In the Matter of the Personal Restraint of KURTIS WILLIAM MONSCHKE, Petitioner. In the Matter of the Personal Restraint of DWAYNE EARL BARTHOLOMEW, Petitioner.
NO. 96772-5 (consolidated with NO. 96773-3)
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
March 11, 2021
EN BANC
Modern social science, our precedent, and a long history of arbitrary line drawing have all shown that no clear line exists between childhood and adulthood. For some purposes, we defer to the legislature‘s decisions as to who constitutes an “adult.” But when it comes to mandatory LWOP sentences, Miller‘s constitutional guarantee of an individualized sentence—one that considers the mitigating qualities of youth—must apply to defendants at least as old as these defendants were at the time of their crimes. Miller v. Alabama, 567 U.S. 460, 469-80, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Accordingly, we grant both PRPs and order that Bartholomew and Monschke each receive a new sentencing hearing.
FACTS
Juries convicted both petitioners of aggravated first degree murder, Bartholomew in 1981 and Monschke in 2003.
Bartholomew told his brother that he intended to rob a laundromat and “leave no witnesses.” State v. Bartholomew, 98 Wn.2d 173, 177-78, 654 P.2d 1170 (1982), vacated, 463 U.S. 1203, 103 S. Ct. 3530, 77 L. Ed. 2d 1383 (1983), adhered to on remand, 101 Wn.2d 631, 683 P.2d 1079 (1984). He took $237 from the cash drawer and fatally shot an attendant in the course of the robbery. Id. at 178. He was 20 years old.
A jury initially sentenced Bartholomew to death. Id. at 179. But we vacated his death sentence, and then, on remand, a jury sentenced him to LWOP, instead. Id. at 216; Bartholomew, 101 Wn.2d at 648; State v. Bartholomew, 104 Wn.2d 844, 710 P.2d 196 (1985); see Wood v. Bartholomew, 516 U.S. 1, 4, 116 S. Ct. 7, 133 L. Ed. 2d 1 (1995).
Monschke and his friends associated themselves with the white supremacist group “Volksfront.” State v. Monschke, 133 Wn. App. 313, 333, 135 P.3d 966 (2006). In March 2003, the group purchased baseball bats with the goal of helping a member earn “red [shoe]laces“—a symbol “that the wearer had assaulted a member of a minority group.” Id. at 323 (alteration in original). Separated from Monschke, two members of this group located and savagely beat a homeless man with the bats, rocks, and steel-toed boots. Id. They then fetched Monschke, who struck the man 10 to 15 times with a bat
Monschke received a mandatory LWOP sentence. Id. at 328.
Both sentences were mandatory for these young men.
The petitioners initially filed their PRPs in the Court of Appeals. They claimed that mandatory LWOP is unconstitutionally cruel when applied to youthful defendants like themselves. They argued that developments in neuroscience have rendered a bright line at age 18 arbitrary and that defendants age 21 and younger should receive the benefit of the same constitutional protections that this court and the United States Supreme Court have recognized for juveniles. The Court of Appeals transferred both petitions to this court without ruling on the merits, pursuant to
ANALYSIS
I. BECAUSE THE PETITIONS CLAIM THE AGGRAVATED MURDER STATUTE IS UNCONSTITUTIONAL AS APPLIED, THEY ARE EXEMPT FROM THE ONE-YEAR TIME BAR
Both petitioners’ sentences became final long ago, and petitioners are generally barred from filing a PRP “more than one year after the judgment becomes final.”
Each petitioner challenges the constitutionality of
The dissent would draw a distinction between “convictions” and “sentences” and restrict the unconstitutional statute time bar exception to only unconstitutional “convictions.” Dissent at 7-8. But we need not decide today whether
To be sure, petitioners challenge the section of the aggravated murder statute that requires LWOP for all convictions,
That statutory exception to the one-year time bar thus clearly applies here. We therefore need not address the concurrence‘s point that
II. THE AGGRAVATED MURDER STATUTE IS UNCONSTITUTIONAL AS APPLIED TO YOUTHFUL DEFENDANTS BECAUSE IT DENIES TRIAL JUDGES DISCRETION TO CONSIDER THE MITIGATING QUALITIES OF YOUTH
Article I, section 14 of the Washington Constitution prohibits “cruel punishment.”6 It does not prohibit mandatory (or discretionary) LWOP sentences for all aggravated murder defendants. State v. Hughes, 106 Wn.2d 176, 202, 721 P.2d 902 (1986); State v. Grisby, 97 Wn.2d 493, 497-98, 647 P.2d 6 (1982). But it does prohibit LWOP sentences for “juvenile offenders.” State v. Bassett, 192 Wn.2d 67, 90, 428 P.3d 343 (2018). That state constitutional bar against “cruel punishment,” like the Eighth Amendment bar against “cruel and unusual punishments,” also forbids mandatory LWOP sentences for juvenile offenders. Miller, 567 U.S. at 479. It further requires courts to exercise “complete discretion to consider mitigating circumstances associated with the youth of any juvenile defendant,” even when faced with mandatory statutory language. Houston-Sconiers, 188 Wn.2d at 21.
