Filed
Washington State
Court of Appeals
Division Two
April 25, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47251-1-II
Respondent,
v.
BRIAN M. BASSETT, PART PUBLISHED OPINION
Appellant.
JOHANSON, J. — In 1996, a jury found Brian M. Bassett guilty of three counts of
aggravated first degree murder committed when he was 16 years old. The trial court imposed three
“life without parole” sentences. In 2015, after a Miller1 hearing, the resentencing court again
imposed three life without parole sentences. Bassett appeals his new sentence and successfully
argues that a provision of the Miller-fix statute, RCW 10.95.030(3)(a)(ii),2 violates our State’s
constitutional prohibition against cruel punishment. In the published portion of this opinion, we
waive procedural defects and treat Bassett’s claim as a personal restraint petition (PRP). We hold
1
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
2
In 2014, the legislature enacted RCW 10.95.035(1), requiring that persons sentenced “prior to
June 1, 2014 . . . to a term of life without the possibility of parole for an offense committed prior
to their eighteenth birthday, shall be returned to the sentencing court . . . for sentencing consistent
with RCW 10.95.030.” LAWS OF 2014, ch. 130, § 11. Thus, we cite to the current version of RCW
10.95.030 unless otherwise noted.
No. 47251-1-II
that under a categorical bar analysis, the statutory Miller-fix provision that allows 16- to 18-year-
old offenders convicted of aggravated first degree murder to be sentenced to life without parole or
early release violates article I, section 14 of the state constitution prohibiting cruel punishment. In
the unpublished portion, we reject Bassett’s remaining arguments. Because Bassett shows that
grounds exist to challenge the legality of his restraint, we reverse Bassett’s sentence and remand
for resentencing in accordance with this opinion.
FACTS
I. BACKGROUND FACTS AND PROCEDURE
In 1995, 16-year-old Bassett, who had been “‘kicked out’” of his home by his parents,
Wendy and Michael Bassett,3 stole a rifle and placed a soda bottle over the gun barrel as a
“‘silencer.’” State v. McDonald, 138 Wn.2d 680, 683, 981 P.2d 443 (1999); State v. Bassett, noted
at 94 Wn. App. 1017, 1999 WL 100872, at *3.4 Several days later, Bassett broke into his parents’
home and shot them multiple times. Bassett, 1999 WL 100872, at *1. Meanwhile, 17-year-old
Nicholaus McDonald disabled the Bassetts’ phone line so that they could not call for help and
waited outside. Bassett, 1999 WL 100872, at *1; McDonald, 138 Wn.2d at 683. McDonald then
entered the home and shot Michael, who was still breathing after Basset had shot him, in the head.
McDonald, 138 Wn.2d at 684. Basset’s five-year-old brother, Austin Bassett, witnessed the
shootings; Bassett or McDonald then drowned Austin in a bathtub. McDonald, 138 Wn.2d at 683-
3
We use the first names of Bassett’s parents and brother to avoid confusion, and we intend no
disrespect.
4
Where appropriate, we rely upon the facts from McDonald, 138 Wn.2d at 683-85, and our
unpublished opinion affirming Bassett’s convictions after he appealed several evidentiary rulings.
Bassett, noted at 94 Wn. App. 1017.
2
No. 47251-1-II
84.5 McDonald hid Austin’s and Michael’s bodies away from the home. McDonald, 138 Wn.2d
at 684. McDonald and Bassett hid Wendy’s body in the Bassetts’ pump house, and McDonald
cleaned the home. McDonald, 138 Wn.2d at 684-85.
McDonald turned himself in to the police the next day and implicated himself and Bassett
in the killings. McDonald, 138 Wn.2d at 683; Bassett, 1999 WL 100872, at *1. The State charged
Bassett with three counts of aggravated first degree murder. At trial, the State introduced Bassett’s
statement to the police that he and McDonald had tried to kill Bassett’s parents twice before the
crimes, but their attempts were foiled. Bassett, 1999 WL 100872, at *1. A jury convicted Bassett
of three counts of aggravated first degree murder, and the trial court sentenced Bassett to three
consecutive terms of life without the possibility of parole. Former RCW 10.95.030(1) (1993).
II. RESENTENCING MITIGATION EVIDENCE AND HEARING
In 2015, Bassett, who was then 35 years old, appeared for resentencing under RCW
10.95.030(3) (the Miller-fix statute) and .035(1).6 Bassett argued that the Miller-fix statute was
unconstitutional under Miller and requested that he be resentenced to three 25-year concurrent
sentences for each crime and allowed earned early release credit. In support of these arguments,
5
McDonald initially confessed to killing Austin, but at trial he claimed that Bassett drowned
Austin. McDonald, 138 Wn.2d at 684. At trial, Bassett denied killing his brother. Bassett, 1999
WL 100872, at *1.
6
In June 2014, the Washington legislature responded to Miller, 567 U.S. 460, by enacting the
Miller-fix statute, which requires that a sentencing court take into account the Miller factors before
sentencing a 16- to 18-year-old offender to life without parole or early release. RCW
10.95.030(3)(a)(ii), (b). The legislature further enacted a statute that requires that juveniles
sentenced before 2014 to life without parole or early release be resentenced under the Miller-fix
statute. RCW 10.95.035(1).
3
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Bassett offered mitigation information including evidence of rehabilitation and submitted over 100
pages of supporting documentation.
The mitigation evidence documented Bassett’s home life, high school education, and
general lack of a criminal history. The mitigation evidence also included evidence of Bassett’s
rehabilitation during imprisonment, including his participation in various workshops and
counseling programs, educational achievements including attaining honor roll in community
college and various trade certifications, marriage, infraction-free prison record since 2003, and
mentorship of other inmates. Eighteen inmates and six noninmates wrote letters that supported
mitigation of Bassett’s sentence, including a letter that noted Bassett was a teacher’s assistant in a
prison community college program.
Dr. Jeffrey Hansen, who had counseled Bassett in 1995, testified at the resentencing
hearing. Dr. Hansen reported that around 1995, Bassett ran away from home sometimes to hurt
his mother, was still trying to establish his identity, had average cognitive ability, had suffered a
self-induced alcohol overdose at age 15, had ongoing relational issues with his parents and felt
hopeless, and had an adjustment disorder resulting in poor emotional behavioral responses to
stress. Dr. Hansen further testified that Bassett faced the stressors of homelessness, joblessness,
and possibly having had an unwanted sexual relationship with McDonald.
Bassett stated that when he entered prison as a juvenile, he first thought of how much
trouble he would be in when his parents learned that he was in prison because the reality of his
crimes “didn’t click.” Report of Proceedings (RP) (Jan. 30, 2015) at 80. Three weeks after the
murders, Bassett had written, “I wish I hadn’t done anything because now I think of all the good
times that my dad and me had. Before I was just thinking about all of the things they did to piss
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me off.” Clerk’s Papers (CP) at 294. Bassett expressed remorse at resentencing and explained the
challenges that he faced as a homeless youth at 16.
The State did not rebut Bassett’s evidence; rather, the State argued that compared to the
severity of Bassett’s crimes, the mitigation evidence did not show that Bassett should be
considered for parole or early release. The State opposed a reduction in Bassett’s sentence and
argued that Bassett’s crimes were premeditated, calculated acts and that no evidence demonstrated
an acceptable explanation or excuse for the crimes.
III. RESENTENCING COURT’S CONCLUSIONS
The resentencing court acknowledged that it had a duty to consider the Miller factors and
not to make a decision based upon the horrific circumstances of the crime alone. Further, the
resentencing court noted that it had to assess Bassett’s degree of responsibility and whether
Bassett’s crimes were the result of immaturity, impulsiveness, and emotion stimuli that caused
Bassett to “snap.” RP (Jan. 30, 2015) at 85.
The resentencing court concluded that Bassett’s two previous attempts to commit the
crimes and his stealing a gun in advance, fashioning a silencer, and cutting the phone lines evinced
that Bassett had not acted from emotion or impulse. Bassett appreciated his actions’ risks and
consequences because he “did several things to try to reduce his risk” and fled after the crimes.
