Court to rule on how teens are charged in violent crimes

By Michael Ko
Seattle Times staff reporter

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OLYMPIA — Under state law, juveniles who are 16 and 17 when they commit certain violent felony crimes are automatically charged and tried as adults.

But what if a juvenile commits a serious crime when he is 15 and the investigation isn't completed until he is 16? Should he be charged as a juvenile or an adult?

The Washington State Supreme Court last week heard arguments in the case of Pierce County v. Dynamite Salavea, who is now serving a 79-year sentence in the state penitentiary at Walla Walla for four convictions of first-degree child rape.

Salavea, of Tacoma, raped two boys between February 1996 and June 1998, when he was between 13 and 15 years old. It took a long time to interview the victims and find Salavea — who had gone to Utah — and a decision to charge him wasn't made until March 1999.

By then, Salavea had turned 16, and prosecutors decided he was subject to adult-charging guidelines.

If Salavea had been charged and convicted as a juvenile, he would have been placed in detention and released when he turned 21. Because he was convicted as an adult, he has what amounts to a life sentence.

Beyond Salavea's case, the Supreme Court's ruling, expected within six months, could have greater implications for when juveniles are referred to the juvenile system, which has a philosophy of rehabilitation, or the adult system, which generally warehouses criminals.

"We have a system that recognizes the difference between juvenile and adult offenders," Mary Kay High, Salavea's attorney, told the justices. She argued that Salavea's case should be dismissed because he was under 16 when he committed the crimes.

"... When juveniles commit crimes, usually we have a process of rehabilitation," High said, "and we recognize it's as important as incarceration, or even more important."

Pierce County Deputy Prosecutor Kit Proctor, who argued on behalf of the state, agreed rehabilitation is important but said state law has been very clear — what counts is the age at the time of charging, not when the crime was committed.

The state Court of Appeals agreed with Proctor in January.

The Supreme Court must decide how to interpret a 1994 law, which was written in response to increasingly violent crimes among juveniles. State lawmakers approved a measure that allowed 16- and 17-year-old juvenile offenders to be tried as adults without going through a so-called "decline hearing."

Such hearings are held to determine whether the juvenile court will decline jurisdiction in a case, causing the case to be sent to adult criminal court.

The law says juveniles are referred to the adult system when "the juvenile is sixteen or seventeen years old" and the alleged offense is a serious violent felony, including such crimes as murder, child rape and kidnapping. However, the law does not explicitly state whether it applies to the defendant's age at the time of the crime or the time of the charges.

High, Salavea's attorney, interprets the law to mean that because her client was 15 and younger when the crimes occurred, he should not have been charged as an adult without a decline hearing.

Prosecutor Proctor bases her argument — age at the time of charging — on a 1984 case, State v. Calderon, in which the Supreme Court establishes that juvenile courts lose jurisdiction over people who commit crimes before age 18 but are 18 or older when they are charged.

For example, King County prosecutors recently charged John Athan as an adult for a 1982 killing of a 13-year-old girl in Magnolia. Athan was only 14 at the time. He later moved to New Jersey and wasn't arrested until May of this year.

Proctor argued that High's interpretation would be inconsistent with the way juvenile cases have been handled. But High said the Calderon case predates the 1994 juvenile decline law, and should not apply to this case.

What Salavea did isn't in dispute. A Pierce County jury found him guilty of raping two boys, who were 5 and 6 years old at the time the crimes were first committed.

Salavea's younger brother also was charged with similar crimes against the same victims.

"It's important to remember the crimes are appalling," Proctor said, noting that Salavea and his brother terrified the victims, raping them many times.

There were several reasons it took so long to charge Salavea.

It wasn't until Oct. 30, 1998, that reports of the crime came forward and investigators began interviewing the two victims.

Also, prosecutors couldn't find Salavea, who turned 16 on Oct. 9, 1998. He had fled to Utah and wasn't arrested until September 2000, during an attempted robbery in Tacoma.

During the 45-minute argument before the Supreme Court, justices asked both lawyers how far back adult responsibilities should be extended to juveniles.

"What about if (the criminal) was 12 (years old)?" asked Justice Susan Owens, "and the crime wasn't reported until he was 16? Would he still get (placed in) the adult system?"

"Yes," Proctor responded. "That's what the legislation has intended."

George Yeannakis, a Seattle University Law School professor who helped write a "friendly brief" on behalf of Salavea, said, "How low (in age) would you go? It would become ludicrous at some point."

Under state law, children under age 12 are believed not to have the mental capacity to commit a crime.

High worries that if the Supreme Court finds in favor of Proctor and Pierce County, prosecutors could drag their feet with 15-year-old juvenile criminals to get them into the adult system with its harsher sentences.

But Proctor said there are other laws that make sure that doesn't happen.

Michael Ko: 206-515-5653 or mko@seattletimes.com

Copyright © 2003 The Seattle Times Company