In re Pers. Restraint of Monschke ( 2021 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE MARCH 11, 2021
SUPREME COURT, STATE OF WASHINGTON
MARCH 11, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint of NO. 96772-5
KURTIS WILLIAM MONSCHKE, (consolidated with)
Petitioner.
In the Matter of the Personal Restraint of NO. 96773-3
DWAYNE EARL BARTHOLOMEW, EN BANC
Petitioner.
Filed:________________
March 11, 2021
GORDON MCCLOUD, J.—Dwayne Earl Bartholomew and Kurtis William
Monschke were each convicted of aggravated first degree murder and sentenced to
life in prison without possibility of parole—a mandatory, nondiscretionary
sentence under Washington’s aggravated murder statute. RCW 10.95.030.
Bartholomew was 20 years old; Monschke was 19. Many years after their
convictions, each filed a personal restraint petition (PRP) asking us to consider
whether article I, section 14 of our state constitution or the Eighth Amendment to
the United States Constitution permits a mandatory life without parole (LWOP)
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
sentence for youthful defendants like themselves. Specifically, they ask us to
decide whether the constitutional requirement that judges exercise discretion at
sentencing,1 which forbids such mandatory LWOP sentences for those under 18,
also forbids those sentences for 18- to 21-year-old defendants.
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. United States, 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.
1
See Miller v. United States, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407(2012); State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017).
2
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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, 130 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 while his friends continued to kick the
3
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
man’s head. Id. at 323-24. Monschke pondered whether “‘God gives us little
brownie points for this.’” Id. at 324. The man died in the hospital after 20 days on
life support. Id. at 320. Monschke was 19 years old.
Monschke received a mandatory LWOP sentence. Id. at 328.
Both sentences were mandatory for these young men. RCW 10.95.030
provides that any person who is convicted of aggravated murder and not sentenced
to death2 “shall be sentenced to life imprisonment without possibility of release or
parole.”
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
2
Since these cases, we have held the death penalty unconstitutional in
Washington, State v. Gregory, 192 Wn.2d 1, 35, 427 P.3d 621 (2018), converting all
death sentences in the state to LWOP and rendering LWOP the only statutorily
permissible aggravated murder sentence for persons 18 and older.
4
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
merits, pursuant to RAP 16.5.3 We consolidated the two petitions and now grant
both.
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.” RCW 10.73.090(1). But six enumerated exceptions temper this
one-year time bar. RCW 10.73.100. One of these exceptions allows petitioners to
file a PRP without any deadline if the “statute that the defendant was convicted of
violating was unconstitutional on its face or as applied to the defendant’s conduct.”
RCW 10.73.100(2). This exception is important because convictions under
unconstitutional statutes “are as no conviction at all and invalidate the prisoner’s
sentence.” In re Pers. Restraint of Runyan, 121 Wn.2d 432, 445, 853 P.2d 424(1993).
Order Transferring Pet. to Supreme Court, In re Pers. Restraint of Monschke,
3
No. 52286-1-II (Wash. Ct. App. Jan. 22, 2019); Order Transferring Pet. to Supreme
Court, In re Pers. Restraint of Bartholomew, No. 52354-0-II (Wash. Ct. App. Jan. 22,
2019).
5
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
Each petitioner challenges the constitutionality of RCW 10.95.030, the
aggravated murder statute, as applied to him. They do so for the same reason: the
statute required mandatory LWOP, while the Washington State Constitution
requires the court to exercise discretion at sentencing due to their age. If they are
correct that the aggravated murder statute is unconstitutional as applied, then the
time bar presents no obstacle to their petitions. 4 RCW 10.73.100(2).