RP (Jan. 30, 2015) at 89. The resentencing court noted Bassett’s strained relationship with his
family, which it determined was by Bassett’s choice, and found no evidence of abuse or neglect.
Further, Bassett’s homelessness meant that he was potentially more responsible and in control of
his behaviors than other 16-year-olds. In the resentencing court’s view, teenage homelessness
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“cause[s] 15 and 16-year-olds to grow up pretty quickly” and to “gain a level of maturity much
quicker than kids who are not in that situation.” RP (Jan. 30, 2015) at 88-89.
When the resentencing court considered the Miller factors, it concluded that Bassett’s
infraction-free record did not carry “much weight in terms of assessing the likelihood that he can
be rehabilitated or has been.” RP (Jan. 30, 2015) at 90. Bassett’s educational endeavors and trade
certificates were “less evidence of rehabilitation and more evidence that [Bassett was] simply
doing things to make his time in prison more tolerable” and to pass the time, and Bassett’s marriage
was “certainly not evidence of rehabilitation.” RP (Jan. 30, 2015) at 91.
The resentencing court found that the evidence about the crimes’ commission outweighed
the mitigating nature of Bassett’s adolescence. In doing so, the resentencing court concluded that
Bassett’s crimes “were the result of a cold and calculated and very well planned goal of eliminating
his family from his life. And I don’t believe that any amount of time in prison is going to ever
result in his being rehabilitated such that he could safely return to any community.” RP (Jan. 30,
2015) at 93. The resentencing court imposed three consecutive life without parole sentences.
Bassett appeals.
ANALYSIS
I. BASSETT’S CLAIMS ARE NOT PROCEDURALLY BARRED
As an initial matter, the State argues that a PRP, not a direct appeal, was the proper method
for Bassett to seek review of his resentencing. The State acknowledges that we may waive this
procedural defect to reach the merits of Bassett’s claims but argues that Bassett’s claims must meet
the PRP standards of RAP 16.4. We agree.
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The legislature provided for certain juveniles sentenced to life without release or parole
before June 1, 2014 to be resentenced consistently with RCW 10.95.030. RCW 10.95.035. RCW
10.95.030(3)(b) requires a court setting a minimum term for a 16- to 18-year-old offender who
committed aggravated first degree murder to take into account “mitigating factors that account for
the diminished culpability of youth as provided in Miller.” “The court’s order setting a minimum
term is subject to review to the same extent as a minimum term decision by the parole board before
July 1, 1986.” RCW 10.95.035(3). Before July 1, 1986, review of a parole board decision setting
a minimum term was obtained by filing a PRP. In re Pers. Restraint of Rolston, 46 Wn. App. 622,
623, 732 P.2d 166 (1987).
In order to facilitate review of a minimum term decision on the merits, we may disregard
a filing defect and treat a direct appeal as a PRP. Rolston, 46 Wn. App. at 623. Thus, although a
PRP is the proper method for Bassett to seek review of his resentencing, we disregard this
procedural defect and treat Bassett’s appeal as a PRP. See RCW 10.93.035(3); Rolston, 46 Wn.
App. at 623.
To obtain relief under a PRP where no prior opportunity for judicial review was available,
a petitioner must show that he is restrained under RAP 16.4(b) and that the restraint is unlawful
under RAP 16.4(c). In re Pers. Restraint of Isadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004).
Bassett has had no prior opportunity for judicial review of these claims; accordingly, we consider
whether Bassett’s restraint is unlawful. See Isadore, 151 Wn.2d at 299.
II. LIFE WITHOUT PAROLE SENTENCES FOR THOSE WHO COMMITTED CRIMES
AS JUVENILES ARE UNCONSTITUTIONAL
We are asked to decide whether the Miller-fix statute, RCW 10.95.030(3)(a)(ii), violates
article I, section 14 of the Washington State Constitution. We conclude that sentences providing
7
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for life without parole or early release under the relevant portion of the Miller-fix statute are
unconstitutional for juveniles who commit crimes when they are under the age of 18.7 Because
we agree that the Miller-fix statute violates the Washington State Constitution, we do not reach
Bassett’s alternative arguments that the statute is unconstitutional under the federal constitution’s
Eighth and Sixth Amendments.8
A. PRINCIPLES OF LAW
A statute’s constitutionality is a question of law, which we review de novo. State v. Hunley,
175 Wn.2d 901, 908, 287 P.3d 584 (2012). We presume statutes are constitutional, and the party
challenging a statute’s constitutionality has the burden of proving otherwise beyond a reasonable
doubt. Hunley, 175 Wn.2d at 908. The Washington Constitution, article I, section 14, prohibits
the infliction of “cruel punishment.” The state cruel punishment proscription affords greater
protection than its federal counterpart. State v. Manussier, 129 Wn.2d 652, 674, 921 P.2d 473
(1996).
7
For simplicity, we refer to offenders who committed their crimes when they were under the age
of 18 as “juvenile offenders.”
8
Bassett argues that we should reverse his sentences under the federal and state constitutions, as
well as for nonconstitutional reasons. Where we can fairly resolve a case on nonconstitutional
grounds, we will avoid deciding constitutional questions. State v. McEnroe, 179 Wn.2d 32, 35,
309 P.3d 428 (2013) (quoting Cmty. Telecable of Seattle, Inc. v. City of Seattle, 164 Wn.2d 35, 41,
186 P.3d 1032 (2008)). Here, we decide the case on constitutional grounds because Bassett’s
nonconstitutional arguments fail for the reasons discussed in the unpublished portion of our
opinion.
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B. EVOLUTION OF PERMISSIBLE JUVENILE PUNISHMENT
1. FEDERAL LAW
In Roper v. Simmons, the United States Supreme Court banned the death penalty for
juvenile offenders. 543 U.S. 551, 578-79, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). And in Graham
v. Florida, it banned life without parole sentences for juveniles who did not commit homicides.
560 U.S. 48, 82, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). In both cases, the Court stated that
“[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose
crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption.” Roper, 543 U.S. at 573; Graham, 560 U.S. at 73 (quoting Roper,
543 U.S. at 573). The Graham court stated that some juvenile offenders have sufficient
psychological maturity and demonstrate sufficient depravity to merit a life without parole sentence.
560 U.S. at 77. But “it does not follow that courts taking a case-by-case proportionality approach
could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many
that have the capacity for change.” Graham, 560 U.S. at 77.
In 2012, in Miller, the Supreme Court banned mandatory life without parole sentences for
juvenile homicide offenders. 132 S. Ct. at 2475. Referring to Roper and Graham, the Court stated
that it has been established that children are “constitutionally different from adults for purposes of
sentencing.” Miller, 132 S. Ct. at 2464. The Court reiterated the findings from Roper and Graham
that children’s lack of maturity and underdeveloped sense of responsibility lead to recklessness,
impulsivity, and heedless risk taking. Miller, 132 S. Ct. at 2464. Children are also more vulnerable
to negative influence and outside pressure from family and peers, have limited control over their
environments, and lack the ability to extricate themselves from horrific, crime-producing settings.
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Miller, 132 S. Ct. at 2464. Further, because a child’s character is not as well formed as an adult’s,
the child’s traits are less fixed, and his actions are less likely to be evidence of irretrievable
depravity. Miller, 132 S. Ct. at 2464.9
Citing Graham, Miller noted that for youth, life without parole is an especially harsh
punishment because the juvenile will almost inevitably serve more years and a greater percentage
of his life in prison than an adult offender. 132 S. Ct. at 2466. Graham also likened life without
parole sentences to the death penalty for juveniles, stating that a life without parole sentence
“‘means denial of hope; it means that good behavior and character improvement are immaterial; it
means that whatever the future might hold in store for the mind and spirit of [the convict], he will
remain in prison for the rest of his days.’” 560 U.S. at 70 (alteration in original) (quoting
Naovarath v. State, 105 Nev. 525, 526, 779 P.2d 944 (1989)).