These petitioners argue that the protection against mandatory LWOP for juveniles should extend to them because they were essentially juveniles in all but name at the time of their crimes. As the discussion below shows, we agree.
Preliminarily, though, we need to clarify why we take this approach, rather than the “categorical” approach that the dissent advances. Dissent at 9 (citing Bassett, 192 Wn.2d at 85-86, for the categorical bar test, and State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980), for the proportionality test).
The categorical bar test that we used in Bassett and the proportionality test that we used in Fain were designed for a different purpose. We apply them to determine when a particular punishment is categorically cruel in violation of article I, section 14 in the first place. Bassett, 192 Wn.2d at 83. But we already know that mandatory LWOP is unconstitutionally cruel as applied to youthful defendants. Miller, 567 U.S. at 479-80. We need not decide whether new constitutional protections apply in this case because the petitioners do not ask for new constitutional protections. Rather, they ask us to apply the existing constitutional protections of Miller to an enlarged class of youthful offenders older than 17.7 Accordingly, instead of the categorical bar test, we scrutinize whether an arbitrary distinction between 17- and 18-year-olds for purposes of mandatory LWOP passes constitutional muster.8
All parties agree that neuroscience does not provide any such distinction. The petitioners have shown that many youthful defendants older than 18 share the same developing brains and impulsive behavioral
A. CONSTITUTIONAL PROTECTIONS FOR YOUTHFUL CRIMINAL DEFENDANTS HAVE GROWN MORE PROTECTIVE OVER THE YEARS
We first look to the history of constitutional protections against cruel sentences for juveniles under the Eighth Amendment. While the United States Supreme Court has drawn bright lines between various ages and types of defendants, those bright lines have shifted over time.
At the time of the nation‘s founding, “the common law set the rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted capital punishment to be imposed on anyone over the age of 7.” Stanford v. Kentucky, 492 U.S. 361, 368, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989) (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *23-24; MATTHEW HALE, PLEAS OF THE CROWN 24-29 (1800)), overruled in part by Roper v. Simmons, 543 U.S. 551, 574-75, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); State v. J.P.S., 135 Wn.2d 34, 37, 954 P.2d 894 (1998) (recognizing the same original common law ages and that “Washington codified these presumptions, changing the age of incapacity to 7 and younger and the age of presumed capacity to 12 and older“).
The United States’ “age of majority” was largely set at 21, until it changed to 18 “for reasons quite unrelated to capacity.” Vivian E. Hamilton, Adulthood in Law and Culture, 91 TULANE L. REV. 55, 57 (2016). Twenty-one had been the “near universal” age of majority in the United States from its founding until 1942 when “wartime needs prompted Congress to lower the age of conscription from twenty-one to eighteen, a change that would eventually lead to the lowering of the age of majority generally.” Id. at 64; Pub. L. No. 77-772, 56 Stat. 108, 1019 (1942) (changing selective service registration age to 18). The linking of military obligation and political participation led to the Twenty-Sixth Amendment; in 1971, it lowered the voting age to 18. Id. at 64-65;
The age at which the Eighth Amendment prohibits imposition of capital punishment on a youthful defendant has also changed with time. In two plurality opinions in the late 1980s, the United States Supreme Court held that capital punishment was unconstitutional for a 15-year-old offender, but permissible for 16- or 17-year-old offenders. Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988); Stanford, 492 U.S. 361. Justice O‘Connor, the determinative fifth vote in each case, based the difference on her understanding that “no national consensus forbids the imposition of capital punishment on 16- or 17-year-old capital murderers” as distinct from 15-year-olds. Stanford, 492 U.S. at 381 (O‘Connor, J., concurring in part and concurring in the judgment). She recognized that “[t]he day may come when there is such a general legislative rejection of the execution of 16- or 17-year-old capital murderers that a clear national consensus can be said to have developed,” but she did not believe that day had arrived in 1989. Id. at 381-82.
Sixteen years later, it had. In Roper, the Court held that executing a defendant under 18 was categorically unconstitutional. The court based this change on “[t]hree general differences between juveniles under 18 and adults.” Roper, 543 U.S. at 569. First, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young,” resulting in “impetuous and ill-considered
As Eighth Amendment jurisprudence forbidding the execution of adolescent offenders developed, the law regarding intellectually disabled defendants followed a parallel track.10 The United States Supreme Court had allowed execution of the intellectually disabled in 1989, Penry v. Lynaugh, 492 U.S. 302, 340, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (plurality portion), abrogated by Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). As in Stanford, the majority recognized that “a national consensus against execution of the mentally retarded may someday emerge reflecting the ‘evolving standards of decency that mark the progress of a maturing society‘” but did not believe such a consensus existed in 1989. Id.
