[music] I'm Alexander Heffner, your host on The Open Mind.

I'm delighted to welcome our guest today, Jeffrey Ellis.

He's a distinguished attorney and the legal counsel for the Redemption Project of Washington.

And that is Washington state.

Welcome, sir.

Thank you.

Happy to be here.

Jeffrey, can you expand on your involvement in juvenile justice cases and how you, fellow attorneys and the Supreme Court of the state of Washington have navigated that?

You've been involved in the majority of arguments on that issue, and I was hoping you could share, context for our viewers who may just be coming to the party on this.

Sure.

So I've been interested in the resentencing of juveniles and young individuals.

Really, ever since I practiced for a period of time in Texas and knew the last juveniles to be executed in the United States.

And it really became important when, the United States Supreme Court started to make a shift and recognize that, children and juveniles are different and that different constitutional protections extend to them to be involved in that.

So in 2017, in Washington state, the Washington Supreme Court decided a case called State versus Houston Sconiers.

And what that did was essentially adopt the children are different doctrine and expanded it beyond just life without parole, but to all sentencings of juveniles in adult courts.

But the big question following the Houston Sconiers case was, who all was going to get the benefit of that decision?

What the law calls retroactivity.

I've spent a great deal of my time working on retroactivity.

And cases where you're trying to get somebody back into court decades later.

And so I was called in to work on that next set of cases.

We've got this good decision.

It says all juveniles are entitled to be re-sentenced, or at least we think it does.

Can we get the court now to say that it's retroactive?

And so in two joint cases, Ali and Domingo Cornelio, the Washington Supreme Court said yes, it applied retroactively.

And therefore all juveniles were entitled to be re-sentenced.

The Washington court then took some additional important steps.

The US Supreme Court had said that a juvenile couldn't be sentenced to mandatory life without parole, but it didn't say that a juvenile could never be sentenced to life without parole.

And the Washington Supreme Court then took that step and banned life without parole for all juveniles in a case called Bassett.

The other thing that became apparent to us as this movement in re-sentencing juveniles was underfoot was that neuroscience doesn't draw the line where the courts had traditionally drawn the line.

We separated juveniles from adults at age 18, but, we now know that the brain isn't fully mature at age 18.

And so the next big case that we brought was a case called State versus Monschke.

And Monschke argued, that late adolescence, folks 18, 19, and 20 were entitled to be re-sentenced when they had been sentenced to mandatory life without parole, where the so-called mitigating qualities of youth could not have been taken into consideration by their sentencing judge.

And Monschke was really the first case in the nation that opened the door and said, we can't draw the line at age 18.

We've got to expand it.

Frankly, my hope is that they expanded past age 21.

But in the cases that have been litigated so far, including those in Washington, the litigants have been either 18, 19 or 20.

So there's a clear trend that recognizes that because there's a relationship between the brain and behavior and because the brain is in a state of maturation really until the mid 20s, that that has to be taken into account by courts.

And that mandatory sentences where judges have no, discretion, no ability to sentence to a less, serious punishment, need, to bend, and essentially have been declared unconstitutional in Washington.

You cracked a code, seemingly that most states have not been able to when it comes to retroactivity.

And I know this is still in progress, but it does seem to me that, that's been a challenge.

And you were on the cusp of something that many states have failed to do, that the Supreme Court certainly did not condone or endorse in its decision.

what is the way to accomplish that, in Washington fully and then extrapolate for the whole nation?

Well, I would say a couple of things.

There certainly is a value in the criminal justice system to finality.

And once you've had your trial and what we call your direct appeal, then this idea of finality tends to attach.

And it's a lot harder than to apply a new rule to an old case.

But retroactivity can turn on whether the new rule is substantive or procedural.

In other words, does it go to the state's ability to punish, or does it simply relate to, how a trial or a sentencing hearing should progress.

The procedural rules, admissibility of evidence and those types of things.

And when we're talking about striking down mandatory punishments, there's a very strong argument, that those, provisions that have been declared unconstitutional are substantive and therefore must be retroactive.

I will add that the US Supreme Court has said that states are free to develop their own retroactivity analysis, as long as it doesn't, as long as it's not less protective than the federal courts.