Thus, the Miller Court mandated that “a sentencer [must] follow a certain process—
considering an offender’s youth and attendant characteristics—before imposing a particular
penalty.” 132 S. Ct. at 2471. The characteristics to be considered include: chronological age,
“immaturity,” “impetuosity,” “failure to appreciate risks and consequences,” the surrounding
9
Miller, Roper, and Graham further emphasized that “the distinctive attributes of youth diminish
the penological justifications for imposing the harshest sentences on juvenile offenders, even when
they commit terrible crimes.” Miller, 132 S. Ct. at 2465. Deterrence is a flawed rationale because
of juveniles’ impulsivity and inability to consider the consequences of their actions. Miller, 132
S. Ct. at 2465. Retribution’s focus on blameworthiness does not justify a life without parole
sentence because juveniles have severely diminished moral culpability. Miller, 132 S. Ct. at 2465.
Incapacitation fails to justify a life without parole sentence because adolescent development
diminishes the likelihood that an offender forever will be a danger to society. Miller, 132 S. Ct. at
2465. In other words, incorrigibility is “‘inconsistent with youth.’” Miller, 132 S. Ct. at 2465
(internal quotation marks omitted) (quoting Graham, 560 U.S. at 72-73). Finally, rehabilitation
does not justify a life without parole sentence because such a sentence precludes hope for a child’s
ultimate rehabilitation. Miller, 132 S. Ct. at 2465.
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family and home environment, “the circumstances of the homicide offense, including the extent
of his participation in the conduct” and any pressures from friends or family affecting him, the
inability to deal with police officers and prosecutors, incapacity to assist an attorney in his defense,
and the possibility of rehabilitation. Miller, 132 S. Ct. at 2468. But Miller “d[id] not categorically
bar a penalty for a class of offenders or type of crime.” 132 S. Ct. at 2471. Rather, the Court noted
that the appropriate occasion for sentencing a juvenile homicide offender to life without parole
will be “uncommon.” Miller, 132 S. Ct. at 2469.
In Montgomery v. Louisiana, the Court held that Miller applied retroactively to offenders
who were juveniles when they committed their crimes and who have challenged life sentences
under the Eighth Amendment of the federal constitution. ___ U.S. ___, 136 S. Ct. 718, 725, 736,
193 L. Ed. 2d 599 (2016). The Court stated that Miller did not require a finding of fact regarding
a child’s irreparable corruption before a juvenile could be sentenced to life without parole.
Montgomery, 136 S. Ct. at 735. Rather, Miller established a substantive rule that juveniles whose
crimes reflect “only transient immaturity—and who have since matured—will not be forced to
serve” a life without parole sentence. Montgomery, 136 S. Ct. at 736. Life without parole is
constitutional only for “the rarest of juvenile offenders, those whose crimes reflect permanent
incorrigibility.” Montgomery, 136 S. Ct. at 734. Thus, “prisoners who have shown an inability to
reform will continue to serve life sentences.” Montgomery, 136 S. Ct. at 736. “The opportunity
for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that
children who commit even heinous crimes are capable of change.” Montgomery, 136 S. Ct. at 736.
Although the Montgomery Court did not determine whether the defendant was eligible for
parole consideration or resentencing, the Court noted that the type of evidence that the defendant
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submitted was an example of the “kind of evidence that prisoners might use to demonstrate
rehabilitation.” Montgomery, 136 S. Ct. at 736. This evidence included submissions showing the
petitioner to be a “model member of the prison community” who established a boxing team of
which he became a trainer and coach, contributed time and labor to the prison silkscreen
department, and strived to offer advice and to be a role model to other inmates. Montgomery, 136
S. Ct. at 736.
2. WASHINGTON STATE’S MILLER-FIX
In Washington, before Miller, life without possibility of release or parole was the
mandatory sentence for aggravated first degree murder regardless of the offender’s age. Former
RCW 10.95.030 (1993). In response to Miller, the legislature amended RCW 10.95.030 (the
“Miller-fix” statute) to state,
(3)(a)(i) Any person convicted of the crime of aggravated first degree
murder for an offense committed prior to the person’s sixteenth birthday shall be
sentenced to a maximum term of life imprisonment and a minimum term of total
confinement of twenty-five years.
(ii) Any person convicted of the crime of aggravated first degree murder for
an offense committed when the person is at least sixteen years old but less than
eighteen years old shall be sentenced to a maximum term of life imprisonment and
a minimum term of total confinement of no less than twenty-five years. A minimum
term of life may be imposed, in which case the person will be ineligible for parole
or early release.
(b) In setting a minimum term, the court must take into account mitigating
factors that account for the diminished culpability of youth as provided in [Miller]
including, but not limited to, the age of the individual, the youth’s childhood and
life experience, the degree of responsibility the youth was capable of exercising,
and the youth’s chances of becoming rehabilitated.
RCW 10.95.030 (emphasis added).
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The legislature also enacted RCW 10.95.035(1), which provided that persons sentenced
before June 1, 2014 to life without parole or early release for aggravated murder committed when
they were under the age of 18 would be resentenced consistently with RCW 10.95.030.
C. CATEGORICAL BAR ANALYSIS OR FAIN’S PROPORTIONALITY ANALYSIS
Bassett argues that the imposition of life without parole or early release sentences on
juvenile offenders under the Miller-fix statute violates the cruel punishment clause in article I,
section 14 of the Washington Constitution. Bassett urges us to apply the categorical bar analysis,
as used in State v. Sweet, 879 N.W.2d 811 (Iowa 2016), to determine the Miller-fix statute’s
constitutionality, rather than the traditional proportionality analysis from State v. Fain.10 The State
argues that Iowa’s Sweet decision is not binding on Washington courts, so that we are confined to
applying the Fain analysis. We disagree with the State and adopt and apply the categorical bar
analysis from Sweet.
1. CATEGORICAL BAR ANALYSIS
Bassett urges us to follow the reasoning found in Sweet. See 879 N.W.2d 811. Thus, we
begin by examining Sweet’s distillation of the categorical bar analysis. In Sweet, the Iowa Supreme
Court held that juvenile life without parole sentences categorically violate article I, section 17 of
the Iowa Constitution. 879 N.W.2d at 839. Article I, section 17 of the Iowa Constitution matches
the federal Eighth Amendment—both ban “cruel and unusual punishment.” The Sweet court stated
that as a general rule, “[w]hen a different standard is not presented under the Iowa Constitution, . . .
we apply the federal framework, reserving the right to apply that framework in a fashion different
10
94 Wn.2d 387, 617 P.2d 720 (1980).
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from federal precedents.” 879 N.W.2d at 817. Thus, the Sweet court applied a two-step federal
framework set out in State v. Lyle, 854 N.W.2d 378 (Iowa 2014). 879 N.W.2d at 835.
In Lyle, the Iowa Supreme Court considered whether a statute mandating a minimum
sentence for nonhomicide juvenile offenders violated article I, section 17 of the Iowa Constitution.
854 N.W.2d at 380. Lyle claimed that the sentencing statute violated article I, section 17 when
applied to all juveniles prosecuted as adults because the mandatory sentence did not allow the court
to consider any circumstances based on youthful attributes or the mitigating circumstances of the
conduct. Lyle, 854 N.W.2d at 380. Acknowledging that state constitutional protections may be
more stringent than federal constitutional protections, the Lyle court stated that the argument
advanced by Lyle was that the court should apply the federal framework set out in Miller, but in a
more stringent fashion. 854 N.W.2d at 384. Thus, the Lyle court concluded that it was appropriate
to apply “the federal analytical framework” to decide the case. 854 N.W.2d at 384.
Before applying the framework to the facts of the case, the Lyle court acknowledged the
two general classifications of cruel and unusual sentences:
“In the first classification the Court consider[ed] all of the circumstances of the case
to determine whether [a term-of-years] sentence is unconstitutionally excessive.”
[Graham, 560 U.S. at 59.] We recognize this classification under the Iowa
Constitution, but refer to these sentences as “grossly disproportionate.” [State v.
