Miller’s promise: Re-Evaluating extreme criminal sentences for children

Washington Law Review

Volumn 89, Issue 3, 2014, Pages 963-1007

  Straley, Nick ^a  

^a The Institutions Project of Columbia Legal Services in Seattle   (United States)

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[No Author keywords available]

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EID: 84912017704     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (298)

1. See, e.g., Elizabeth S. Scott & Laurence D. Steinberg, Rethinking Juvenile Justice (2008) (discussing impact of neurological and psychosocial research on manner in which criminal law addresses criminal behavior by young people).
2. Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults, 18 Behav. Sci. & L. 741 (2000) (presenting research showing that adolescents scored significantly worse than adults in tests of responsibility, perspective, and temperance).
3. Sarah Durston et al., Anatomical MRI of the Developing Human Brain: What Have We Learned?, 40 J. Am. Acad. Child & Adolescent Psychiatry 1012 (2001) (discussing various neuroimaging studies of juvenile brain development).
4. Neir Eshel et al., Neural Substrates of Choice Selection in Adults and Adolescents: Development of the Ventrolateral Prefrontal and Anterior Cingulate Cortices, 45 Neuropsychologia 1270 (2007) (presenting neurological research showing that adolescents do not utilize regulatory areas of brain during decision-making to same extent as adults).
5. Laurence Steinberg et al., Age Differences in Sensation Seeking and Impulsivity as Indexed in Behavior and Self-Report: Evidence for a Dual Systems Model, 44 Developmental Psychol. 1764 (2008) (study demonstrating heightened vulnerability to risk taking among adolescents). The author relied heavily upon amici curiae briefs filed in the Miller case for assistance with research and understanding the scientific evidence.
6. Alan Kazdin, Adolescent Development, Mental Disorders, and Decision Making of Delinquent Youths, in Youth on Trial: A Developmental Perspective on Juvenile Justice 33, 47 (Thomas Grisso & Robert G. Schwartz eds., 2000).
7. see generally Terrie E. Moffitt, Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychol. Rev. 674 (1993) (examining antisocial behavior among adolescents and interaction of neuro-psychological development and criminogenic environments).
8. The author uses the terms “youth," “juvenile," and “child" interchangeably throughout this Article to refer to people under the age of eighteen. As discussed below, in the vast majority of circumstances, the law and society treat all such people as “children." Cf. Miller, 132 S. Ct. at 2464 ("[C]hildren are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, 'they are less deserving of the most severe punishments'"
9. Miller, 132 S. Ct. at 2465.
10. Graham, 560 U.S. at 68.
11. See Graham, 560 U.S. at 68 ("[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.").
12. 132 S. Ct. at 2455.
13. 560 U.S. 48 (2010).
14. 543 U.S. 551 (2005).
15. Graham, 560 U.S. at 74-75 (holding it is unconstitutional to sentence youth to life without parole for non-homicide crimes).
16. Roper, 543 U.S. at 559-60 (holding it is unconstitutional to sentence youth to death).
17. 543 U.S. 551 (2005).
18. 487 U.S. 815 (1987).
19. Roper, 543 U.S. at 568 (2005).
20. The Court in Roper extended the categorical rule it set out in Thompson v. Oklahoma, 487 U.S. 815 (1987), barring the death penalty for children under the age of sixteen, to all children. Roper, 543 U.S. at 568.
21. Graham, 560 U.S. at 74-75.
22. Thompson, 487 U.S. at 835).
23. Graham, 560 U.S. at 73 ("Even if the State's judgment that Graham was incorrigible were later corroborated by prison misbehavior or failure to mature, the sentence was still disproportionate because that judgment was made at the outset.").
24. Graham, 560 U.S. at 70-71.
25. Graham, 560 U.S. at 70.
26. Jason Ziedenberg, U.S. Dep't of Justice, Nat'l Inst. of Corr., You're an Adult Now: Youth in Adult Criminal Justice Systems 11 (2011), available at http://static.nicic.gov/ Library/025555.pdf.
27. Graham, 560 U.S. at 69-70 (third alteration in original)
28. Miller, 132 S. Ct. at 2469.
29. Miller, 132 S. Ct. at 2464-65.
30. Graham v. Florida, 560 U.S. 48, 68 (2010).
31. Roper v. Simmons, 543 U.S. 551, 617-18 (2005).
32. Brief for the Am. Med. Ass'n et al., as Amici Curiae in Support of Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633) [hereinafter Roper AMA Brief].
33. Miller, 132 S. Ct. at 2464-65.
34. Graham, 560 U.S. at 68.
35. Miller APA Brief
36. Laurence Steinberg et al., Age Differences in Sensation Seeking and Impulsivity as Indexed in Behavior and Self-Report: Evidence for a Dual Systems Model, 44 Developmental Psychol. 1764 (2008) (study demonstrating heightened vulnerability to risk taking among adolescents). The author relied heavily upon amici curiae briefs filed in the Miller case for assistance with research and understanding the scientific evidence.
37. Neir Eshel et al., Neural Substrates of Choice Selection in Adults and Adolescents: Development of the Ventrolateral Prefrontal and Anterior Cingulate Cortices, 45 Neuropsychologia 1270 (2007) (presenting neurological research showing that adolescents do not utilize regulatory areas of brain during decision-making to same extent as adults).
38. Kathryn L. Modecki, Addressing Gaps in the Maturity of Judgment Literature: Age Differences and Delinquency, 32 Law & Hum. Behav. 78, 79-80 (2008).
39. Laurence Steinberg et al., Age Differences in Sensation Seeking and Impulsivity as Indexed in Behavior and Self-Report: Evidence for a Dual Systems Model, 44 Developmental Psychol. 1764 (2008) (study demonstrating heightened vulnerability to risk taking among adolescents). The author relied heavily upon amici curiae briefs filed in the Miller case for assistance with research and understanding the scientific evidence.
40. see generally Terrie E. Moffitt, Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychol. Rev. 674 (1993) (examining antisocial behavior among adolescents and interaction of neuro-psychological development and criminogenic environments).
