(dissenting)—Daniel Rice was a 16-year-old juvenile who was found guilty of criminal trespass in the first degree, a misdemeanor. The other defendant, 13-year-old Monte Sanchez, pleaded guilty to unlawful assault, also a misdemeanor. If the juveniles had been adults, the maximum sentence they could have received would have been 90 days. Because they were juveniles, however, the court sentenced them to confinement in a correctional institution for 1 year. The majority, by its opinion, sanctions this unconstitutional sentence. I would remand, with instructions to reduce the sentence to 90 days.
I
Traditional rules of statutory construction require that the court ascertain and give effect to the intent and purpose of the Legislature as expressed in the act. State v. Eilts, 94 Wn.2d 489, 493, 617 P.2d 993 (1980). The stated purpose of the Legislature in enacting the Juvenile Justice Act of 1977 (Juvenile Justice Act) is set forth in RCW 13.40.010:
(2) It is the intent of the legislature that a system capable of having primary responsibility for, being accountable for, and responding to the needs of youthful offenders, as defined by this chapter, be established. It is *402the further intent of the legislature that youth, in turn, be held accountable for their offenses and that both communities and the juvenile courts carry out their functions consistent with this intent. To effectuate these policies, it shall be the purpose of this chapter to:
(a) Protect the citizenry from criminal behavior;
(b) Provide for determining whether accused juveniles have committed offenses as defined by this chapter;
(c) Make the juvenile offender accountable for his or her criminal behavior;
(d) Provide for punishment commensurate with the age, crime, and criminal history of the juvenile offender;
(e) Provide due process for juveniles alleged to have committed an offense;
(f) Provide necessary treatment, supervision, and custody for juvenile offenders;
(g) Provide for the handling of juvenile offenders by communities whenever consistent with public safety;
(h) Provide for restitution to victims of crime;
(i) Develop effective standards and goals for the operation, funding, and evaluation of all components of the juvenile justice system and related, services at the state and local levels; and
(j) Provide for a clear policy to determine what types of offenders shall receive punishment, treatment, or both, and to determine the jurisdictional limitations of the courts, institutions, and community services.
Among the enumerated statements of legislative purpose, RCW 13.40.010(2) (d) emphasizes that the act is designed to "[pjrovide for punishment commensurate with the age, crime, and criminal history of the juvenile offender".1 This *403expression of legislative purpose certainly does not contemplate a statutory scheme of punishment which would allow incarceration of a 15-year-old juvenile offender until his 21st birthday for the offense of attempted criminal trespass in the first degree, while a similarly situated 18-year-old codefendant would be subjected only to a maximum penalty of 90 days in jail. Such an incongruous scenario is possible if RCW 9A.20.020 does not set the maximum sentence for a juvenile offender.
Perhaps the most persuasive evidence of legislative intent is found in RCW 13.40.030(l)(a), which authorizes the establishment of disposition standards for juvenile offenders:
The standards shall establish, in accordance with the purposes of this chapter, ranges which may include terms of confinement and/or community supervision established on the basis of a youth's age, the instant offense, and the history and seriousness of previous offenses, but in no case may the period of confinement and supervision exceed that to which an adult may be subjected for the same offense(s).
(Italics mine.)
In State v. Rhodes, 92 Wn.2d 755, 759, 600 P.2d 1264 (1979), we pointed to the language of RCW 13.40.030(1) as evidence that the manifest injustice exception is not unconstitutionally vague:
The legislative intent in enacting the juvenile code is set forth in RCW 13.40.010(2). In addition to the purposes set out in this section, there are other standards in the statute which prevent arbitrary and discriminatory application of the manifest injustice exception. RCW 13.40.030(1) provides that any period of confinement and supervision must not exceed that to which an adult may be subjected for the same offense. RCW 13.40.300 limits the sentencing period so that no confinement can *404extend beyond the offender's 21st birthday.
(Italics mine.)