Likewise, more and more states are turning to their own state constitutions to determine whether punishment is cruel and therefore a violation of their own state constitutions.

You know, when I was a law student, I would often attend arguments at the Oregon Supreme Court, to watch a Justice by the name of Hans Linde.

And Hans Linde was one of the first justices in the nation to say why our state supreme courts deferring to the federal US Supreme Court when we have our own state constitutions.

We should interpret our state constitutions first.

And it took a while to catch on, and I hope it catches on more in the future.

But I would say that former Justice Linde was on to something.

It is something that stuck with me all these years later.

And so if you fast forward, you know, 20 years into my legal career, I was like, you remember that Supreme Court justice who use to stump all of the appellate, arguers, what he was saying made a whole lot of sense.

We recently hosted Kyle Berry, who has made a similar point.

When you're excavating the state constitutions, the rationale or reasoning of the justices, in the case of Washington state.

What precisely was being, uncovered in the Constitution, in the specific reasoning.

And are you still kind of waiting for that reasoning to continue to evolve to fully, account for retroactivity in, you know, a fuller degree of cases?

Yeah.

I mean, I will say that we're still waiting for retroactivity to fully flower.

I told you earlier about juveniles winning the right to be re-sentenced.

As the doctrine moved on in Washington state, many of them were shut down and they were shut down because they were so-called time barred, in other words.

Even though the new rule applied, the court found that they didn't fit exactly into the framework necessary to get a new sentence.

And so, that framework is a very restrictive framework.

And has created a real disparity between two juveniles who seem to be exactly in the same situation.

And whereas one gets a re-sentencing and the other one doesn't.

But there's two things you can look at in terms of interpretation of your state constitution.

One is historical and the other is modern.

The historical analysis is, does our state constitution mean something different than the federal constitution?

Because our state constitutional framers were considering broader applications, so they were using different words or they had a different idea in mind.

So there's always that historical analysis of, is our state constitution from the beginning different.

But you also then look at the state culture.

How are things happening in the states, in this state?

When you're looking as a US Supreme Court judge or a federal judge to apply the US Constitution, you're looking at, differences and similarities among, all of the states.

But if you're only interpreting the Washington Constitution, you look at how things have developed in practice.

And that's both in terms of were we punishing juveniles too severely in the past?

Right.

And what are our current standards?

And Washington isn't unique in the sense that, sadly, we fell prey to this idea that juveniles were super predators, that they deserved greater sentences because they were remorseless and in fact, incapable of remorse.

And what we've now found is that that was totally false.

And in fact, when we stripped away programing from juveniles, who were doing life in very long sentences, they created their own programing, and they created programing and rehabilitative, classes that actually improved conditions in prison.

Sent people out the door, much better than when they came in.

And so there's really been, I think, a very strong trend that's been recognized in Washington that we over punished for many, many years.

And not only did it not make Washington safer.

It kept real leaders, folks who are now leading, in the community in terms of reentry and rehabilitation.

It kept them in prison when they could do much more when they were released.

When you talk about waiting, you're waiting.

Tell our viewers again what precisely you're waiting for.

In the case of, application of that retroactivity, because it could be a model for other states in their reevaluation of state constitutions.

What are you waiting for for that retroactivity to go into effect?

Well, I think we're waiting for the next big ruling.

Right.

What the courts have done is they've announced rules that apply to a certain cohort.

-So juveniles -Right.

And that's the two cases you described.

Right.

You know, I worked for years on the elimination of the death penalty.

It no longer exists in Washington.

It no longer exists because, the justices of the Washington Supreme Court found that it hadn't been racist in application.

Now, the most serious penalty in Washington is life without parole.

Life without parole cannot ever be applied to a juvenile, someone 18 or under, under 18, excuse me.

But it can be applied to others.

I'm looking for the abolition of life without parole for everybody.

I want that to apply retroactively.

That's a big lift.

Yeah.

No court in the nation has said life without parole, is unconstitutional, full stop.

Right?

For everybody.

It's difficult in Washington because Washington abolished parole.