41. Elizabeth R. Sowell et al., In Vivo Evidence for Post-Adolescent Brain Maturation in Frontal and Striatal Regions, 2 Nature Neuroscience 859, 860 (1999).
42. Ralph Adolphs, The Human Amygdala and Emotion, 5 Neuroscientist 125, 125-26 (1999). The amygdala evolved early on to detect danger and produce rapid protective reactions, the “fight or flight" reflex.
43. Abigail A. Baird et al., Functional Magnetic Resonance Imaging of Facial Affect Recognition in Children and Adolescents, 38 J. Am. Acad. Child & Adolescent Psychiatry 195, 195 (1999).
44. See Nitin Gogtay et al., Dynamic Mapping of Human Cortical Development During Childhood Through Early Adulthood, 101 Proc. of the Nat'l Acad. of Sci. 8174, 8177 (2004).
45. Neir Eshel et al., Neural Substrates of Choice Selection in Adults and Adolescents: Development of the Ventrolateral Prefrontal and Anterior Cingulate Cortices, 45 Neuropsychologia 1270 (2007) (presenting neurological research showing that adolescents do not utilize regulatory areas of brain during decision-making to same extent as adults).
46. Miller APA Brief
47. B. Luna, The Maturation of Cognitive Control and the Adolescent Brain, in From Attention to Goal-Directed Behavior: Neurodynamical, Methodological and Clinical Trends 249, 258 (Francisco Aboitiz & Diego Cosmelli eds., 2009).
48. R. Andrew Chambers et al., Developmental Neurocircuitry of Motivation in Adolescence: A Critical Period of Addiction Vulnerability, 160 Am. J. Psychiatry 1041, 1046 (2003).
49. Laurence Steinberg, Adolescent Development and Juvenile Justice, 5 Ann. Rev. Clinical Psychol. 459, 466 (2009). Researchers theorize that this neurochemical imbalance plays an important role in reinforcing learning in adolescents.
50. Dustin Wahlstrom et al., Neurobehavioral Evidence for Changes in Dopamine System Activity During Adolescence, 34 Neuroscience & Biobehavioral Rev. 631, 643 (2010).
51. Miller APA Brief
52. Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults, 18 Behav. Sci. & L. 741 (2000) (presenting research showing that adolescents scored significantly worse than adults in tests of responsibility, perspective, and temperance).
53. Miller APA Brief
54. Miller APA Brief
55. Laurence Steinberg, Adolescent Development and Juvenile Justice, 5 Ann. Rev. Clinical Psychol. 459, 466 (2009). Researchers theorize that this neurochemical imbalance plays an important role in reinforcing learning in adolescents.
56. gains in cognitive capability plateau at about age sixteen. See Thomas Grisso et al., Juveniles' Competence to Stand Trial: A Comparison of Adolescents' and Adults' Capacities as Trial Defendants, 27 Law & Hum. Behav. 333, 333-34 (2003).
57. Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults, 18 Behav. Sci. & L. 741 (2000) (presenting research showing that adolescents scored significantly worse than adults in tests of responsibility, perspective, and temperance).
58. see also Bonnie L. Halpern-Felsher & Elizabeth Cauffman, Costs and Benefits of a Decision: Decision-Making Competence in Adolescents and Adults, 22 J. Applied Developmental Psychol. 257, 264-71 (2001).
59. see generally Terrie E. Moffitt, Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychol. Rev. 674 (1993) (examining antisocial behavior among adolescents and interaction of neuro-psychological development and criminogenic environments).
60. see also L.P. Spear, The Adolescent Brain and Age-Related Behavioral Manifestations, 24 Neuroscience &Biobehavioral Revs. 417, 421 (2000).
61. See, e.g., Elizabeth S. Scott & Laurence D. Steinberg, Rethinking Juvenile Justice (2008) (discussing impact of neurological and psychosocial research on manner in which criminal law addresses criminal behavior by young people).
62. Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preference, and Risky Decision Making in Adolescence and Adulthood: An Experimental Study, 41 Developmental Psychol. 625, 632 (2005).
63. Jason Chein et al., 14 Developmental Sci. F1, F2 (2011).
64. Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 2464-65 (2012)
65. Roper v. Simmons, 543 U.S. 551, 570 (2005)).
66. See Rolf Loeber & David P. Farrington, Young Homicide Offenders and Victims: Risk Factors, Prediction, and Prevention from Childhood 61 (2011).
67. Lawrence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003).
68. Alan Kazdin, Adolescent Development, Mental Disorders, and Decision Making of Delinquent Youths, in Youth on Trial: A Developmental Perspective on Juvenile Justice 33, 47 (Thomas Grisso & Robert G. Schwartz eds., 2000).
69. Roper, 543 U.S. at 569 ("It has been noted that 'adolescents are overrepresented statistically in virtually every category of reckless behavior.' In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. '[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.' This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment."
70. Eddings v. Oklahoma, 455 U.S. 104, 115 (1982))).
71. Miller, 132 S. Ct. at 2458 (alteration in original)
72. Miller, 132 S. Ct. at 2458.
73. see generally Terrie E. Moffitt, Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychol. Rev. 674 (1993) (examining antisocial behavior among adolescents and interaction of neuro-psychological development and criminogenic environments).
74. Terrie Moffitt, Natural Histories of Delinquency, in Cross-National Longitudinal Research on Human Development and Criminal Behavior 3, 29 (Elmar Weitekamp & Hans-Jurgen Kerner eds., 1994).
75. See, e.g., Elizabeth S. Scott & Laurence D. Steinberg, Rethinking Juvenile Justice (2008) (discussing impact of neurological and psychosocial research on manner in which criminal law addresses criminal behavior by young people).
76. see also Kathryn C. Monahan et al., Trajectories of Antisocial Behavior and Psychosocial Maturity from Adolescence to Young Adulthood, 45 Developmental Psychol. 1654, 1654-55 (2009).
