INTRODUCTION
In 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.”
II. The Opinion
As a result of the advocacy on adultification bias—raised in the merits brief and explored in detail in the amicus brief—the court’s opinion stated: “We agree that adultification may detrimentally affect children of color at criminal sentencings.” While the court declined to adopt the proposed per se prejudice standard advanced by both merits and amicus counsel that would be applicable to post-conviction claims seeking resentencing to account for youth, the court more broadly directed lower courts to consider adultification bias whenever sentencing a young person of color: “in the face of this convincing information about disparities in sentencing, trial courts should consider, in addition to issues common with all youths . . . , these potential biases when sentencing children of color.”
Notably, this direction is not limited to post-conviction claims or to any intersection of race and gender—but a broad directive to account for adultification bias whenever sentencing a youth of color.
III. Ripple Effects
After the decision in Miller came down, Civil Rights Clinic faculty received emails from public defenders (trial and appellate alike) explaining the decision provided them a pathway to argue about the salience of race at sentencing when representing clients of color. One email thanked both merits and amicus counsel for the innovative arguments and predicted the opinion’s utility: “Lots of good language for us to use. It will be widely cited! Thanks to you and your students for being so persuasive.”
Miller’s recognition of adultification bias was relied upon by Justice Yu in another juvenile sentencing case, State v. Anderson. In Anderson, Justice Yu’s concurrence in dissent highlighted how consideration of the mitigating qualities of youth can be unevenly applied based on the defendant’s race—i.e., the same set of facts can be a mitigator for one individual and an aggravator for another. In this analysis, Justice Yu noted: “[I]t is well established by empirical literature and has been acknowledged by [this court] that Black children are prejudiced by, in addition to other stereotypes, ‘adultification,’ or the tendency of society to view Black children as older than similarly aged youths.”
Conclusion
The thread from Miller to Anderson demonstrates how amicus advocacy can leverage empirical literature regarding adultification bias and other forms of implicit bias to craft doctrinal interventions that recognize and remedy the disproportionately harsh treatment of Black people and other people of color in the juvenile and adult criminal legal system. The amicus brief reproduced below provides an example of one way to educate criminal legal system stakeholders about the risk of adultification bias and other forms of implicit bias. It is also an example of a litigation strategy designed to obtain outcomes that account for the role of race in prosecutorial and judicial decision making, a problem which is clear in the aggregate but has historically evaded remedy in individual cases. And it is a concrete example of how law school clinics can put theory into practice to produce doctrinal interventions that advance racial justice.
Most importantly, Asaria was entitled to a resentencing hearing. On remand from the Court of Appeals for resentencing, the superior court sentenced Asaria to 168 months (14 years), down from the original 32.5 year sentence. The resentencing hearing provided Asaria the opportunity to advocate for herself, to tell her story, and to demonstrate the need for a fair and constitutional sentence. She also had the opportunity to hear other people testify about who she is as a whole person. Through her counsel, Asaria provided the following reflection:
As a Black child at sentencing, I was automatically determined to be fully aware and capable of the crime allegedly committed. They don't care to look into your childhood, your past, or other events that may have created space for such behaviors and actions.
As a 28 year old Black woman, who has been behind bars and involved in the justice system since the age of 10, I am now motivated to bring awareness about the role of race in courtroom proceedings. Holding individuals accountable for their actions is just, but punishing on the basis of skin tone is heinous. Just because our race has endured more trials and tribulations over generations and continues to overcome them does not mean we should have to continue overcoming yet another form of slavery in the form of unfair sentences for African Americans.
At age 17, I was sentenced to 32 years. That's a life sentence to a child. To be given that sentence knowing my African American roots played a role in the length is disgusting. But to be able to speak out about it, and to get a reduced sentence that clearly points to the prejudice I suffered, speaks volumes for the future of African American youth, and especially African American girls in the justice system.