Bruegger, 773 N.W.2d 862, 873 (Iowa 2009).] The second classification
contemplated categorical bars to imposition of the death penalty irrespective of
idiosyncratic facts. [Graham, 560 U.S. at 60.] This classification of cases has
traditionally “consist[ed] of two subsets, one considering the nature of the offense,
the other considering the characteristics of the offender.” [Graham, 560 U.S. at
60.] In short, the death penalty simply cannot be imposed on certain offenders or
for certain crimes. For instance, no offender can be sentenced to death—regardless
of their personal characteristics—if only convicted of a nonhomicide offense and
they did not intend to cause the death of another. [Kennedy v. Louisiana, 554 U.S.
407, 438, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008).] Additionally, a death penalty
cannot be imposed, irrespective of the crime, on an intellectually disabled criminal
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No. 47251-1-II
offender, [Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335
(2002)], or a juvenile offender, [Roper, 543 U.S. at 578].
854 N.W.2d at 385 (first alteration in original) (emphasis added).
Lyle further noted that Miller expanded on the second classification, categorical bars under
the Eighth Amendment:
Miller added to this jurisprudence by conjoining two sets of caselaw: outright
categorical prohibitions on certain punishments for certain crimes or against certain
offenders . . . with another line of cases requiring a sentencer have the ability to
consider certain characteristics about the offender as mitigating circumstances in
favor of not sentencing the offender to death . . . . Although Miller did not identify
its holding as a categorical rule, it essentially articulated a categorical prohibition
on a particular sentencing practice. . . . Yet, Miller implemented a categorical
prohibition by requiring the sentencing court to consider the offender’s youth along
with a variety of other individual facts about the offender and the crime to
determine whether the sentence is appropriate. . . .
. . . Miller effectively crafted a new subset of categorically unconstitutional
sentences: sentences in which the legislature has forbidden the sentencing court
from considering important mitigating characteristics of an offender whose
culpability is necessarily and categorically reduced as a matter of law, making the
ultimate sentence categorically inappropriate.
854 N.W.2d at 385-86 (emphasis added).
Lyle then explained the usual two-step analysis of a categorical challenge to a sentence:
First, we consider “objective indicia of society’s standards, as expressed in
legislative enactments and state practice to determine whether there is a national
consensus against the sentencing practice at issue.” [Graham, 560 U.S. at 61].
Second, we exercise our own “independent judgment” “guided by the standards
elaborated by controlling precedents and by [our] own understanding and
interpretation of the [Iowa Constitution’s] text, history, meaning, and purpose.” See
[Graham, 560 U.S. at 61]. In exercising independent judgment, we consider “the
culpability of the offenders at issue in light of their crimes and characteristics, along
with the severity of the punishment in question.” [Graham, 560 U.S. at 67.] We
also consider if the sentencing practice being challenged serves the legitimate goals
of punishment.
854 N.W.2d at 386 (some alterations in original) (internal quotation marks omitted). The first
prong, consensus, is not dispositive. Lyle, 854 N.W.2d at 386. Lyle went on to apply this two-
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step inquiry and in doing so considered the evolution of juvenile justice in the last decade. 854
N.W.2d at 387-404. Lyle concluded that mandatory minimum sentences for juvenile offenders
were unconstitutional under Iowa’s proscription against cruel and unusual punishment. 854
N.W.2d at 400.
After reviewing Lyle, the Sweet court opined that Miller and Montgomery established that
life without parole sentences for juvenile offenders are not available under the federal constitution
even for heinous crimes except in very rare cases. 879 N.W.2d at 835. The Sweet court concluded
that
[t]he only marginal issue remaining under the Iowa Constitution is whether we
should continue to reserve the possibility that a juvenile offender may be identified
as “irretrievable” at the time of sentencing, or whether that determination must be
made by the parole board at a later time after the offender’s juvenile brain has been
fully developed and a behavior pattern established by a substantial period of
incarceration.
879 N.W.2d at 835. The Sweet court then applied the categorical bar analysis to determine whether
life without parole for the rarest juvenile offenders passed muster under the more protective Iowan
cruel and unusual punishment clause. 879 N.W.2d at 835. In other words, following Lyle’s lead,
the Sweet court applied a traditionally federal framework to address a state constitutional
challenge. Sweet held that all life without parole sentences for juvenile offenders offended the
Iowa State Constitution. 879 N.W.2d at 839. Bassett urges us to similarly hold that all juvenile
life without parole or early release sentences under the Miller-fix statute violate our state
constitution.
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No. 47251-1-II
2. FAIN PROPORTIONALITY ANALYSIS
The State argues that Sweet is not controlling and that we should follow our traditional
approach. Thus, we next examine the traditional Fain proportionality analysis. Fain held that
RCW 9.92.090 (the habitual criminal statute) constituted cruel punishment under the state
constitution. 94 Wn.2d at 402-03. The court emphasized that Fain did not challenge the facial
constitutionality of the habitual criminal statute, including the legislature’s decision to enhance the
penalty for recidivists, but squarely addressed the “disproportionality between the nature of his
crimes and the life sentence imposed as punishment for the three offenses which deprived the
victims of less than $470 over a period of 17 years.” 94 Wn.2d at 391. Fain analyzed federal
Supreme Court precedent and distilled a “proportionality doctrine” that existed “[i]n addition to
the traditional view that the Eighth Amendment proscribes certain modes of punishment.” 94
Wn.2d at 395-96. “While not expressly adopted by the judiciary in Washington, the
[proportionality] principle is implied in some of our cases” and legislative enactments. Fain, 94
Wn.2d at 396. Fain borrowed a four-factor proportionality analysis from a Fourth Circuit federal
case that also involved a life sentence imposed under a habitual criminal statute: Hart v. Coiner,
483 F.2d 136 (4th Cir. 1973). 94 Wn.2d at 397.
The four Fain factors to consider in analyzing whether punishment is prohibited as cruel
under article I, section 14 are “‘(1) the nature of the offense, (2) the legislative purpose behind the
statute, (3) the punishment the defendant would have received in other jurisdictions, and (4) the
punishment meted out for other offenses in the same jurisdiction.’” State v. Witherspoon, 180
Wn.2d 875, 887, 329 P.3d 888 (2014) (quoting State v. Rivers, 129 Wn.2d 697, 713, 921 P.2d 495
(1996)).
17
No. 47251-1-II
3. ADOPTING THE CATEGORICAL ANALYSIS
As in Iowa, Washington has recognized the two general classifications of cruel and unusual
sentences that violate the Eighth Amendment: those that are disproportionate and those that are
categorically barred. See State v. Schmeling, 191 Wn. App. 795, 799-800, 365 P.3d 202 (2015).
In Schmeling, we analyzed whether RCW 69.50.4013 (which makes drug possession a felony
regardless of the defendant’s mental state) violated the Eighth Amendment. 191 Wn. App. at 797.
In doing so, we recognized that “[t]here are two types of Eighth Amendment analysis”:
proportionality analysis and the use of “categorical rules to define constitutional standards for
certain classes of crimes or offenders.” Schmeling, 191 Wn. App. at 798. The categorical analysis
requires both the review of objective indicia of societal standards expressed through legislative
enactments and state practice to determine whether there is a national consensus and the exercise
of independent judgment. Schmeling, 191 Wn. App. at 799-800 (quoting Graham, 560 U.S. at
61). In dicta, we noted that Washington applies the Fain analysis under the cruel punishment
clause. Schmeling, 191 Wn. App. at 798 n.3. But in Schmeling, the defendant brought his
challenge under only the Eighth Amendment, so that the court did not need to determine whether
the statute was constitutional under state law. 191 Wn. App. at 798 n.3.
Further, our Supreme Court has recognized that “[A]rticle I, Section 14 of the state
constitution, like the Eighth Amendment, proscribes disproportionate sentencing in addition to
certain modes of punishment.” Manussier, 129 Wn.2d at 676 (emphasis added); see also State v.
Ramos, 187 Wn.2d 420, 455, 387 P.3d 650 (2017) (“We do not foreclose the possibility that this
court may reach a similar conclusion [to Sweet’s application of categorical bar analysis] in a future
case.”). Thus, although Washington courts recognize the categorical analysis’s existence, unlike
18
No. 47251-1-II
Iowa, our courts have to date stopped short of applying the two-step categorical analysis to evaluate
a statute’s constitutionality under the state cruel punishment clause.
