Originally published to my linkedin page on 10/19/18
Last night, October 18th, 2018, Washington State’s Supreme Court ruled it unconstitutional to sentence 16 and 17 year olds to a life without parole. This is a victory for criminal justice as the credibility of this court’s opinion will be praised and thereafter referenced in ongoing parole reform rationale theories.
5 to 4, the majority ruling authored by Justice Susan Owens decided it was unconstitutional to punish a youth offender for the duration of his life. 5-4, this battle slipped through the cracks with a sigh of relief, 5-4 vote.
As parole reform supporters we are regularly inundated with recirculated ideas, fact charts, theories, sentiments as to why a person should be released from prison. As community organizers we rally our agendas and we focus on the policy makers, the Mayor, the Governor but how often do we focus on the Policy Influencers, the State and Supreme Court Judges?
5 to 4 decision, 5 judges concluded then 16 year old Brian Basset now 35 years old was worthy of another life chapter that expanded beyond one criminal act committed as a poverty stricken, traumatized teenager.
But 45% of the judges, nearly half, decided that he was undeserving of freedom, hope, societal contributions. And I needed to know why, if I could access the rationale, I could dispute the rationale, so I read the full court decision. https://www.courts.wa.gov/opinions/pdf/945560.pdf
This is what I found most shocking.
That 55% decision to rule youth sentencing without parole wasn’t primarily based in legal logic. While it rejects the court of appeals application of the Fain Test on the basis that the test incorrectly evaluates the offense as equal with the punishment – it applies the categorical bar analysis which is based in authoritative appeal by relying on legislative status quo to justify or reject judgments:
“The Fain proportionality test considers (1) the nature of the offense, (2) the legislative purpose behind the statute, (3) the punishment the defendant would have received in other jurisdictions, and (4) the punishment meted out for other offenses in the same jurisdiction. Fain, 94 Wn.2d at 397. The categorical bar analysis considers (1) whether there is objective indicia of a national consensus against the sentencing practice at issue and (2) the court’s own independent judgment based on ‘”the standards elaborated by controlling precedents and by the [court’s own understanding and interpretation of the [cruel punishment provision]’s text, history,… and purpose.’” Graham, 560 U.S. at 61 (quoting Kennedy v. Louisiana, 554 U.S. 407, 421, 128 S. Ct. 2641,171 L. Ed. 2d 525 (2008)).”
“The first step in the categorical bar analysis is to determine whether there is national consensus against sentencing juveniles to life without parole by looking at “objective indica of society’s standards, as expressed in legislative enactments and state practice.”
“The first step in the categorical bar analysis is to determine whether there is a national consensus against sentencing juveniles to life without parole by looking at ‘”objective indicia of society’s standards, as expressed in legislative enactments and state practice.’” Graham, 560 U.S. at 61 (quoting Roper, 543 U.S. at 563).”
While we must credit the majority judges for lightly referencing neuropsychology findings that illustrate that cognitive reasoning skills in minors are not fully developed into later adulthood, one cannot ignore the sad facts that a majority of supreme court rulings are evidenced in status quo reasoning and the thereafter criminal biases that impact marginalized communities are buttressed by circular reasoning. The court said the legislatures are right so, it must be right – the legislature said the courts are right so it must be right.
He say, she say, but them, they, have no say.
When the Senate elected Kavanaugh to the Supreme Court in a 50 to 48 decision, this too, became status quo. That a white privileged 16 year old could eschew crime without punishment and moreover be appointed to the highest court in the land. Alternatively an unprivileged 16 year old could be punished indefinitely for crimes committed in his youth.
The minority dissent, authored by Justice Stephens used a similar rationale, commitment to status quo, but ultimately reaches a different conclusion about the fate of Brian Bassett. Unlike the majority opinion, Judge Stephens gets right to the point of defending tradition.
First he criticizes the majority Judges for rightfully interpreting Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Miller v. Alabama was the U.S. Supreme Court ruling that made it unconstitutional not to consider parole for youth offenders.
Next, Justice Stephens criticizes for departing from state precedent to reject similar constitutional challenges and uphold judicial sentencing discretion. Justice Stephens reasons that although Miller v. Alabama ruled that mitigating factors should be considered when sentencing youth, that his colleagues were nonetheless wrong to extend this application of evidence to Bassett.
Justice Stephens is upholding that it is unconstitutional to apply a well-rounded psycho-social analysis to a child.
Justice Stephens is defending a stance that is illegal in America to differentiate between a child who murder(ed) past tense and a college educated, married, adult man who mentor(s) prison inmates present tense.
Justice Stephens is making claim about the privilege of authoring tradition and the privilege of defending the monopolized right to amend tradition.
Parole work is vital because it challenges tradition while petitioning to change tradition. The Washington State Court ruling was sketchy in its rationale but a win nonetheless. We take from it no comfort but confirmation.
That those with the most power to influence are easily influenced. That those with the least power to influence are also easily influenced.
As Parole Reformers we cannot be crippled by seemingly disappointed statistics or circumstances. We must edify ourselves in hope, in morality, We cannot be influenced.
As Reformers, we can’t be moved by anything but must make a full energy exerting effort to move everything.
Opinion change then people change. People change so laws change. But we don’t change, we change laws.