And there are some values to parole because it provides a check years down, when somebody has been sentenced to see how they're doing now.

So, Washington when it abolished parole, defaulted to this position of, well, we better impose great sentences on the front end because we don't have parole as a check on the -back end.

-Right.

But that meant, no matter what you did in prison, it didn't matter, right?

You didn't get out earlier.

So, there's a lot, you know, we have a complex system that's developed over time.

And, the courts have allowed us to sort of, or give an approval to taking it apart a little bit, piece by piece.

But sometimes these feel like very small, yet important, but very small pieces.

I'd like to see some bigger pieces, of the puzzle, and then apply them, retroactively.

Have you come to a conclusive, dare I say definitive conclusion when it comes to that question of whether the more effective policy is probation or parole.

In this case, youre talking about parole versus no parole because of the inability of parole to be rehabilitative.

And that it has set so many people up for failure.

Have you come to some conclusion on on whether parole is the right way to do it or not?

It's complicated because.

And there's a lot of factors.

I know that some states have adopted second look statutes where, the individual goes back in front of a judge.

And then the judge decides essentially whether to let them out or continue the sentence.

Obviously judges are skilled and trained at making those determinations.

On the other hand, sometimes, lawyers are not, because lawyers tend to work at the front end of a case and not the back end of the case.

It can get complicated with funding, who represents you?

What experience do they have?

And, how much are they being paid for their work?

That always seems to matter.

I will say, I think Washington, in terms of its parole, got one thing really correct.

Which is that the parole decision for juveniles is based on a risk assessment that has to be made by a psychologist.

Using the state of the art risk assessment tools, these are tools that have been developed to determine whether somebody is more likely than not to re-offend.

And while they're not perfect, that certainly is a much better standard than, let me just make a guess about whether you're going to re-offend or not.

But also what is critical to the equation is that the prison change its culture from being a warehouse or being simply separating people from the community, to rehabilitation and reform.

And those programs that they develop have to be, if not prisoner initiated, they have to have prisoner input, because in the early days of rehabilitative programing, it was very much a top down.

Were prison bureaucrats, we've decided, here's the way to program, and make it better.

And that didn't work.

There was no buy-in from the inmates.

And you know, with all due respect, the bureaucrats didn't know the people who are going through the process oftentimes are the ones who have the greatest insight on what works and what doesn't.

And again, that started happening in Washington state simply because all the all the programing had been stripped out of the prisons and guys didn't want to simply do their time and not better themselves.

And so they created their own programing.

And what they found was, you know, that they had some great insights into what made them offend and what will stop them from reoffending.

And if you can do all of those things and you have a parole system that can really take that into account, right?

That can really say, not just that you're defined by your worst act ever, but that people can change and people do change.

And then you look at the efforts to make those change.

I think that's the system that makes the best sense.

But I certainly know that you can be paroled out.

You can have that parole hanging over your head for the rest of your life, and you can go back in prison for a minor infraction, a simple rules violation, no new crime.

And so there certainly are problems with enforcing parole when somebodys been paroled.

That becomes, I think, a much more troubling part of the equation.

But I think if we, put our heads together, I think we can come up with good solutions as to how to make determinations about when somebody should be released and who should be released, and who not.

How much of those determinations, in your mind, is hinging upon the overall demonetization of the industrial complex?

The system that we have come to know.

Yeah, that's a great question.

I mean, I guess I would say here in Washington that I haven't seen.

Well, let me divide the world.

Early on, there was a great deal of resistance to paroling juveniles who committed particularly bad crimes.

And where those juveniles still had decades to go on their sentence, right?

The idea of, wow, we're not just releasing them early, we're releasing them really early.

And, the board was unwilling to release a lot of people, even if all of the other evidence said that they were unlikely to re-offend.

So the statute told them you had to do one thing, but they were doing a different thing.

To their credit, the Washington Supreme Court stepped in and corrected that and said, that is not the standard that you are charged to apply.

And the board responded by applying the correct standard.

And I hope that continues.

Now Washington has parole also for what we call the Pre-Sentence Reform Act cases.

These are cases that go back to the early 1980s before we changed and got rid of parole.

