State v. Anderson

• Court: Washington Supreme Court
• Decided: September 8, 2022
• Docket: 97890-5
• 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may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion.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 For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. FILE For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON SEPTEMBER 8, 2022 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SEPTEMBER 8, 2022 ERIN L. LENNON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 97890-5 Respondent,

v. EN BANC

TONELLI ANDERSON,

Appellant. Filed: September 8, 2022

STEPHENS, J.—Tonelli Anderson is serving a 61-year sentence for two first

degree murders he committed at age 17. Anderson asks us to hold that his sentence

is unconstitutionally cruel in violation of article I, section 14 of Washington’s

constitution. He argues that this court’s recent decision in State v. Haag 1 announced

a bright line rule that no juvenile offender can ever receive a sentence of 46 years or

longer—no matter how serious or numerous their crimes may be—and so his

sentence is unconstitutional because it is longer than 46 years. We disagree with

Anderson’s interpretation of Haag.

1 198 Wn.2d 309, 495 P.3d 241 (2021). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

Haag is properly understood as announcing that article I, section 14 of

Washington’s constitution limits the category of juvenile offenders who can receive

de facto life without parole (LWOP) sentences, the harshest punishments possible

for juvenile offenders under Washington law. In Haag, we determined that a

particular juvenile offender could not receive such a harsh punishment because his

crime reflected youthful immaturity, impetuosity, and failure to appreciate risks and

consequences. But when, as here, a juvenile offender’s crimes do not reflect those

mitigating qualities of youth, Washington’s constitution does not bar a de facto

LWOP sentence.

The King County Superior Court properly considered all of Anderson’s

evidence regarding the mitigating qualities of his youth and his rehabilitation while

in prison. In light of that evidence and the trial record, the court appropriately

determined that Anderson’s crimes do not reflect youthful immaturity, impetuosity,

or failure to appreciate risks and consequences. Article I, section 14 of Washington’s

constitution therefore does not prohibit Anderson’s 61-year sentence. We affirm. 2

FACTS

In September 1994, 17-year-old Anderson and his friend, Porshay Austin,

went to James Bateman’s home to buy cocaine. Austin had purchased drugs from

2 Anderson does not raise, and we do not address, any claims under the Eighth Amendment to the United States Constitution. 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

Bateman twice before. But this time, Anderson and Austin planned to steal

Bateman’s drugs and to kill him and any witnesses. Austin apparently took the lead.

When Anderson and Austin arrived, they sat in the living room and chatted

with Bateman. Bateman’s partner, Lynell Ricardos, soon brought out a quarter

kilogram of cocaine from a bedroom. She handed the package to Bateman and

returned to the bedroom. When Ricardos left the living room, Austin pulled out a

handgun and shot Bateman multiple times.

As Austin killed Bateman, Anderson pulled out his own gun and ran down the

hallway to the bedroom. There he found Ricardos, Kristin McMullen, and

Ricardos’s two-year-old son. Anderson shot each of the women twice, killing

McMullen and gravely wounding Ricardos. When Ricardos’s son grabbed

Anderson’s leg, Anderson kicked the toddler away. Anderson and Austin fled the

scene and locked the door behind them.

Anderson was not immediately apprehended, and he continued to commit

serious crimes. In 1995, Anderson was adjudicated guilty of various juvenile

offenses and sentenced to a year in juvenile custody. While in juvenile custody,

Anderson wrote about his 1994 crimes in letters to girlfriends. See Clerk’s Papers

(CP) at 267-68 (“Remember I told you about that shit me and that [M]exican did

down in Kent? Well, it happened again, but this time it happened with Porshay, and

we did it for a qua[r]ter kilo of powder! But I messed up and left a witness but they

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

only knew Porshay[’]s name! I think I might [have] left fingerprints, but they

haven’t c[o]me and charged me.”), 269 (“I tell you things that if Porshay found out

I told you he’d want me to kill you! I already have to worry about that bitch Marcy

telling someone what Kim told her. [I]f she does I’ll go to the penitent[i]ary for the

rest of my life or I can get the death penalty because it was premeditated!”).

Anderson even sent his girlfriends photographs of his victims that he had found in a

magazine. CP at 261-62 (“The people in the picture are the people I told you we did

that to[]!”).

Anderson generally did well in juvenile custody, where he received extensive

treatment and opportunities for rehabilitation. But after his release, Anderson

quickly accumulated five adult felony convictions: first degree assault, first degree

robbery, unlawful imprisonment, unlawful possession of a firearm, and delivery of

cocaine. While Anderson was serving his sentence for those felonies, the State

received an anonymous tip that led investigators to Anderson’s inculpatory letters.

The State charged Anderson for the 1994 murders in 1998. In light of

Anderson’s youth and the progress he had made while in juvenile custody, the State

decided not to charge Anderson with various aggravators that could have justified

an exceptional sentence above the standard range. Those grounds for an exceptional

sentence included that there was “a child present when the shooting took place,” that

the shooting “was designed to hinder law enforcement in the investigation of the

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

killing of James Bateman,” that there was “more than one victim in this case,” and

that Anderson had “uncounted misdemeanor history” and “uncounted juvenile court

history that includes violent offenses such as Robbery in the Second Degree.” CP

at 137. The State also declined to charge Anderson for attempted murder or assault

for his shooting of Ricardos, who was left blind in one eye and with a bullet

permanently lodged in her head, or for his assault of her son, who still “suffers from

mental illness because of what happened . . . at the age that he was.” CP at 1; 1 Tr.

of Mot. Hr’g (Tr.) at 12.

PROCEDURAL HISTORY

Following a bench trial in 2000, the King County Superior Court convicted

Anderson on two counts of first degree murder. At sentencing, Anderson said, “I

understand that the victims’ families, you know, feel pain, whatever. They

expressed it, you know, right here, you know, and—(shrugged shoulders)—I can’t

say that I’m sorry for anything because I’m still claiming my innocence.” CP at 153.

Noting that it “would have seriously considered an exceptional sentence up if it had

been requested,” the trial court imposed the longest sentence available within the

standard range: 736 months (just over 61 years). CP at 155. The trial court did not,

however, address the potentially mitigating qualities of Anderson’s youth. Anderson

timely appealed his convictions and sentence, and the Court of Appeals affirmed in

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

an unpublished per curiam opinion. State v. Anderson, noted at 111 Wn. App. 1022

(2002).

In 2018, Anderson moved to be resentenced “pursuant to RCW

10.95.030(3)(a)(ii) and Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.

Ed. 2d 407 (2012).” CP at 30. He requested an exceptional sentence below the

standard range: 320 months, less than half the length of his original sentence. The

State agreed to a resentencing hearing but urged the resentencing court “to re-impose

the same sentence of 736 months” because “[n]othing on the record . . . supports a

conclusion that the defendant’s youth diminished his culpability for these offenses.”

CP at 111. The King County Superior Court granted Anderson’s request for a

resentencing hearing.

