In its apparent desire to further limit trial court discretion to impose an exceptional sentence downward, the latest in a continuing line of such cases, the majority has failed to appreciate the significance of two of the factors relied on by the trial court. In my view (and that of many other courts), both aberrational behavior and a low risk of reoffending are legitimate bases for an exceptional sentence downward.
As noted before, this court has not hesitated to recognize nonstatutory factors justifying exceptional sentences upward. See State v. Freitag,127 Wn.2d 141, 146-47, 896 P.2d 1254, 905 P.2d 355 (1995) (Madsen, J., dissenting) (citing cases). The majority once again, however, refuses to recognize a legitimate nonstatutory mitigating factor. E.g., Freitag,127 Wn.2d 141; State v. Ha'mim, 132 Wn.2d 834, 940 P.2d 633 (1997); seeFreitag, 127 Wn.2d at 147-48. As I have previously pointed out, the Sentencing Reform Act 0f 1981 (SRA) calls for structured discretionary sentencing, but it has not abolished discretion. RCW 9.94A.010. The act has multiple goals beside punishment of the offender, including proportionate sentencing, promoting respect for the law by providing for just punishment, and providing an opportunity for the offender to improve himself or herself. Id. How can a sentencing judge be expected to exercise lawful discretion in sentencing to fulfill the purposes of the SRA if this court routinely denies that discretion where it results in a downward sentence, but expands its scope where exceptional sentences upward are concerned?
The defendant, Joshua Fowler, urges the court to follow federal cases recognizing aberrant behavior as a mitigating factor in sentencing. The majority summarily concludes *Page 413 that calling a defendant's criminal conduct aberrational is simply another way of saying that the defendant has little or no history of criminal behavior — and this has been rejected as a basis for an exceptional sentence downward. Majority at 7. The majority does not address the federal standard in any meaningful way.
Federal courts agree that a lack of criminal history is not a basis for a downward sentence under the federal scheme. They conclude, however, that "aberrational behavior" is not equivalent to a lack of criminal history. E.g., Zecevic v. United States Parole Comm'n, 163 F.3d 731, 735 (2d Cir. 1998); United States v. Rojas-Millan, 234 F.3d 464, 475 n. 7 (9th Cir. 2000); United States v. Constantine, 263 F.3d 1122, 1127 (10th Cir. 2001). As one court explained, "[a]n aberrant behpavior departure must be based upon something other than the fact the act `is merely a first offense.' `Stated differently, the permissible factors in this context must illustrate some unique circumstance — some element of abnormal or exceptional behavior — beside the fact the defendant has never before committed the crime.'" Constantine, 263 F.3d at 1127 (quoting United States v. Benally, 215 F.3d 1068, 1074 (10th Cir. 2000)). The majority's reason for refusing to recognize a similar standard as a nonstatutory mitigating factor in this state is without substance.
All of the federal circuits have recognized aberrational behavior as a factor that may, in the appropriate case, justify an exceptional sentence downward. See generally Elizabeth Williams, Annotation, DownwardDeparture from United States Sentencing Guidelines (U.S.S.G. sec. sec.1A1.1 et seq.) Based on Aberrant Behavior, 164 A.L.R. Fed. 61, sec. sec. 2, 3 (2000). A split developed in the circuits, however, as to what constitutes aberrational behavior. Some courts concluded that "a spontaneous and seemingly thoughtless act, rather than one which was the result of substantial planning" was a single act of aberrant behavior.Zecevic, 163 F.3d at 734. (quoting United States v. Carey, 895 F.2d at 734 (quoting United States v. Carey, 895 F.2d 318, 325 (7th Cir. 1990)). Others applied a totality of *Page 414 circumstances approach, considering a number of factors, including the singular nature of the act, psychological disorders that the defendant was suffering at the time, extreme pressures operating on the defendant such as that of losing a job, expressions from family and friends of shock at the defendant's behavior, the defendant's motivations for committing the act, the pecuniary gain derived from the offense, the defendant's efforts to mitigate the effects of the act, the defendant's employment history, and economic support of the defendant's family. Id. (citing cases). Under this approach courts have also looked to whether the act was a first offense and whether or not the defendant engaged in a significant period of advance planning or reflection. United States v.Rojas-Millan, 234 F.2d 464, 475 (9th Cir. 2000) (citing cases). In November 2000, the federal sentencing commission added sec. 5K2.20 to the guidelines, defining "aberrant behavior" as "a single criminal occurrence or single criminal transaction that (A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise law-abiding life." UNITED STATES SENTENCING GUIDELINES MANUAL sec. 5K2.20, cmt. n. 1 (2000). The commission directed that in deciding whether to depart from the guideline sentences on the basis of aberrant behavior, a court could consider the defendant's "(A) mental and emotional conditions; (B) employment record; (C) record of prior good works; (D) motivation for committing the offense; and (E) efforts to mitigate the effects of the offense," supra, sec. 5K2.20, cmt. n. 2.
