is declined he or she is considered an adult
and therefore not protected by this statute.78 Although
some counties retain declined youth in juvenile detention facilities, the decision of whether or not to place
youth in adult facilities varies from county to county.
Amending the existing statute to require that adolescents remain in juvenile facilities absent exigent
circumstances would comport with Washington law
regarding post-conviction incarceration of youth79
and bring Washington in line with recommendations by numerous corrections organizations. The
American Correctional Association, the National
Commission on Correctional Health Care, the
American Jail Association, the Council of Juvenile
Correctional Administrators and the American Bar
Association Task Force on Youth in the Criminal
Justice System all recommend against incarcerating juveniles with adults.80

22

Further, both the Juvenile Rehabilitation
Administration and the Department of Corrections
favor holding youth in juvenile facilities up to
the age of twenty-one where the youth: (1) may
be vulnerable to victimization if transferred to
an adult prison; (2) would be able to complete
treatment or programming by staying in a juvenile
facility; or (3) where reentry to the community may
be more successful from a juvenile facility than an
adult prison.81 Washington law should be changed
to allow for this retention to occur.

7. Refocus efforts on prevention
and rehabilitation. When considering reforms

in the treatment of youth in the adult criminal justice
system, Washington should also refocus its efforts to
prevent youth from entering into the criminal justice
system at all. To do so, Washington must improve
and increase the availability of services in the
community. For example, community mental health
services are severely limited, with troubling results.
Youth who are properly treated in the community are
less likely to engage in criminal activity and be subjected to incarceration. Another key aspect of prevention will be improvements to the social safety net so
that children who are abused and vulnerable are
not ignored until it is too late. “Any program that
effectively reduces abuse and neglect can serve as a
prevention strategy for juvenile delinquency. Given
the firmly established relationship between abuse/
neglect and subsequent delinquency and criminality
identified by the U.S. Department of Justice, it seems
imperative that policymakers embrace emerging technologies that significantly improve decision making
and help communities devote resources to children
and families most at risk.”82

Given the amenability of youth to rehabilitation,
Washington also should provide robust services
for youth regardless of whether they are convicted
as juveniles or adults. Where such services have
been provided, there have been significant drops
in recidivism. For example, providing even basic
education programs has reduced recidivism by 7.0
percent. Vocational education programs resulted in
a 9.0 percent decline in recidivism. Studies also
showed a 9.3 percent reduction in recidivism where
people with chemical dependencies are provided drug
treatment in the community. Providing meaningful
treatment to mentally ill youth may also effectively
reduce recidivism rates, with studies showing
reductions of nearly 20 percent.83
Although the provision of treatment and services
is a costly endeavor, the benefit of undertaking
such expenditures is high. A meta-analysis of all
available rigorous evaluations of evidence-based adult
and juvenile corrections programs and community
prevention efforts conducted by the Washington
State Institute of Public Policy (WSIPP) evidences
the economic benefit of each dollar spent
on treatment and services. WSIPP found

“We are receiving juveniles that five years ago
would have been in an inpatient mental health
facility. … [W]e have had a number of juveniles
who should no more be in our institution than
I should be able to fly.’”

Endnotes:

18 Hahn, supra note 5 at 1
(emphasis added). Of the six
studies analyzed by the CDC,
only one study found any level
of deterrence; a study
conducted by the Washington
State Institute for Public Policy
found no change in adolescent
behavior following declination;
and the “remaining four
studies all found an
undesirable effect in which
transferred juveniles
committed more subsequent
violent or general crime than
retained juveniles.” Id. at 7.
The Task Force also concluded
that available studies
regarding general deterrence were insufficient to conclude
whether or not there was any deterrent effect caused by
transfer of youth to adult courts. Id. at 8.