At the hearing, Anderson argued that “[t]he facts of the case established that

he acted with impulsivity and immaturity” and that “[h]e has tried to make himself

a better person while in custody.” CP at 41. In support of his argument, Anderson

submitted three articles that described scientific studies regarding juvenile brain

development, though he did not submit the studies themselves. Anderson presented

three supportive letters: one stating that “Anderson was a reliable and dependable

worker once he settled down and became acclimated to the working environment”

in prison, CP at 61, another attesting that “Anderson has been instrumental and

consistent with preparing for not only his release but also assisting in the preparation

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

of reentry for fellow prisoners by providing tutoring” since 2016, CP at 62, and

another congratulating Anderson for being named to the “President’s List” at Walla

Walla Community College in 2015, CP at 63. Anderson also provided two dozen

certificates of participation, proficiency, completion, recognition, and achievement

for various programs he joined while serving his sentence.

Anderson’s family testified in support of his request for an exceptional

sentence below the standard range. His brother testified that Anderson had grown

and changed while in prison. One aunt shared that Anderson’s home life was

unstable when he was growing up, especially after his mother became addicted to

crack cocaine. Another aunt testified that Anderson “as a teenager was stupid. He

did some really stupid things. He made a lot of bad decisions. . . . He was a dumb

kid. He was young. And he was a follower. He was never a leader.” 2 Tr. at 23-

24.

Anderson also testified. He apologized for the “pain and suffering” he had

caused. 2 Tr. at 24-25. He explained that he “stayed in the streets” as a teenager “to

get away from” “the drug traffic . . . [and] the prostitution in and out of [his] house.”

Id. Anderson “hung around the older crowd” and “did a lot of looking up to and

trying to mimic some of the behaviors and things that the older guys . . . did.” 2 Tr.

at 25. He testified that “on the night of September 24, 1994,” he “was asked to be a

backup on a drug deal” and went “along with it” because he was “trying to make a

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

reputation in the streets.” Id. Anderson claimed that “street sense kicked in and it

was like an automatic response” to go down the hallway to the bedroom and shoot

Ricardos and McMullen. 2 Tr. at 26.

Anderson explained that when he arrived at prison, he “was embraced by other

gang members” and “started to follow the [gang] hierarchy again.” Id. But

eventually, Anderson “was saved . . . by these older gentlemen that were doing life

[sentences] . . . [who] wanted to help . . . younger people become good men.” 2 Tr.

at 27. “[U]nder their tutelage,” Anderson “began to invest [his] time and energy in

different programs,” including earning “two vocational degrees” and “help[ing] start

a non-violence program” in prison. Id. Anderson concluded by saying he wanted

to express his remorse in order to give his victims and their families closure.

The State urged the resentencing court to reimpose the same sentence of 736

months that was handed down by Anderson’s original sentencing court. It relied on

the trial court’s findings of fact and conclusions of law to argue the facts of the case

did not show impulsivity or immaturity: “The findings of the trial court lay bare that

this was a planned robbery and execution.” CP at 112. These findings, in turn, relied

heavily on the inculpatory letters in which Anderson bragged about his murders to

various girlfriends. The State also pointed to Anderson’s testimony at trial to

establish that his crimes in September 1994 were not an aberration but part of a

common pattern of criminal behavior that extended before and after this particular

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

incident. It also presented testimony from Ricardos and the families of Anderson’s

other victims. In sum, the State argued that the trial record undermined or

contradicted Anderson’s evidence of rehabilitation and the mitigating qualities of his

youth.

The resentencing court conducted a thorough hearing based on a clear

understanding of Miller and the role the mitigating qualities of youth must play in

sentencing a juvenile offender as an adult. The court began its oral ruling by

explaining the purpose of a Miller-fix resentencing hearing in light of our decision

in State v. Ramos:3

The Ramos court said at a Miller hearing the Court must meaningfully consider how juveniles are different from adults, how those differences apply to the facts of the case, and whether those facts present the uncommon situation where a life without parole sentence for a juvenile homicide offender is constitutionally permissible.

2 Tr. at 55. The resentencing judge then described her familiarity with juvenile brain

development from her years sitting as a juvenile court judge. The court explained:

The science of adolescent brain development is significant, it is evolving, and it is important to our understanding. There is no doubt that adolescent brains go through enormous changes that affect impulse control among other things. But courts must consider in this context whether science supports a defendant’s position based, as Ramos, says, on the facts of the particular case.

2 Tr. at 56. The court acknowledged that most adolescents are not as culpable as

adults but determined:

3 187 Wn.2d 420, 387 P.3d 650 (2017). 9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

This case is not like most. Here we have continuing assaultive criminal behavior after Mr. Anderson committed the crimes in this case, after he reached adulthood, after he had been in a structured environment with treatment at the JRA [(Juvenile Rehabilitation Administration)] and before he was ever charged with these offenses.

Id. The resentencing court proceeded to address each of the Miller factors in turn.

First, as to impetuosity, the resentencing court acknowledged Anderson’s

claim that “he acted out of impulse,” but it concluded “[a]ll of the evidence that I

have seen contradicts that” claim. 2 Tr. at 57. The resentencing court walked

through many of the trial court’s findings, including that the “robbery and murders

were planned in advance.” 2 Tr. at 58. The trial court “found beyond a reasonable

doubt that [Anderson] killed Ms. McMullen after having an opportunity to deliberate

and make a decision to shoot and kill the women after Mr. Bateman was killed.” Id.

Unlike the defendants in Miller and Ramos, who “committed horrific crimes after

having been confronted by a victim,” “[n]o one confronted Mr. Austin or Mr.

Anderson. They planned and initiated this attack. There was nothing impetuous

about it.” 2 Tr. at 59.

Second, the resentencing court determined Anderson had not shown that

immaturity was a factor in his commission of these murders. The court noted that

Anderson was 17 ½ years old and living in his own apartment “with control over his

environment” when he committed these crimes. Id. “He set up the crime producing

setting in this case rather than being victimized by it.” Id. The resentencing court

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

noted and “appreciate[d] the comments of the strong women here to support Mr.

Anderson,” expressing that Anderson “had some resources in the community[,] . . .

which he didn’t take advantage of.” Id. “He may have been immature, but [the

resentencing court did not] have solid evidence of his level of maturity or lack of

maturity other than what is in the record before” it. 2 Tr. at 63.

Next, the resentencing court considered whether Anderson appreciated the

risks and consequences of his behavior. The court reasoned that Anderson clearly

“understood the consequences of his actions because he discussed them in letters.”

2 Tr. at 60. Reading excerpts from those letters aloud, the resentencing court

emphasized that Anderson admitted the murders were premeditated and had even

sent a picture of his victims to girlfriends. “That shows knowledge of consequences

and complete lack of remorse.” 2 Tr. at 61.