Additionally, the appellate courts of our state have applied adult criminal statutes to juvenile court proceedings on a consistent basis. In State v. Norton, 25 Wn. App. 377, 380, 606 P.2d 714 (1980), the Court of Appeals held that RCW 10.22, the compromise of misdemeanors statute, applies to juvenile court proceedings. The court, in giving effect to the intent of the Legislature, reasoned:
The essence of the compromise of misdemeanors statute is restitution to crime victims and avoidance of prosecution for minor offenders. These functions are consistent with the purposes of the Juvenile Justice Act of 1977, specifically RCW 13.40.010(2) (g) and (h). Because the purposes of the two statutes are consistent, we hold that where, as here, an offense designated a misdemeanor under the adult criminal statutes is used to invoke the jurisdiction of the juvenile court, the compromise of misdemeanors statute, RCW 10.22, may be applied in juvenile proceedings.
(Footnote omitted. Italics mine.)
In State v. Bird, 95 Wn.2d 83, 89, 622 P.2d 1262 (1980), the Supreme Court held that RCW 9.92.060, which grants to trial courts the authority to suspend sentences, is applicable in juvenile court proceedings. In its opinion, the court cited with approval the rationale of the Court of Appeals in State v. Norton, supra:
The same analysis is applicable here. The purpose of a suspended sentence is to order an appropriate disposition with clear conditions, which, if violated, empowers the court to commit the offender. Among the purposes of RCW 13.40 are to:
(d) Provide for punishment commensurate with the age, crime, and criminal history of the juvenile offender;
(g) Provide for the handling of juvenile offenders by communities whenever consistent with public safety; RCW 13.40.010(2)(d) and (g). A suspended sentence is consistent with these purposes. In the absence of language to the contrary, therefore, the reasoning of Norton *405permits the trial court to suspend sentences under RCW 13.40.
(Citation omitted. Italics mine.)
The analysis contained in Norton and Bird is also applicable in the present case. The purpose of RCW 9A.20.020 is to set a maximum term of punishment for misdemeanor offenses. This is consistent with the stated purpose of the Legislature to provide a clear policy to determine the jurisdictional limitations of the courts. RCW 13.40.010(2)(j).
In Bird, at page 90, we relied upon two rules of statutory construction peculiar to criminal statutes: First, a literal interpretation must be given to criminal statutes. Second, the "rule of lenity" is applicable to problems of statutory construction of criminal statutes. Under the "rule of lenity," the court will not interpret a criminal statute so as to increase the penalty imposed absent clear evidence of legislative intent to do so. In re Carle, 93 Wn.2d 31, 33, 604 P.2d 1293 (1980).
Read literally, RCW 13.40 contains no clear indication of legislative intent to allow a trial court to incarcerate a juvenile offender for a term greater than an adult could receive for the same offense. On the contrary, such an interpretation conflicts with the purpose of the Juvenile Justice Act as set forth in RCW 13.40.010(2)(d) and (j). In the absence of any clear expression of legislative intent to the contrary, this court is required under the rule of lenity to recognize the applicability of RCW 9A.20.020 to RCW 13.40.
Since RCW 9A.20.020 does not conflict with the purpose of RCW 13.40 as stated in RCW 13.40.010(2), nor with the purpose of the manifest injustice exception of RCW 13.40, RCW 9A.20.020 should be applicable to the present case.
II
In Reanier v. Smith, 83 Wn.2d 342, 517 P.2d 949 (1974), we held that a sentence, pursuant to RCW 9.95.060, does not begin to run until the convicted person is in custody following the judgment and sentence. The constitutional concepts of due process and equal protection and the pro*406hibition against multiple punishments require that an accused person's detention prior to conviction be credited against the maximum and mandatory minimum sentence established by statute.
In Reanier, Justice Hamilton stated at pages 346-47:
Fundamental fairness and the avoidance of discrimination and possible multiple punishment dictate that an accused person, unable to or precluded from posting bail or otherwise procuring his release from confinement prior to trial should, upon conviction and commitment to a state penal facility, be credited as against a maximum and a mandatory minimum term with all time served in detention prior to trial and sentence. Otherwise, such a person's total time in custody would exceed that of a defendant likewise sentenced but who had been able to obtain pretrial release. . . . Aside from the potential implications of double jeopardy in such a situation, it is clear that the principles of due process and equal protection of the law are breached without rational reason.
(Footnote omitted.)
In In re Trambitas, 96 Wn.2d 329, 635 P.2d 122 (1981) we applied the rationale of Reanier v. Smith, supra, to juveniles, saying that due process and equal protection guaranties require that a juvenile's detention prior to disposition be credited against the maximum term of confinement imposed under the standard range guidelines. We stated in Reanier that pretrial detention time served by adults must be credited against maximum and mandatory minimum terms to avoid constitutional violations. I see no reason to deny similar protection to juveniles.
