Excerpted From: Jessica Levin, A Cross-clinic Collaboration: How an Amicus Brief Helped Create Judicial Recognition of Adultification Bias in Juvenile Sentencing, 35 UC Law SF Journal on Gender and Justice 127 (May, 2024) (18 Footnotes) (Full Document)

JessicaLevinIn In re Personal Restraint of Asaria Miller, at the urging of merits counsel from the University of Washington's Race and Justice Clinic, supported by amicus counsel from Seattle University School of Law's 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--specifically due to adultification bias.

The cross-clinic collaboration 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 a youth of color--the first time adultification bias has been incorporated into a legal standard in any American court.

I. The Story of the Cross-Clinic Collaboration

A. Case Background

Asaria Miller, a Black Girl, was just sixteen when her father recruited her to kill his ex-girlfriend in 2012. In exchange for her guilty plea, the State amended her charges and recommended a midrange standard sentence for murder in the first-degree. Even though the parties jointly recommended a sentence of 300 months plus 60 months for the firearm enhancement, the court imposed 390 months--a total of 32.5 years. The sentencing court never considered the mitigating qualities of her youth.

On behalf of Asaria, the Race and Justice Clinic filed her collateral attack in the Court of Appeals, arguing she was entitled to a new sentencing hearing under In re Pers. Restraint of Domingo-Cornelio. The resentencing would allow Asaria to present a full picture of herself: who she was as a child and the difficult circumstances she experienced, and who she has become as an adult, resilient and deeply committed to transforming her life and the lives of those around her. Through consideration by the sentencing court of the mitigating qualities of her youth, she would receive, ideally, a new sentence that reflected her diminished culpability, recognized her capacity for change and rehabilitation, and met the evolving norms of proportionate punishment.

In an effort to ensure that resentencing would be granted, her counsel argued that instead of applying the usual “actual and substantial” prejudice test to determine her entitlement to relief on post-conviction review, a rule of per se prejudice was more appropriate to protect against the real risk that certain groups of youth, particularly Black girls, receive disparate treatment during sentencing due to adultification bias.

B. Cross-Clinic Outreach

In late 2020, students from the Race and Justice Clinic at the University of Washington School of Law reached out to the Civil Rights Clinic at Seattle University School of Law's Civil Rights Clinic soliciting an amicus brief to address adultification bias in the context of Asaria's resentencing case. The advocates at the Race and Justice Clinic specifically sought support for the argument that showing prejudice--thus entitling Asaria to resentencing--would be doubly difficult if the original sentence was influenced by adultification bias.

The Civil Rights Clinic, as a project of Seattle University School of Law's Korematsu Center for Law and Equality, had participated robustly as amicus in the majority of Washington's key juvenile sentencing cases in the years that followed United States Supreme Court case, Miller v. Alabama, as well as in the case that determined Washington's capital punishment statute was unconstitutional as administered under the state constitution based on racial arbitrariness. The Civil Rights Clinic was well positioned to contribute an amicus brief in Asaria's case that expanded on the empirical literature regarding adultification at sentencing, having already established a reputation before Washington courts as a respected voice about both sentencing, and the impact of race in the criminal legal system. The Civil Rights Clinic decided to take on the amicus project, presenting an opportunity to continue educating courts about the operation of racial bias at sentencing.

C. The Amicus Brief

The Civil Rights Clinic filed an amicus brief, reproduced below, at the Court of Appeals supporting the request for a per se prejudice standard on collateral review. This standard would automatically entitle a young person to resentencing, rather than having to show by a preponderance that a different outcome would have occurred had youth been considered. Further, this rule would account for the very real possibility that the original sentence was impacted by adultification bias, as indicated by statements in the sentencing transcript, coupled with the judge's decision to add thirty months beyond the parties' agreed recommendation.

The amicus brief educated the court about the germinal adultification research, arguing that being “[d]eprived of the benefit of being treated as children leaves a vacuum within which race can operate as an aggravator, leading to harsher punishment [of Black girls] than their white counterparts.”

Initial adultification scholarship by Dr. Phillip Atiba Goff and colleagues focused on Black children in general, and specifically on Black boys. The brief argued, relying on both Girlhood Interrupted, an empirical study published by Georgetown Law Center on Poverty and Inequality, and other empirical literature, that Black girls also suffer from “adultification.” Specifically, the placement of harmful stereotypes of Black women onto Black girls compounds the adultification bias observed in Dr. Goff's study, negating the constitutional protections afforded to children.

Further, the brief argued that when a reviewing court subjects a resentencing request to the actual and substantial prejudice standard (a preponderance standard), courts ignore the operation of race and remain complicit in devaluing Black lives. Requiring a petitioner to show actual and substantial prejudice endorses an implicit judgment that the State's interest in finality is more important than correcting the constitutional error. Lastly, the brief stated: “Gatekeeping tests like the actual and substantial prejudice test--particularly in post-conviction settings where a significant change in the law has been given retroactive effect--need to be scrutinized to ensure that they do not perpetuate the prior product of racial bias.”

[. . .]

Amicus urges the Court to apply a per se prejudice standard where a Miller hearing has not occurred. Instead of creating barriers that prevent full consideration of youthfulness, courts should embrace the opportunity to ensure fairness through resentencing, especially when race may have operated as an aggravator through adultification bias.

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