77. see generally Terrie E. Moffitt, Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychol. Rev. 674 (1993) (examining antisocial behavior among adolescents and interaction of neuro-psychological development and criminogenic environments).
78. State v. Null, 836 N.W.2d 41, 55-56 (Iowa 2013) (quoting Scott & Steinberg, supra note 1, at 54) ("[I]t is very difficult to identify which juveniles are 'adolescence-limited offenders,' whose antisocial behavior begins and ends during adolescence and early adulthood, and those who are 'life-course-persistent offenders' whose antisocial behavior continues into adulthood.").
79. Edward P. Mulvey et al., Trajectories of Desistance and Continuity in Antisocial Behavior Following Court Adjudication Among Serious Adolescent Offenders, 22 Dev. & Psychopathology 453, 468-70 (2010).
80. Edward P. Mulvey & Elizabeth Cauffman, The Inherent Limits of Predicting School Violence, 56 Am. Psychologist 797, 799 (2001).
81. Miller, 132 S. Ct. at 2468-69.
82. Cf. Graham v. Florida, 560 U.S. 48, 68-71 (2010).
83. Miller, 132 S. Ct. at 2465.
84. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
85. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
86. See Psychological Evaluation of Barry Massey by Norma D. Tropp, Ph.D. 4 (Mar. 27, 1987). Some of the information to which the authors refer herein is unverified and based upon reports from the men themselves.
87. Judgment & Sentence, State v. Massey, No. 87-1-01354-7 (Pierce Cnty. Wash. Super. Ct. Aug. 5, 1998).
88. Source document held on file with Columbia Legal Services.
89. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
90. Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 2468 (2012) (quoting Graham v. Florida, 560 U.S. 48, 78 (2010)).
91. Graham, 560 U.S. at 78.
92. Miller, 132 S. Ct. at 2468 (mandatory life without parole for juveniles “ignores that [the youth] might have been charged and convicted of a lesser offense if not for incompetencies associated with youth").
93. see also Graham, 560 U.S. at 78 ("[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings. Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to work effectively with their lawyers to aid in their defense. Difficulty in weighing long-term consequences.
94. a corresponding impulsiveness.
95. and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense. These factors are likely to impair the quality of a juvenile defendant's representation." (internal citations omitted)).
96. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
97. See Judgment & Sentence, State v. Alexander, No. 02-1-00527-9 (Whatcom Cnty. Wash. Super. Ct. Mar. 29, 2004).
98. Judgment & Sentence, State v. Thang, No. 98-1-00278-7 (Pierce Cnty. Wash. Super. Ct. Mar. 5, 2003).
99. Judgment & Sentence, State v. Phet, No. 98-1-03162-1 (Pierce Cnty. Wash. Super. Ct. June 28, 2002).
100. Judgment & Sentence, State v. Lembcke, No. 01-1-00001-7 (Stevens Cnty. Wash. Super. Ct. Aug. 7, 2001).
101. Judgment & Sentence, State v. Leo, No. 98-1-03161-3 (Pierce Cnty. Wash. Super. Ct. Feb. 11, 2000).
102. Judgment & Sentence, State v. Anderson, No. 97-1-00421-3 (King Cnty. Wash. Super. Ct. Jan. 7, 2000).
103. Judgment & Sentence, State v. Baranyi, No. 97-1-00343-8 (King Cnty. Wash. Super. Ct. Jan. 15, 1999).
104. Judgment & Sentence, State v. Backstrom, No. 97-1-01993-6 (Snohomish Cnty. Wash. Super. Ct. Jan. 6, 1999).
105. Judgment & Sentence, State v. Munguia, No. 97-1-00679-5 (Benton Cnty. Wash. Super. Ct. July 10, 1998).
106. Judgment & Sentence, State v. Lambert, No. 97-1-00415-5 (Grant Cnty. Wash. Super. Ct. Dec. 10, 1997).
107. Judgment & Sentence, State v. Loukaitis, No. 96-1-00548-0 (Grant Cnty. Wash. Super. Ct. Oct. 10, 1997).
108. Judgment & Sentence, State v. Weaver, No. 96-1-00123-9 (Whatcom Cnty. Wash. Super. Ct. Feb. 27, 1997).
109. Judgment & Sentence, State v. Skay, No. 95-1-01942-5 (Snohomish Cnty. Wash. Super. Ct. Aug. 14, 1996).
110. Judgment & Sentence, State v. Comeslast, No. 95-1-02260-1 (Spokane Cnty. Wash. Super. Ct. June 28, 1996).
111. Judgment & Sentence, State v. Bassett, No. 95-1-00415-9 (Grays Harbor Cnty. Wash. Super. Ct. Apr. 1, 1996).
112. Judgment & Sentence, State v. Boot, No. 95-1-00310-0 (Spokane Cnty. Wash. Super. Ct. Mar. 21, 1996).
113. Judgment & Sentence, State v. Ngoeung, No. 94-1-03719-8 (Pierce Cnty. Wash. Super. Ct. June 27, 1995).
114. Judgment & Sentence, State v. Haag, No. 94-1-00411-2 (Cowlitz Cnty. Wash. Super. Ct. Jan. 13, 1995).
115. Judgment & Sentence, State v. Delbosque, No. 93-100256-4 (Mason Cnty. Wash. Super. Ct. Oct. 10, 1994).
116. Judgment & Sentence, State v. Gaitan, No. 93-1-01018-0 (Yakima Cnty. Wash. Super. Ct. Dec. 21, 1993).
117. Judgment & Sentence, State v. Gilbert, No. 92-1-00108-1 (Klickitat Cnty. Wash. Super. Ct. June 7, 1993).
118. Judgment & Sentence, State v. Bourgeois, No. 92-1-06444-4 (King Cnty. Wash. Super. Ct. Apr. 23, 1993).
119. Judgment & Sentence, State v. Hofstetter, No. 91-1-02993-0 (Pierce Cnty. Wash. Super. Ct. Feb. 12, 1992).
120. Judgment & Sentence, State v. Rice, Jr., No. 88-1-00427-2 (Yakima Cnty. Wash. Super. Ct. Jan. 5, 1990).
121. Judgment & Sentence, State v. McNeil, No. 88-1-00428-1 (Yakima Cnty. Wash. Super. Ct. Aug. 26, 1989).
122. Amended Judgment & Sentence, State v. Furman, No. 89-1-00295-5 (Kitsap Cnty. Wash. Super. Ct. Aug. 9, 1989).
123. Judgment & Sentence, State v. Massey, No. 87-1-01354-7 (Pierce Cnty. Wash. Super. Ct. Aug. 5, 1988).
124. Judgment & Sentence, State v. Stevenson, No. 87-1-00011-5 (Skamania Cnty. Wash. Super. Ct. June 12, 1987).
125. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
126. Lambert v. Blodgett, 248 F. Supp. 2d 988, 993 (E.D. Wash. 2003), rev'd in part, 393 F.3d 943 (9th Cir. 2004).
127. Lambert, 248 F. Supp. 2d at 993. Procedural barriers have barred Mr. Lambert from receiving any post-conviction relief based upon ineffective assistance of counsel. See Lambert, 393 F.3d at 943.
128. Lambert, 248 F. Supp. 2d at 1000.
129. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
130. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
131. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
132. 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 that 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.").
133. Wash. Dep't of Corr., Criminal History Summary Regarding Michael Furman (2005).
134. Cf. State v. Furman, 122 Wash. 2d 440, 445, 858 P.2d 1092, 1096 (1993) (relating an expert witness' testimony that Furman's use of methamphetamine made him unable to reflect or deliberate about the mechanics or consequences of his actions).
135. Peggy Andersen, Loukaitis' Mother Says She Told Son of Plan to Kill Herself, Seattle Times, Sept. 8, 1997, at B1.
136. See, e.g., State v. Massey, 60 Wash. App. 131, 135, 803 P.2d 340, 343 (1990). Court records contain some information regarding these men because of the development of some mitigation evidence as part of death penalty or declination proceedings. However, even though some information may have been considered by courts at the time of the original sentencings, these cases arose before the development of the new neurological science that supports Miller's holding and the analysis it requires. Moreover, the Miller Court explicitly found that the evaluation of mitigating evidence during a declination process to adult court is not sufficient to support a life without parole sentence for a child.
137. Paige Dickerson, Lifers Lead Classes to Prepare Other Prisoners for Success Beyond Cell Walls, Peninsula Daily News (Sept. 7, 2010), http://www.peninsuladailynews.com/article/20100907/news/309079993/lifers-lead-classes-to-prepare-other-prisoners-for-success-beyond.
138. Nina Shapiro, Gov. Gregoire: One Tough Clemency Judge, Seattle Weekly (July 3, 2007), http://www.seattleweekly.com/2007-07-04/news/gov-gregoire-one-tough-clemency-judge.
139. See State v. Rice, 120 Wash. 2d 549, 554, 844 P.2d 416, 418 (1993).
140. Sara Jean Green, Children Bring Joy to Prison Powwows, Seattle Times, May 28, 2012, at A1.
141. State v. Hofstetter, 75 Wash. App. 390, 391 n.1, 878 P.2d 474, 475 n.1 (1994).
142. Rob Carson, Orting Clerk Killer's Life Sentence Reduced to 40 Years, The News Tribune (Oct. 18, 2013), http://www.thenewstribune.com/2013/10/18/2844694/orting-clerk-killers-life-sentence.html.
143. See State v. Ragland, 836 N.W.2d 107, 121 (Iowa 2013) ("Graham requires a 'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation' during the offender's expected lifetime, and Miller requires an individualized consideration of youth as a mitigating factor at a sentencing hearing if such a realistic, meaningful opportunity will not be available." (citations omitted)).
144. Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 2469-75 (2012).
145. Graham v. Florida, 560 U.S. 48, 82 (2010).
146. Wash. Rev. Code § 9.94A.505.
147. State v. Ha'mim, 132 Wash. 2d 834, 847, 940 P.2d 633, 639 (1997).
148. see also State v. Scott, 72 Wash. App. 207, 218-19, 866 P.2d 1258, 1264 (1993)
149. See, e.g., Ha'mim, 132 Wash. 2d at 847, 940 P.2d at 639 (age).
150. State v. Freitag, 127 Wash. 2d 141, 144, 896 P.2d 1254, 1256 (1995) (desire to improve self through community service).
151. State v. Hodges, 70 Wash. App. 621, 624, 855 P.2d 291, 293 (1993) (selling drugs to put food on the table).
152. State v. Sanchez, 69 Wash. App. 255, 260, 848 P.2d 208, 211 (1993) (limited education).
153. State v. Allert, 58 Wash. App. 200, 205, 791 P.2d 932, 935 (1990), rev'd, 117 Wash. 2d 156, 815 P.2d 752 (1991) (depression and alcoholism).
154. State v. Estrella, 115 Wash. 2d 350, 359-60, 798 P.2d 289, 293 (1990) (willingness to rehabilitate).
155. State v. Pennington, 112 Wash. 2d 606, 611, 772 P.2d 1009, 1012 (1989) (drug or alcohol problem).
156. State v. Rogers, 112 Wash. 2d 180, 185, 770 P.2d 180, 182 (1989) (emotional and psychological stress).
157. State v. Pascal, 108 Wash. 2d 125, 137, 736 P.2d 1065, 1072 (1987) (lack of danger to community and no criminal record).
158. State v. Ramos, 174 Wash. App. 1042, No. 30279-2-III, at *13 (Apr. 16, 2013) (unpublished).
159. See, e.g., State v. Solis-Diaz, 152 Wash. App. 1038, 2009 WL 3261249, at *3 (Oct. 13, 2009) (unpublished) (sixteen-year-old defendant sentenced to 1111 months in prison following conviction on six counts of first degree assault with mandatory firearm enhancements).
160. See Moore v. Biter, 725 F.3d 1184, 1191 (9th Cir. 2013) (finding a 254-year sentence “indistinguishable" from life without parole).