Although no Washington case has applied the categorical bar analysis, we further note that
in interpreting the cruel punishment clause, our courts have twice borrowed analytical frameworks
from federal case law interpreting the Eighth Amendment. See Fain, 94 Wn.2d at 397; State v.
Smith, 93 Wn.2d 329, 339-40, 610 P.2d 869 (1980). Fain drew the four-part proportionality
analysis directly from a Fourth Circuit federal case. 94 Wn.2d at 396-97 (citing Hart, 483 F.2d at
140-43). And in Smith, the court analyzed a claim brought under both the federal and state cruel
punishment clauses by considering whether the punishment was “clearly arbitrary and shocking to
the sense of justice,” a test drawn from a Sixth Circuit case. 93 Wn.2d at 339, 344-45 (citing
Kasper v. Brittain, 245 F.2d 92 (6th Cir. 1957)).
Thus, our precedent both recognizes the existence of the categorical bar analysis in federal
case law and readily supports our drawing on federal analytical framework to resolve state
constitutional issues. We next turn to reasons for abandoning the traditional Fain framework in
this instance in favor of the categorical bar analysis.
First, the nature of Bassett’s claim supports a categorical analysis under the Supreme
Court’s reasoning in Graham. There, the Supreme Court explained that categorical analysis was
necessary because the defendant challenged “a sentencing practice itself,” and his challenge
“implicate[d] a particular type of sentence as it applie[d] to an entire class of offenders who ha[d]
committed a range of crimes.” Graham, 560 U.S. at 61. In contrast, proportionality analysis is
suitable for a challenge “to a particular defendant’s sentence.” Graham, 560 U.S. at 61.
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No. 47251-1-II
Here, as in Graham, a categorical approach is appropriate because Bassett’s challenge
implicates a sentencing practice as it applies to an entire class of juvenile offenders. Like Graham,
here, “a threshold comparison between the severity of the penalty and the gravity of the crime does
not advance” our analysis. 560 U.S. at 61.
Further, a categorical rule is particularly appropriate under these circumstances for the
reasons discussed in Graham, where the Supreme Court held that the Eighth Amendment barred
the option of life without parole for nonhomicide juvenile offenders:
[A] categorical rule gives all juvenile nonhomicide offenders a chance to
demonstrate maturity and reform. The juvenile should not be deprived of the
opportunity to achieve maturity of judgment and self-recognition of human worth
and potential. . . . Life in prison without the possibility of parole gives no chance
for fulfillment outside prison walls, no chance for reconciliation with society, no
hope. Maturity can lead to that considered reflection which is the foundation for
remorse, renewal, and rehabilitation. A young person who knows that he or she
has no chance to leave prison before life’s end has little incentive to become a
responsible individual. In some prisons, moreover, the system itself becomes
complicit in the lack of development. . . . A categorical rule against life without
parole for juvenile nonhomicide offenders avoids the perverse consequence in
which the lack of maturity that led to an offender’s crime is reinforced by the prison
term.
560 U.S. at 79.
Second, as in Sweet, our State’s extension of Miller similarly compels the application of
the categorical bar analysis. In Sweet, the Iowa Supreme Court noted that it had “embraced”
federal Supreme Court reasoning in interpreting the state constitution, as well as “built upon [that
reasoning] and extended its principles.” 879 N.W.2d at 832. After analyzing recent Iowa
decisions, the court determined it would no longer “opt for the narrower, more incremental
approach” of addressing whether the defendant was one of the extremely rare, irredeemably
corrupt juveniles. Sweet, 879 N.W.2d at 834. Based upon “experience and the caselaw
20
No. 47251-1-II
developments . . . there [was] little to be gained by allowing further caselaw development” and not
confronting the “larger categorical issue.” Sweet, 879 N.W.2d at 834.
Our Supreme Court has similarly adopted and extended Miller in the juvenile sentencing
context. In Ramos, the court embraced Miller’s reasoning that “‘children are different’” and
recognized the three significant gaps between juveniles and adults:
“[A] lack of maturity and an underdeveloped sense of responsibility leading to
recklessness, impulsivity, and heedless risk taking”; the fact that “[c]hildren are
more vulnerable to negative influences and outside pressures and lack the ability to
extricate themselves from horrific crime-producing settings”; and the fact “that a
juvenile’s actions are less likely to be evidence of irretrievable depravity.”
187 Wn.2d at 445, 452 (second alteration in original) (internal quotation marks omitted) (quoting
132 S. Ct. at 2469). The court noted that Miller requires, at the very least, consideration of a
juvenile defendant’s “‘chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences.’” Ramos, 187 Wn.2d at 443
(quoting Miller, 132 S. Ct. at 2468). Further, the sentencing court must consider “the juvenile’s
‘family and home environment,’” “‘the circumstances of the homicide offense’” including
participation and the effect of any familial or peer pressures, and “‘incompetencies associated with
youth.’” Ramos, 187 Wn.2d at 443-44 (quoting Miller, 132 S. Ct. at 2468). Finally, due to
“‘children’s diminished culpability and heightened capacity for change . . . appropriate occasions
for sentencing juveniles to this harshest possible penalty will be uncommon.’” Ramos, 187 Wn.2d
at 444 (alteration in original) (quoting Miller, 132 S. Ct. at 2469).
Our Supreme Court has also extended Miller’s protections beyond its holding. In Ramos,
which extended Miller to juveniles sentenced for multiple homicides or to de facto life sentences,
the court stated,
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No. 47251-1-II
Miller’s reasoning clearly shows that it applies to any juvenile homicide offender
who might be sentenced to die in prison without a meaningful opportunity to gain
early release based on demonstrated rehabilitation. . . .
. . . [N]othing about Miller suggests its individualized sentencing
requirement is limited to single homicides because “the distinctive attributes of
youth diminish the penological justifications for imposing the harshest sentences
on juvenile offenders, even when they commit terrible crimes.” Miller, 132 S. Ct.
at 2465 (emphasis added). . . .
....
. . . [Similarly,] we also reject the notion that Miller applies only to literal,
not de facto, life-without-parole sentences. Holding otherwise would effectively
prohibit the sentencing court from considering the specific nature of the crimes and
the individual’s culpability before sentencing a juvenile homicide offender to die
in prison, in direct contradiction to Miller. Whether that sentence is for a single
crime or an aggregated sentence for multiple crimes, we cannot ignore that the
practical result is the same.
187 Wn.2d at 438 (emphasis added).
The court also extended Miller’s reasoning in State v. O’Dell when it held that a
defendant’s youth supports departure from a standard sentencing range. 183 Wn.2d 680, 690, 358
P.3d 359 (2015). The court noted the scientific studies underlying Miller, Roper, and Graham and
establishing a “clear connection between youth and decreased moral culpability for criminal
conduct.” O’Dell, 183 Wn.2d at 695. Accordingly, youth was likely to diminish a defendant’s
culpability and could amount to a substantial and compelling factor that justified a below-standard-
range sentence. O’Dell, 183 Wn.2d at 695-96. And in State v. S.J.C., our Supreme Court
considered Miller when it analyzed juvenile record sealing practices and noted that the material
differences between juveniles and adults have constitutional implications. 183 Wn.2d 408, 428,
352 P.3d 749 (2015).
Most recently, in State v. Houston-Sconiers, our Supreme Court addressed Miller’s
applicability to juvenile defendants who had received lengthy mandatory sentences that were
attributable to firearm sentencing enhancements and lacked the possibility of early release. ___
22
No. 47251-1-II
Wn.2d ___, 391 P.3d 409, 2017 WL 825654, at *1, *3. The court acknowledged that the United
States Supreme Court had yet to extend Miller to the situation of “26 and 31 year [sentences] for .
. . robberies.” 2017 WL 825654, at *7. Regardless, our Supreme Court held that the Eighth
Amendment and Miller required that “sentencing courts must have absolute discretion to depart as
far as they want below otherwise applicable [Sentencing Reform Act of 1981, ch. 9.94A RCW,]
ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of
how the juvenile got there.” 2017 WL 825654, at *1.