The resentencing court also emphasized that Anderson had never taken

responsibility for this crime or several other felonies of which he had been convicted

until this resentencing hearing. Yet at his trial, Anderson had “testified to having

told Ms. Caldwell that Porshay shot the man in the living room, and he shot the two

women in the bedroom, that he didn’t finish the job, and one of those women lived,

and there was a child in the house.” Id. These details, which could have been known

only by someone who was present at the time of the murders, strongly implicated

Anderson. Yet Anderson consistently “denied committing these crimes to the

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

police, in testimony at his trial, at sentencing, and until” the day of his resentencing

hearing. 2 Tr. at 62. The resentencing court found that this history of continual

denials seriously undermined Anderson’s claim that “for the first time in 23 years,

he has remorse.” Id.

Finally, the resentencing court “reviewed the certificates, and many

accomplishments that Mr. Anderson has accomplished in prison,” including “the

classes[ and] the substance abuse treatment.” Id. The court praised Anderson for

his efforts and urged him to “continue[] to be a leader on the things he is currently

involved in.” 2 Tr. at 63.

Ultimately, the resentencing court determined that—“[o]ther than the

comments today from Mr. Anderson and his family”—Anderson presented “no

evidence . . . that supports the assertion that Mr. Anderson acted impetuously, was

immature, or didn’t understand the consequences of his actions at the time” of these

murders. Id. To the contrary, the resentencing court determined the “facts of this

case demonstrate [Anderson’s] actions were calculated and premeditated, and that

he fully understood the consequences of his actions.” CP at 303. This is particularly

true in light of the uncharged aggravating circumstances. The resentencing court

emphasized “the fact that . . . the murder of Ms. McMullen and the shooting of Ms.

Ricardos were designed to hinder law enforcement in the investigation” as one such

circumstance showing that Anderson’s crimes were thought out, deliberate, and

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

designed to avoid the consequences of his actions. 2 Tr. at 65. The resentencing

court concluded:

Pursuant to State v. Ramos, the burden of proof is on Mr. Anderson to prove by a preponderance of the evidence transient immaturity at the time of the offense in order to justify an exceptional sentence below the standard sentencing range. I do not find that any such evidence has been presented, nor do I find evidence sufficient to change [Anderson’s original] sentence.

Id.; CP at 304.

Anderson timely appealed. The Court of Appeals stayed the case pending this

court’s decision in State v. Bassett.4 After that stay was lifted in early 2019, the

parties filed their Court of Appeals briefs. A few months later, the State moved to

transfer the appeal to this court. Our commissioner denied the motion without

prejudice but stayed the case again pending our decisions in State v. Delbosque5 and

State v. Gregg. 6 When that stay was lifted, our commissioner granted the State’s

renewed motion to transfer. Soon after, the State moved to stay this case for a third

time pending our decision in Haag. The State also asked this court to order

supplemental briefing by the parties to update the existing briefing, which was

completed in 2019. Our commissioner granted the motion to stay but ruled the

4 192 Wn.2d 67, 428 P.3d 343 (2018). 5 195 Wn.2d 106, 456 P.3d 806 (2020). 6 196 Wn.2d 473, 474 P.3d 539 (2020). 13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

motion for supplemental briefing was premature. Once Haag was decided and the

final stay lifted, our clerk directed the parties to file supplemental briefs. 7

ANALYSIS

Article I, section 14 of Washington’s constitution prohibits cruel punishments.

WASH. CONST. art. I, § 14. This court has long held that a punishment is cruel when

it is “entirely disproportionate to the seriousness of [the] crimes” for which that

punishment is imposed. State v. Fain, 94 Wn.2d 387, 402, 617 P.2d 720 (1980)

(adopting four-factor disproportionality analysis); see also State v. Moretti, 193

Wn.2d 809, 830, 446 P.3d 609 (2019) (“A sentence may also be cruel under article

I, section 14 if it is grossly disproportionate to the offense.”).

We expanded on this principle in Bassett, where we recognized that LWOP

sentences are almost always disproportionate punishments for juvenile offenders.

192 Wn.2d at 89. To eliminate “the unacceptable risk that children undeserving of

a life without parole sentence will receive one,” we announced a categorical bar

7 Anderson’s supplemental brief belatedly added a new argument challenging the constitutionality of a statute not at issue in this case. The State moved to strike that new argument, and this court granted the State’s motion. Separately, we accepted a joint amici brief from Community Passageways, CHOOSE 180, Rooted ReEntry, Creative Justice, Juvenile Law Center, the Fred T. Korematsu Center for Law and Equality, the American Civil Liberties Union of Washington, Columbia Legal Services, the Washington State Office of Public Defense, King County Department of Public Defense, and TeamChild.

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

under article I, section 14 prohibiting the imposition of LWOP sentences on all

juvenile offenders. Id. at 90.

In Haag, we expanded our jurisprudence further by recognizing that de facto

LWOP sentences are disproportionate punishments for juvenile offenders whose

crimes reflect the mitigating characteristics of youth. 198 Wn.2d at 329-30. Relying

on a 2016 United States Supreme Court decision, this court determined that Haag’s

46-year minimum term sentence “amounts to a de facto life sentence” and that

“therefore his sentence is unconstitutional under the Eighth Amendment [to the

United States Constitution] because the resentencing court expressly found Haag

was ‘not irretrievably depraved nor irreparably corrupt.’” Id. (quoting the record,

and citing Montgomery v. Louisiana, 577 U.S. 190, 208, 136 S. Ct. 718, 193 L. Ed.

2d 599 (2016)). For the same reasons, we determined that “Haag’s de facto life

sentence is also unconstitutional under article I, section 14.” Id. at 330 (citing

Bassett, 192 Wn.2d at 91).

Anderson argues that Haag announced a new categorical bar under article I,

section 14, prohibiting any sentence 46 years or longer for any juvenile offender.

He reasons that because Bassett announced a categorical bar prohibiting LWOP

sentences for all juvenile offenders and Haag cited Bassett when announcing its state

constitutional holding, Haag must have announced another categorical bar that

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

applies to all juvenile offenders. But Anderson’s interpretation stands in tension

with the reasoning of both Bassett and Haag.

We take this opportunity to clarify that Haag’s state constitutional holding

recognized a categorical bar prohibiting de facto LWOP sentences for juvenile

offenders who have shown that their crimes reflect youthful immaturity,

impetuosity, or failure to appreciate risks and consequences. Id. at 329-30.

Applying this standard to Anderson’s case, we hold that the resentencing court

appropriately considered Anderson’s youthful characteristics and that substantial

evidence supports the court’s conclusion that Anderson’s crimes did not reflect those

characteristics. Accordingly, we affirm Anderson’s 61-year sentence under article

I, section 14 of Washington’s constitution.