Regardless of whether aberrant behavior justifies a downward sentence in this case, this court should recognize that some crimes represent the truly unusual behavior of individuals who are generally nonviolent, law-abiding citizens committing crimes under unusual circumstances. Similar to the federal approach, this court should hold that a trial court may, in its discretion, impose an exceptional sentence downward based upon aberrant behavior. Factual considerations supporting this mitigating factor might *Page 415 include whether the offense was a first offense,6 whether the act is singular in nature or part of a pattern or part of a criminal scheme, whether the defendant was suffering from any psychological disorders or was acting under any extreme pressures, psychological or otherwise, the defendant's motivations for the criminal act, whether the act was committed without significant planning or reflection, whether the criminal act was of limited duration, whether the defendant has tried to mitigate the effects of the offense, the defendant's employment record, and whether the defendant has a record of prior good works. In deciding whether aberrant behavior justifies a downward sentence, the court's focus should be on whether the defendant's case is one of the cases where the circumstances of the crime and defendant's relevant behavior take the case out of the usual realm into the extraordinary.
Here, the trial court believed that aberrational behavior is a relevant consideration, but said that alone, this factor did not justify a downward sentence. Conclusion of Law F. It is not clear, however, whether the court was uncertain that aberrational behavior could, alone, justify a downward sentence, or whether the court was not convinced that in this case aberrational behavior alone justified a downward sentence. While the latter may be debated, the trial court should make the determination in the first place with a clear understanding that aberrant behavior is a valid mitigating factor which will justify a downward sentence. The majority says, however, that even if the mitigating factor of aberrational behavior is accepted, the facts of this case do not justify an exceptional sentence. Ordinarily, when there is a new legal test adopted by this court, the court sends the matter back to the sentencing court rather than finding facts as the majority purports to do here. *Page 416 Accordingly, remand is appropriate to allow the trial court to consider the issue. See Rojas-Millan, 234 F.3d at 475.7
The majority also rejects the trial court's reliance on a low to moderate risk of reoffending as supporting a downward sentence. The majority says that this is not a reason for an exceptional sentence downward because protection of the public is a goal that has been considered by the Legislature in computing the presumptive sentencing range. Majority at 8. A presumptive sentencing range is based upon the seriousness level of the current offense and the defendant's offender score. Whether the individual defendant has a low, moderate, or high risk of reoffending is not part of the calculation. Thus, I disagree with the majority's reason for rejecting a low to moderate risk of reoffending as a mitigating factor. Further, this court has in the past accepted the premise that future dangerousness is an appropriate nonstatutory aggravating factor under certain circumstances involving offenders convicted of sex offenses. State v. Strauss, 119 Wn.2d 401, 414,832 P.2d 78 (1992); State v. Pryor, 115 Wn.2d 445, 799 P.2d 244 (1990). If future dangerousness can justify an upward sentence, albeit in limited cases, why should a low risk of reoffending be rejected as a mitigating factor? At least two of the goals of the SRA favor allowing sentencing discretion to impose a downward sentence where there is a low risk of reoffending: the promotion of respect for the law by provision of just punishment, and making frugal use of the state's resources. RCW9.94A.010(2), (6). Moreover, contrary to the majority's analysis, the goal of protecting the public is well served by permitting such discretion because an individual with a low risk of reoffending does not pose the same risk as other offenders. I would hold that a low risk of reoffending is a valid mitigating factor.
The SRA does not eliminate sentencing discretion. A sentencing judge is still in the best position to make case by *Page 417 case assessments to determine whether there are substantial and compelling reasons to impose a sentence outside the standard sentencing range. The Legislature has left that discretion to the sentencing judge where aggravating circumstances call for punishment beyond the presumptive sentence. It has also left that discretion where mitigating circumstances call for punishment less than the presumptive sentence. In my view, this court has not taken an even-handed approach to review. Nonstatutory aggravating factors are overwhelmingly upheld. Nonstatutory mitigating factors are rarely upheld. This case provides another opportunity to recognize legitimate nonstatutory mitigating factors and reaffirm judicial independence. Sadly, the majority does not take advantage of the opportunity.
I would reverse the Court of Appeals and remand this case for resentencing.
JOHNSON, SANDERS, and CHAMBERS, JJ., concur with MADSEN, J.