Ill
Juveniles are entitled to equal protection of the laws with regard to sentencing. The new Juvenile Justice Act shifts policy considerations from an emphasis on rehabilitation to an emphasis on accountability, punishment, and the protection of society.2 Consequently, juvenile offenders, espe*407dally those sentenced under a declaration of manifest injustice, are similarly situated to their adult counterparts for purposes of sentencing.
Allowing juveniles sentenced under the Juvenile Justice Act to receive longer terms of incarceration than could be imposed on adults for the same offense does not promote a compelling state interest and is, therefore, in violation of Const, art. 1, § 12.
Assuming the right involved is not fundamental, in order to satisfy minimal scrutiny under the equal protection clause, a statutory classification must at the very least rationally promote a valid government purpose. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-40, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973); Darrin v. Gould, 85 Wn.2d 859, 866, 540 P.2d 882 (1975).
The purposes of the Juvenile Justice Act are many and varied and arguably very similar to the purposes of sentencing adults in this state. The obvious purpose of the manifest injustice exception, however, is the protection of society. RCW 13.40.020(12); RCW 13.40.160. While this is certainly a valid government objective, there is no rational reason for sentencing juvenile offenders to longer terms of incarceration than could be imposed on adults convicted of the same offense, unless the basic theory of the act in general and the manifest injustice exception in particular is rehabilitative. If the objective of the sentencing is accountability, and punishment commensurate with the offense and the protection of society, there is no rational basis for determining that a juvenile, simply by reason of his age, should be subject to a term of incarceration longer than the *408adult maximum for the same offense.
In People v. Olivas, 17 Cal. 3d 236, 551 P.2d 375, 131 Cal. Rptr. 55 (1976), the California Supreme Court voided a statute that allowed the incarceration of youths between 16 and 21 years of age for terms that were longer than the maximum imposed on adults. An extensive review of the historical and judicial basis for the liberty interest led the court to conclude that personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.
Even assuming that the State provides substantial "treatment" benefits to juveniles, the Washington court has rejected the proposition that these benefits sufficiently compensate a juvenile for the loss of liberty to dispense with the need for strict scrutiny. A juvenile still shares with an adult offender the one feature that overwhelms the differences between their circumstances—they are both incarcerated against their will. While conceding the rehabilitation purposes of the Washington juvenile system even in 1976, the Supreme Court said:
However, where a restraint of liberty is involved, the fact of the beneficent, civil nature of the juvenile code loses its significance. Although the proceedings may be deemed "civil," "rehabilitative," or "remedial," they are subject to the same strict constitutional scrutiny they would be if they were deemed "criminal" proceedings.
Johnson v. Morris, 87 Wn.2d 922, 929, 557 P.2d 1299 (1976). The United States Supreme Court made the same point. "It is incarceration against one's will, whether it is called 'criminal' or 'civil.'" In re Gault, 387 U.S. 1, 50, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967). See also Breed v. Jones, 421 U.S. 519, 44 L. Ed. 2d 346, 95 S. Ct. 1779 (1975); People v. Olivas, supra; Vann v. Scott, 467 F.2d 1235 (7th Cir. 1972). The State's allegation of available treatment benefits should not divert the court's attention from this primary feature of incarceration, whether juvenile or adult.3
*409IV
In State v. Rhodes, 92 Wn.2d 755, 600 P.2d 1264 (1979), we recognized that a statute is void for vagueness if it fails to provide explicit standards to prevent arbitrary and discriminatory enforcement.
Analyzing the Juvenile Justice Act under the void-for-vagueness test, we held that the act as a whole, and the manifest injustice exception in particular, contained sufficient mandatory sentencing standards to prevent arbitrary and discriminatory enforcement. In reaching its decision, this court relied in part on RCW 13.40.030(1)(a), which provides that "in no case may the period of confinement and supervision exceed that to which an adult may be subjected for the same offense(s)". Under the analysis of Rhodes, this limitation clearly should be applied to all juveniles, including those sentenced under a declaration of manifest injustice.