I. Under Haag, De Facto LWOP Sentences Are Unconstitutionally Cruel Punishments for Juvenile Offenders Whose Crimes Reflect Youthful Immaturity, Impetuosity, or Failure To Appreciate Risks and Consequences

We addressed three questions in Haag: (1) whether the resentencing court

properly considered Haag’s youthfulness, (2) whether Haag’s 46-year sentence

violated the Eighth Amendment, and (3) whether that sentence violated article I,

section 14 of Washington’s constitution. 198 Wn.2d at 312-13. We began our

analysis with a thorough review of Timothy Haag’s resentencing hearing, at which

the court “improperly placed more emphasis on retribution than on mitigation” in

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

contravention of RCW 10.95.030(3)(b). Id. at 323. The resentencing court

determined that “‘Haag is not irretrievably depraved nor irreparably corrupt.’” Id.

at 313 (quoting record). Yet, despite finding that Haag was not irretrievably

depraved or irreparably corrupt, the resentencing court imposed a long term-of-years

sentence that created a risk that Haag would die in prison or have no meaningful

opportunity to reenter society. Id. at 327. In other words, the resentencing court

imposed a de facto LWOP sentence even though Haag’s crime reflected youthful

immaturity, impetuosity, and failure to appreciate risks and consequences. Id. We

determined that doing so violated both the federal and state constitutions.8

The articulation of our state constitutional holding in Haag was brief, and

Anderson reads that holding much more broadly than is justified. Applying article

8 Our opinion in Haag, like earlier cases, uses the common descriptors from landmark United States Supreme Court cases on juvenile justice, but we take this opportunity to note that some echo archaic notions and fail to capture the constitutional inquiry. Phrases such as “irreparable corruption” and “irretrievably depraved character” wrongly suggest a juvenile offender’s innate character determines the constitutionality of their punishment. Roper v. Simmons, 543 U.S. 551, 573, 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). A more accurate—and less pejorative—description of the constitutional inquiry is one used in Miller, which considers the “hallmark features[ of youth, including] immaturity, impetuosity, and failure to appreciate risks and consequences.” 567 U.S. at 477. In this opinion, we strive to frame the inquiry under Washington’s constitution in these terms. The central question under article I, section 14 is whether and to what extent a juvenile offender’s youthful characteristics were a factor in the commission of their crime(s). This is not a binary question; some juvenile offenders will be more influenced by their youthful characteristics than others. Accordingly, sentencing courts must meaningfully consider how, if at all, a juvenile offender’s mitigating characteristics of youth affected the commission of their crime(s) to determine whether the juvenile offender is less culpable than an adult who engages in the same behavior. 17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

I, section 14 of Washington’s constitution, Haag held that de facto LWOP sentences

are categorically barred for juvenile offenders whose crimes reflect youthful

immaturity, impetuosity, or failure to appreciate risks and consequences. Id. at 329-

30. Such sentences constitute cruel punishment under article I, section 14 because

they are entirely disproportionate to the culpability of those juvenile offenders. This

holding flows directly from the singular case on which it is based: Bassett.

This court’s decision in Bassett announced that article I, section 14 of

Washington’s constitution categorically bars LWOP sentences for juvenile

offenders. 192 Wn.2d at 90. We reasoned that because juvenile offenders are

usually less culpable than adult offenders and LWOP sentences are uniquely harsher

for juveniles than adults, the penological goals of retribution, deterrence,

incapacitation, and rehabilitation are generally not served by imposing LWOP

sentences on juvenile offenders. Id. at 87-89. The mismatch between the lesser

culpability of most juvenile offenders and the unique severity of LWOP sentences

led us to conclude that the very possibility that a sentencing court could impose an

LWOP sentence on a juvenile offender “produces the unacceptable risk that children

undeserving of a life without parole sentence will receive one.” Id. at 90. That risk

is constitutionally unacceptable because an LWOP sentence effectively “sentenc[es]

a juvenile to die in prison.” Id. at 87; see also State v. Sweet, 879 N.W.2d 811, 837

(Iowa 2016) (“[I]n imposing a sanction akin to the death penalty in some respects,

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

the trial court simply will not have adequate information [about a juvenile offender’s

prospects for rehabilitation] and the risk of error is unacceptably high.”).

Central to Bassett’s reasoning is the fact that an LWOP sentence was, at the

time, the harshest possible punishment for a juvenile offender, given the United

States Supreme Court’s invalidation of the death penalty for juvenile offenders. 192

Wn.2d at 88. LWOP sentences are uniquely harsh punishments for juvenile

offenders because a juvenile offender sentenced to LWOP “will ‘on average serve

more years and a greater percentage of [their] li[fe] in prison than an adult offender’”

serving an LWOP sentence. Id. at 88 (first alteration in original) (quoting Graham

v. Florida, 560 U.S. 48, 70, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)). In other

words, an LWOP sentence—unlike any other sentence—is inherently harsher for

juvenile offenders than for adult offenders, while the ability to identify those rare

juvenile offenders who merit such punishment is imperfect at best. The court in

Bassett therefore determined that “allow[ing] children to be sentenced to the

extremely severe punishment of life without parole” creates an “unacceptable risk”

of cruel punishment under article I, section 14 of Washington’s constitution. Id. at

87, 90. To eliminate this unacceptable risk, we held that LWOP sentences are

categorically barred for all juvenile offenders.

This reasoning does not readily translate to term-of-years sentences, like the

46-year sentence at issue in Haag. Term-of-years sentences are not inherently

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

harsher for juvenile offenders than for adult offenders—indeed, a juvenile offender

serving a term-of-years sentence will be released at a younger age so long as the

sentence does not actually exceed their lifetime. And the recognition that any term-

of-years sentence may be a de facto life sentence for some offenders, depending on

their age, is not related to any unique characteristics of juveniles. Importantly,

Bassett did not reason that every juvenile offender deserves an opportunity for a

meaningful life after prison; the court recognized that an LWOP sentence could be

permissible for juveniles whose crimes reflect irreparable corruption. Id. at 87-88;

cf. Haag, 198 Wn.2d at 329. However, allowing an LWOP sentence to be an option

in the first instance creates too great a risk that juveniles whose crimes reflect

youthful immaturity, impetuosity, or failure to appreciate risks and consequences

will die in prison. Bassett, 192 Wn.2d at 90.

Haag rests exclusively on Bassett for its state constitutional analysis and must

be understood in light of its reasoning. Haag, 198 Wn.2d at 330. Bassett’s

categorical bar reasoning does not speak to term-of-years sentences like Haag’s.

And Haag’s brief state constitutional holding does not explain how Bassett’s

reasoning could be modified or extended to this different context. Id. Therefore,

Haag cannot be read to draw a bright line prohibiting term-of-years sentences of 46

years or more for all juvenile offenders.

