Excerpted From: Jessica Levin, A Path Toward Race-Conscious Standards for Youth: Translating Adultification Bias Theory into Doctrinal Interventions in Criminal Court, 35 UC Law SF Journal on Gender and Justice 83 (May, 2024) (225 Footnotes) (Full Document)

JessicaLevinThe problem of mass incarceration and its disproportionate impact on Black communities and other communities of color is one that is clear in the aggregate, but much more difficult to isolate and prove in individual cases. This is, in part, due to the shameful legacy of McClesky v. Kemp, and the judiciary's hesitance to accept that systems can--and do--produce racist outcomes without direct proof of invidious intent traceable to specific actors. However, stakeholders in Washington's criminal legal system are increasingly pushing back against that narrative, including through education of bench and bar about systemic and institutional racism as explanations for the observed racial disproportionalities, and litigation about the same. Notably, this includes the state supreme court's 2018 invalidation of Washington's capital punishment statute on the basis of racial arbitrariness under the Washington State--using its authority to interpret the cruel punishment clause to account for racism in a way that United States Supreme Court precedent renders virtually impossible. The state supreme court's commitment to acknowledging and remedying implicit bias, as well as institutional and systemic racism, have catalyzed other challenges that expose the myriad of ways the criminal legal system disproportionately impacts people of color.

For instance, in In re Personal Restraint of Asaria Miller, at the urging of both merits counsel from the Race and Justice Clinic at University of Washington School of Law and amicus counsel from the Seattle University School of Law Civil Rights Clinic, the Washington State Court of Appeals took an important step in accounting for the ways that youth of color likely receive harsher punishment than their white counterparts. This litigation effort resulted in judicial recognition of the operation of adultification bias in the criminal law context, as well as a mandate that sentencing courts consider adultification bias whenever sentencing youth of a color first time adultification bias has been incorporated into a legal standard in any court.

Part I discusses the pedagogical approach we employ in the Civil Rights Clinic, where we select cases that allow for a deep examination of racial disproportionality in the criminal legal system in Washington, as well as the creation of doctrinal interventions that can help to remedy the disproportionality. Part II discusses our approach to identifying the specific problems addressed in this article--namely, the racial disproportionality of youth who are selected for prosecution in adult court, as well as the likelihood of race affecting the severity of punishment youth of color receive, whether in juvenile or adult court. Part III summarizes the germinal literature on adultification bias, which allowed us to propose explanations for the patterns of racial disparity we observed in Part II. Part IV sets forth the controlling legal standards for the transfer of youth to adult court, as well as the sentencing of youth in both juvenile and adult court; this part explains how the language used in these legal standards invites the operation of adultification bias and reveals the need for specific interventions that account for that bias. Part V reviews in detail four Civil Rights Clinic cases, including both amicus advocacy and direct representation, where we put theory into practice. In these cases, we leveraged the empirical literature on adultification bias to educate courts about how adultification bias was likely operating against youth of color in both the transfer and punishment contexts, and we articulated a path for courts to adopt the doctrinal interventions discussed in Part IV.

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The shameful legacy of McClesky v. Kemp is not only found in its refusal to permit claims based on evidence of stark racial disparity under the Eighth and Fourteenth Amendments. Equally chilling is the Court's brazen acceptance that sentencing disparities reflecting differential treatment based on race are “an inevitable part of our criminal justice system.” In this latter statement, the Court once again showed itself to be among the “authors of devastation” about which James Baldwin wrote:

this is the crime of which I accuse my country and my countrymen, and for which neither I nor time nor history will ever forgive them, that they have destroyed and are destroying hundreds of thousands of lives and do not know it and do not want to know it. One can be, indeed one must strive to become, tough and philosophical concerning destruction and death, for this is what most of mankind has been best at since we have heard of man. (But remember: most of mankind is not all of mankind.) But it is not permissible that the authors of devastation should also be innocent. It is the innocence which constitutes the crime.

The Civil Rights Clinic presents courts with evidence that makes it harder to claim innocence, and, in its circles of influence, demands that we all “confront the ugliness of who we are.”

Assistant Director, Fred T. Korematsu Center for Law and Equality, Visiting Assistant Clinical Professor, Seattle University School of Law.