By Paul Kiefer
A King County Superior Court judge dismissed a motion on Friday challenging the constitutionality of a Washington law requiring 16- and 17-year-olds charged with serious felonies to be tried as adults. The motion, prepared by defense attorney Emily M. Gause and the Korematsu Center for Law and Equality at Seattle University’s law school, was the latest in a series of challenges to the law, known as the “auto-decline” statute, by criminal justice reform and children’s rights advocates.
The defendant in Friday’s test case is Adnel Kenjar, who prosecutors allege was the gunman in a 2018 drive-by shooting in Burien that killed a bystander. Kenjar was 17 at the time of the shooting.
Echoing earlier challenges to the auto-decline law, Kenjar’s defense attorneys argue that automatically trying him in adult court violates the due process clause of the state constitution. They’ve asked the court to transfer Kenjar to juvenile court for an “individualized” hearing to decide whether he was developmentally mature enough at the time of his alleged crime to be tried as an adult. Though Kenjar is now legally an adult, the state legislature voted last year to extend juvenile courts’ jurisdiction to include defendants between the ages of 18 and 25 facing charges for crimes committed while underage.
Kenjar’s defense also added new pillars to existing arguments against the auto-decline statute. On Friday, defense attorney Emily Gause argued that automatically trying juvenile defendants in adult court also violates the state constitution’s equal protections clause and prohibition of cruel and unusual punishment.
Both the state supreme court and recent developments in brain science have repeatedly underscored that “children are categorically less culpable for every crime,” Gause told the court, so automatically tracking some juvenile defendants into adult court is unfair. “Also, there are no meaningful grounds to draw a line at 16,” she added. Gause also argued that a trial in adult court is a form of punishment in and of itself, particularly because privacy protections for defendants in adult court are less robust than the protections provided by juvenile courts.
The auto-decline law dates back to the 1990s, when widespread fears about a juvenile crime wave spurred state legislatures across the country to pass harsh sentencing laws targeting teenagers. But more recent developments in adolescent brain science—specifically, a growing body of evidence that impulse control and other crucial interpersonal skills aren’t well-developed in adolescents and young adults—have prompted courts and legislatures across the United States to backtrack. In 2012, for instance, the US Supreme Court ruled that mandatory life-without-parole sentences are unconstitutional for defendants younger than 18. “[A]n offender’s age is relevant to the Eighth Amendment,” Justice Elena Kagan wrote in the court’s majority decision, “and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.’”
“If there is no constitutional right to juvenile court, then there’s no constitutional right to be transferred to that court.”—Prosecuting attorney Jim Whisman
The prosecution argued that Washington’s sentencing guidelines—including the auto-decline statute—are the responsibility of the legislature, not the courts. And while the court could overrule the legislature if the law was clearly unconstitutional, prosecuting attorney Jim Whisman noted on Friday that the state constitution doesn’t guarantee anyone the right to a trial in juvenile court. “If there is no constitutional right to juvenile court,” he said, “then there’s no constitutional right to be transferred to that court.”
Whisman also pointed to a 2017 decision by the state’s supreme court requiring judges to consider a defendant’s age before sentencing, arguing that the decision offers juvenile defendants a form of protection from excessive sentences in adult court. King County Prosecutor Dan Satterberg attempted to challenge the same decision, known as Washington v. Houston-Sconiers, before the US Supreme Court in September 2020; the court declined to hear Satterberg’s appeal.
Whisman also questioned whether courts should always be lenient when sentencing juvenile defendants, telling the court on Friday that “it’s not clear that standard-range sentences are too long” for juvenile defendants convicted of violent crimes. Whisman made a similar argument while arguing a case before the state supreme court last year, asserting that “the links between age, brain development, and behavior are not so well understood or agreed upon” as to justify lighter sentences for all juvenile defendants.
Judge Michael Scott sided with Whisman, telling the court that “there is no compelling constitutional reason for the court to usurp the legislature’s authority to set the jurisdiction of the juvenile court system.” But Scott’s ruling has not deterred Kenjar’s defense, who plan to appeal their case to Washington’s Court of Appeals—or directly to the state supreme court, if they can convince the justices that the case is urgent.
After Friday’s hearing, Gause noted that the most recent challenge to the auto-decline law before Washington’s supreme court—which relied solely on the federal constitution’s due process clause—failed by only three votes in 2018. With a reworked argument focused on the Washington state constitution and a pair of new state supreme court justices, Gause said she’s hopeful that the latest challenge to Washington’s auto-decline law might find traction. Otherwise, the state legislature could reconsider the statute during next year’s session.