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

Haag must instead be read in line with Bassett’s recognition that judicial

discretion generally provides the necessary protection against cruel punishments

when imposing adult sentences on juvenile offenders—but in the unique context of

LWOP sentences, the risk of erroneous judgment is too high. Bassett, 192 Wn.2d at

89. This approach follows our steady line of juvenile sentencing decisions holding

that the proper exercise of judicial discretion is essential to ensuring that adult

sentences imposed on juvenile offenders account for the mitigating qualities of

youth. See, e.g., Moretti, 193 Wn.2d at 838 (Yu, J., concurring) (“The criminal

justice system is not one size fits all. Courts have been entrusted with discretion in

sentencing because our society understands that each case is different.”). And this

approach is more consistent with Haag’s own reasoning under the Eighth

Amendment. 198 Wn.2d at 329 (holding Haag’s “sentence is unconstitutional under

the Eighth Amendment because the resentencing court expressly found Haag was

‘not irretrievably depraved nor irreparably corrupt’” (quoting the record)). There is

no reasoning in either Haag or Bassett that suggests a 46-year sentence would be

impermissible for the rare juvenile offender who is just as culpable as an adult

offender.

Haag therefore held that article I, section 14 categorically bars de facto LWOP

sentences only for those juvenile offenders whose crimes reflect youthful

immaturity, impetuosity, or failure to appreciate risks or consequences.

21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

II. Under the Categorical Bar Announced in Haag, Anderson’s 61-Year Sentence Is Constitutionally Permissible

Applying Haag as explained above, we hold that the resentencing court

properly exercised sentencing discretion and acted within constitutional limits when

imposing Anderson’s 61-year sentence.

“‘[C]hildren are different’” from adults, so “our criminal justice system

[must] address this difference when punishing children” by imposing adult

sentences. In re Pers. Restraint of Ali, 196 Wn.2d 220, 225, 474 P.3d 507 (2020)

(first alteration in original) (quoting State v. Houston-Sconiers, 188 Wn.2d 1, 8, 391

P.3d 409 (2017)), cert. denied, 141 S.Ct. 1754 (2021). Although most juvenile

offenders are less culpable than adult offenders, youth is not a per se mitigating

factor that always justifies an exceptional sentence below the standard range when a

juvenile offender is convicted of a crime. State v. O’Dell, 183 Wn.2d 680, 695, 358

P.3d 359 (2015). Instead, a juvenile offender must show that their immaturity,

impetuosity, or failure to appreciate risks and consequences—characteristics of

youth that suggest a juvenile offender may be less culpable than an adult offender—

contributed to the commission of their crime. Gregg, 196 Wn.2d at 480; RCW

9.94A.535(1). Juvenile offenders can satisfy this burden by presenting “‘relevant

22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

mitigation evidence bearing on the circumstances of the offense and the culpability

of the offender, including both expert and lay testimony as appropriate.’” Haag, 198

Wn.2d at 321 (internal quotation marks omitted) (quoting Delbosque, 195 Wn.2d at

121). At a Miller-fix resentencing hearing, that evidence can also include “the

measure of rehabilitation that has occurred since a youth was originally sentenced.”

Delbosque, 195 Wn.2d at 121.

When reviewing evidence regarding the mitigating characteristics of

youthfulness, sentencing courts must “meaningfully consider how juveniles are

different from adults, how those differences apply to the facts of the case, and

whether those facts present the uncommon situation where” the juvenile offender is

just as culpable as an adult offender. Ramos, 187 Wn.2d at 434-35. “‘The

sentencing court must thoroughly explain its reasoning, specifically considering the

differences between juveniles and adults identified by the Miller Court and how

those differences apply to the case presented.’” Haag, 198 Wn.2d at 321 (quoting

Ramos, 187 Wn.2d at 444). Those differences have to do with the “hallmark features

[of youth, including] immaturity, impetuosity, and failure to appreciate risks and

consequences.” Miller, 567 U.S. at 477. While sentencing courts must focus on

these mitigating qualities of youth, they must also consider the facts of the particular

case, including those that counsel in favor of punishment. Haag, 198 Wn.2d at 323

(citing Ramos, 187 Wn.2d at 453; Delbosque, 195 Wn.2d at 118).

23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

Article I, section 14 of Washington’s constitution categorically bars the

imposition of de facto LWOP sentences on juvenile offenders whose crimes reflect

youthful immaturity, impetuosity, or failure to appreciate risks and consequences.

Id. at 330 (citing Bassett, 192 Wn.2d at 91). So if the sentencing court determines a

juvenile offender’s crimes reflect those mitigating youthful characteristics, the court

cannot impose a sentence that creates an unacceptable risk that the juvenile offender

will die in prison or have no meaningful opportunity to reenter society. Id.

“‘We will reverse a sentencing court’s decision only if we find a clear abuse

of discretion or misapplication of the law.’” Id. at 317 (internal quotation marks

omitted) (quoting Delbosque, 195 Wn.2d at 116). “‘A trial court abuses its

discretion when its decision is manifestly unreasonable or based on untenable

grounds.’” Id. (internal quotation marks omitted) (quoting Delbosque, 195 Wn.2d

at 116). “A decision is based on untenable grounds when its factual findings are

unsupported by the record.” Id. (citing Delbosque, 195 Wn.2d at 116). “‘We review

findings of fact for substantial evidence,’ which ‘exists when there is a sufficient

quantity of evidence in the record to persuade a fair-minded, rational person of the

truth of the finding.’” Id. (internal quotation marks omitted) (quoting Delbosque,

195 Wn.2d at 116).

24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

Anderson argues we should reverse his resentencing court’s decision because

that court failed to consider his youthfulness as a mitigating factor and misapplied

the law. We disagree.

A. The Resentencing Court Meaningfully Considered the Mitigating Qualities of Anderson’s Youth in Exercising Its Sentencing Discretion

The resentencing court conducted a thorough hearing and properly considered

Anderson’s mitigating evidence of youthfulness and rehabilitation in making its

decision. The resentencing judge explained her experience in juvenile justice and

appreciation that “[t]he science of adolescent brain development is significant, it is

evolving, and it is important to our understanding” of the culpability of juvenile

offenders. 2 Tr. at 56. The court acknowledged that most adolescents are not as

culpable as adults. Id. Still, the court determined:

This case is not like most. Here we have continuing assaultive criminal behavior after Mr. Anderson committed the crimes in this case, after he reached adulthood, after he had been in a structured environment with treatment at JRA, and before he was ever charged with these offenses.

Id.

The resentencing court addressed each of the “hallmark features” of youth that

are relevant to whether a juvenile offender is as culpable as an adult offender:

“immaturity, impetuosity, and failure to appreciate risks and consequences.” Miller,

567 U.S. at 477. The court observed that Anderson had not produced “solid evidence

of his level of maturity or lack of maturity,” but that the trial record showed 25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

Anderson “set up the crime producing setting in this case rather than being

victimized by it,” suggesting immaturity had not played a role. 2 Tr. at 63, 59. The

court acknowledged Anderson’s claim that “he acted out of impulse,” but concluded

“[a]ll of the evidence that I have seen contradicts that” claim. 2 Tr. at 57. And the

court reasoned that Anderson clearly “understood the consequences of his actions

because he discussed [those consequences] in letters” sent before Anderson was ever

charged with these murders. 2 Tr. at 60. “That shows knowledge of consequences

and complete lack of remorse.” 2 Tr. at 61. In sum, based on an individualized

inquiry the resentencing court determined the “facts of this case demonstrate that

[Anderson’s] actions were calculated and premeditated, and that he fully understood

the consequences of his actions.” CP at 303.