161. State v. Ragland, 836 N.W.2d 107, 121-22 (Iowa 2013) (holding a mandatory minimum sixty-year term before parole eligibility is “functional equivalent of life without parole").
162. People v. Caballero, 282 P.3d 291, 295 (Cal. 2012) (finding a 110-year mandatory minimum term violates Graham).
163. A number of courts have recognized that, at some point, long determinate sentences become life-without-parole sentences. Moore, 725 F.3d at 1191 ("Moore's sentence of 254 years is materially indistinguishable from a life sentence without parole because Moore will not be eligible for parole within his lifetime.").
164. Ragland, 836 N.W.2d at 121-22 (mandatory minimum sixty-year term is “functional equivalent of life without parole").
165. Caballero, 282 P.3d at 295.
166. Grisby, 121 Wash. 2d at 424, 853 P.2d at 903. However, efforts to determine the length of a “life" term prospectively have been criticized.
167. Henry v. State, 82 So. 3d 1084, 1089 (Fla. Dist. Ct. App. 2012)
168. A person suffers a two-year decline in life expectancy for every year locked away in prison. Evelyn J. Patterson, The Dose-Response of Time Served in Prison on Mortality: New York State, 1989-2003, 103 Am. J. of Pub. Health 523, 526 (2013). The high levels of violence and communicable diseases, poor diets, and shoddy health care all contribute to a significant reduction in life expectancy behind bars.
169. John J. Gibbons & Nicholas de B. Katzenbach, Confronting Confinement 11 (2006). Entering prison at a young age is particularly dangerous. Youth incarcerated in adult prisons are five times more likely to be victims of sexual or physical assault than are adults.
170. Deborah LaBelle, Michigan Life Expectancy Data for Youth Serving Natural Life Sentences, http://fairsentencingofyouth.org/wp-content/uploads/2010/02/Michigan-Life-Expectancy-Data-Youth-Serving-Life.pdf (last visited Dec. 12, 2013).
171. Graham v. Florida, 560 U.S. 48, 69-70 (2010) ("The State does not execute the offender sentenced to life without parole, but the sentence alters the offender's life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration.").
172. In re Diaz, 170 Wash. App. 1039, 2012 WL 5348865, at *1 (Sept. 18, 2012) (unpublished). Solis-Diaz's case also demonstrates how a defendant's youth can cloud his judgment as discussed above. Solis-Diaz rejected a plea offer of 180 months imprisonment. Even though video evidence placed him with a gun in the car at the time of the shooting, eyewitnesses identified him as the shooter, and his alleged alibi witnesses were all easily discredited, he nonetheless rejected the plea offer and decided to proceed to trial.
173. see also State v. Solis-Diaz, 152 Wash. App. 1038, 2009 WL 3261249 (Oct. 13, 2009) (unpublished).
174. In re Diaz, 170 Wash. App. 1039, at *1.
175. In October 2009 and again in November 2010, advocates with Columbia Legal Services (CLS) requested and received demographic data from DOC for all people incarcerated as children in Washington's prisons as of those dates. The authors and others have reviewed that data which is on file with CLS. DOC JLWOP Information
176. DOC JLWOP Information
177. See, e.g., Terms and Conditions, Avis, http://redirect.avis.com/corp_accounts/tandc.html (last visited Aug. 22, 2014).
178. Age Restrictions and Surcharges, Budget, http://www.budget.com/ budgetWeb/html/en/common/agePopUp.html (last visited Aug. 22, 2014).
179. Rent a Car Under 25, Dollar, http://www.dollar.com/car_rental_information/main/rent_a_car_under_25 (last visited Aug. 22, 2014).
180. By statute, people under the age of eighteen may not legally engage in any of the following activities: serve in the military without parental consent, 10 U.S.C. § 505(a) (2012).
181. marry without parental permission, Wash. Rev. Code § 26.28.015(1) (2012).
182. Bellotti v. Baird, 443 U.S. 622, 635 (1979).
183. cf. State v. Sieyes, 168 Wash. 2d 276, 304, 222 P.3d 995, 1009 (2010)
184. Sieyes, 168 Wash. 2d at 305 n.11, 222 P.3d at 1009 n.11 (Johnson, J., concurring in part and dissenting in part).
185. J.D.B. v. North Carolina, __ U.S. __, 131 S. Ct. 2394, 2404 (2011) (quoting Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982)).
186. See generally Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455 (2012).
187. John J. DiIulio, Jr., The Coming of the Superpredators, Weekly Standard, Nov. 27, 1995, at 23 ("We're talking about elementary school youngsters who pack guns instead of lunches. We're talking about kids who have absolutely no respect for human life and no sense of the future.").
188. Knight-Ridder, Experts: Kids Not Mutating Rising Violence Rate Blamed on Firearms, Spokane Spokesman-Review, May 29, 1996, at 1.
189. See, e.g., James Q. Wilson, Crime and Public Policy 507 (1995) (predicting thousands more “young muggers, killers and thieves").
190. Peter Annin, 'Superpredators' Arrive: Should We Cage this New Breed of Vicious Kids, Newsweek, Jan. 22, 1996, at 57 (Cook County State Attorney Jack O'Malley stated, “It's 'Lord of the Flies' on a massive scale… . Those states that fail to prepare for the superpredators will regret it.").
191. Violent Crimes Down For Fifth Straight Year, Spokane Spokesman-Review, Jun. 4, 1997, available at http://www.spokesman.com/stories/ 1997/jun/04/violent-crimes-down-for-fifth-straight-year (Spokane Police Chief Terry Mangan claimed that the five-year decrease in Washington's juvenile crime rate would be “short-lived" and that “we shouldn't rest on our laurels.").
192. Perry L. Moriearty, Framing Justice: Media, Bias, and Legal Decisionmaking, 69 Md. L. Rev. 849, 852 (2010).
193. John J. DiIulio, Jr., My Black Crime Problem, and Ours, City Journal (1996), available at http://www.city-journal.org/html/6_2_my_black.html.