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 RCW
10.73.100(2) provides a time bar exception for other unconstitutional sentencing
statutes; in this case, the petitioners challenge not a regular sentencing statute but
the aggravated murder statute. The aggravated murder statute is different than
other sentencing statutes—it requires the State to charge and the jury (or other trier
4
A PRP petitioner must also show actual and substantial prejudice resulting from
the alleged error. In re Pers. Restraint of Meippen, 193 Wn.2d 310, 315-16, 440 P.3d
978 (2019) (petitioner unable to show prejudice because record indicated resentencing
would be unlikely to reduce petitioner’s sentence). But unlike the petitioner in Meippen,
no judge has ever exercised any discretion in sentencing Monschke or Bartholomew.
Under the aggravated murder statute, the trial court was statutorily required to sentence
them each to life without parole. If petitioners are entitled to any of the discretionary
protections afforded juvenile defendants, then the trial court must receive a chance to
exercise that discretion. And the petitioners must receive a new sentencing proceeding
that accounts for the mitigating qualities of youth and complies with article I, section 14.
6
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
of fact) to find the defendant “guilty” of that very same aggravated murder charge.
In other words, petitioners’ challenge to the constitutionality of the aggravated
murder statute, which criminalizes premeditated first degree murder as aggravated
murder in certain circumstances, is a challenge to the criminal statute that they
were “convicted of violating.” RCW 10.95.030; 10.73.100. 5
To be sure, petitioners challenge the section of the aggravated murder statute
that requires LWOP for all convictions, RCW 10.95.030, and not the section that
defines aggravated murder and lists aggravating circumstances, RCW 10.95.020.
See State v. Goldberg, 149 Wn.2d 888, 894, 72 P.2d 1083 (2003), overruled on
other grounds by State v. Guzman Nuñez, 174 Wn.2d 707, 713, 285 P.3d 21 (2012)
(“RCW 10.95.020 defines the aggravating circumstances that make premeditated
murder first degree murder punishable under that chapter rather than under the
5
Petitioners’ claim that RCW 10.73.100(2) reaches sentences as well as
convictions is also consistent with our precedent. We have rejected a distinction between
“sentence[s]” and “conviction[s]” in the PRP time bar context as “absurd.” In re Pers.
Restraint of Skylstad, 160 Wn.2d 944, 952, 162 P.3d 413 (2007). In Skylstad, we
interpreted RCW 10.73.090(3)(b), which stated that a criminal “‘judgment becomes final
on . . . [t]he date that an appellate court issues its mandate disposing of a timely direct
appeal from the conviction.’” Id. at 947 (emphasis added) (quoting RCW
10.73.090(3)(b)). The State “focuse[d] solely on one word—conviction—rather than
reading the sentence and the statute as a whole.” Id. at 953. We acknowledged that
“conviction, judgment, and sentence certainly are not interchangeable” but held that a
“direct appeal from [a] conviction cannot be disposed of until both [the] conviction and
sentence are affirmed and an appellate court issues a mandate terminating review of both
issues.” Id. at 953-54 (emphasis added).
7
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
Sentencing Reform Act of 1981, chapter 9.94A RCW.”). But they challenge the
constitutionality of the aggravated murder statute nonetheless—the statute they
were each “convicted of violating,” in the words of RCW 10.73.100(2).
That statutory exception to the one-year time bar thus clearly applies here.
We therefore need not address the concurrence’s point that RCW 10.73.100(6)’s
exception to the time bar applies here, also.
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
6
We have “‘repeated[ly] recogni[zed] that the Washington State Constitution’s
cruel punishment clause often provides greater protection than the Eighth Amendment.’”
State v. Bassett, 192 Wn.2d 67, 78, 428 P.3d 343 (2018) (alterations in original) (quoting
State v. Roberts, 142 Wn.2d 471, 506, 14 P.3d 713 (2000)). Specifically, we have
identified that “in the context of juvenile sentencing, article I, section 14 provides greater
protection than the Eighth Amendment.” Id. at 82. In this context, where it is “well
established” that a state constitutional provision is more protective than the United States
Constitution, there is no need to conduct a Gunwall analysis each time a new question is
presented. State v. Mayfield, 192 Wn.2d 871, 878-79, 434 P.3d 58 (2019); see State v.
Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). We “may assume an independent state
analysis is justified and move directly to the merits.” Mayfield, 192 Wn.2d at 879.
8
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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. State v.
Houston-Sconiers, 188 Wn.2d 1, 21, 391 P.3d 409 (2017).
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
9
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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
7
For a fuller discussion of the need to apply the distinct Miller approach that we
apply here, see Part III, infra.
8
It is certainly true that under the categorical bar test, we would typically
consider “(1) whether there is objective indicia of a national consensus against the
sentencing practice at issue and (2) the court’s own independent judgment based on ‘“the
standards elaborated by controlling precedents and by the [c]ourt’s own understanding
and interpretation of the [cruel punishment provision]’s text, history, . . . and purpose.”’”
Bassett, 192 Wn.2d at 83 (alterations in original) (quoting Graham v. Florida, 560 U.S.
48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (quoting Kennedy v. Louisiana, 554
U.S. 407, 421, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008))). The dissent errs, however, in
denying that there is any national trend worthy of note for purposes of that test. There is
certainly no national majority of state legislatures or courts prohibiting mandatory LWOP
for 18- to 20-year-olds. But there is definitely an affirmative trend among states to carve
out rehabilitative space for “young” or “youthful” offenders as old as their mid-20s. See,
e.g., COLO. REV. STAT. § 18-1.3-407(2)(a)(III)(B) (defining “ʻ[y]oung adult offender’” to
mean “a person who is at least eighteen years of age but under twenty years of age when
the crime is committed and under twenty-one years of age at the time of sentencing”);
D.C. CODE 24-901(6) (defining “‘[y]outh offender’” as “a person 24 years of age or
younger at the time that the person committed a crime other than murder” or several other
specific crimes); FLA. STAT. ANN. § 958.04 (permitting courts to sentence as “‘youthful
10
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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 attributes as those under 18.
Thus, we hold that these 19- and 20-year-old petitioners must qualify for some of
the same constitutional protections as well.
offenders’” defendants between 18 and 21 of a noncapital or “life” felony); GA. CODE.
ANN. § 42-7-2(7) (defining “‘[y]outhful offender’” to mean “any male offender who is at
least 17 but less than 25 years of age at the time of conviction and who in the opinion of
the department has the potential and desire for rehabilitation”); MICH. COMP. LAWS ANN.
§ 762.11(1) (permitting sentencing courts to designate certain offenders between age 17
and 21 as “youthful trainee[s],” up to age 24 with the consent of the prosecutor); S.C.
CODE ANN. § 24-19-10(d)(ii) (defining “‘[y]outhful offender’” to include persons
“seventeen but less than twenty-five years of age at the time of conviction for an offense
that is not a violent crime” and meets other specifications); VT. STAT. ANN. tit. 33 § 5281
(allowing “defendant[s] under 22 years of age” to move to be treated as a “youthful
offender”); see also CONNIE HAYEK, NAT’L INST. OF JUST., ENVIRONMENTAL SCAN OF
DEVELOPMENTALLY APPROPRIATE CRIMINAL JUSTICE RESPONSES TO JUSTICE-INVOLVED
YOUNG ADULTS 6 (2016) (analyzing and evaluating over 130 programs for “justice-
involved young adult[s]” across the country),
https://www.ojp.gov/pdffiles1/nij/249902.pdf [https://perma.cc/DT9N-FRPW]. “One
rationale for young offender status is to protect young offenders from the harshness and
collateral consequences of criminal prosecution and conviction.” Elizabeth S. Scott et al.,
Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice
Policy, 85 FORDHAM L. REV. 641, 660 n.123 (2016) (citing Raines v. State, 317 So. 2d
559, 561 (Ala. 1975); People v. Perkins, 309 N.W.2d 634, 636-37 (Mich. Ct. App.