Additionally, the resentencing court recognized that the State’s charging

decisions took Anderson’s youth and his efforts while in juvenile custody into

account, both in not charging some crimes and in not seeking an exceptional

sentence. 2 Tr. at 64-65. These reasons—including “that a child was present, that

the murder of Ms. McMullen and the shooting of Ms. Ricardos were designed to

hinder law enforcement in the investigation, that there was more than one victim,

and that there was uncounted misdemeanor criminal history”—demonstrated that

Anderson’s culpability vis a vis the standard range sentence was not meaningfully

26 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

diminished by the mitigating qualities of his youth. 2 Tr. at 65. The resentencing

Pursuant to State v. Ramos, the burden of proof is on Mr. Anderson to prove by a preponderance of the evidence transient immaturity at the time of the offense in order to justify an exceptional sentence below the standard sentencing range. I do not find that any such evidence has been presented, nor do I find evidence sufficient to change [Anderson’s original] sentence.

Id.; CP at 304. In reaching this conclusion, the resentencing court meaningfully and

properly considered the mitigating qualities of Anderson’s youth.

B. The Resentencing Court Articulated and Applied the Correct Legal Standard When Imposing Anderson’s 61-Year Sentence

Notwithstanding the resentencing court’s careful reasoning, Anderson argues

that the court misapplied the law by concluding he was “the ‘uncommon’ child”

whose crimes do not reflect youthful immaturity, impetuosity, or failure to

appreciate risks and consequences. Am. First Suppl. Br. at 11. Anderson claims this

court “has consistently stated” that the correct standard is “the ‘rare’ child who is

irreparably depraved and not simply ‘uncommon.’” Id. (citing Haag, 198 Wn.2d at

318; Delbosque, 195 Wn.2d at 118; Bassett, 192 Wn.2d at 89). This argument

misses the mark.

This court has used “uncommon” and “rare” interchangeably to describe the

small class of juvenile offenders who can be sentenced to harsh adult sentences under

the Eighth Amendment. See Ramos, 187 Wn.2d at 435 (discussing “the uncommon 27 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

situation where a life-without-parole sentence for a juvenile homicide offender is

constitutionally permissible”), 450 (describing “‘those rare children whose crimes

reflect irreparable corruption’” (quoting Montgomery, 577 U.S. at 209)). So has the

United States Supreme Court. See Miller, 567 U.S. at 479-80 (“[G]iven all we have

said . . . about children’s diminished culpability and heightened capacity for change,

we think appropriate occasions for sentencing juveniles to this harshest possible

penalty will be uncommon. That is especially so because of the great difficulty . . .

of distinguishing at this early age between ‘the juvenile offender whose crime

reflects unfortunate yet transient immaturity, and the rare juvenile offender whose

crime reflects irreparable corruption.’” (quoting Roper v. Simmons, 543 U.S. 551,

573, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005))).9

Here, the resentencing court appears to have been quoting directly from our

decision in Ramos when it stated that “the Court must meaningfully consider how

juveniles are different from adults, how those differences apply to the facts of the

case, and whether those facts present the uncommon situation” where the juvenile

offender’s crimes do not reflect youthful immaturity, impetuosity, or failure to

9 Consistent with our recognition that the phrases “irreparable corruption” and “irretrievably depraved” fail to capture the constitutional inquiry, Washington courts should consider the extent to which a juvenile offender’s crime reflects youthful immaturity, impetuosity, or failure to appreciate risks and consequences. If that juvenile offender is the rare child whose crimes do not reflect such youthful characteristics, Washington’s constitution does not prohibit the sentencing court from imposing any lawful adult sentence. Haag, 198 Wn.2d at 330. 28 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

appreciate risks and consequences. 2 Tr. at 55. That was the only time the

resentencing court used the word “uncommon” during the resentencing hearing or

in its written order. This single reference to the Eighth Amendment standard

articulated by this court and the United States Supreme Court was not a

misapplication of the law by the resentencing court.

Anderson also argues the resentencing court “erred by not focusing on

[Anderson’s] immaturity or the transient qualities of youth when it denied” his

request for an exceptional sentence below the standard range. Am. First Suppl. Br.

at 15. He further suggests the resentencing court failed to “‘thoroughly explain its

reasoning, specifically considering the differences between juveniles and adults

identified by the Miller Court and how those differences apply to the case

presented.’” Id. at 13-14 (quoting Haag, 198 Wn.2d at 321). Anderson is incorrect.

As detailed above, the resentencing court fully considered Anderson’s

proffered mitigation and rehabilitation evidence, and it sustainably found that

“none” of his evidence, “[o]ther than the comments today from Mr. Anderson and

his family[,] . . . supports the assertion that Mr. Anderson acted impetuously, was

immature, or didn’t understand the consequences of his actions at the time.” 2 Tr.

at 63. The resentencing court “address[ed] each of those [Miller] factors

individually” and considered how those differences applied to this case. 2 Tr. at 56,

56-59 (impetuosity), 59 (maturity), 59-60 (failure to appreciate the risks and

29 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

consequences of behavior). The resentencing court determined Anderson did not

show that those differences were relevant to his case.

The resentencing court did not improperly place more emphasis on retribution

than on mitigation. Unlike in Haag, the resentencing court here did not mention

retribution a single time during the resentencing hearing. Haag, 198 Wn.2d at 323.

The resentencing court considered only Anderson’s youthfulness, not the

youthfulness of his victims. Id. The court noted that Anderson’s “rehabilitation

evidence [is not] voluminous and . . . uncontroverted” like Haag’s was. Id. at 324.

Anderson’s mitigation and rehabilitation evidence was comparatively limited.

Haag’s evidence included testimony from multiple experts opining that he “would

have been at a low risk of reoffending at the time of the offense” and “‘is currently

considered a low risk for reoffending’”—Anderson’s evidence did not. Id. at 314

(citing and quoting the record) Most importantly, Anderson’s mitigation evidence

was drastically undermined by other evidence, including the letters to girlfriends in

which Anderson bragged about committing the 1994 murders, admitted that they

were premeditated, and expressed regret that he had not successfully killed Ricardos

and her son before fleeing the scene. CP at 258-74. Moreover, the resentencing

court properly rejected Anderson’s request for an exceptional sentence below the

standard range given that Anderson’s conduct would have supported additional

30 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

charges and aggravating circumstances, which the State did not pursue in light of

Anderson’s youth.