194. In 1994, eighty-eight percent of Americans believed that crime was at an all-time high. In fact, violent crime rates had remained relatively steady since the early 1970s and property crime was significantly reduced from what it had been in earlier decades. Crime rates began dropping precipitously in the early 1990s and have remained historically low since that time. Lydia Salad, Most Americans Believe Crime in U.S. is Worsening, Gallup Wellbeing (Oct. 31, 2011), http://www.gallup.com/poll/150464/americans-believe-crime-worsening.aspx.
195. Between 1990 and 1995, the three major television networks increased the number of crime stories aired during their nightly newscasts from an average of fewer than 560 stories per year to over 2500.
196. a 462 percent increase in just five years. See Sara Sun Beale, The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness, 48 Wm. & Mary L. Rev. 397, 422-23 (2006). National magazines warned Americans about the supposed “superpredators."
197. Margaret Carlson, Children Without Souls, Time, Dec. 2, 1996, at 70.
198. Richard Lacayo, Now for the Bad News: A Teenage Time Bomb, Time, Jan. 15, 1996, at 52 ("So long as we fool ourselves in thinking that we're winning the war against crime, we may be blindsided by this bloodbath of teenage violence that is lurking in the future.").
199. Tom Morganthau, The Lull Before the Storm?, Newsweek, Dec. 5, 1995, at 40.
200. Kids Without a Conscience?, People, Jun. 23, 1997, at cover. Local media added its voice. “More and more children in this state are killing and beating people.… Almost no community is immune."
201. Marsha King, Youth Crime Is Rising Fast, and Everyone Is a Victim, Seattle Times, Oct. 17, 1993, at A1.
202. Laura Myers, The Rise of 'The Young and the Ruthless': Juvenile-Crime Report Finds America's Children More Violent, More Victimized, Seattle Times, Sept. 7, 1995, at A5 (predicting an approaching tsunami of youth crime, because “[t]he children are poorer. There are more minorities. And they have more guns.").
203. See Jessica Short et al., Disproportionate Minority Contact in the Juvenile Justice System 7 (2005). In 1997, the Washington State Legislature passed House Bill 3900, which permitted the automatic transfer of sixteen- and seventeen-year-olds into the adult criminal system for certain offenses. Engrossed 3d Substitute H.B. 3900, 55th Leg., Reg. Sess. (Wash. 1997).
204. See Norm Maleng, Editorial, A Stronger Response to Youth Violence, Seattle Times (Jan. 7, 1994), available at http://community.seattletimes.nwsource.com/archive/?date=19940107&slug=1888390.
205. cf. Kery Murakami, Legislators, Locke Agree on Juvenile-Justice Bill, Seattle Times, Apr. 26, 1997, at C5.
206. Donna Bishop & Charles Frazier, Consequences of Transfer, in The Changing Borders of Juvenile Justice: Transfer of Adolescents to the Criminal Court 234-36 (Jeffrey Fagan & Franklin E. Zimmering eds., 2000). During most of the period between 1985 and 2001, youth convicted of murder in the United States were more likely to be sentenced to life without parole sentences than adult murder offenders. Human Rights Watch & Amnesty Int'l, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States 2 (2005).
207. cf. State v. Null, 836 N.W.2d 41, 53, 71 (Iowa 2013) (discussing superpredator theory and its impact on sentencing of youth, while holding that Miller requires individualized sentencing of youth sentenced to mandatory minimum 52.5 year term).
208. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
209. See Charles Puzzanchera & Benjamin Adams, Office of Juvenile Justice & Delinquency Prevention, U.S. Dep't of Justice, NCJ 121052, Juvenile Arrests 2009, at 8 (Dec. 2011). Criminologists attribute this brief uptick in youthful violent crime in the early 1990s to the introduction of crack cocaine onto American streets, a corresponding surge in gang-related violence, and easy access to firearms. David M. Kennedy et al., Youth Violence in Boston: Gun Markets, Serious Youth Offenders, and a Use-Reduction Strategy, 59 L. & Contemp. Probs. 147, 152 (1996).
210. See Elizabeth Becker, As Ex-Theorist on Young “Superpredators," Bush Aide Has Regrets, N.Y. Times, Feb. 9, 2001, at A19 (quoting DiIulio, “[i]f I knew then what I know now, I would have shouted for prevention of crimes").
211. James Alan Fox, A Too-Harsh Law on Juvenile Murder, Boston Globe, Jan. 25, 2007, at A11 ("[i]t's time to rethink our rigid juvenile murder law").
212. Jonathan Martin, Youth Confesses to Role in Murder. 14-Year Sentence Surprises Courtroom, Seattle Times, Apr. 29, 2005, at A1 (two boys who were twelve at time of crime sentenced to twenty-six years and fourteen years respectively for murder of thirteen-year-old playmate).
213. Josh Farley, South Kitsap Teen Guilty of Murdering 87-Year-Old Neighbor, Kitsap Sun, Dec. 14, 2010, available at http://www.kitsapsun.com/news/2010/dec/14/ mustard-found-guilty-in-murder-of-87-year-old/ (seventeen-year-old receives fifty-year sentence for robbing and killing eighty-seven-year-old victim).
214. Josh Tucker Pleads Guilty in West Richland Murder Case, KNDO (Mar. 14, 2008), http://www.kndu.com/global/story.asp?s=8019620.
215. M.L. Lyke, Heather Opel, 14, Is Sentenced to 22 Years for Role in Murder, Seattle P-I (Aug. 16, 2002), http://www.seattlepi.com/news/article/Heather-Opel-14-is-sentenced-to-22-years-for-1093792.php (fourteen-year-old girl sentenced to twenty-two years for participation in pre-meditated murder of a sixty-four-year-old victim).
216. Josh Peterson, Donald Schalchlin Sentenced to Nearly 11 Years in Prison, KAPP TV (July 22, 2009), http://www.kapptv.com/article/2009/jul/22/donald-schalchlin-sentenced-to-nearly-11-years-in-/ (sixteen-year-old and fifteen-year-old adolescents sentenced to forty years and eleven years respectively for murder of thirteen-year-old girl and her mother).