1981)); see also Josh Gupta-Kagan, The Intersection Between Young Adult Sentencing
and Mass Incarceration, 4 WIS. L. REV. 669, 682-88 (2018) (“Broader trends seek to
treat a larger group of young adult offenders as a distinct category.”).
11
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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
12
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
“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; U.S. CONST. XXVI. States across the
country—including Washington—quickly followed suit, lowering the “age of
majority” to 18 for many purposes. 9 RCW 26.28.010; LAWS OF 1971, 1st Ex.
Sess., ch. 292, § 1.
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.
9Several states continue to recognize an age of majority older than 18. See, e.g.,
MISS. CODE ANN. § 1-3-27 (defining minor as “any person, male or female, under
twenty-one years of age”); ALA. CODE § 26-1-1 (setting age of majority at 19); NEB. REV.
STAT. § 43-245 (“Age of majority means nineteen years of age.”). As we discuss in
further detail below, the statutory “age of majority” is riddled with exceptions.
13
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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
actions and decisions.’” Id. (alteration in original) (quoting Johnson v. Texas, 509
U.S. 350, 367, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993)). Second, “juveniles are
more vulnerable or susceptible to negative influences and outside pressures,
including peer pressure.” Id. (citing Eddings v. Oklahoma, 455 U.S. 104, 115, 102
14
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
S. Ct. 869, 71 L. Ed. 2d 1 (1982)). And third, “the character of a juvenile is not as
well formed as that of an adult.” Id. at 570. Roper recognized that the “qualities
that distinguish juveniles from adults do not disappear when an individual turns
18” but held that “a line must be drawn.” Id. at 574. Because “[t]he logic of
Thompson extends to those who are under 18” and because “18 is the point where
society draws the line for many purposes between childhood and adulthood,” the
Court made it “the age at which the line for death eligibility ought to rest.” Id. at
574-75 (citing Thompson, 487 U.S. at 833-38).
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
10
For many years the Supreme Court spoke of the intellectually disabled as
“mentally retarded.” Penry v. Lynaugh, 492 U.S. 302, 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). It has since recognized and approved a change in terminology to “intellectually
disabled” to “describe the identical phenomenon.” Hall v. Florida, 572 U.S. 701, 704,
134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014). We use the term “intellectually disabled”
throughout this opinion.
15
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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
16
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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).
B. THE COURT WILL NOT NECESSARILY DEFER TO LEGISLATIVE BRIGHT-LINE
DRAWING WHEN DETERMINING WHAT CONSTITUTES CRUEL PUNISHMENT
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
11
To be sure, the shift that led to Roper and Atkins concerned the cruelty of capital
punishment. But since those cases, the United States Supreme Court and our court have
recognized the similarities between capital punishment and LWOP. Graham, 560 U.S. at
69-70 (an LWOP sentence “‘means the 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’” (alteration in original) (quoting Naovarath v. State, 105 Nev. 525, 526, 779 P.2d
944 (1989))); Bassett, 192 Wn.2d 87-88 (same). And under the Washington Constitution,
LWOP sentences for juveniles are impermissibly cruel. Bassett, 192 Wn.2d at 91.
17
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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, 436 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
12
These criteria were “significantly subaverage intellectual functioning, deficits in
adaptive functioning (the inability to learn basic skills and adjust behavior to changing
18
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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. RCW
10.95.030(3)(a)(ii). Yet many other statutes draw lines at many other ages
circumstances), and onset of these deficits during the developmental period.” Hall, 572
U.S. at 710 (citing Atkins, 536 U.S. at 308 n.3).
19
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
between 8 and 26. We next turn to these statutes to get a sense of how our
legislature has defined the “age of majority.”
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 age of eighteen years.”
RCW 26.28.010.13 But as it turns out, areas “otherwise specifically provided by
law” abound.
The Washington Criminal Code itself draws lines between many distinct
ages besides 17 and 18. It renders children under 8 incapable of committing crime.