On this record, the resentencing court did not err by concluding Anderson

failed to meet his burden to prove that his crimes reflected youthful immaturity,

impetuosity, or failure to appreciate risks and consequences. The resentencing court

understood and properly applied the law. Substantial evidence supports the

resentencing court’s findings. We therefore hold that the resentencing court did not

abuse its discretion in finding Anderson failed to meet his burden to justify an

exceptional sentence below the standard range. Because Anderson has not proved

that the 1994 murders reflected youthful immaturity, impetuosity, or failure to

appreciate risks and consequences, Washington’s constitution does not forbid his

standard range 61-year sentence. See Haag, 198 Wn.2d at 330; Bassett, 192 Wn.2d

at 89-90. Accordingly, we affirm.

CONCLUSION

Haag announced a categorical bar against the imposition of de facto LWOP

sentences on juvenile offenders whose crimes reflect youthful immaturity,

impetuosity, or failure to appreciate risks and consequences. Anderson is not such

an individual. Following meaningful consideration of mitigation evidence and the

circumstances of Anderson’s offenses, the resentencing court properly exercised its

31 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5

discretion when imposing a 61-year sentence on Anderson. Consistent with the

reasoning in Haag, we affirm.

WE CONCUR:

_________________________ ____________________________

____________________________ ____________________________

32 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

No. 97890-5

GONZÁLEZ, C.J. (dissenting) — Even if I could join the majority’s

repudiation of our recent constitutional jurisprudence, I could not join it in

affirming the trial court’s resentencing decision here. The resentencing judge

abused her discretion by failing to meaningfully consider how juveniles are

different from adults, by failing to meaningfully consider how those differences

applied to Tonelli Anderson, by failing to consider whether Anderson’s case was

one of the few where a life without parole sentence is constitutionally permissible,

by failing to give meaningful weight to the significant evidence that Tonelli

Anderson had rehabilitated himself while in prison, and by improperly allocating

the burden of proof to him at resentencing. For all these reasons, I respectfully

dissent.

I

Our founding documents promise much to us and require much of us.

Among many other things, these founding documents promise due process, equal

protection of the law, and freedom from cruel punishments. U.S. CONST. amends.

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

V, VIII, XIV; WASH. CONST. art. I, §§ 3, 14; THE DECLARATION OF INDEPENDENCE

para. 2 (U.S. 1776). All three branches of government on both the state and federal

level, including this very court, have repeatedly failed to keep these promises. See

Price v. Evergreen Cemetery Co. of Seattle, 57 Wn.2d 352, 357 P.2d 702 (1960)

(denying a Black family the statutory right to bury their child in a nearby

cemetery), overruled by Garfield County Transp. Auth. v. State, 196 Wn.2d 378,

390 n.1, 473 P.3d 1205 (2020); Leschi v. Wash. Territory, 1 Wash. Terr. 13, 14

(1857) (upholding Chief Leschi’s life sentence and accusing the Nisqually tribe of

“sacrific[ing] the lives of so many of our citizens” (later repudiated by a historical

court of inquiry as noted in Kelly Kunsch, The Trials of Leschi, Nisqually Chief, 5

SEATTLE J. FOR SOC. JUST. 67 (2006))).

We must strive to do better as we know better. This effort is what marks

“‘the evolving standards of decency that mark the progress of a maturing society.’”

State v. Gregory, 192 Wn.2d 1, 38, 427 P.3d 621 (2018) (Johnson, J., concurring)

(quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958)

(plurality opinion)).

All too often we have decided that some disfavored group is not due the full

protections our founding documents’ promise. We have shrugged our robed

shoulders at cruelties embodied in law. We know that trial judges in our own state

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

are more likely to sentence harshly in election years.1 So it was with the usually

Black or brown children, like Tonelli Anderson, who were demonized by the war

on crime social panic, racialized fears, and discredited science.2 “The

superpredator theory tapped into and amplified racial stereotypes that date back to

the founding of our nation.” State v. Belcher, 342 Conn. 1, 17, 268 A.3d 616

(2022). Under its influence, all too many Black and brown children were explicitly

or tacitly classified as “juvenile superpredators” and treated as irredeemable

monsters. See State v. Null, 836 N.W.2d 41, 56 (Iowa 2013) (citing Br. of Jeffrey

Fagan et al. as Amici Curiae in Supp. of Pet’rs at 14-19, Miller v. Alabama, 567

U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (No. 10-9647), 2012 WL

174240). This myth was based on faulty research and has been thoroughly

repudiated. See Belcher, 342 Conn. at 14-16 (collecting some of the many studies

repudiating the myth of the juvenile superpredator).

1 KATE BERRY, BRENNAN CTR. FOR JUSTICE, HOW JUDICIAL ELECTIONS IMPACT CRIMINAL CASES

2 (2015), https://www.brennancenter.org/our-work/research-reports/how-judicial-elections- impact-criminal-cases [https://perma.cc/64K6-MKQ6]. This study also concluded that the more frequently television ads run during an election, the less likely state supreme court justices are to rule for criminal defendants. Id. 2 See generally Jane Rutherford, Juvenile Justice Caught Between The Exorcist and A Clockwork Orange, 51 DEPAUL L. REV. 715, 721-22 (2002); Elizabeth R. Jackson-Cruz, Social Constructionism and Cultivation Theory in Development of the Juvenile “Super-Predator” 6 (Mar. 5, 2019) (unpublished M.A. thesis, University of South Florida), https://www.proquest.com/openview/d1158cb2b58a735edd5105794c992c0c/1?pq- origsite=gscholar&cbl=18750&diss=y. 3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

“In 2001, the United States Office of the Surgeon General labeled the

superpredator theory a myth.” Id. at 15 (citing U.S. DEP’T OF HEALTH & HUM.

SERVS., YOUTH VIOLENCE: A REPORT OF THE SURGEON GENERAL ch. 1, at 5 (2001),

available at https://www.ncbi.nlm.nih.gov/books/NBK44297/?report=reader).

Nonetheless, this discredited myth underlies statutes whose effects are still felt

today and ring through the majority opinion. Legislative history strongly suggests

these myths were on our legislators’ minds when they enacted significant changes

to the law that resulted in classifying certain children as adults for purposes of

charging and sentencing. The language used in bill reports mirrors language used

by those who campaigned against the supposed menace of juvenile superpredators.

Compare H.B. REP. ON H.B. 2319, 53d Leg., Reg. Sess. (Wash. 1994) (using terms

like “epidemic” and “tidal-wave” to describe juvenile superpredators), with BARRY

KRISBERG, JUVENILE JUSTICE: REDEEMING OUR CHILDREN 5-16 (2005) (noting

numerous times the myth of the juvenile superpredator was described in similar

terms). To his credit, the man who helped popularize the myth of the juvenile

superpredator has since recanted and signed briefs to the United States Supreme

Court acknowledging his mistake and the harm it caused. Belcher, 342 Conn. at 15

n.9.