That consensus had arrived by 2002. As Roper signaled a change from Stanford, so Atkins signaled a change from Penry. 536 U.S. at 321 (holding that execution of the intellectually disabled violates the Eighth Amendment). Indeed, Roper relied in part on Atkins as an example of “society‘s evolving standards of decency.” 543 U.S. at 563. Atkins provided an example of changing standards, even though the “rate of change in reducing the incidence of the juvenile death penalty” had been much slower than the pace at which states abolished capital punishment for the intellectually disabled. Id. at 565.
The changes from Stanford and Penry to Atkins and Roper resulted from a perceived change in direction across the country. Recognizing the shift, the Court observed that “[i]t is not so much the number of these States [that forbade execution of the intellectually disabled] that is significant, but the consistency of the direction of change.”11 Atkins, 536 U.S. at 315; see Bassett, 192 Wn.2d at 86 (quoting Atkins for this same proposition).
Clearly, bright constitutional lines in the cruel punishment context shift over time in order to accord with the “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 100-01, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion).
Roper set a bright constitutional line based on “where society draws the line for many purposes between childhood and adulthood.” 543 U.S. at 574. But some bright statutory lines fail to comply with the Eighth Amendment.
In Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014), for example, a Florida court sentenced a defendant to death, despite his unchallenged evidence of an intellectual disability. The record contained ample evidence of this intellectual disability. Id. But a Florida statute required that “as a threshold matter, Hall show an IQ [intelligence quotient] test score of 70 or below before presenting any additional evidence of his intellectual disability.” Id. at 707.
In evaluating the constitutionality of this rigid bright line of an IQ of 70, the Court first reiterated that the intellectually disabled “may not . . . receive the law‘s most severe sentence.” Id. at 709 (citing Atkins, 536 U.S. at 318). The Court then stated the issue presented: “how intellectual disability must be defined in order to implement the[] principles and the holding of Atkins.” Id. at 709-10. To analyze the cutoff rule, the Court considered “psychiatric and professional studies that elaborate on the purpose and meaning of IQ scores to determine how the scores relate to the holding of Atkins“—it was “proper to consult the medical community‘s opinions.” Id. Though “[i]t is the Court‘s duty to interpret the Constitution . . . it need not do so in isolation.” Id. at 721. “The legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the medical community‘s diagnostic framework.” Id.
Considering three criteria by which the medical community defines intellectual disability,12 “Florida‘s rule disregard[ed] established medical practice in two interrelated ways. It [took] an IQ score as final and conclusive evidence of a defendant‘s intellectual capacity, when experts in the field would consider other evidence” and it “relie[d] on a purportedly scientific measurement of the defendant‘s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise.” Id. at 712. By failing to account for other factors, “and setting a strict cutoff at 70, Florida [went] against the unanimous professional consensus.” Id. at 722. “An IQ score is an approximation, not a final and infallible assessment of intellectual functioning.” Id.
Though IQ was “of considerable significance,” state use of IQ scores to determine death eligibility “must afford these test scores the same studied skepticism that those who design and use these tests do, and understand that an IQ test score represents a range rather than a fixed number.” Id. at 723. It was unconstitutional “to execute a man because he scored 71 instead of 70 on an IQ test.” Id. at 724.
Like the Florida statute at issue in Hall, our aggravated murder statute sets a flat cutoff line in determining a defendant‘s sentence: age 18.
C. THE CONCEPT OF AN “AGE OF MAJORITY” IS INHERENTLY AND NECESSARILY FLEXIBLE
Roper set 18 as a constitutional bright line for death eligibility because it “is the point where society draws the line for many purposes between childhood and adulthood.” 543 U.S. at 574. Washington calls that general line the “age of majority“: “[e]xcept as otherwise specifically provided by law, all persons shall be deemed and taken to be of full age for all purposes at the
The Washington Criminal Code itself draws lines between many distinct ages besides 17 and 18. It renders children under 8 incapable of committing crime.
Other criminal statutes draw the line between “childhood” and “adulthood” at other ages. See, e.g.,
These numerous meanings of “child” and “adult” located throughout the code do not reflect inconsistency. They reflect the need for flexibility in defining the nebulous concept of “adulthood” or “majority.” Accordingly, dividing lines are set at different ages in different contexts. Among these many ages of “majority” that Washington chooses for various contexts, the age at which our legislature has required mandatory LWOP for defendants convicted of aggravated murder sits at 18.15
D. NO MEANINGFUL DEVELOPMENTAL DIFFERENCE EXISTS BETWEEN THE BRAIN OF A 17-YEAR-OLD AND THE BRAIN OF AN 18-YEAR-OLD
Roper considered juveniles’ lack of maturity and responsibility, their vulnerability to negative influences, and their transitory and developing character when it increased the minimum age for death eligibility from 16 to 18. 543 U.S. at 569-70. All three of these factors weigh in favor of offering similar constitutional protections to older offenders, also, because neurological science recognizes no meaningful distinction between 17- and 18-year-olds as a class.