Thus, examination of our precedent illustrates that our Supreme Court has adopted and
applied Miller’s reasoning beyond its holding. Similar to the Iowa precedent examined in Sweet,
Washington’s jurisprudence has “embraced the reasoning” of Miller, Roper, and Graham and has
“built upon it and extended its principles.” Sweet, 879 N.W.2d at 832.
Third, the Fain analysis does not adequately address the special concerns inherent to
juvenile sentencing. The first Fain factor requires a consideration purely of the crime’s
characteristics. See 94 Wn.2d at 397-98. Miller, however, explicitly requires a sentencing court
to consider an offender’s youth and attendant characteristics before imposing a particular penalty.
132 S. Ct. at 2471. Thus, to exclusively focus on the nature of the crime and ignore the nature of
the offender conflicts with Miller’s principles. Similarly, the fourth Fain factor, the punishment
meted out for other offenses in the same jurisdiction, conflicts with Miller because it allows
comparison with the punishment for adult offenders who commit the same crimes. See 94 Wn.2d
at 397, 401-02. Again, this factor conflicts with the principles of Miller, which states that children
cannot simply be treated as miniature adults for punishment purposes. 132 S. Ct. at 2470.
23
No. 47251-1-II
We hold that because our courts recognize both the categorical bar and proportionality
approaches to constitutional issues and because Bassett challenges a sentencing statute as applied
to a class of offenders, rather than solely the constitutionality of his sentence alone, the categorical
approach is necessary. We hold, as the Sweet court did, that there is “little to be gained” by
applying a proportionality analysis. 897 N.W.2d at 834. We apply the categorical bar analysis to
the Miller-fix statute as set forth below.
D. CATEGORICAL BAR ANALYSIS APPLIED TO THE MILLER-FIX STATUTE
1. NATIONAL CONSENSUS
Bassett argues that societal standards of decency favor banning juvenile life without parole
or early release sentences based on the number of states that have abolished or functionally
abandoned juvenile life without parole sentences and the direction of this change. Although the
State does not address the categorical analysis, the State argues under the Fain analysis that “the
vast majority of states” have not abolished life without parole sentences. Suppl. Br. of Resp’t at
5. We agree with Bassett.
The first step to the categorical bar analysis is to consider “‘objective indicia of society’s
standards, as expressed in legislative enactments and state practice’ to determine whether there is
a national consensus against the sentencing practice at issue.” Graham, 560 U.S. at 60 (quoting
Roper, 543 U.S. at 572). Legislation is the “‘clearest and most reliable objective evidence of
contemporary values.’” Atkins, 536 U.S. at 312 (quoting Penry v. Lynaugh, 492 U.S. 302, 331,
109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), abrogated by Atkins, 536 U.S. 304). In Sweet, the court
did not find a consensus regarding whether juveniles may be sentenced to life in prison without
the possibility of parole at the time of trial or whether a parole board must make such a
24
No. 47251-1-II
determination at a later date. 879 N.W.2d at 836. However, the court stated that the first prong is
not dispositive to the analysis. Sweet, 879 N.W.2d at 836. And it is not so much the number of
states that is important, but the consistency of the change’s direction. Atkins, 536 U.S. at 315.
As of February 2017, 19 states and the District of Columbia have banned all juvenile life
without parole sentences.11 Although this is not the majority of United States jurisdictions, we
focus on the recent proliferation of legislative decisions to ban juvenile life without parole
sentences because it is the direction of the change that matters. Atkins, 536 U.S. at 315. Before
Miller, only 6 states and the District of Columbia banned juvenile life without parole sentences.12
But in the five years since Miller, 13 more states and the District of Columbia have banned juvenile
11
See ALASKA STAT. § 12.55.015(g) (1997); ARK. CODE ANN. § 5-4-108 (2017); COLO. REV. STAT.
§§ 17-22.5-104(2)(d)(IV), 18-1.3-401(4)(b)(1) (2006); CONN. GEN. STAT. § 54-125a(f) (2015);
DEL. CODE ANN. tit. 11, §§ 4209A, 4204A(d) (2013); D.C. CODE § 22-2104(a) (2001); HAW. REV.
STAT. § 706-656 (2014); Sweet, 879 N.W.2d at 839; KAN. STAT. ANN. § 21-6618 (2010); KY. REV.
STAT. ANN. § 640.040(1) (1986); Diatchenko v. Dist. Att’y for Suffolk Dist., 466 Mass. 655, 674,
1 N.E.3d 270 (2013); MONT. CODE. ANN. § 46-18-222(1); NEV. REV. STAT. § 176.025 (2015); OR.
REV. STAT. § 161.620 (1985); S.D. CODIFIED LAWS § 22-6-1 (2016); TEX. PENAL CODE ANN. §
12.31 (2013); UTAH CODE ANN. § 76-3-209 (2016); VT. STAT. ANN. tit. 13, § 7045 (2015); W.
VA. CODE § 61-11-23 (2014); WYO. STAT. ANN. § 6-2-101(b) (2013); see also Juvenile Life
Without Parole in Philadelphia: A Time for Hope?, FAIR PUNISHMENT PROJECT, at 9 (2016) (not
including Iowa and Arkansas), http://fairpunishment.org/wp-content/uploads/2016/03/FPP_
JLWOP_philadelphia_r601.pdf.
An additional six states have functionally abandoned juvenile life without parole by having
no juvenile life without parole prisoners as of March 2016. Juvenile Life Without Parole in
Philadelphia, at 9. And North Dakota’s legislature is considering banning juvenile life without
parole. H.B. 1195, 65th Legis. Assembly (N.D. 2017), https://legiscan.com /ND/bill/1195/2017
(last visited Apr. 18, 2017).
12
See note 12, supra; see also Br. of Amici Curiae Charles Hamilton Houston Inst. for Race &
Justice & the Criminal Justice Inst., at 3, Montgomery, 136 S. Ct. 718,
http://www.scotusblog.com/wp-content/uploads/2015/08/Montgomery_CHHIRJ-and-
CriminalJusticeInstitute-Amicus.pdf (last visited Apr. 18, 2017).
25
No. 47251-1-II
life without parole sentences, and 11 states did so by legislative enactment.13 Four states banned
juvenile life without parole sentences in 2016 and 2017 alone, 3 by legislative enactment.14 This
movement toward banning juvenile life without parole is particularly striking in light of “the well-
known fact that anticrime legislation is far more popular than legislation providing protections for
persons guilty of violent crime.” Atkins, 536 U.S. at 315. Further, among the 31 states that allow
the sentence, only 4 states—Pennsylvania, Michigan, Louisiana, and California—account for half
of the juvenile life without parole sentences currently being served. Juvenile Life without Parole:
An Overview, THE SENTENCING PROJECT, at 3.15 And the United States stands alone as the only
nation to allow juveniles to serve life in prison without parole. Connie de la Vega et al., Cruel and
Unusual: U.S. Sentencing Practices in a Global Context, UNIV. OF SAN FRANCISCO LAW SCH., at
59 (2012).16
Comparison with Atkins, in which the Supreme Court concluded there was a “national
consensus” against the execution of those with intellectual disabilities, is illustrative. 536 U.S. at
316. By the time Atkins was decided, 19 states had legislatively barred the intellectually disabled’s
execution. 536 U.S. at 314-15. Seventeen of those states had done so in the 12 years immediately
preceding the Atkins decision. 536 U.S. at 314-15. Here, 19 states currently ban juvenile life
without parole sentences, and most of those states have done so within the last five years. A
13
See note 12, supra.
14
Arkansas, Iowa, South Dakota, and Utah; see note 12, supra.
15
Http://www.sentencingproject.org/wp-content/uploads/2015/12/Juvenile-Life-Without-Parole
.pdf (last visited Apr. 18, 2017).
16
Https://www.usfca.edu/sites/default/files/law/cruel-and-unusual.pdf (last visited Apr. 18, 2017).
26
No. 47251-1-II
comparison with Atkins compels the conclusion that a national consensus is building against
juvenile life without parole sentences.
