‘It’s Not Moral’: A Wave Of Criminal Justice Reforms Is Leaving Out Those Already Convicted
People with incarcerated family members march at the Capitol in Olympia, Washington, in April, demanding that HB 1324, a criminal justice reform bill, be retroactive.
Growing up, Anthony Covert never felt like he belonged. He was a ward of the state by the time he was a toddler and bounced between foster homes throughout his childhood. Despite being told he was “unadoptable,” he was eventually adopted by a white couple who loved him — but whose complexion did not match his own Black skin, making him a target of ridicule at school.
The first time Covert felt like he was part of a community was when he started hanging out with a gang as a young teen. He racked up a juvenile record: assault when he was 14 and residential burglary when he was 17. Shortly after his 18th birthday, he was arrested and charged with attempted murder. He was ultimately sentenced to 36 years in prison — roughly 10 of which were the result of his juvenile record.
Until recently, Washington automatically used juvenile felony records to increase adult prison sentences, which about a dozen states still do. In Washington, it was the result of a bill passed in 1997, during the era of racist fearmongering about so-called super-predator youths. Earlier this year, lawmakers introduced House Bill 1324, which would have ended the practice and allowed those already facing longer sentences because of their juvenile records the opportunity to be resentenced. But just before it passed out of the legislature in April, lawmakers amended the bill so it wouldn’t apply to anyone who had already been sentenced — leaving Covert and thousands of others behind.
In recent years, several states have passed modest criminal justice reform legislation aimed at correcting tough-on-crime-era sentencing practices, which disproportionately harm Black and brown people. But many of these reforms are applied only prospectively, creating a situation in which people face dramatically different punishments based on whether they were sentenced before or after an arbitrary date.
This moral and logical inconsistency often boils down to political convenience. “There’s a real fear that if we allow an opportunity for redemption and somebody does something wrong, how is that going to come back on me?” Washington state Sen. Yasmin Trudeau (D), who fought to keep retroactivity in the bill, said in an interview. “This is a societal problem about who we consider worthy. Once people are incarcerated and in the system, we somehow devalue them and consider them less worthy.”
If something was wrong and we change it, to deny that benefit to the people who are in prison is unprincipled.Mark Osler, professor at University of St. Thomas School of Law
In California, lawmakers passed a non-retroactive bill in 2017, giving judges the ability to remove additional penalties for possessing a firearm during a crime, which prosecutors often use to juice up already lengthy sentences. Today, roughly 37,000 people in California state custody — more than one-third of the state’s prisoners — have some kind of gun enhancement as part of their sentence. Of those 37,000, about 89% are people of color, according to Initiate Justice, an organization that works to end incarceration through inside-out organizing.
“It’s hard to want to give a person a second chance, but people can change,” said Anthony Linares, a senior inside organizer for Initiate Justice in California’s Corcoran State Prison. Much of Linares’ roughly 34-year sentence is from enhancements related to guns, gangs and California’s three strikes law. Linares has since overcome drug addiction, is uninvolved with gangs and is close to earning two associate degrees. He is urging lawmakers to pass Assembly Bill 1310, which would make the 2017 bill retroactive and give him a chance at being resentenced.
Some states explicitly restrict retroactive relief. Oregon’s constitution states that punishments enacted by voters can only be modified in the legislature with a supermajority vote, rather than a simple majority. In 2019, the Oregon Legislature passed a landmark juvenile justice reform bill. One of the bill’s provisions was ending the automatic transfer into the adult system of 15- to 17-year-olds accused of certain crimes — a practice enacted by voters in a 1994 ballot measure. Because the bill did not have a supermajority of support, it was not retroactive. In fact, after first passing the bill, lawmakers went back and specifically amended the language to block people convicted before its passage from benefiting from relief if they ended up back in court for resentencing after its passage.
A similar dynamic has played out on the federal level. In 2010, the federal government passed the Fair Sentencing Act, which reduced the sentencing disparity between offenses for crack and powder cocaine from a ratio of 100-1 to a ratio of 18-1. This overdue reform was not applied retroactively until after the First Step Act passed in late 2018.
The First Step Act also amended 18 U.S. Code Section 924(c), to eliminate a practice known as Section 924(c) “stacking” — but only for future cases. Section 924(c) provides harsh mandatory minimum sentences for people who use or possess a gun during a violent felony or drug offense — at least five years for the first offense and 25 years for any subsequent offense. Before the passage of the First Step Act, federal prosecutors could “stack” multiple Section 924(c) violations in the same case. For example, someone with no prior criminal record who robbed three banks with a gun could face mandatory minimums of five years, 25 years and another 25 years, just for the gun enhancements.
“It was responsible for a lot of the most extreme and disproportionate sentences,” Liz Komar, counsel at The Sentencing Project, said in an interview.