We have already concluded that under the Sentencing Reform Act of 1981,
O‘Dell cited articles discussing neurological science extensively. 183 Wn.2d at 692 n.5 (citing Terry A. Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice, 85 NOTRE DAME L. REV. 89, 152 & n.252 (2009); MIT Young Adult Development Project: Brain Changes, MASS. INST. OF TECH., http://hr.mit.edu/static/worklife/youngadult/brain.html (last visited Mar. 8, 2021); Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 ANN. N.Y. ACAD. SCI. 77 (2004)). The parties bring additional, more recent studies, to our attention. See, e.g., Pet‘r‘s Suppl. Br. (Bartholomew) at 9-10 (citing, e.g., Kathryn Monahan et al., Juvenile Justice Policy and Practice: A Developmental Perspective, 44 CRIME & JUST. 577, 582 (2015); Alexandra O. Cohen et al., When Does a Juvenile Become an Adult? Implications for Law and Policy, 88 TEMPLE L. REV. 769 (2016); Elizabeth S. Scott et al., Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85 FORDHAM L. REV. 641 (2016)). The overarching conclusion compelled by these sources is clear: “biological and psychological development continues into the early twenties, well beyond the age of majority.” Scott, supra, at 642.
The State does not dispute this conclusion. Rather, it contends that Miller is not about “brain science” at all and it cites experts who resist the use of neuroscience in legal decision-making altogether. Suppl. Br. of Resp‘t at 12-13. While all three articles cited by the State emphasize the difficulty of analyzing individual adolescent brains, they support the petitioners’ position that there is no distinctive scientific difference, in general, between the brains of a 17-year-old and an 18-year-old. Richard J. Bonnie & Elizabeth S. Scott, The Teenage Brain: Adolescent Brain Research & the Law, 22 CURRENT DIRECTIONS IN PSYCHOL. SCI. 158, 161 (2013) (“So far, neuroscience research provides group data showing a developmental trajectory in brain structure and function during adolescence and into adulthood.“); Maroney, supra, at 94 (“Rather than raising deep and likely unsolvable questions about human agency, [neuroscience] simply reinforces the (once) non-controversial idea that, as a group, young people differ from adults in systematic ways directly relevant to their relative culpability, deterability, and potential for rehabilitation.“); B.J. Casey & Kristina Caudle, The Teenage Brain: Self Control, 22 CURRENT DIRECTIONS IN PSYCHOL. SCI. 82 (2013) (discussing overgeneralizations of adolescent brains but never mentioning what age is meant by “adolescence“). Maroney criticizes the way courts have used neuroscience to justify their conclusions and argues that “the impact of adolescent brain science on juvenile justice has been strongly cabined by the extrinsic reality of legal doctrine.” Maroney, supra, at 144-45.
The State‘s conclusion from these articles appears to be that because there is no accounting for the brain development and maturity of particular individuals, we may as well give up and let the legislature draw its arbitrary lines—because they will necessarily be arbitrary no matter where they are drawn. But giving up would abdicate our responsibility to interpret the constitution. The State is correct that every individual is different, and perhaps not every 20-year-old offender will deserve leniency on account of youthfulness. But the variability in individual attributes of youthfulness are exactly why courts must have discretion to consider those attributes as they apply to each individual youthful offender. That is why mandatory sentences for youthful defendants are unconstitutional. Miller, 567 U.S. at 477-80 (requiring consideration of the
In fact, this court has already invalidated age 18 as an arbitrary bright line in the context of capacity to consent to abortion. In State v. Koome, 84 Wn.2d 901, 530 P.2d 260 (1975) (plurality opinion), we evaluated the constitutionality of a statute that required pregnant women under 18 to get parental consent to obtain an abortion. We held that such an abridgment of the young woman‘s right to make this decision about her reproductive health was unconstitutional. Id. at 909-10.16 We noted that “[p]arental authority wanes gradually as a child matures; it does not suddenly disappear at adulthood. Similarly, the ability to competently make an important decision, such as that to have an abortion, develops slowly and at different rates in different individuals.” Id. at 910-11. While we acknowledged that the State may “create age limits which do not perfectly correspond with the capacity of minors to act as adults,” we held that “a subjective inquiry into the maturity of each individual minor is a practical impossibility, and any flat age limit is necessarily arbitrary.” Id. at 911. “In such circumstances imprecision in age classifications may be permissible, perhaps even where important rights are affected, because it is inevitable.” Id. But, in the abortion context, “these reasons for setting arbitrary age requirements [were] not present” because “[t]he age of fertility provides a practical minimum age requirement for consent to abortion, reducing the need for a legal one.” Id. (citing Ballard v. Anderson, 4 Cal. 3d 873, 883, 484 P.2d 1345, 95 Cal. Rptr. 1 (1971)).