We hold that objective indicia of societal standards expressed through legislative
enactments and state practice illustrate a building of national consensus against juvenile life
without parole sentences. Accordingly, the first prong of the categorical bar analysis favors
holding that our Miller-fix statute allowing for the imposition of a juvenile life without parole or
release sentence is unconstitutional.
2. INDEPENDENT JUDGMENT
Bassett argues that imposing juvenile life without parole or early release sentences is
unworkable under Washington’s broader protection against cruel punishment. The State does not
address this argument. We agree with Bassett.
The second step of the categorical bar analysis is to make an independent judgment of
whether the punishment in question violates our State’s cruel punishment proscription. Sweet, 879
N.W.2d at 836. In Sweet, the court explained that “the enterprise of identifying which juvenile
offenders are irretrievable at the time of trial is simply too speculative” and that Miller asks “the
sentencer to do the impossible.” 879 N.W.2d at 836-37.
Informed by our precedent embracing and extending Miller, we turn to whether, in our
independent judgment, a juvenile life without parole or early release sentence is permissible under
Washington’s cruel punishment proscription. To begin, “[i]t is difficult even for expert
psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”
Roper, 543 U.S. at 573.
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No. 47251-1-II
This leads to the fundamental problem with our Miller-fix statute: the sentencing court is
placed in the impossible position of predicting from its application of the Miller factors which
juveniles will prove to be irretrievably corrupt. The sentencing court must separate the
irretrievably corrupt juveniles from those whose crimes reflect transient immaturity—a task even
expert psychologists cannot complete with certainty. Thus, the Miller-fix statute results in an
unacceptable risk that juvenile offenders whose crimes reflect transient immaturity will be
sentenced to life without parole or early release because the sentencing court mistakenly identifies
the juvenile as one of the uncommon, irretrievably corrupt juveniles.17 See RCW
10.95.030(3)(a)(ii).
Further, the sentencing court’s task is made even more difficult under Washington law
because Washington’s cruel punishment clause provides greater protection than its federal
counterpart. Under federal law, life without parole sentences for juvenile homicide offenders are
to be “uncommon” and “‘rare.’” Ramos, 187 Wn.2d at 435, 450 (quoting Montgomery, 136 S. Ct.
at 734). Thus, to comport with Washington’s broader protections, life without parole or early
release sentences may be imposed upon only the most uncommon and rarest of offenders, an
impossible determination for the sentencing court to make when faced with a juvenile offender.
17
Moreover, as Miller noted, juveniles’ distinctive characteristics undermine the justifications for
imposing harsh sentences on juvenile offenders. See 132 S. Ct. at 2465. In particular, the potential
of life without parole sentences is unlikely to deter juvenile crime because the failure to appreciate
risk is a hallmark of immaturity. Miller, 132 S. Ct. at 2465; Katherine Hunt Federle, The Right to
Redemption: Juvenile Dispositions and Sentences, 77 LA. L. REV. 47, at 61 (2016). And life
without parole sentences do not well further the retribution rationale because juveniles are less
culpable as a class and a life without parole sentence is comparatively harsher for a juvenile than
for an adult. Miller, 132 S. Ct. at 2465; Federle, supra, at 61-62.
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No. 47251-1-II
Additionally, the factors identified in Miller provide little guidance for a sentencing court
and do not alleviate the unacceptable risk identified. We find persuasive Sweet’s criticism of the
Miller factors:
[Consideration of] the offender’s family and home environment . . . is . . .
fraught with risks. For example, what significance should a sentencing court attach
to a juvenile offender’s stable home environment? Would the fact that the
adolescent offender failed to benefit from a comparatively positive home
environment suggest he or she is irreparable and an unlikely candidate for
rehabilitation? Or conversely, would the offender’s experience with a stable home
environment suggest that his or her character and personality have not been
irreparably damaged and prospects for rehabilitation are therefore greater? . . .
A similar quandary faces courts sentencing juvenile offenders who have
experienced horrendous abuse and neglect or otherwise have been deprived of a
stable home environment. Should the offenders’ resulting profound character
deficits and deep-seated wounds count against the prospects for rehabilitation and
in favor of life-without-the-possibility-of-parole sentences under the Miller
framework? Or should sentencing courts view the deprivation of a stable home
environment as a contraindication for life without the possibility of parole because
only time will tell whether maturation will come with age and treatment in a
structured environment?
Sweet, 879 N.W.2d at 838. In light of the speculative and uncertain nature of the Miller analysis,
the Miller-fix statute creates a risk of misidentifying juveniles with hope of rehabilitation for those
who are irretrievably corrupt. That is unacceptable under our State’s cruel punishment
proscription. For these reasons, life sentences without parole or early release for juvenile offenders
as allowed under RCW 10.95.030(3)(a)(ii) are unconstitutional.
E. CONCLUSION
A categorical bar analysis is best suited to determine whether the Miller-fix statute violates
the Washington Constitution’s prohibition against cruel punishment. Under a categorical analysis,
we hold that to the extent that a life without parole or early release sentence may be imposed
against a juvenile offender under the Miller-fix statute, RCW 10.95.030(3)(a)(ii), it fails the
29
No. 47251-1-II
constitutional categorical bar analysis. Therefore, a life without parole or early release sentence is
unconstitutional under article I, section 14 of our state constitution. Bassett successfully shows
that his restraint is unlawful. See Isadore, 151 Wn.2d at 299 (citing RAP 16.4(c)). We reverse his
sentence and remand for resentencing in accordance with this opinion.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record pursuant to RCW 2.06.040, it is so ordered.
FURTHER ANALYSIS
BASSETT’S NONCONSTITUTIONAL ARGUMENTS
Bassett argues that for various reasons, the resentencing court erred when it applied the
Miller-fix statute. We address and reject these arguments in turn.
I. NO PRESUMPTION OF LIFE WITHOUT PAROLE OR EARLY RELEASE
Bassett contends that Miller creates a presumption against sentencing a juvenile to life
without parole or early release and that the resentencing court erred because it did not apply such
a presumption. Bassett further claims that the resentencing court erred because it presumed that
juvenile life without parole or early release was appropriate. We disagree.
The Miller-fix statute requires that in setting a minimum term, the sentencing court “must
take into account mitigating factors that account for the diminished culpability of youth as
provided in Miller.” RCW 10.95.030(3)(b) (emphasis added). But neither the Miller-fix statute
nor Miller itself requires that the sentencing court apply a presumption for or against juvenile life
without parole or early release when it imposes a sentence. See RCW 10.95.030.
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No. 47251-1-II
In Ramos, our Supreme Court considered an argument that Miller’s holding, which requires
a sentencing court to account for how children are different and how those differences counsel
against sentencing them to life in prison, created a presumption against imposing a juvenile life
without parole sentence. 187 Wn.2d at 444 (quoting Miller, 132 S. Ct. at 2469). The court rejected
this argument. Ramos, 187 Wn.2d at 445 (citing Montgomery, 136 S. Ct. at 735). We decline to
hold that under Miller, the resentencing court was required to apply any presumption, either for or
against life without parole or early release.
II. NO PROOF BEYOND A REASONABLE DOUBT REQUIREMENT
Bassett next argues that the resentencing court could not impose life without parole or early
release unless it had proof beyond a reasonable doubt that such a sentence was appropriate. This
argument fails.
The Miller-fix statute allows a sentencing court the discretion to impose a minimum
sentence anywhere from 25 years to life without the possibility of parole or early release upon
consideration of the Miller factors. RCW 10.95.030(3)(a)(ii), (b). However, the Miller-fix statute
does not require that in doing so, the sentencing court find the Miller factors or any other
circumstances by proof beyond a reasonable doubt. See RCW 10.95.030. Thus, we reject Bassett’s
argument that the resentencing court erroneously applied the Miller-fix statute when it did not find
that life without parole or early release was appropriate by proof beyond a reasonable doubt.18
18
Because we resolve Bassett’s appeal on the state constitutional cruel punishment claim, we
decline to reach Bassett’s other constitutional arguments. Thus, to the extent that Bassett argues
that his sentence violates the Sixth Amendment, we do not reach his argument.