217. Tacoma Brothers Plead Guilty to Killing Fellow Teenager Last Year, Get Prison Terms, Tacoma News Tribune, May 20, 2013, available at http://blog.thenewstribune.com/crime/2013/05/20/ tacoma-brothers-plead-guilty-to-killing-fellow-teenager-last-year-get-prison-terms/ (sixteen- and fourteen-year-old brothers sentenced to twenty-six years and twenty-four years for murder of fifteen-year-old boy).
218. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
219. see also Nat'l Juvenile Justice Network, Polling on Public Attitudes About the Treatment of Young Offenders 1 (2010) (discussing a number of polls on the public's feelings regarding juvenile justice issues). In a 2012 poll, Washington residents indicated that eighty-two percent of respondents believed that all youthful murders should be eligible for parole after serving twenty-five years, while ninety-four percent believed parole eligibility is appropriate after serving thirty years. Jennifer L. Devenport, W. Wash. Univ., Life Without Parole for Juvenile Offenders: A Survey of Washington State Residents (2012) (unpublished manuscript) (on file with Western Washington University Department of Psychology).
220. 2d Substitute S.B. 5064, 63d Leg., Reg. Sess. (Wash. 2014).
221. Wash. Rev. Code § 10.95.030 (2012).
222. State v. Furman, 122 Wash. 2d 440, 458, 858 P.2d 1092, 1102-03 (1993).
223. Roper v. Simmons, 543 U.S. 551 (2005).
224. Wash. Rev. Code § 10.95.030(1) & (2).
225. Compare Act of Mar. 31, 2014, ch. 130, sec. 9(3)(a)(i), § 3, 2014 Wash. Sess. Laws 659, 667 (codified at Wash Rev. Code § 10.95.030(3)(a)(i)).
226. 2014 Wash. Sess. Laws at 668 (codified at Wash. Rev. Code § 10.95.030(3)(f)).
227. 2014 Wash. Sess. Laws at 667 (codified at Wash. Rev. Code § 10.95.030(3)(a)(i)) (mandating indeterminate twenty-five to life term)
228. 2014 Wash. Sess. Laws at 668 (codified at Wash. Rev. Code § 10.95.030(3)(b)) (requiring court to consider Miller factors when setting minimum term for sixteen and seventeen-year-olds).
229. Act of Mar. 31, 2014, ch. 130, sec. 9(3)(a)(ii), § 3, 2014 Wash. Sess. Laws at 667-68.
230. 2014 Wash. Sess. Laws at 668 (providing for sentencing hearing at which Miller factors evaluated for sixteen- or seventeen-year-old convicted of aggravated murder)
231. Wash. Admin. Code §§ 381-90-080 to 381-90-170 (2014) (ISRB procedures that govern parole hearings for people convicted of certain sex offenses).
232. Act of Mar. 31, 2014, ch. 130, sec. 9(3)(f), § 3, 2014 Wash. Sess. Laws at 668.
233. 2014 Wash. Sess. Laws at 669. Then, shortly before the expiration of the minimum term, DOC must again evaluate the person to gauge the likelihood the person will commit new crimes upon release.
234. 2014 Wash. Sess. Laws at 669 ("No later than one hundred eighty days from receipt of the petition for early release, [DOC] shall conduct, and the offender shall participate in, an examination of the person, incorporating methodologies that are recognized by experts in the prediction of dangerousness, and including a prediction of the probability that the person will engage in future criminal behavior."). DOC then passes this evaluation and other information on to the ISRB which conducts the parole eligibility review.
235. 2014 Wash. Sess. Laws at 669.
236. Cf. Wash. Rev. Code § 9.95.420(3)(a) (2012) ("The board shall order the offender released, under such affirmative and other conditions as the board determines appropriate, unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the offender will commit sex offenses if released."). The ISRB utilizes a series of factors in making a determination whether a sex offender is likely to reoffend.
237. (2) serious and repeated disciplinary infractions while in prison.
238. (3) evidence of an inmate's continuing intent or propensity to engage in sex offenses.
239. (4) whether the inmate has expressed unwillingness to comply with any conditions of community custody.
240. See Wash. State Dep't of Corr., Indeterminate Sentence Review Board at a Glance (2011), available at http://www.doc.wa.gov/isrb/docs/at_a_glance.pdf.
241. 2014 Wash. Sess. Laws at 668.
242. 2014 Wash. Sess. Laws at 669.
243. 2014 Wash. Sess. Laws at 669.
244. Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 2466-67 (2012).
245. Graham v. Florida, 560 U.S. 48, 70 (2010).
246. Graham, 560 U.S. at 70.
247. Miller, 132 S. Ct. at 2466 (internal citations and quotations omitted).
248. Miller, 132 S. Ct. at 2467.
249. Porter v. McCollum, 558 U.S. 30, 40 (2009) (noting that even though defendant was “fatalistic and uncooperative" defense attorney must nonetheless conduct reasonable mitigation investigation).
250. Wiggins v. Smith, 539 U.S. 510, 524 (2003) (holding that defense attorney who had defendant evaluated by psychologist and gathered some documents nonetheless provided inadequate assistance of counsel because he failed to gather all relevant documents, seek additional expert testimony, or follow up on potentially mitigating evidence that review of available records uncovered).
251. Williams v. Taylor, 529 U.S. 362, 395-96 (2000) (holding that defense attorney was constitutionally ineffective when he began penalty phase preparation week before trial, failed to gather relevant records, develop or introduce evidence that defendant was “borderline mentally retarded," or other evidence that militated against imposition of death).
252. 177 Wash. 2d 1, 42, 296 P.3d 872, 892 (2013) (holding counsel's failure to interview victims' family members to determine whether any of them would testify that death penalty should not be imposed constituted ineffective assistance of counsel).