Science may assist our understanding of not just sexual development but also neurological development. Neuroscientists now know that all three of the “general differences between juveniles under 18 and adults” recognized by Roper are present in people older than 18. 543 U.S. at 569. While not yet widely recognized by legislatures, we deem these objective scientific differences between 18- to 20-year-olds (covering the ages of the two petitioners in this case) on the one hand, and persons with fully developed brains on the other hand, to be constitutionally significant under
E. OUR CONSTITUTION‘S PROTECTION AGAINST LIFE WITHOUT PAROLE SENTENCES EXTENDS TO YOUTHFUL DEFENDANTS OLDER THAN 18
Much like the Florida IQ cutoff in Hall,
But we also recognize that every individual is different. See, e.g., Bonnie & Scott, supra, at 161 (“[T]he research does not currently allow us to move from that group data to measuring the neurobiological maturity of an individual adolescent because there is too much variability within age groups and across development. Indeed, we do not currently
What they have shown is that no meaningful neurological bright line exists between age 17 and age 18 or, as relevant here, between age 17 on the one hand, and ages 19 and 20 on the other hand. Thus, sentencing courts must have discretion to take the mitigating qualities of youth—those qualities emphasized in Miller and Houston-Sconiers—into account for defendants younger and older than 18. Not every 19- and 20-year-old will exhibit these mitigating characteristics, just as not every 17-year-old will. We leave it up to sentencing courts to determine which individual defendants merit leniency for these characteristics. Our aggravated murder statute‘s requirement of LWOP for all defendants 18 and older, regardless of individual characteristics, violates the state constitution.17
Because the aggravated murder statute that petitioners were convicted of violating is unconstitutional as applied to their conduct, the one-year time bar for collateral attacks does not apply.
III. WE DO NOT ABANDON THE CATEGORICAL BAR ANALYSIS; OUR DECISION “FLOWS STRAIGHTFORWARDLY FROM OUR PRECEDENTS” AS DID THE DECISION IN MILLER
The dissent accuses us of manufacturing a “false distinction to sidestep Bassett” by applying Miller to a new class of defendants without invoking Fain‘s proportionality test or Bassett‘s categorical bar test. Dissent at 10-11. But this distinction (between cases subject to the categorical bar analysis and cases subject to a different analysis) is not new.
Contrary to the dissent‘s characterization, dissent at 10, Miller itself expressly declined to apply a categorical bar analysis. It did not “categorically bar a penalty for a class of offenders or type of crime—as, for example, [the Supreme Court] did in Roper or Graham.” 567 U.S. at 483. Instead, Miller “mandate[d] only that a sentencer follow a certain process—considering an offender‘s youth and attendant characteristics—before imposing a particular penalty.” Id. This made Miller “different from the typical [case] in which we have tallied legislative enactments“—in other words, different from Bassett and other categorical rule cases.19 Id.
In fact, Miller explicitly clarified that it “flow[ed] straightforwardly” from “the principle of Roper, Graham, and our individualized sentencing cases that
youth matters for purposes of meting out the law‘s most serious punishments.” Id. (emphasis added).
As the discussion above shows, neither do we.
Instead our decision today, like the Miller decision, draws from the line of cases that Miller cited for its “individualized sentencing” principle. Those decisions all relied on the rule, first announced in Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (plurality opinion), that “consideration of the character and record of the individual offender and the circumstances of the particular offense” are “a constitutionally indispensable part of the process of inflicting the penalty of death.” And those decisions all applied that rule to invalidate a state death penalty sentencing scheme, irrespective of any national consensus for or against the specific statute or sentencing practice. Sumner, 483 U.S. at 83-85 (striking down a Nevada statute requiring the death penalty for defendants convicted of murder while serving a life sentence without possibility of parole); Lockett, 438 U.S. at 608 (striking down an Ohio statute that limited mitigating circumstances a trial court could consider before imposing death); Eddings, 455 U.S. at 113 (requiring sentencing courts to consider mitigating evidence, even where that mitigating evidence did not support a legal excuse from criminal liability). Miller then applied that principle of “individualized sentencing,” developed in the death penalty context, to the juvenile LWOP context. 567 U.S. at 483 (citing Sumner, 483 U.S. at 66; Lockett, 438 U.S. at 602-08; Eddings, 455 U.S. at 110-17).
As the discussion above also shows, so do we.20 In fact, we repeat the Miller approach today. Our decision that individual youthful characteristics may mitigate the sentences of these two young petitioners “flows straightforwardly from our precedents.” Id. No Fain or categorical bar analysis is necessary to reach this decision.
CONCLUSION
There is no meaningful cognitive difference between 17-year-olds and many 18-year-olds. When it comes to Miller‘s prohibition on mandatory LWOP sentences, there is no constitutional difference either. Just as courts must exercise discretion before sentencing a 17-year-old to die in prison, so must they exercise the same discretion when sentencing an 18-, 19-, or 20-year-old. We grant Monschke‘s and Bartholomew‘s PRPs and vacate their mandatory LWOP sentences. We remand each case for a new sentencing hearing at which the trial court must consider whether each defendant was subject to the mitigating qualities of youth.
WE CONCUR:
Gordon McCloud, J.
Yu, J.
Montoya-Lewis, J.
Whitener, J.
