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Post-Conviction Review Could Correct Three-Strike Law Injustices

Incorporating newer research about post-adolescent brain development would help those sentenced under outdated, racist policies.

Earlier this year, Washington lawmakers introduced a bill that would allow for post-conviction review for incarcerated people serving long sentences for crimes they were convicted of while under the age of 25.

Washington’s Senate Bill 5451, locally known as the Emerging Adults Bill, would extend an already existing parole law that offers review for those convicted of crimes committed while under the age of 18. Many recent studies have shown that the prefrontal cortex—the area of the brain responsible for decision-making and impulse control—continues to develop in most human beings past age 18. This bill reflects ongoing efforts by reform advocates to align the criminal legal system—which still views 18 as the cutoff age for adulthood and brain maturity—with this research.

Not everyone shares this sentiment. During a February public hearing on SB 5451, several speakers opposed the bill, including the Washington Association of Prosecuting Attorneys, represented by Executive Director Russell Brown. Brown’s contention with the bill was not based on the age of the person in question, but rather the crime they might be convicted of.

Brown spoke against allowing this post-conviction review to include people convicted of aggravated murder, saying it would “blur all the lines” of existing sentencing systems that differentiate age ranges for middle and late adolescents. He argued that the law requires a punitive distinction between degrees of crimes and should focus on a person’s history of offenses and judges’ discretion.

Brown’s argument flies in the face of past court decisions, such as State v. Bassett, which extended constitutional protection against life without parole sentences for aggravated murders to those younger than 21. Previous protection only applied to those younger than 18. The ruling reinforced that the age of the individual—and the underlying science driving their actions—takes precedence over our visceral reactions and feelings about their crimes. The courts were clear: it is cruel and unusual punishment to sentence those with underdeveloped brains to life without parole.

I shook my head from the top bunk of my prison cell as I listened to Brown argue that the Emerging Adults legislation would “blur all the lines” of justice. It seems to me these lines have been blurred for quite some time. They are blurred when it comes to the impact of the criminal legal system on marginalized communities and on people like me serving life sentences under archaic sentencing schemes like the three-strikes law.

According to a 2020 report from the ACLU of Washington, long and life sentences are “disporportionately [sic] imposed on people of color, and in particular, on Black and Native American defendants.” While Black people made up an average of 3.5% of Washington’s population between 1968 and 2017, they made up 19% of the prison population and 28% of those sentenced to life in prison. The report also notes that 1 in 3 people sentenced to 20-40 years in prison in that time were 25 years old or younger prior to sentencing.

SB 5451’s proposal to change the circumstances for post-conviction review would have provided an opportunity to correct an injustice, one marked by a color line. However, the legislation ultimately failed, leaving Washington to grapple with the enduring racism and age superstition that people like Brown work so hard to uphold.

It is hard for me to listen to Brown argue for proportionality in sentencing while I sit in this prison, scheduled to die as another casualty of the three-strikes law.

At age 16, I stole guns from an unoccupied home. This was my first strike.

At age 23, I committed battery against a man I found sleeping with my son’s mother. This was my second strike.

At age 28, I shot a man in the leg. This was my third strike.

How can Brown argue for proportional sentencing while I, for the crimes listed above, have the same exact sentence as the Green River Killer, or Gary Ridgeway, who confessed to killing 49 women? Sorry, Brown, but your faux concern over blurred lines of justice is falling on deaf ears.

For the record, the Emerging Adults Bill would not have changed my sentence. It would not apply to me. I believe the bill should have passed because we need laws based on science and reason, not because it would have directly benefited me.

Brown’s argument was weak and disingenuous. We are a long way away from a criminal legal system that is—by any metric—just. And it is not justice, but rather injustice, that he was there to defend.

Injustice is inherent to our criminal legal system; a system born from this country’s history of racism and white supremacy, from slavery, to Jim Crow laws, to the war on drugs. Injustices in sentencing stem from laws built upon this history, and those subject to sentences built upon those laws are currently rotting in prison. Meanwhile, people who commit the same crimes today are treated differently, often receiving much lighter sentences than people from my generation. This destroys any semblance of equal treatment under the law.

Take my case as an example. Today, a 16-year-old who broke into a house and stole guns (the crime that led to my first strike) could not, under any circumstance in Washington law, be charged as an adult for that crime. Which means it could never be used as a strike to give him life without parole. He could never have my sentence. Nor should he, and nor should I.

People convicted 20 or more years ago faced a different legal system than the one we have today. Many of the people charged with aggravated murder back then would not be given the same charge now. Charging aggravated murder, as opposed to first-degree murder or murder in the second degree, has always been a subjective decision and up to the prosecutor who has the authority in a murder case. This crime has historically been levied against defendants at the whim of a prosecutor easily influenced by personal bias.

Post-conviction review processes are essential to undoing the harms of the past. They help undo the work of legal mechanisms steeped in racist history and ideology and help us move away from failing models of public safety found in determinate sentencing schemes. These processes assess an individual based on decades of behavior, rather than a single moment in time.

I guess in the eyes of Brown, however, there is no punishment too harsh for our children, and the lines of justice only blur one way.

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