1 RCW 13.40.010(2)(d). 

19 Id. (emphasis added). 

84

Washington Juvenile Rehabilitation Administrator
interviewed by the U.S. House of Representatives

2 J. Robert Flores, Violence by Teenage Girls: Trends and
Context, U.S. Dep’t of Just., Office of Juv. J. & Delinquency
Prevention 4 (May 2008).
3 See, e.g., Elizabeth Becker, As Ex-Theorist on Young
“Superpredators,” Bush Aid Has Regrets, N.Y. Times,
Feb. 9, 2001, at A19.
4 Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 1195-96
(2005). 
5 Robert Hahn, Ph.D, et al., Effects on Violence of Laws and
Policies Facilitating the Transfer of Youth from the Juvenile
to the Adult Justice System: A Report on Recommendations
of the Task Force on Community Preventive Services, Vol.
56/RR-9 at 1
(Nov. 30, 2007).
6 RCW 13.04.030(1)(e)(v). If a juvenile is declined to adult
court but is found not guilty or is found guilty of a lesser
included offense that would not have been subject to autodeclination, jurisdiction returns to the juvenile court. If the
case is returned as a result of a conviction on a lesser
included offense, the juvenile court has discretion to hold a
decline hearing to determine whether the case should be
sent back to adult court for sentencing. RCW 13.04.030(1)(
e)(v)(E)(II).
7 RCW 13.40.020(14). 
8 RCW 13.04.030(1)(e)(i); RCW 13.40.110(1)-(2). 

9 Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L.Ed.
2d 84 (1966). 
10 Sentencing Guidelines Commission Briefing Paper, Historical
Juvenile Declines (Aug. 2008). 

20 Press Release, Centers for Disease Control, CDC Task
Force on Youth and the Criminal Justice System Is Led by
UMDNJ Dean – Report Finds Teens in Adult Justice System
Victimized, Re-Offend (Apr. 25, 2007).

11 Under Washington law, “[c]hildren under the age of eight
years are incapable of committing crime. Children of eight and
under twelve years of age are presumed to be incapable of
committing crime, but this presumption may be removed by
proof that they have sufficient capacity to understand the act or
neglect, and to know that it was wrong.” RCW 9A.04.050.

21 See Doris J. James & Lauren E. Glaze, U.S. Dep’t of Just.,
Bureau of Just. Stats., Mental Health Problems of Prison
and Jail Inmates 1, 9 (2006) (only 34 percent of state
prisoners with mental health problems received treatment
since admission).

12 RCW 13.40.300. 

22 Tunstall v. Bergeson, 141 Wn.2d 201, 5 P.3d 691 (2000);
RCW 13.04.135. 

13 Hahn, supra note 5. 
14 Amicus Brief of the American Medical Society, et al.,
Roper v. Simmons, 543 U.S. 551, 1255 S.Ct. 1183 (2005) at
10. Amici included the American Medical Association, the
American Psychiatric Association, the American Society for
Adolescent Psychiatry, the American Academy of Child &
Adolescent Psychiatry, the American Academy of Psychiatry
and the Law, the National Association of Social Workers, the
Missouri Chapter of the National Association of Social
Workers, and the National Mental Health Association.
15 Id. 
16 Id. 
17 Roper, 125 S.Ct. at 1195. 

23 Campaign for Youth Justice, Jailing Juveniles: The Dangers of
Incarcerating Youth in Adult Jails in America 7-8 (Nov. 2007)
(hereinafter “Jailing Juveniles”).
24 RCW 13.04.116. Some of these youth may be retained in
juvenile facilities. RCW 13.04.030(4). For pre-trial
detainees, that determination is made on a county-bycounty basis. For post-conviction inmates, the decision of
whether to house youth in juvenile facilities for all or a
portion of their sentence is determined following an
administrative hearing. RCW 13.40.280.
25 Jailing Juveniles, supra note 23 at 10. See also Barry Holman
& Jason Ziedenberg, Justice Policy Institute, The Dangers of
Detention: The Impact of Incarcerating Youth in Detention and