No. 96772-5 (consolidated with No. 96773-3)
GONZÁLEZ, C.J. (concurring) — I concur with the lead opinion that the petitioners are entitled to a new sentencing hearing to determine whether their ages at the time of their crimes is a mitigating factor justifying a downward departure from the standard sentence. I part company, however, with its analysis of the retroactivity of State v. O‘Dell, 183 Wn.2d 680, 358 P.3d 359 (2015). As the dissent properly notes,
González, C.J.
No. 96772-5 (consolidated with No. 96773-3)
OWENS, J. (dissenting) — Kurtis Monschke and Dwayne Bartholomew committed brutal murders decades ago. At the time, they were 19 and 20 years old, respectively. They were not children. Under Washington law, when an individual turns 18 years old, they are empowered to make a range of life-altering decisions: suddenly, they can form contracts, drop out of school, get married, work a hazardous job, and serve in the military. But at this same moment, they also obtain the full responsibilities and consequences of adulthood, and the court will no longer intervene on their behalf on the basis of age. Nonetheless, the lead opinion holds today that we must create an exception in treating these individuals as adults when they commit aggravated murder between the ages of 18 and 20. Mandatory life without parole (LWOP) sentences are now prohibited for this age category. The lead opinion crafts this new rule by filtering our state constitution‘s “cruel punishment” prohibition through a handful of scientific studies and circumvents the reality that no legislatures or courts in the other 49 states have ever recognized such a protection.
At the heart of this case is the important question of when a person should be held fully accountable as an adult. This is a question that requires a meticulous examination of a number of scientific, moral, ethical, and practical considerations. Our court is not a legislature, and it is insufficiently equipped to decide this issue on selectively presented evidence put forth by limited parties on a constrained schedule. The lead opinion broadly seeks to protect against the “unacceptable risk that youthful defendants without fully developed brains will receive a cruel LWOP sentence.” Lead opinion at 29. But I struggle to identify at what precise age we will stop redrawing these lines based on this brain development evidence, be it 20, 22, 25, or even older. I further caution that today‘s decision may eventually compel us to revisit and invalidate a staggering number of LWOP and Sentencing Reform Act of 1981 (SRA),
ANALYSIS
I. The Legislature‘s Determination of the Age of Majority Encapsulates More Considerations Than When a Youth‘s Brain Is Fully Developed
The lead opinion today announces a broad new constitutional safeguard protecting “youthful defendants [ages 18 to 20] without fully developed brains.” Lead opinion at 29. In doing so, the lead opinion extends a protection to convicted murderers that may shield these individuals from the full legal consequences of their actions. I note that once an individual turns 18 years old in Washington, he or she can form contracts, drop out of school, enter into marriage, vote in an election, obtain a driver‘s license, work a hazardous job, and enlist in the military. Upon turning 18, individuals receive all of these rights of adulthood, regardless of whether their brains are fully developed. At 18, the court will no longer interfere with the
Children are different, certainly. But Monschke and Bartholomew were not children when they brutally murdered their victims. When a child becomes an adult is a question that necessarily involves significant input from a variety of disciplines. The lead opinion today casts aside this long-standing deference to the legislature because it believes that the current line at 18 is “arbitrary.” Lead opinion at 24-25. The lead opinion contends the line at 18 is arbitrary because there is “no distinctive scientific difference, in general, between the brains of a 17-year-old and an 18-year-old“; and it notes that at 18, these youths’ brains are not fully developed, which leads to decision-making based on immaturity and impulsivity. Lead opinion at 25. But the lead opinion assumes that the legislature did not already know or account for this when it enacted the age of majority. For example, the legislature may have set the age of majority based on when an individual has sufficient brain development, experience, and legal autonomy to make important life decisions, like deciding to commit a crime. Today‘s reasoning ignores the possibility that the age of majority is based less on scientific exactitude, and more on “society‘s judgments about maturity and responsibility.” Davis v. Dep‘t of Licensing, 137 Wn.2d 957, 974, 977 P.2d 554 (1999).
In prohibiting mandatory LWOP, the lead opinion now requires courts to exercise discretion in imposing LWOP sentences upon 18-20 year olds, as it asserts that we must provide individualized sentencing for defendants “at least as old as [20].”
Lead opinion at 2, 29-30 (citing Miller v. Alabama, 567 U.S. 460, 469-80, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)).
I first note that nowhere does Miller require that we draw a line at 20. Lead opinion at 2. Further, the lead opinion‘s requirement of “individualized sentenc[ing],” conflicts with our precedent, State v. Grisby, 97 Wn.2d 493, 497, 647 P.2d 6 (1982), which held that adults are not entitled to such a “particularized consideration” under our state constitution‘s cruel punishment prohibition. Lead opinion at 2, 30 n.17 (quoting Grisby, 97 Wn.2d at 497). Thus, the court today overrules precedent that dictates that adults are not entitled to individualized sentencing, despite the fact that petitioners failed to make the requisite showing that Grisby is incorrect or harmful. State v. Barber, 170 Wn.2d 854, 863, 248 P.3d 494 (2011).