RCW 9A.04.050. And children between 8 and 12 are presumed incapable of
committing crime. Id. The Juvenile Justice Act of 1977 defines “juvenile,”
13
Some specific enumerated “purposes” for which age 18 is relevant include
allowing 18-year-olds to “enter into any marriage contract without parental consent,”
“execute a will,” “vote in any election if authorized by the Constitution,” and “enter into
any legal contractual obligation and to be legally bound thereby.” RCW 26.28.015(1)-
(4). Many of these purposes also include the tautological qualification “if otherwise
qualified by law.” RCW 26.28.015(1)-(3).
20
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
“youth,” and “child” all synonymously to mean “any individual who is under the
chronological age of eighteen years and who has not been previously transferred to
adult court.” RCW 13.40.020(15). But individuals transferrable to such adult
court may be as young as 15 if charged with a serious violent offense—or any age
if charged with murder or custodial assault while already under sentence.14 RCW
13.40.110(1)(a), (b). When a child remains in juvenile court, that juvenile court
may, in some scenarios, maintain “residual” jurisdiction until the child reaches age
25. RCW 13.04.030(1)(e)(v)(C)(II).
Other criminal statutes draw the line between “childhood” and “adulthood”
at other ages. See, e.g., RCW 9A.44.079(1) (setting oldest possible age of a victim
of the crime, “Rape of a child,” at 15); RCW 66.44.290(4) (making it a
misdemeanor for persons under 21 to purchase liquor). Plenty of examples outside
the criminal law context exist as well. See, e.g., RCW 46.20.031(1) (setting
minimum age to receive a driver’s license at 16), .265(2) (suspending juvenile
driving privileges until various ages between 17 and 21); RCW 70.24.110
(allowing those 14 or older to obtain medical care for sexually transmitted diseases
14
Until 2018, transfer to adult court was mandatory for 16- and 17-year-olds who
committed class A felonies, as well as 17-year-olds who committed various other crimes.
LAWS OF 2018, ch. 162, § 4.
21
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
without parental consent); RCW 74.13.031(12) (providing government authority
for “adoption support benefits, or relative guardianship subsidies on behalf of
youth ages eighteen to twenty-one years” who meet certain conditions), (16)
(providing government authority to “provide independent living services to youths,
including individuals who have attained eighteen years of age, and have not
attained twenty-three years of age”); see also 42 U.S.C. § 18014(d)(2)(E)
(providing Affordable Care Act medical coverage to “adult children” through age
26).
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 RCW 10.95.030(3).
15
It was initially the United States Supreme Court, and not the Washington
Legislature, who set this line at 18. Until Miller, RCW 10.95.030 required LWOP for all
defendants without taking age into account at all. LAWS OF 2014, ch. 130, § 9. That
statute was updated in 2014 with what has been referred to as the “Miller-fix”: it brought
Washington statutory law into compliance with the constitutional principles of Miller.
See, e.g., Bassett, 192 Wn.2d at 77.
22
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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,
ch. 9.94A RCW, “age may well mitigate a defendant’s culpability, even if that
defendant is over the age of 18.” State v. O’Dell, 183 Wn.2d 680, 695, 358 P.3d
359 (2015). The fact that the legislature “did not have the benefit of psychological
and neurological studies showing that the ‘“parts of the brain involved in behavior
control”’ continue to develop well into a person’s 20s” was one of the factors that
compelled that conclusion. Id. at 691-92 (footnote omitted) (quoting Miller, 567
U.S. at 472 (quoting Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 176 L.
Ed. 2d 825 (2010))). The same scientific developments compel us to come to a
similar conclusion under article I, section 14.
23
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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.
24
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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.
25
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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 specific youthful characteristics of
each individual defendant); Houston-Sconiers, 188 Wn.2d at 23 (requiring
consideration at sentencing of defendant’s individual youthful characteristics and
many other individual factors related to culpability).
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
26
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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)).