23

Other Secure Facilities 8 (Nov. 2006) (“Researchers believe that
the combination of mental health disorders youth bring into
detention coupled with the negative effects of
institutionalization places incarcerated youth at a higher risk of
suicide than other youth.”).
26 Christopher Mumola, U.S. Dep’t of Just., Bureau of Just.
Stats., Suicide and Homicide in State Prisons and Local
Jails (Aug. 2005).
27 Confronting Confinement, The Comm’n On Safety And Abuse
In America’s Prisons 11-12 (2006). 
28 Prison Rape Elimination Act, 42 U.S.C. § 15601 (2003). 
29 Laura M. Maruschak, U.S. Dep’t of Just., Bureau of Just.
Stats., HIV in Prisons, 2005 1 (Sept. 2007); Allen J. Beck & Laura
M. Maruschak, U.S. Dep’t of Just., Bureau of Just. Stats.,
Hepatitis Testing and Treatment in State Prisons 1 (Apr. 2004).
30 Jailing Juveniles, supra note 23 at 7-8 (“Researchers
have found that young inmates try to find ways to fit into
the inmate culture, which often involves adopting an
identity that hides their youthful status and forces them to
accept violence as a routine part of institutional life.”).
31 Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal.
1995). 
32 Vanessa Ho, Prisons Shift from Solitary Confinement:
New Approach Eases Inmates into Society, Seattle PostIntelligencer, Apr. 17, 2008.
33 The Rest of Their Lives: Life Without Parole for Youth
Offenders in the United States in 2008, Human Rights
Watch 7 (May 2008).
34 Juvenile Justice: Report 2007, Governor’s Juvenile Justice
Advisory Committee 79 (June 2008) (hereinafter “GJJAC
Report”).
35 Racial data was unknown for 5.65% of juveniles in the
SGC Data Set. Gender data was unknown for 3.53% of the
SGC Data Set.
36 Historical Juvenile Declines, supra note 10. 
37 Flores, supra note 2. Although at first glance, these
statistics suggest that girls’ involvement in violent activity,
particularly simple assaults, may be increasing relative to
boys, the OJJDP report concluded otherwise. The
researchers compared arrest rates to victimization data and
self-reports by juveniles and determined that there has not
been any meaningful change in gender differences for
violent offenses by juveniles, and that the changes in arrest
rates may be due to policy changes and practices in law
enforcement. For example, zero tolerance laws related to
domestic violence may require the arrest of all parties,
including girls who may previously have been considered a
victim.

8. Ensure policies and practices
are culturally competent
and gender-responsive. Washington’s

that there are numerous programs and treatment
systems which result in both reductions in
recidivism and an associated return on investment.
For example, providing multidimensional treatment
to foster youth (versus regular group care) results
in a 22 percent reduction in recidivism; the perparticipant cost benefit of such care is $77,798
for every dollar spent. Providing Functional Family
Therapy to juveniles on probation results in a 15.9
percent reduction in recidivism, with a benefit of
$31,821 for every dollar spent. Numerous other
programs also result in reduced crime and cost
savings.85

lawmakers should be mindful of the disproportionate impact existing statutes have on youth
of color, including how those statutes are implemented and enforced, and how any changes to
those statues may remedy or exacerbate that
problem. An analysis of the underlying causes
of existing racial disproportionality will be key to
understanding how to remedy this problem.

The savings to taxpayers that could be achieved
by implementing these kinds of programs are
substantial. WSIPP determined that a 20 to 40
percent increase in education and employment
programming and drug and mental health treatment
for adults and juveniles, along with proven
prevention programs, could save Washington’s state
and local taxpayers “between $1.9 to $2.6 billion”
in direct prison and criminal justice system costs
between 2008 and 2030.86

38 Elizabeth Cauffman, Understanding the Female
Offender, 18 The Future of Children 124 (Fall 2008). 
39 Justice by Gender: The Lack of Appropriate Prevention,
Diversion and Treatment Alternatives for Girls in the Justice
System, American Bar Ass’n & National Bar Ass’n 9-10
(May 1, 2001).

Programmatic development and policy changes
should also be done with consideration for the
unique needs and vulnerabilities of at-risk girls.
Treatment and service options that account for
gender differentiation and that are responsive
to the individual cultural and mental health
needs of girls should be developed for use in the
community and in juvenile and adult corrections
facilities. Consideration should also be given to
programs which divert girls from incarceration
altogether.

51 The perspective of victims of juvenile crime, including
murder, are not monolithic. While some victims favor
sentencing youth to life in prison without the possibility of
parole, others believe that youth should be afforded an
opportunity for release if they become rehabilitated. See
When I Die They’ll Send Me Home: The Perspective of
Victims, Human Rights Watch (Oct. 17, 2008).

40 Cauffman, supra note 38 at 130. 
41 Christy Sharp & Jessica Simpson, Girls in the Juvenile
Justice System: The Need for More Gender-Responsive
Services, Child Welfare League of America 16 (2004).
42 Justice by Gender, supra note 39 at 3-4, 9-10. 
43 Id. at 12-13, 23. 

