Why retroactivity is essential in sentencing reform

Wednesday, November 22, 2023
A photo of a girl looking out of a window waiting for someone

This Thursday, many of us will gather with friends, family and loved ones to reflect and share a meal together. While we are enjoying the sense of warmth and togetherness we get from being in community, regardless of the date or reason, many are missing people they dearly love who have been harmed by the mass incarceration crisis in America.  

For years, we have been overly reliant on increasingly harsher punishments as the solution to public safety. This has torn families and communities apart while not making anyone safer. Since 1970, the incarcerated population in the United States has increased by 500%, far outpacing population growth and crime. This rise in mass incarceration is a result of decades of “tough on crime” policies, mandatory minimums and harsh sentencing practices leading to the growth of the prison industrial complex.   

We lock up too many people, for too long, without considering the impacts of incarceration. 

An important part of ACLU-WA's sentencing work is ensuring that reforms that are passed not only apply going forward but are retroactive. Retroactivity means applying new legislation to people who have already been sentenced. Reforms that only apply prospectively (to future sentences) have left so many people behind.  

It is fundamentally unfair to require people to serve vastly different sentences for the same offense, and it is the Legislature’s duty to correct laws and policies that it has decided are unjust. Meaningful sentencing reform requires us to reckon with the mistakes of the past while resolving to change the future for the better.  

Community members who were sentenced during the 1980s, 1990s, and 2000s have families, friends, and other loved ones who are shouldering the burden of our state’s failures. The underlying concerns with racial equity and proportionality apply with equal force to old sentences as to new ones. 

ACLU-WA's work in the sentencing reform space included organizing around and working to pass EHB 1324, a bill to stop the use of juvenile adjudications to automatically enhance future sentences in adult courts, called juvenile points in our current sentencing system.  

The inclusion of juvenile points in Washington stems in large part from misguided fears in the 1990s, when the distinction between youth and adults in the criminal legal system was blurred and when many were perpetuating the so-called super-predator myth — the racist theory that children who committed crimes, particularly Black children, were inherently violent and unable to be rehabilitated. This, in combination with over-policing of communities of color, led to a disproportionate number of BIPOC individuals with juvenile points. Juvenile points are a driver of racial disproportionality in sentencing.  

This work was led by a coalition of currently and formerly incarcerated allies, their family members, and community organizations. Incarcerated people had been organizing and activating around the automatic inclusion of juvenile points for years – the Legislature would not have passed this law without their efforts.  

Unfortunately, retroactivity was stripped from the bill and the law only applies prospectively, leaving hundreds of people behind. Legislators are often driven to action by those who were directly harmed by overly punitive sentences. However, when it comes to the time to act, those are the people these incomplete reforms leave behind.  

In collaboration with formerly and currently incarcerated allies, ACLU-WA is returning to Olympia this year to pass a trailer bill to make EHB 1324 retroactive.  

The stakes are too high. We know that to truly rectify the harms of the past, we cannot leave anyone behind. Legislators have to address past harms while simultaneously working to avoid future ones. They have an opportunity to do this by bringing family members home.