I further note the surprising optimism about the courts’ ability to exercise discretion in imposing an LWOP sentence now that mandatory LWOP is prohibited. This requires distinguishing young defendants whose crimes reflect “transient immaturity” from those whose crimes reflect “irreparable corruption.” Miller, 567 U.S. at 479-80. This optimism is negated by our recent holding in Bassett where we invalidated all LWOP sentences for juveniles, reasoning that courts are incapable of accurately making this determination. Bassett, 192 Wn.2d at 89 (quoting Roper v. Simmons, 543 U.S. 551, 573, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)). Given the difficulty even “expert psychologists” have in making this determination, I do not foresee the courts adequately exercising discretion this time around. Id.
I additionally highlight our recent rulings in Bassett, 192 Wn.2d 67, and Houston-Sconiers, 188 Wn.2d 1, and their potential implications in light of the court‘s holding today. These cases respectively invalidated all LWOP sentences and effectively eliminated the SRA‘s mandatory sentencing requirements for juveniles based on Miller, 567 U.S. 460 (holding mandatory LWOP for juveniles is cruel). As today‘s holding almost identically mirrors Miller, I believe the lead opinion today paves a path for the court to invoke the same logic underlying Houston-Sconiers and Bassett to revisit and invalidate a staggering number of LWOP and SRA sentences, particularly in light of the retroactive nature of Houston-Sconiers established in In re Personal Restraint of Ali, 196 Wn.2d 220, 226, 242, 474 P.3d 507 (2020).
As the consequences of today‘s decision are potentially severe, I would exercise
II. The Limitations of Personal Restraint Petitions Are Eroded by Invoking The “Constitutionality” Exception to the Time Bar under RCW 10.73.100(2)
Under Washington law, Bartholomew and Monschke as convicted murderers do not have unlimited attempts to appeal their sentences. Rather, convicted appellants are limited to one direct appeal as of right and discretionary review as granted by this court through a petition for review. After that, appellants have one year to bring additional postconviction challenges to a valid judgment through a personal restraint petition (PRP), unless subject to an exception.
The lead opinion today relies on
This “constitutionality” exception is inapplicable according to the very plain language of the statute. This exception limits the challenge to the statute that the defendant “was convicted of violating.”
By forcing these PRPs through this exception, the court now permits virtually all challenges to sentences while also, and most notably, avoiding the retroactivity analysis required for changes in the law. See
Monschke and Bartholomew have been incarcerated for decades. They had their day in court to challenge their convictions and assert novel legal theories. Their time expired, and they must now wait to see if other challengers are able to mount a successful legal challenge that is material to their cases. See
III. The Court Must Apply Bassett To Determine What a “Cruel” Punishment Is Because Prohibiting Mandatory LWOP Is a Categorical Bar under Ali
In deciding what punishments are prohibited under article I, section 14 of our state constitution, we must determine what “cruelty” is. To do this, the court has previously applied the categorical bar3 test outlined in Bassett, 192 Wn.2d at 85-86. The Bassett4 test provides a balanced approach for evaluating whether a punishment is cruel under the state constitution as applied to a certain class of persons by (1) analyzing whether this punishment is barred by other states through their legislatures and judiciaries and (2) exercising our independent judgment in
determining the culpability of the group when considering the crime and if the punishment serves legitimate penological goals. Id. at 85-87.
We are bound to apply Bassett based on our recent decision in In re Personal Restraint of Ali, where we held that Miller, 567 U.S. 460, was a categorical bar on punishment when Miller prohibited imposing mandatory LWOP sentences on juveniles. In re Pers. Restraint of Ali, 196 Wn.2d at 231-32, 238-39 n.5. There, we based our reasoning on Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). In assessing Miller‘s retroactivity, Montgomery held that Miller‘s rule was retroactive because Miller categorically barred mandatory LWOP by “render[ing] life without parole an unconstitutional penalty for ‘a class of defendants because of their status‘—that is, juvenile offenders whose crimes reflect the transient immaturity of youth.” Montgomery, 136 S. Ct. at 734 (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), abrogated by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)).
As Montgomery clarifies, Miller was a case involving a categorical bar. This case is directly analogous to Miller and should also be analyzed under Bassett‘s categorical bar approach. To make a very plain comparison, Miller barred imposing mandatory LWOP sentences on juveniles. Here, the lead opinion prohibits imposing mandatory LWOP sentences on defendants between the ages of 18 and 20. The only difference between this case and Miller is that we substitute “juveniles” with “defendants age 18 to 20.” Accordingly, because Miller was a categorical bar case, this case is as well. Therefore, we must apply Bassett to determine whether mandatory LWOP is cruel punishment for this particular class.
But instead of simply applying Bassett, the lead opinion crafts a false distinction to sidestep Bassett by reasoning that it is not actually creating a new class but, rather, is only “enlarg[ing]” the class of “youthful defendants” who were protected in Miller. Lead opinion at 10, 30 n.17. This distinction is empty and of little help to the lead opinion because Bassett also merely “enlarged” Miller‘s initial class.
