Last month, Washington’s Supreme Court heard arguments on whether Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012) should be applied retroactively to juveniles who were sentenced to life without parole in Washington. In Miller, the U.S. Supreme Court determined that because of their developing characters, children are uniquely able to transform themselves as they age and that they can change from foolhardy, risk-seeking teenagers into mature, rehabilitated adults. Miller requires that the court consider the individual characteristics of a youth before sentencing that juvenile to die in prison.

Most offenders in Washington are subject to determinate sentences that are based upon a combination of criminal history and the seriousness of the convicted offense. While the standard range for a sentence can result in the equivalent of a life sentence, the court can only order a life without parole sentence for aggravated murder or when the person has been convicted of their third strike. All thirty juvenile offenders sentenced to life without parole have been convicted of aggravated murder. We are hopeful that our Supreme Court will consider the evolving science of brain development and order that these youths be given a meaningful opportunity for rehabilitation and release.

Many more youths are serving life sentences under our determinate sentencing structure, some for crimes where no one was actually injured. Because our determinate sentencing structure requires mandatory sentencing enhancements when certain aggravating factors are present, like the use of a weapon, many youth convicted in adult court end up getting sentences well beyond their natural life span. Again, many of these sentences were imposed not because a court found that the youth deserved to die in prison, but because they were compelled to order the sentence under our automatic sentencing structure. Unlike Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, (2010), these youth are sentenced to determinate sentences. Because of that, prosecutors have argued that Graham does not apply. Our Supreme Court has agreed to hear the issue and is likely to take it up this spring.

I believe that Graham and Miller require courts to hold hearings to determine whether a juvenile should be tried as an adult and when they are sentenced, to create a sentence based upon the individual characteristics of that youth that provides for a meaningful opportunity for reformation and release. States like Washington which provide for no opportunity to review whether a youth has been rehabilitated must craft a remedy. Trial lawyers can start this process by providing their courts with the case law and the continuing research that emphasizes that youth are different and that we need to treat them that way.

Trial lawyers who represent youths who are being tried as adults need to object any time a court makes a decision that does not allow for discretion. Courts need to be educated to the continuing research that affirms that juveniles act rashly, engage in risky behavior and do not have an appreciation for the consequences of their actions. Most importantly, courts need to understand that scientific research demonstrates what we already know, which is that children grow up. Even those who have committed serious offenses deserve the opportunity for rehabilitation and release.

A video of the arguments in PRP of McNeil and Rice can be heard on TVW, our local public affairs network.