In the case at bar, the State urges that the only absolute limitation upon the length of a juvenile's sentence outside of the standard range is his or her 21st birthday. The maximum sentence for each juvenile convicted of any offense would then be arbitrarily and discriminatorily determined by the juvenile's age alone, with the result that the younger the child, the more severe the maximum sentence. The potential maximum sentence would in no way correlate to the severity of the current offense nor the juvenile's crimi*410nal history as required by RCW 13.40.010(2)(d). Under the analysis of Rhodes, such arbitrary and discriminatory determination of punishment would cause the statute to be unconstitutionally void for vagueness.
Conclusion
Examination of the Juvenile Justice Act and case law interpreted in its various provisions clearly demonstrates that the Legislature did not intend to vest the juvenile court with the power to incarcerate a juvenile offender for a term greater than that which an adult could receive for the same offense. By ordering Daniel Rice and Monte Sanchez to prison for 1 year, the trial court arbitrarily exceeded its authority under RCW 13.40, and rendered sentences four times that of an adult for the same offense. Further, I don't believe the United States and Washington State Constitutions can tolerate a situation where an 18-year-old boy, convicted of a misdemeanor carrying a minimum jail term of 90 days, can be sentenced to 90 days, while a boy 1 day younger, convicted of a similar misdemeanor, can be sentenced to a confinement period of 1 year, or four times longer. This constitutes a violation of due process and equal protection. The defendants, Rice and Sanchez, cannot constitutionally be sentenced to more than 90 days.
I would reverse and remand to the trial court and sentence each defendant to not more than 90 days' confinement.
State Representative Mary Kay Becker, a prime sponsor of House Bill 371, 45th Legislature, which became the Juvenile Justice Act of 1977, has written extensively about the act and how it differs from the former juvenile act of 1913. In an article in the Gonzaga Law Review, Becker summarized the philosophical difference between the old act and the new.
From this narrative the broad purposes of House bill 371 should be fairly clear. In terms of the philosophical polarities that have characterized the juvenile court debate for more than a century, the new law moves away from the parens patriae doctrine of benevolent coercion, and closer to a more classical emphasis on justice. The law requires the court to deal more consistently with youngsters who commit offenses. The responsibility for providing services to youngsters whose behavior, while troublesome, is noncriminal, is assigned to *403the Department of Social and Health Services and the agencies with whom it may contract. The juvenile court is to view itself primarily as an instrument of justice rather than as a provider of services.
Becker, Washington State's New Juvenile Code: An Introduction, 14 Gonz. L. Rev. 289, 307-08 (1979).
The majority in State v. Lawley, 91 Wn.2d 654, 656, 591 P.2d 772 (1979), although denying juveniles the right to a jury trial, recognized the shift, as did the dissent in that case. State v. Rhodes, 92 Wn.2d 755, 600 P.2d 1264 (1979), as dis*407cussed earlier, clearly recognizes this shift.
In In re Erickson, 24 Wn. App. 808, 604 P.2d 513 (1979), the Court of Appeals found RCW 13.40 to be so similar to adult criminal statutes as to constitute punishment for crime sufficient to fall within the constitutional exception to involuntary servitude.
In In re Frederick, 93 Wn.2d 28, 604 P.2d 953 (1980), the Supreme Court held that a juvenile could not be convicted of first degree escape under RCW 9A.76.110 because a juvenile could not literally be convicted of a felony.
The State, in the present case, repeatedly cites State v. McCarter, 17 Wn. App. 319, 562 P.2d 995 (1977) as an example of a court's use of the rational basis *409test in a case involving the loss of liberty. McCarter was incarcerated at Western State Hospital in its sexual psychopathy program, pursuant to RCW 71.06. The issue was whether his continued incarceration and treatment beyond the expiration of the maximum sentence on his underlying offense, without further commitment hearings, denied him the equal protection of the law. The Court of Appeals held that it did not. The State cites the Court of Appeals holding for the proposition that strict scrutiny is not an appropriate standard of judicial review when the State's deprivation of liberty is for treatment purposes. However, the State has failed to note that, on further review, the Supreme Court reversed the Court of Appeals. State v. McCarter, 91 Wn.2d 249, 588 P.2d 745 (1978). The case actually stands for the contrary proposition—that liberty is fundamental and that the court will strictly scrutinize its deprivation, even if the State's purposes are rehabilitative and even if the incarceration occurs in a hospital or other "nonpenal" setting that, presumably, does not share the rigors of Washington's adult prisons.