Crime

Fight over juvenile justice reform comes to Pierce County

Armed with recent advantageous U.S. Supreme Court rulings, public defenders and youth advocates across the nation have begun demanding reform of tough-on-crime juvenile justice laws enacted two decades ago.

That fight has made its way to Pierce County.

This spring, Superior Court Judge Brian Tollefson will be asked to declare the state’s so-called “auto-decline” law unconstitutional in the case of a Tacoma teenager charged with killing his father.

The law automatically transfers the cases of 16- and 17-year-old defendants accused of certain violent crimes to adult courts. It ultimately gives prosecutors the sole power to determine which teens end up being prosecuted as adults.

Lawyers for Rylan Salzman, 17, say the law runs contrary to recent U.S. Supreme Court decisions that suggest juvenile offenders deserve a chance to argue to a judge why their youth should be considered in the context of their alleged criminal activity.

Some research shows that human brains are not fully developed until a person’s 20s, and that the undeveloped brains of teenagers lead them to act more impulsively than adults.

Defense attorneys Mary Opgenorth and Clarence Henderson Jr. want Salzman’s case sent back to juvenile court for at least a hearing on the merits of their client’s circumstances and whether he should be prosecuted as a juvenile.

Pierce County prosecutors, like their counterparts in other parts of the state, are fighting attempts to do away with the auto-decline law.

“We don’t agree with their analysis,” said deputy prosecutor Lisa Wagner, who is prosecuting Salzman for second-degree murder.

The Washington Association of Prosecuting Attorneys has come out publicly against eliminating the auto-decline law.

“I don’t believe that fixes a problem,” King County deputy prosecutor Jimmy Hung told a state Senate committee that was considering a bill last month that would have eliminated the law.

Criminal lawyers across the state will be watching the outcome of Tollefson’s ruling.

“If it went the defense way, it has huge implications,” said Keith Tyne of the Skagit County Office of Assigned Counsel and president-elect of the Washington Defender Association.

PASSED IN 1994

The Legislature passed auto-decline into law in 1994 when state houses across the nation were reforming their juvenile justice laws.

The revamping occurred during a “series of moral panics” in the wake of high-profile crimes committed by children, Elizabeth Scott, a Columbia Law School professor and expert on children’s law, said in a 2013 paper titled “Miller v. Alabama and (Past and) Future of Juvenile Crime Regulation.”

“In this hostile climate, the goals of punishing young offenders and protecting the public trumped other considerations, and the importance of differences between juvenile and adult offenders was either ignored or denied,” Scott wrote.

Some states lowered the age of children eligible for transfer to adult court and expanded the number of crimes that qualified kids for prosecution as adults, she wrote.

“Many states shifted the authority to make jurisdictional decisions from judges to prosecutors,” Scott wrote.

Such was the case in Washington state, where the Legislature mandated that 16- and 17-year-olds charged with murder or with a history of violent offenses were automatically sent to adult court.

The Legislature in 1997 expanded the number of crimes that qualified a 16- or 17-year-old with a previous conviction for automatic decline to adult court, including drive-by shooting, first-degree robbery and first-degree burglary.

The 1997 bill “draws a line in the sand and says every older juvenile who commits a serious crime will pay a serious penalty,” House Law and Justice Committee Chairman Larry Sheahan (R-Rosalia) said at the time.

It also made the prosecutor’s charging decision the ultimate determination of which court 16- and 17-year-old offenders found themselves in. Since the law went into effect in 1994, nearly 1,300 juveniles across the state have had their criminal cases transferred to adult court, according to Columbia Legal Services.

MORE PRISON, LESS HELP

That law was in effect when Salzman allegedly beat his father, Richard Salzman, to death with a cane during an argument in June 2014.

Prosecutors charged him with second-degree murder, to which he’s pleaded not guilty.

Because Salzman was 16 at the time of the killing, his case was automatically transferred into the adult system, where he faces the possibility of longer incarceration and has access to fewer programs available to those prosecuted in juvenile court.

He currently faces a standard-range sentence of 12 years, three months, to 18 years, eight months, in state prison.

If sent back to juvenile court and convicted, he could be placed into the custody of the state’s Juvenile Rehabilitation Administration, which is run by the Department of Social and Health Services, until he turns 21.

His attorneys, Opgenorth and Henderson, argue he at the very least deserves a hearing to make his argument that his case belongs in juvenile court.

In a pleading filed in February, they say recent Supreme Court rulings, including the 2012 opinion in Miller v. Alabama, “recognize that new scientific research has confirmed what common sense already led us to believe — biological differences between youths and adults diminish the culpability of juvenile criminal defendants.”

In Miller v. Alabama, the Supreme Court ruled that automatic life-without-parole sentences for juveniles convicted of aggravated first-degree murder were unconstitutional.

In the 5-4 decision, the nation’s high court said imposing such penalties on children without taking into account mitigating factors including their susceptibility to peer pressure and negative parental influences violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The Washington Legislature last year reworked the state’s sentencing laws to comport with the Miller ruling.

“The (Supreme) Court has essentially said that mandatory sentencing, or other mandatory treatment of youths as adults, may not survive Eight Amendment scrutiny,” Opgenorth and Henderson wrote.

Others have made similar arguments recently, including Colleen O’Connor, who works for the King County Department of Public Defense.

Testifying in February on behalf of Senate Bill 5652, which would have eliminated auto-decline, O’Connor said society treats juveniles differently in almost every aspect of life except, in some cases, the criminal justice system.

“We don’t let them drink. We don’t let them drive. We don’t let them vote,” O’Connor told members of the Senate’s Human Services, Mental Health and Housing Committee. “We’re not asking you to just let these kids go free. We’re just asking that discretion be given back to the judges.”

Elizabeth Drake of the Washington State Institute of Public Policy presented findings from a study of recidivism rates between about 770 children who were subjected to auto-decline and about 440 who were not.

The auto-decline group was more likely to commit crimes when released than the group that stayed in the juvenile courts, Drake said.

“They had higher rates of felony recidivism and higher rates of violent felony recidivism than the comparison group,” she told the committee. “Our results were consistent with the national research literature.”

But prosecutors, including representatives of the Washington Association of Prosecuting Attorneys, told the committee doing away with auto-decline would be a mistake.

Deputy prosecutor Kevin Benton, who heads up the Pierce County Prosecuting Attorney’s Office’s juvenile division, was among them. He said the proper venue for arguments regarding mitigation was at sentencing.

Todd Dowell, a senior deputy prosecutor for Kitsap County who was representing the prosecutors association, told committee members the auto-decline law addresses “the most serious crimes that people can commit.”

He agreed with Benton that the proper place to “allow mitigation for youthful offenders” is at sentencing.

The bill, which was supported by the state Department of Corrections, failed to make it out of committee.

Michael Kawamura, director of Pierce County’s Department of Assigned Counsel, said last week he expects the topic to resurface, if not in this legislative session, then in a future one.

Judge Tollefson is to hear Salzman’s request May 22.

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