Miller defined the initial class5 of juveniles protected from LWOP as all “but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Montgomery, 136 S. Ct. at 734. In Bassett, we “enlarged” this class to include those defendants originally excluded from Miller—
lead opinion claims, they do not get to create a new and less rigorous test. They must apply our precedent of “extending” a class, which is Bassett.
And while we could easily get lost in the semantical forest of distinguishing “enlarging” a class from defining a proximate yet distinctive class, common sense provides a sufficiently clear solution that should dictate the result. If we were to decide Miller again today under our state constitution, those juveniles would be subject to the categorical bar test, pursuant to Bassett and Ali. And had Monschke and Bartholomew brought their claims alongside those juveniles, they would be subject to the same exacting standard. I see no reason to require any less of the petitioners here today.
IV. Applying Bassett, We Should Find That No States Have Expressly Exempted This Age Group (18-20) from Mandatory LWOP and That Young Adults Are More Responsible for Their Actions
If the lead opinion applied Bassett, it would conclude that there are no states that have expressly exempted 18-20 year olds from mandatory LWOP through the legislative or judicial process. The lead opinion concedes there is “no national majority” of states with such a rule and, furthermore, fails to show there are any such states with such a rule. Lead opinion at 10 n.8. But nonetheless, the lead opinion would apparently rewrite the national trend inquiry to include evaluation of factors such as legislation that “carve[s] out rehabilitative space for ‘young’ or ‘youthful’ offenders as old as their mid-twenties.” Id. But this approach vastly departs from our holding in Bassett, which expressly directs us to look at the national trends as applied to the “sentencing practice at issue.” Bassett, 192 Wn.2d at 83 (emphasis added) (citing Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)). While the lead opinion provides support for treating young adults with the leniency of the juvenile system in limited circumstances, none of their authorities address the sentencing practice at issue, i.e., mandatory LWOP for aggravated murder.
But even assuming we could broaden our inquiry, there is still insufficient evidence to find that the sentence is unconstitutional beyond a reasonable doubt. Bassett, 192 Wn.2d at 77 (citing State v. Hunley, 175 Wn.2d 901, 908, 287 P.3d 584 (2012)). The lead opinion relies on laws in Washington D.C., Florida, and South Carolina, among others, as states that create classes of “young adults” who may be treated with leniency under the juvenile system. Lead opinion at 9-10 n.8.
But even these laws do not provide the support that the lead opinion claims for an “affirmative trend” that is relevant to the petitioners, as many of these statutes expressly exempt those young adults who commit murder or other violent crimes from being treated with more leniency. Id. at 10 n.8. For example, Washington D.C. carves out a “rehabilitative space” as the lead opinion asserts, but this “rehabilitative space” applies only to “person[s] [who have] committed a crime other than murder.”
The lead opinion further erroneously relies on support from our state‘s laws when it notes that our juvenile court system can retain jurisdiction over juveniles in limited circumstances until the age of 25. Lead opinion at 21 (citing
Thus, not only is there almost no evidence that there is a national trend of carving out a “rehabilitative space” for young adult murderers, but our own legislature has expressly spoken on this issue: young murderers are to be treated the same as adults under our laws.
But the lead opinion unnecessarily analyzes these statutes in the first place because the petitioners—required to prove the unconstitutionality of their sentences beyond a reasonable doubt—have put forth no such evidence of any legislative or judicial trend. Bassett 192 Wn.2d at 77 (citing Hunley, 175 Wn.2d at 908); see lead opinion at 29 (“[T]he petitioners have neither argued nor shown that LWOP would be categorically unconstitutional as applied to older defendants.“). The lead opinion far exceeds the confines of judicial restraint when it finds these authorities on its own accord and argues them on behalf of the petitioners. The petitioners have plainly put forth no evidence of a legislative trend, and this factor should weigh heavily against the petitioners.
Next, applying our independent judgment under the second prong of Bassett, the petitioners are fundamentally different from juveniles—they can get jobs, quit school, get married, form contracts, and drive cars—all without the permission of their parents. No longer juveniles with subordinate rights, these adults have the legal ability to “extricate” themselves from “criminogenic setting[s].” Roper, 543 U.S. at 569 (quoting Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009, 1014 (2003)). Aggravated murder is undoubtedly one of the most serious crimes on the books, and permanently isolating murderers like Monschke and Bartholomew serves the legitimate penological goals of retribution, deterrence, and incapacitation. As the Bassett test does not weigh in this new class‘s favor, I would hold that mandatory LWOP is not unconstitutionally cruel.
CONCLUSION
The lead opinion‘s ruling contains three critical flaws when it requires courts to exercise discretion in imposing LWOP sentences for 18-20 year olds. First, the lead opinion improperly strips the legislature‘s role in defining the age of majority and replaces it with a handful of scientific studies. The court‘s second guessing of the legislature is questionable as this court is inferior to the legislature in both time and resources to adequately consider the issue. Second, the lead opinion improperly applies the “constitutionality exception” under
Owens, J.
Johnson, J.
Madsen, J.
Stephens, J.