In re Pers. Restraint of Monschke

• Court: Washington Supreme Court
• Decided: March 11, 2021
• Docket: 96772-5
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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) For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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.

9 Several 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re PRP of Monschke (Kurtis William)/In re PRP of Bartholomew (Dwayne Earl), No. 96772-5 (consol. with 96773-3)

____________________________

WE CONCUR:

_____________________________ ____________________________

35 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In re Pers. Restraint of Monschke and Bartholomew

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.

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 Owens, J., Dissenting

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

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 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.

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”). 3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 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].”

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 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 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 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.

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 Owens, J., Dissenting

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 7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 Owens, J., Dissenting

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

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 Owens, J., Dissenting

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. 9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 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

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 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. 11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 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

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 Owens, J., Dissenting

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

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 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

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 Owens, J., Dissenting

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

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.

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 Owens, J., Dissenting

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.

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 Owens, J., Dissenting