52 Cruel & Unusual: Sentencing 13- and 14-Year-Old
Children to Die in Prison, Equal Justice Initiative 20 (Nov.
2007). 
53 Richard Wiebush, et al., Preventing Delinquency Through
Improved Child Protection Services, U.S. Dep’t of Just.,
Office of Juvenile Justice & Delinquency Prevention (July
2001).

49 Transfer was required in thirteen of the cases pursuant
to Washington’s automatic transfer statute; there was one
additional case in which no hearing was held because it
was waived by the youth upon advice of his attorney (the
attorney was later disbarred)
50 The social history data provided herein may
underestimate the full extent of the problems faced by
these adolescents before their crimes. For example, if a
defense attorney did not investigate a youth’s mental
illness or substance abuse history there may be no record of
the problem in the court files, but that does not mean the
issue was not present. These limitations are most
prevalent in cases where there was no hearing to determine
whether a youth should be tried as a juvenile or an adult.
In such cases there would never be a consideration of the
social history of the youth because the decision of whether
to try the youth as an adult and the sentence of life in
prison without the possibility of parole would have been
mandatory. Therefore, to supplement the information
available in court records, a review was also conducted of
Department of Corrections records and information provided
by the twenty-eight youth serving life in prison without the
possibility of parole following their convictions.

76 American Bar Association, Criminal Justice Section:
Report to the House of Delegates regarding Policy 105C
(adopted 2008).
77 RCW 13.40.020(14). 
78 RCW 13.04.116. 
79 RCW 13.40.280; RCW 72.01.410; RCW 72.01.415. 
80 American Correctional Association, Public Correctional
Policy on Youthful Offenders Transferred to Adult Criminal
Jurisdiction (Jan. 2004); American Correctional Association,
Public Correctional Policy on Juvenile Justice Policy (Jan.
2002); American Bar Association Criminal Justice Section,
Task Force on Youth in the Criminal Justice System, youth
in the Criminal Justice System: Guidelines for Policymakers
and Practitioners (2001); National Commission on
Correctional Health Care, Health Services to Adolescents
in Adult Correctional Facilities (May 1998); American Jail
Association, Juveniles in Jails Resolution (May 1993);
Council of Juvenile Correctional Administrators, Position
Paper on: Waiver and Transfer of Youths to Adult Systems.

57 Nino Rodriguez & Brenner Brown, Preventing
Homelessness Among People Leaving Prison, Vera Institute
of Justice 1 (Dec. 2003).

68 Concluding Observations of the Human Rights
Committee on the United States of America, 87th Sess.
Held on 27 July 2006, (CCCPR/C/SR.2395), para. 34.

58 Fact Checker: Youth Homelessness, National Alliance to
End Homelessness (June 2007). 

69 Committee Against Torture, 36th Session, “Conclusions
and Recommendations of the Committee Against Torture:
United States of America,” at para. 35, UN Doc. No. CAT/C/
USA/CO/2, 25 July 2006.

81 Letter from John Clayton, Assistant Secretary, Juvenile
Rehabilitation Administration to Sentencing Guidelines
Commission (Sept. 8, 2008).

70 Art. 37, Convention on the Rights of the Child, U.N.
G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at
167 Convention, U.N. Doc. A/44/49 (1989), entered into
force Sept. 2, 1990. The only other nation that has not
yet ratified the Convention on the Rights of the Child is
Somalia.

83 See Steve Aos, et al., Wash. St. Inst. for Pub. Pol’y,
Evidence-Based Public Policy Options to Reduce Future
Prison Construction, Criminal Justice Costs, and Crime
Rates (Oct. 2006) at 9.

55 See, e.g., Ill-Equipped: U.S. Prisons and Offenders with
Mental Illness, Human Rights Watch 19-23 (2003). 

48 See SGC Data Set. 

66 Committee on the Elimination of Racial Discrimination,
supra note 62 at 8. In the past year, 5 countries – Burkina
Faso, Israel, Kenya, South Africa and Tanzania either
clarified or changed their laws to eliminated the sentencing
of youth to life in prison without the possibility of parole.
Apart from the United States, there are only three countries
– Argentina, Australia, and New Zealand – that allow
for the sentencing of youth to life in prison without the
possibility of parole; those countries do not actually have
any juveniles serving sentences of life in prison without the
possibility of parole. Id.