Senate Judiciary Chair Dick Durbin (D-Ill.) introduced a bill last month to make Section 924(c) reform retroactive after a similar bill died in the previous Congress. “But, of course, we’re in the middle of a federal election cycle that’s all about crime, a lot of which is gun crime. So it’s a much tougher battle to go back for the people who were cut out of the First Step Act,” Komar said.
“I really believe that it’s not moral to change a statute to the benefit of defendants without making it retroactive,” Mark Osler, a professor at the University of St. Thomas School of Law, said in an interview. “If something was wrong and we change it, to deny that benefit to the people who are in prison is unprincipled.”
David Heppard (left), the executive director of the Freedom Project, attends the bill signing ceremony with Gov. Jay Inslee earlier this month while wearing a shirt that reads, "What if the 13th amendment wasn't retroactive?" Chelsea Moore, the Look2Justice co-founder, stands to the right of Heppard.
The juvenile history bill in Washington emerged from people in prison talking in the yard and realizing that many of them were serving longer sentences because of their juvenile felony records, said Chelsea Moore, a founding co-director of Look2Justice, an inside-out organizing group in Washington state. They had already been punished for these offenses as kids, often with years in juvenile detention. But when they returned to court to be sentenced for adult convictions, prosecutors used their juvenile records to tack on additional years to their punishment — sometimes adding decades to their prison sentence. They were, effectively, being punished twice for the same offense.
Nearly one-third of the people incarcerated in Washington have at least one juvenile felony offense on their record. Of that group, more than half are people of color, despite Washington’s overall population being 77% white. “Many of them came from impoverished communities, in large part because those are the communities where we see over-policing,” said Moore, who also leads the Smart Justice policy at the ACLU of Washington.“And those are the kids where if they get in a schoolyard fight, it’s more likely they’re gonna get an Assault III juvenile felony conviction — whereas if you’re an affluent white kid, you’ll get sent to therapy.”
In 2021, Moore approached then-freshman state Rep. David Hackney (D), a former federal prosecutor, to discuss the juvenile history bill. The federal government, like Washington state, uses a determinate sentencing structure and Hackney came to worry that some of the sentences he imposed were “draconian,” he said in an interview. During a stint as a war crimes prosecutor at The Hague, he saw how other countries sentenced people convicted of serious crimes to significantly less prison time than the U.S. did.
Hackney was quickly on board with the bill and gave Moore his word that he would fight to keep it retroactive. In the first two years, the bill never made it to the floor for a vote. This year, organizers worked to mobilize broad support for the bill — not just from criminal justice reform advocates but also from labor, tribal and medical groups. They even got the state’s Superior Court Judges’ Association to agree not to oppose the bill, Moore said.
The state House of Representatives passed the bill in March, with retroactivity intact. “I was very hopeful,” said Covert, who is now the lead organizer in the Walla Walla State Penitentiary for Look2Justice. “A lot of us were very hopeful, sharing the news with our families, sharing it amongst each other, sharing it with even officers here.”
In late March, after the bill moved to the state Senate, Sen. Jesse Salomon (D) introduced an amendment to remove all retroactive application of the bill.
“We talked and talked and talked,” Hackney said of Salomon, who did not respond to a request for an interview. “I all but begged him not to do it. But there are some Democrats, as well as Republicans, who just don’t understand sentencing reform. They see people in prison as bad and they should stay in for as long as they possibly can.”
The amendment passed and suddenly lawmakers appeared set to abandon the incarcerated people who helped bring the bill into existence. Family members of those in prison with juvenile records marched on the Capitol in Olympia, carrying signs demanding retroactivity for their loved ones. But it was too late. The bill passed out of the Senate in April, stripped of retroactivity.
Moore was never able to get an explanation from the lawmakers who voted to remove retroactivity. “The only answer we really got was that it wouldn’t have passed had they not cut retroactivity,” she said. “But we were never given the opportunity to see the votes for that.”
“We took it hard. We took it as a big middle finger,” Covert said. To him, it felt like lawmakers had acknowledged that his sentence was wrong but refused to take steps to fix it. For weeks, he had felt like the “deliverer of hope” inside a place that usually doesn’t have much of that. Now he had to deliver the bad news.
Earlier this month, Moore attended the bill signing ceremony with Gov. Jay Inslee (D). David Heppard, the executive director of the Freedom Project who was formerly incarcerated, initially wasn’t sure he wanted to attend. He felt uncomfortable celebrating the partial victory. Ultimately he decided to go, wearing a shirt that read, “What if the 13th amendment wasn’t retroactive?”
Hackney has already committed to pursuing a bill next year to make the reforms retroactive.
“I’m still trying to instill that sense of hope,” Covert said. “But it’s not as powerful as it was before.”