16
The lead opinion received four votes. Koome, 84 Wn.2d at 914. The
concurrence, which provided the fifth vote, agreed that it would “reach the same result as
the [lead] opinion regarding the constitutional infirmities of the present statute.” Id.(Finley, J. concurring). It added that while the State could conceivably draft an abortion
restriction consistent with the constitution, the age-related parental consent requirement
considered by the court was unconstitutional. Id. at 915-17.
27
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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 article I, section 14.
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, RCW 10.95.030 disregards many
scientific indicia of youthfulness in favor of a single, relatively inconsequential
number: a defendant’s age. Just as “an individual’s intellectual functioning cannot
be reduced to a single numerical score,” neither can an individual’s level of
maturity. Hall, 572 U.S. at 713. Though we sometimes allow legislative “age
limits which do not perfectly correspond with the capacity of minors to act as
adults,” we will not hesitate to strike them down where they violate the
constitution, especially where better, more scientific age limits are available.
Koome, 84 Wn.2d at 911. We hold that the aggravated murder statute’s rigid
28
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
cutoff at age 18 combined with its mandatory language creates an unacceptable
risk that youthful defendants without fully developed brains will receive a cruel
LWOP sentence.
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 have accurate behavioral measures of maturity.”
(citation omitted)). Though a categorical constitutional rule may be appropriate
prohibiting LWOP sentences for offenders younger than 18, Bassett, 192 Wn.2d at
90, the petitioners have neither argued nor shown that LWOP would be
categorically unconstitutional as applied to older defendants.
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
29
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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. RCW 10.73.100(2). 18
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
17
Contrary to the dissent’s accusation, we do not overrule Grisby. Grisby held
that a “particularized consideration” of individual circumstances is not required for an
LWOP sentence for most criminal defendants. Id. at 497. But youthful defendants have
been an exception to this general rule for many years. See, e.g., Miller, 567 U.S. 460;
Houston-Sconiers, 188 Wn.2d 1. Today’s ruling only expands the class of defendants
who qualify for that existing exception.
18
Petitioners suggest that they also meet the time bar exceptions for sentence in
excess of jurisdiction and retroactive change in the law under RCW 10.73.100(5) and (6).
Am. PRP (Monschke) at 24-25; Pet’r’s Suppl. Br. (Bartholomew) at 18-19; see
concurrence. Because we hold the unconstitutional statute exception applies, we need not
rule on these other exceptions to the statutory time bar.
30
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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
19
The dissent characterizes Bassett as “‘enlarg[ing]’” the Miller class to include
“‘permanent[ly] incorrigibl[e]’” youths. Dissent at 11 (quoting Bassett, 192 Wn.2d at 72,
88-89). But Miller and Bassett are not equivalent rulings about different classes—they
differ in kind. Bassett categorically prohibited LWOP for defendants 18 and younger.
192 Wn.2d at 91. Miller disavowed categorical rules, instead, mandating only “a certain
process” be followed “before imposing a particular penalty.” 567 U.S. at 483. In this
regard, our decision today is like Miller and not like Bassett. We do not categorically
prohibit LWOP for 18- to 20-year-olds, but we require that courts must exercise some
discretion in sentencing them.
31
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
youth matters for purposes of meting out the law’s most serious punishments.” Id.(emphasis added). It did not flow from a tallying of legislative enactments across
the country; it did “not scrutinize[] or rel[y] in the same way on legislative
enactments.” Id. (citing Sumner v. Shuman, 483 U.S. 66, 107 S. Ct. 2716, 97 L.
Ed. 2d 56 (1987); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973(1978); Eddings, 455 U.S. 104).
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
32
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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.
20
Our decision in Houston-Sconiers took that same Miller approach of valuing
“individualized sentencing” and applying it to juveniles who were not sentenced to
LWOP. 188 Wn.2d at 20. Although the Supreme Court had “not applied the rule that
children are different and require individualized sentencing consideration of mitigating
factors” in the exact situation before the court, we applied the Miller principle—the
“requirement to treat children differently, with discretion, and with consideration of
mitigating factors”—to that non-LWOP situation. Id. We did not analyze statutes from
other states, nor did we turn to Fain’s proportionality test. Our decision flowed naturally
from Miller and applied its principles in a new context.