31
No. 47251-1-II
III. MEANINGFUL CONSIDERATION OF MITIGATING INFORMATION
Bassett argues that the resentencing court abused its discretion because it failed to
meaningfully consider Bassett’s mitigation evidence. We disagree.
The Miller-fix statute requires that the sentencing court take into account mitigating factors
set forth in Miller and gives the sentencing court discretion to determine whether to impose a
minimum term of life without parole or early release after considering the factors. See RCW
10.95.030(3); Ramos, 187 Wn.2d at 449. A sentencing court must consider the capacity for
rehabilitation. Ramos, 187 Wn.2d at 449. However, it is within a resentencing court’s discretion
whether to consider evidence of actual subsequent rehabilitation at the time of resentencing to the
extent that it bears upon the offender’s culpability. Ramos, 187 Wn.2d at 449.
Here, the resentencing court considered the Miller mitigation factors, and the record
supports its conclusions. First, the resentencing court properly focused on the nature of the crime
and whether Bassett “snapp[ed]” pursuant to the Miller factors of the offense’s circumstances and
the mitigating quality of impetuosity. RP (Jan. 30, 2015) at 85; see 132 S. Ct. at 2468. The
resentencing court concluded that during the crimes, Bassett did not act based on emotion or
impulse as evidenced by the facts that he stole a gun in advance, fashioned a silencer on the gun
to avoid detection, cut the phone lines, and had previously come to the home to commit the crime.
These facts were supported by the record. See McDonald, 138 Wn.2d at 683-85.
Second, the resentencing court did not err when it disregarded Dr. Hansen’s testimony.
The Miller-fix statute requires consideration of the degree of responsibility that Bassett was
capable of exercising. RCW 10.95.030(3)(b). The trial court acknowledged this factor, although
it concluded that Bassett had not acted based on emotion or impulse. Again, this conclusion was
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supported by the record. Although Dr. Hansen testified about Bassett’s adjustment disorder and
stressors, as Bassett concedes, Dr. Hansen did not testify that the murders were a direct result of
Bassett’s adjustment disorder limiting his ability to cope with stressors.
Third, contrary to Bassett’s contention, the resentencing court did consider evidence of
Bassett’s family situation pursuant to the Miller factor of the juvenile’s surrounding family and
home environment. 132 S. Ct. at 2468. Here, the resentencing court acknowledged Bassett’s
strained relationship with his family, that Bassett’s parents tried to help Bassett by taking him to
Dr. Hansen, and that Bassett expressed interest in reconciling with his parents but “wasn’t willing
to take the necessary steps to accomplish that reconciliation.” RP (Jan. 30, 2015) at 88. These
findings were supported by the record. Thus, the trial court did not err.
Fourth, the resentencing court considered evidence of Bassett’s immaturity pursuant to
Miller. 132 S. Ct. at 2468. The resentencing court heard evidence of immaturity, including
Bassett’s alcohol overdose and running away from home to hurt his mother and that Bassett was
still establishing his identity around the time that he committed the crimes. During Bassett’s
allocution, he stated that his first thoughts in jail were of how much trouble he would be in when
his parents learned that he was in jail because the reality of his crimes “didn’t click.” RP (Jan. 30,
2015) at 80. He also wrote shortly after his arrest that he regretted what happened and remembered
all the good times he had with his father. The resentencing court acknowledged that Bassett was
16 when the crimes occurred, but it found that the evidence about the crimes outweighed the
mitigating nature of Bassett’s adolescence. In doing so, the resentencing court followed the
direction of Miller.
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Fifth, the resentencing court did not err under Miller when it considered homelessness as a
sign of maturity that did not mitigate Bassett’s culpability. Although Miller directs a sentencing
court to consider a youth’s life experience and home as mitigating factors, it does not provide
guidance regarding how to apply the factors. See 132 S. Ct. at 2468; see also Sweet, 879 N.W.2d
at 838 (discussing the inherent uncertainty in evaluating a juvenile’s home environment under
Miller). Here, the resentencing court reflected that because Bassett was homeless, he was “almost
solely responsible for himself” and may have “had a higher degree of responsibility and - and
ability to control his behavior then [sic] other teenagers of that same age.” RP (Jan. 30, 2015) at
88. The resentencing court further noted that although teenage homelessness was a problem in our
society, those “situations . . . cause 15 and 16 year olds to grow up pretty quickly” and to “gain a
level of maturity much quicker than kids who are not in that situation.” RP (Jan. 30, 2015) at 88-
89. And the resentencing court noted that it had not “heard anything that causes me to conclude
that Mr. Bassett did not possess the ability or the capability of controlling his behavior and being
responsible for his behavior.” RP (Jan. 30, 2015) at 89. In light of Miller’s lack of guidance in
applying the Miller factors, we decline to hold that the resentencing court erred.
Sixth, the resentencing court did not abuse its discretion when it concluded that the
rehabilitation evidence did not outweigh the circumstances of the crime and other evidence
pertaining to culpability. In Ramos, our Supreme Court held that the resentencing court has
discretion about how and if it considers subsequent rehabilitation evidence in each case—
“[w]hether . . . evidence [of actual demonstrated maturity and rehabilitation] should be considered
at the time of resentencing to the extent that it bears on the offender’s culpability is a question we
leave to the discretion of the trial court in each case.” 187 Wn.2d at 449. Here, we note that
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Bassett presented considerable evidence demonstrating rehabilitation. In light of the resentencing
court’s discretion under Ramos, however, we cannot hold that the trial court abused its discretion
when it concluded that the other evidence outweighed this rehabilitation evidence. Further, when
we review a trial court’s decision for an abuse of discretion, we do not substitute our own judgment
for that of the trial court, and we affirm unless no reasonable person could have come to the same
conclusion. In re Det. of Duncan, 167 Wn.2d 398, 406, 219 P.3d 666 (2009).
Bassett’s abuse of discretion arguments lack merit. Accordingly, we hold that the trial
court did not abuse its discretion at Bassett’s resentencing.
IV. REASSIGNMENT REQUEST
Bassett argues also that due process and the appearance of fairness entitle him to a new
judge if he is granted a resentencing hearing. We disagree.
Reassignment first sought on appeal is available only in limited circumstances, including
where the trial judge will exercise discretion on remand regarding the issue that triggered the
appeal and has apparently prejudged the issue. State v. Solis-Diaz, 187 Wn.2d 535, 540, 387 P.3d
703 (2017) (citing State v. McEnroe, 181 Wn.2d 375, 387, 333 P.3d 402 (2014)). We remand to
a different judge where the facts in the record show that “the judge’s impartiality might reasonably
be questioned.” Solis-Diaz, 187 Wn.2d at 540. “[E]ven where a trial judge has expressed a strong
opinion as to the matter appealed, reassignment is generally not available as an appellate remedy
if the appellate court’s decision effectively limits the trial court’s discretion on remand.” McEnroe,
181 Wn.2d at 387.
Here, the record does not compel the conclusion that Bassett’s resentencing judge’s
impartiality might reasonably be questioned. See Solis-Diaz, 187 Wn.2d at 540. We note that
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when the court resentenced Bassett, it expressly acknowledged its duty to balance the Miller
factors and that it could not make a decision based solely upon the circumstances of the crime.
The resentencing court’s decision to impose life without parole or early release was a reasoned
application of the Miller-fix statute and was supported by the record as discussed. Further, on
remand, our opinion prevents the resentencing court from again imposing life without parole or
early release. See McEnroe, 181 Wn.2d at 387. Thus, we hold that reassignment to a different
judge is not merited, and we reject Bassett’s request.
For the reasons discussed, we reject Bassett’s various arguments that the resentencing court
erred when it applied the Miller-fix statute. We hold that the Miller-fix statute’s provision allowing
for juvenile life without parole or early release for offenders between 16 and 18 years old violates
our State’s cruel punishment proscription. We reverse Bassett’s sentence and remand for
resentencing; however, we decline to reassign the matter to a different judge.
JOHANSON, J.
We concur:
WORSWICK, P.J.
LEE, J.
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