We also have parole for sex offenders.

I will say those people don't get released at nearly the same rate that juveniles do.

And to my eye, having read the decisions, there is a much more difficult standard applied in those cases.

Now it's probably above my pay grade to figure out why that's happening.

And how much of that is sort of preserving the incarceral state.

But, I will say and maybe, you know, five years down the road, I would tell a different story about how parole is working.

Maybe it's just the new shiny thing.

But right now it's working.

And if you were to step outside of Washington.

Let me ask you first, within Washington, this question of, monetization, you know, from the beginning, from the front end of bail.

The prospect of shrinking the system, as the term has kind of become the consensus, have more people living their best lives outside of prison, jail, parole, probation.

Are there examples of even in an imperfect but, on average better than average system in Washington state where the force of monetization and privatization, is harmful.

And then just for your for our edification more broadly, again, the impact of decades long monetization and privatization, even sometimes when there's not privatization, there's a whole lot of monetization, that creates bad incentives.

I can explain it this way.

You know, I was a lawyer fighting in the trenches as a public defender.

When mass incarceration was happening.

And I saw both in the courtrooms and in the legislature.

And, you know, as you increase the punishment for crimes, added new crimes, imposed mandatory sentence provisions where judges didn't have any discretion.

There was almost never any talk of how much is this going to cost us, nor was there any talk of how many more people is this going to add to our prison system.

Or who's making money off of this?

Or who was making money off of it.

-Right.

-Yeah.

No, the light was green and it was all systems go.

We started this conversation talking about retroactivity.

I mean, we can talk about retroactivity in a couple of forms.

First of all, in the legislature, I mean the legislature can any, you know, day pass a new law and then say that a law applies not only to new cases going forward, but applies to all cases going backwards.

And that's sort of the third rail of criminal law reform in the legislature is we're not going to make it retroactive.

I mean, unless the courts tell us that we have to.

We've learned the lesson from the past cases that this practice is no good.

But the people who, you know, culminated in that lesson, the real people, we're not going to let them out.

We'll just make sure it doesn't happen in the future.

So there is this preservation of existing cases and the monetization of those cases.

And likewise, the Washington Supreme Court has a statute, that establishes, a presumptive time bar with exceptions.

And they have been very vigorous in enforcing that statute so that only a few shall pass.

They could certainly enforce it in a way that would, make those, paths to re-sentencing, and cutting down the size of our prisons, much more robust.

But theyve, outside of a few cases, largely chosen not to do so.

And any specific measure that you think federal legislation ought to take form in the pursuit of demonetized and whatever -deep private, -Yeah.

un-privatizing the system.

Well, I think the biggest thing to me, and this is just may be a result of where I've practiced, is the reform of what's called the Antiterrorism Effective Death Penalty Act, which is essentially the statute that controls, habeas cases in federal court.

It used to be, that you could go to the federal court to enforce your constitutional rights.

When the state court wasn't doing so.

But with the passage of a DPA and the amount of deference that is now being applied to state court judgments, that's almost a dead letter.

I really don't do that work much anymore because I can have, a clear violation of federal constitutional law.

And the answer from the federal court is, yeah, but it's not clear enough.

And that's what we've been told we have to have, we have it essentially so nobody, no jurist in the United States would have decided it that way is really the standard.

And so, where I mean, I luckily get to talk about Washington, which is for the most part, a good experience.

There's lots of states that you're not going to hear this story, right?

And unfortunately, those folks can't go to federal court.

I mean, they can try they can file their petition.

It could look great.

But as long as that deference exists, to state court judgments, you're not going to get those reforms.

So, you know, it's one of those things where states certainly are entitled to configure their criminal statutes in different ways, but constitutional protections aught not to differ so widely from state to state.

I mean, one of the reasons we got to the state constitutions was simply because the federal constitutions weren't being enforced, wasn't being enforced anymore.

Jeffrey Ellis, distinguished attorney, former public defender, champion of justice reform for Washington in the nation's youth, legal counsel for the Redemption Project of Washington State.

Thank you for your insight today.

Thank you very much.

It's been a privilege, and an honor.

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