33
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
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.
34
In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl),
No. 96772-5 (consol. with 96773-3)
____________________________
WE CONCUR:
_____________________________ ____________________________
_____________________________ ____________________________
_____________________________ ____________________________
_____________________________ ____________________________
35
In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 (González, C.J., concurring)
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, RCW 10.73.100(2) applies to violations of substantive
criminal statutes that have been found unconstitutional, not sentencing statutes.
However, I continue to believe that O’Dell is a significant change in the law that
applies retroactively when material. In re Pers. Restraint of Light-Roth, 191
Wn.2d 328, 338-39, 422 P.3d 444 (2018) (González, J., concurring) (citing RCW
10.73.100(6)). Accordingly, I concur.
____________________________
1
In re Pers. Restraint of Monschke and Bartholomew
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. WASH.
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CONST. art. I, § 14. As the final arbiters of what “cruel” means under article I, section
14 of our state constitution, this court must use a disciplined and evenhanded
approach in evaluating its meaning. If we do not, we risk transforming our protection
against “cruelty” into whatever is supported by a smattering of studies and five
concurring members of this court.
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), ch. 9.94A RCW, sentences for this growing group under our recent decisions
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Owens, J., Dissenting
in State v. Bassett 1 and State v. Houston-Sconiers. 2 This task would tremendously
burden the State’s resources and the victims’ families. I respectfully dissent.
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 exercise of these
rights on the basis of age. Additionally, these rights are accompanied by the
responsibilities and consequences of adulthood.
1
192 Wn.2d 67, 428 P.3d 343 (2018) (holding that all LWOP sentences for juveniles are
unconstitutionally cruel under the Washington Constitution).
2
188 Wn.2d 1, 391 P.3d 409 (2017) (holding that courts have full discretion to depart
from juvenile SRA sentences based on “youthfulness”).
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Owens, J., Dissenting
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].”
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Owens, J., Dissenting
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.5
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Owens, J., Dissenting
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 restraint in interpreting our state constitution. I believe that the people of
Washington and their representatives are fully capable of enacting laws that reflect the
“‘evolving standards of decency that mark the progress of a maturing society.’”
Miller, 567 U.S. at 494 (quoting Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285,
50 L. Ed. 2d 251 (1976)). And if the legislature is not up to this task, we nonetheless
have sufficient constitutional doctrine to guide us in addressing these matters, as I
later address.
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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. RCW 10.73.090, .100. These
limitations help manage the flow of postconviction relief, protect the judiciary’s time
and resources, and foster respect for the finality of judicial decisions.
The lead opinion today relies on RCW 10.73.100(2) as an exception to the time
bar to give the petitioners another shot at crafting a new constitutional rule and
overturning precedent. Lead opinion at 5, 30. This exception reads, in part, “The
time limit specified in RCW 10.73.090 does not apply to a petition or motion that is
based solely on one or more of the following grounds: . . . [t]he statute that the
defendant was convicted of violating was unconstitutional on its face or as applied to
the defendant’s conduct.” RCW 10.73.100(2) (emphasis added).
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.” Id. (emphasis added). This exception is
inapplicable because the petitioners were not convicted of violating the mandatory
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LWOP sentencing statute, RCW 10.95.030. They were convicted of aggravated
murder—RCW 10.95.020. The legislature clearly distinguishes between sentences
and convictions in the collateral attack statute. See RCW 10.73.100(5), (6). But the
lead opinion altogether bypasses the plain language of the statute and, instead,
erroneously relies on In re Personal Restraint of Runyan to justify its position—quoting
that “convictions under unconstitutional statutes . . . ‘are as no conviction at all and
invalidate the prisoner’s sentence.’” Lead opinion at 5 (emphasis added) (quoting 121
Wn.2d 432, 445, 853 P.2d 424 (1993)). This quote only further solidifies that this
exception applies to convictions and not sentences, and that it is wholly inapplicable to
the petitioners.