253. Miller, 132 S. Ct. at 2467
254. Eddings v. Oklahoma, 455 U.S. 104, 110-12 (1982).
255. Lockett v. Ohio, 438 U.S. 586, 597-609 (1978)).
256. Miller, 132 S. Ct. at 2467
257. McCleskey v. Kemp, 481 U.S. 279, 306 (1987).
258. Smith v. Spisak, 558 U.S. 139, 144 (2010) ("First, the Constitution forbids imposition of the death penalty if the sentencing judge or jury is precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Second, the sentencing judge or jury may not refuse to consider or be precluded from considering any relevant mitigating evidence." (emphasis removed, internal citations and quotations omitted)).
259. Wiggins, 539 U.S. at 524-25 (2003).
260. Yates, 177 Wash. 2d at 41, 296 P.3d at 892 ("Prevailing norms of practice as reflected in American Bar Association [ (ABA) ] standards and the like… are guides to determining what is reasonable."
261. Wiggins, 539 U.S. at 524 (emphasis added)
262. Wash. Rev. Code § 10.010.030 requires that all Washington counties adopt standards for public defense that track the Washington State Bar Association's (WSBA) Standards for Indigent Defense Services.
263. Wash. Rev. Code § 10.010.030.
264. 2014 Wash. Sess. Laws 659, 670 (codified at Wash. Rev. Code. § 10.95.0001). Nine of them were younger than sixteen years old at the times of their crimes
265. Connie de la Vega et al., Cruel and Unusual: U.S. Sentencing Practices in a Global Context 61 (2012) ("The United States remains the only country in the world to sentence a juvenile to life without parole in practice. Eight countries have been identified as having laws that could allow for a sentence of JLWOP.
266. however there are no known cases of the sentence being imposed. Additionally, four countries have ambiguous language regarding JLWOP.
267. however, since there are no known cases of juveniles being sentenced, it can be determined that the country does not practice the sentence. As such, there is only one country in the world with a child serving an LWOP sentence." (citations omitted)).
268. Colo. Rev. Stat. § 18-1.3-401) (LexisNexis 2014)
269. D.C. Code § 22-2104 (LexisNexis 2014).
270. Haw. Rev. Stat. § 706-656 (West 2014).
271. Kan. Stat. Ann. § 21-6618 (West 2014).
272. Ky. Rev. Stat. Ann. § 640.040 (West 2014).
273. Mass. Gen. Laws Ann. ch. 265, § 2 (West 2014).
274. Neb. Rev. Stat. Ann. § 28-105.02 (West 2014) (providing that the maximum penalty for a person who committed a Class 1A felony under the age of eighteen is life imprisonment).
275. N.M. Stat. Ann. § 31-21-10 (West 2014).
276. Ohio Rev. Code Ann. § 2929.03 (West 2013-2014) (prohibiting the death penalty if the offense was committed when the perpetrator was under eighteen years old).
277. Tex. Penal Code Ann. § 12.31 (West 2013).
278. Wyo. Stat. Ann. § 6-2-101 (West 2014).
279. H.B. 4210, 81st Leg., Reg. Sess. (W. Va. 2014).
280. Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 2469 (2012)
281. As the Court in Graham recognized, the possibility that a sentence may be commuted by the Governor at some future point does not provide a realistic opportunity for release. Graham v. Florida, 560 U.S. 48, 70 (2010).
282. see also Solem v. Helm, 463 U.S. 277, 301 (1983) ("Commutation… is an ad hoc exercise of executive clemency. A Governor may commute a sentence at any time for any reason without reference to any standards."). Parole eligibility is the means to ensure that legitimate public safety concerns and the individual characteristics of the inmate are appropriately balanced and release granted when warranted.
283. Graham, 560 U.S. at 73.
284. See generally Wash. State Task Force on Race and the Criminal Just. Sys, Juvenile Justice and Racial Disproportionality: A Presentation to the Washington State Supreme Court 1 (Mar. 28, 2012) (finding that “youth of color continue to be disproportionately arrested, referred to juvenile court, prosecuted, detained and sentenced to secure confinement compared to their white peers" and that “[t]here is clear evidence of persistent over-representation of youth of color at every stage of the juvenile justice system").
285. See Wash. Coal. for the Just Treatment of Youth, A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings About Juvenile Recidivism and Adult Brain Development 12-13 (2009) [hereinafter Coalition Report], available at http://www.columbialegal.org/files/JLWOP_cls.pdf. The Washington Coalition for the Just Treatment of Youth, a coalition of organizations that work with children, reviewed the case files and other available information related to most of the men currently serving life without parole for crimes committed as children in Washington. Much of the data discussed herein can be found in the Coalition's report and findings. The report identified twenty-eight adolescents serving life without parole for crimes committed as children. Following the report's publication, new information provided by Department of Corrections (DOC) indicated that there were an additional two men serving juvenile life without parole in addition to those discussed in the Coalition Report.
286. Wash. Rev. Code § 13.04.030(1)(e)(v) (2012) (sixteen- or seventeen-year-old defendants who are charged with variety of violent offenses must be tried in adult court).
287. See State v. Rivers, 129 Wash. 2d 697, 714, 921 P.2d 495, 503 (1996) ("[D]istinction between life sentences with and without parole is not significant.").
288. State v. Frampton, 95 Wash. 2d 469, 528-30, 627 P.2d 922, 952-53 (1981)
289. 121 Wash. 2d 419, 853 P.2d 901.
290. Grisby, 121 Wash. 2d at 427, 853 P.2d at 905
291. Grisby, 121 Wash. 2d at 424-25, 853 P.2d at 903.
292. 95 Wash. 2d 469, 627 P.2d 922.
293. Frampton, 95 Wash. 2d at 529-30, 627 P.2d at 952-53
294. Grisby, 121 Wash. 2d at 426-27, 853 P.2d at 905
295. J.D.B. v. North Carolina, __ U.S. __, 131 S. Ct. 2394, 2406 (2011).
296. Graham v. Florida, 560 U.S. 48, 130 (2010) (internal quotations and other citations omitted).
297. J.D.B., 131 S. Ct. at 2404
298. Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 2468 (2012).