75 See generally Confronting Confinement, supra note 27
(security and safety for both corrections staff and inmates
improves where inmates have access to programming
activities and treatment).

56 RCW 9.94A.535(1)(e). 

54 Sharp & Simpson, supra note 41 at 16. 

45 Cauffman, supra note 38 at 133. 

47 This figure was arrived at by a review of case files and
data from the Sentencing Guidelines Commission. There is
no single source which captured all twenty-eight juveniles.
As such, there may be additional youth who have been
sentenced to life in prison without the possibility of parole
that are not accounted for here.

65 RCW 9.94A.537. 

67 General Assembly Resolution 62/141, “Rights of the
Child,” para 36(a), UN Doc. No. A/RES/62/141. (18 Dec.
2007), passed by General Assembly vote, 183 to 1, opposed,
the United States; General Assembly Resolution 61/146,
“Promotion and protection of the rights of children,” para.
31(a), UN Doc. No. A/Res/61/146. (19 Dec. 2006), passed by
General Assembly vote, 176 to 1 opposed, the United States.

44 Id. at 10, 12. 

46 Id. at 124-25. 

64 RCW 9.94A.510; RCW 9.94A.515. 

59 The Children of Incarcerated Parents Project, Oregon
Department of Corrections at 1. 
60 Wash. St. Inst. For Pub. Pol’y, Watching the Bottom
Line: Cost-Effective Interventions for Reducing Crime
in Washington 5 (Jan. 1998) (regarding TeamChild, a
legal service provider that helps youth attain access to
educational services).
61 GJJAC Report supra note 34 at 5. 
62 Concluding Observations of the Committee on the
Elimination of Racial Discrimination on the United States
of America, 72nd Sess. Held on 7 March 2008, (CERD/C/
Sr.1853, 1854, 1870), para. 21. See also Human Rights
Watch, supra note 33 at 9.
63 Laurence Steinberg & Alex R. Piquero, Do People Value
Punishment More than Rehabilitation? A Study of the
Willingness to Pay for Rehabilitation and Incarceration of
Juvenile Offenders (Sept. 2007).

24

71 Committee on the Elimination of Racial Discrimination,
supra note 62, para. 21. See also Human Rights Watch,
supra note 33 at 9.
72 Washington Department of Corrections, Statistical
Brochure (July 2008). 
73 Roper, 125 S.Ct. at 1195-6. 
74 American Bar Association Policy 105C: Advocates
Balance of Interests in Sentencing Youthful Offenders. 

82 Wiebush, supra note 53 at 18. 

84 Holman & Ziedenberg, supra note 25 at 8.
85 Aos, supra note 83 at 9.

.

86 Id

ACKNOWLEDGEMENTS
The study detailed in this report would not have been possible without the pro bono efforts of
numerous Washington attorneys who undertook the task of reviewing the declination, trial, and
appellate records of the twenty-eight youth sentenced to life without the possibility of parole.
The Washington Coalition for the Just Treatment of Youth would like to thank Ann Carey, Paula
Deutch, Jeff Ellis, Neil Fox, Robert Gombiner, Jana Heyd, Thomas W. Hillier, II, Katie Hurley,
Chris Kerkering, Jill Malat, Jackie McMurtrie, Lissa Shook, Nancy Tenney, and Anthony Todaro
for their invaluable contributions.
Several additional advocates from Human Rights Watch, the National Center for Youth Law, and
Columbia Legal Services contributed time to assist in editing this report. The Coalition would like
to thank Pat Arthur, Elizabeth Calvin, Dan Ford, Maureen Janega, John Midgley, Erin Shea-McCann,
Gavin Thornton, and Casey Trupin.
The Coalition would also like to thank the law firm of DLA Piper and Columbia Legal Services
for their generous donations of attorney and staff time and financial resources. In particular,
the Coalition thanks Karen Baisden for gathering and maintaining records pertinent to this effort.

 

 

Prisoner Education Guide side
CLN Subscribe Now Ad
Prison Profiteers - Side