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 RCW 10.73.100(5), (6); RAP 16.4(c)(4).
Retroactivity analysis is important because not every procedural technicality
merits overturning a valid sentence or conviction. Yet, the lead opinion nonetheless
shoehorns the petitioners’ claims through this exception, and in doing so, bypasses
this important barrier that safeguards the State’s resources and the families of victims
from having to endure another trial or sentencing hearing.
Monschke and Bartholomew have been incarcerated for decades. They had
their day in court to challenge their convictions and assert novel legal theories. Their
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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 RCW 10.73.100(6).
Today, the lead opinion stretches the “constitutionality” exception beyond credulity to
address the merits of Monschke’s and Bartholomew’s petitions. In doing so, it greatly
expands the scope of personal restraint petitions in Washington. The people of
Washington are entitled to their day in court. Monschke and Bartholomew had theirs.
I am concerned that the rights of others will be diluted as courts must stretch thin
resources even thinner to address this new class of collateral attacks.
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
3
Our other approach to cruelty, not applicable here, is the Fain proportionality test and it
addresses sentences that are disproportionate to the crime. Bassett, 192 Wn.2d at 82
(citing State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980)).
4
The lead opinion expressly does not apply the categorical bar test of Bassett because it
claims the petitioners did not argue for a categorical bar. Lead opinion at 29.
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Owens, J., Dissenting
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
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Owens, J., Dissenting
“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 class 5 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—those whose crimes could have been
said to have reflected “permanent incorrigibility.” Bassett, 192 Wn.2d at 72, 88-89.
Bassett was an extension of a class in the same sense that petitioners here are
“extending” the class. Thus, even if petitioners are merely extending the class as the
5
Miller further never exempted a vague class of “youthful defendants” as the lead
opinion claims. Lead Opinion at 10. Miller’s holding expressly applied to “juveniles”
under age 18: “[w]e therefore hold that mandatory life without parole for those under the
age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual punishments.’” Miller, 567 U.S. at 465; U.S. CONST. amend. VIII.
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Owens, J., Dissenting
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
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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.”
D.C. CODE 24-901(6). Florida, likewise, permits lenient treatment as “youthful
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Owens, J., Dissenting
offender[s]” only for those who did not commit a capital or life felony. FLA. STAT.
ANN. § 958.04(1)(c). And South Carolina treats as “youthful offenders” only those
who have not been convicted for a “violent crime.” S.C. CODE ANN. § 24-19-
10(d)(ii).
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 RCW
13.04.030(1)(e)(v)(C)(II)). Notably, however, our juvenile courts have no jurisdiction
over 16-and 17-year-old juveniles who are charged with murder. RCW
13.04.030(1)(e)(v)(A), (C)(I); see also RCW 13.40.300(5) (subject to only a few
exceptions, “the juvenile court has no jurisdiction over any offenses alleged to have
been committed by a person eighteen years of age or older”).
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
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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.
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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 RCW 10.73.100(2) and circumvents
the necessary retroactivity analysis. This will potentially flood courts with petitions,
deprive courts of resources, and weaken protections against overturning finalized
convictions and sentences on technicalities. Third, the lead opinion ignores our
Washington “cruel” punishment jurisprudence by ignoring Bassett. By doing this, the
lead opinion circumvents the reality that no states have extended such a protection,
and jeopardizes our balanced approach to assessing “cruelty.” The lead opinion’s
monumental rule today entails severe consequences that may lead to extending
prohibitions of mandatory LWOP and SRA sentences to this new group under
Houston-Sconiers and Bassett. This deserves a much more cautious approach, and I
respectfully dissent.
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