Sometimes we do the courageous thing and recognize that due process has

not been observed, equal protection has not been given, or cruel punishment has

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

been imposed. See Gregory, 192 Wn.2d at 19 (holding a death penalty statute that

is 3.5 to 4.6 times as likely to be imposed on a Black man as a white man is

unconstitutional). Sometimes, we abandon bad precedent. See, e.g., In re Chi-

Dooh Li, 79 Wn.2d 561, 567, 488 P.2d 259 (1971) (holding that a statute that

limited bar membership to citizens was unconstitutional and implicitly overruling

In re Takuji Yamashita, 30 Wash. 234, 239, 70 P. 482 (1902), disapproved, 143

Wn.2d xxxiii-lix (2001)3). The Connecticut Supreme Court recently directed a man

be resentenced because the trial court explicitly relied on the discredited, racist

myth that some children are superpredators. Belcher, 342 Conn. at 4. Sometimes,

the legislature takes steps to rein in past injustices as well. See RCW 9.94A.730

(providing a mechanism for early release for some people serving lengthy

sentences for crimes committed as children); RCW 13.04.030 (expanding juvenile

court jurisdiction); S.B. REP. ON ENGROSSED SECOND SUBSTITUTE S.B. 6160, 65th

Leg., Reg. Sess. (Wash. 2018) (documenting testimony that limitations on juvenile

court jurisdiction was driven by the repudiated theory of child superpredators).

The United States Supreme Court itself has reined in some of the worst

excesses of the demonization of youth during the war on crime by limiting the

3 This court had barred Yamashita from taking the bar exam based on his Japanese ancestry despite being otherwise qualified. In re Takuji Yamashita, 30 Wash. at 239. Almost a century later, this court recognized its error and posthumously admitted Yamashita to the bar. Order Posthumously Granting Honorary Admis. To Practice Law in State of Wash., No. 70680-8 (Mar. 1, 2001). 5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

extraordinary punishments that can be imposed for crimes committed as children.

See Roper v. Simmons, 543 U.S. 551, 578-79, 125 S. Ct. 1183, 161 L. Ed. 2d 1

(2005) (holding the Eighth Amendment forbids imposing the death penalty for

crimes committed as a juvenile); Miller, 567 U.S. at 465 (holding the Eighth

Amendment forbids mandatory life without parole sentences for crimes committed

as a juvenile); see also Montgomery v. Louisiana, 577 U.S. 190, 206, 136 S. Ct.

718, 193 L. Ed. 2d 599 (2016) (“Miller announced a substantive rule that is

retroactive in cases on collateral review.”). Based on our state constitution and our

deepening understanding of the mitigating qualities of youth, we went further. We

held, categorically, “that sentencing juvenile offenders to life without parole or

early release constitutes cruel punishment and therefore is unconstitutional under

article I, section 14 of the Washington Constitution.” State v. Bassett, 192 Wn.2d

67, 73, 428 P.3d 343 (2018). As the opinion I signed in Haag recognizes, nothing

in Bassett restricts its holding to statutorily mandatory life without parole

sentences. State v. Haag, 198 Wn.2d 309, 330, 495 P.3d 241 (2021) (“[I]n

Bassett, we held that under article I, section 14 of our constitution, any life-

without-parole sentence for a juvenile offender is unconstitutional.” (emphasis

added)). Haag itself took the reasonable step of applying Bassett to de facto life

sentences. Id. (“Therefore, Haag’s de facto life sentence is also unconstitutional

under article I, section 14.”).

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

Today, the majority ignores the plain language of both Bassett and Haag and

asserts they mean but shadows of themselves. The majority characterizes Bassett

as holding that statutorily mandatory life without the opportunity for parole

“sentences are almost always disproportionate punishments for juvenile offenders.”

Majority at 14 (emphasis added) (citing Bassett, 192 Wn.2d at 89). But there was

no “almost” in Bassett’s categorical holding about the meaning of our state

constitution. The word “almost” is never used in Bassett. As my colleagues

recognized in Bassett, it is the Eighth Amendment that forbids almost all life

without the possibility of parole sentences for crimes committed as children. 192

Wn.2d at 93 (Stephens, J., dissenting) (citing Miller, 567 U.S. 460). Article I,

section 14 is more protective of children. Id. at 90. Article I, section 14 makes all

life without parole sentences imposed for juvenile offenses unconstitutional,

regardless of whether they were statutorily mandated. Id.

Similarly, the majority characterizes Haag as “recognizing that de facto [life

without parole] sentences are disproportionate punishments for juvenile offenders

whose crimes reflect the mitigating characteristics of youth.” Majority at 15

(emphasis added) (citing Haag, 198 Wn.2d at 329-30). That part of our holding

was grounded in the Eighth Amendment. Crucially, however, Haag also held that

Bassett’s article I, section 14 categorical bar on a life without parole sentence for a

juvenile offender includes a de facto life sentence. 198 Wn.2d at 330. Indeed, if

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

the majority’s crabbed reading of the Haag opinion was correct, there would have

been no need for a separate holding under article I, section 14 of our state

constitution since the Eighth Amendment already bars imposition of a life sentence

on a juvenile who is not irretrievably depraved or irreparably corrupt. Id.; accord

Montgomery, 577 U.S. at 208 (quoting Miller, 567 U.S. at 479-80). As Haag

recognized, article I, section 14 categorically bars de facto life sentences for crimes

committed as a juvenile regardless of whether a judge has made a finding about

whether the child was irretrievably depraved or irreparably corrupt. 198 Wn.2d at

330 (citing Bassett, 192 Wn.2d at 91).

We held that Haag’s 46 year sentence amounted to a de facto life sentence

for a juvenile offender “because it leaves the incarcerated individual without a

meaningful life outside of prison.” Id. at 327. We reasoned that “[a] juvenile

sentenced to be released at the age of 63 has lost incalculably more than an adult in

the same circumstances, the ability to work, to vote, or even to operate a motor

vehicle.” Id. at 329. Even our colleagues in the dissent understood the majority’s

categorical bar and reasoning. See Haag, 198 Wn.2d at 337 (Stephens, J.,

dissenting in part) (“the majority . . . decides that a 46-year minimum term

‘amounts to a de facto life sentence for a juvenile offender because it leaves the

incarcerated individual without a meaningful life outside of prison’” (quoting

Haag majority at 327)). Here, the majority attempts to walk back our holding in

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

Haag by effectively overruling its categorical bar without expressly saying so or

showing that it is either incorrect or harmful. See State v. Pierce, 195 Wn.2d 230,

240, 455 P.3d 647 (2020) (the court will overrule prior precedent when it is

“‘incorrect and harmful.’” (internal quotation marks omitted) (quoting Deggs v.

Asbestos Corp. Ltd., 186 Wn.2d 716, 727-28, 729, 381 P.3d 32 (2016))).

Make no mistake, the consequences of the majority’s decision today will be

profound. Before Miller, there was no reason for trial judges to decide whether a

juvenile being sentenced as an adult was irretrievably depraved or irreparably

corrupt, if such a conclusion about the future of a young person is even possible.

Not every person serving a long sentence for crimes committed as a child is

entitled to a Miller-fix resentencing or parole hearing. See RCW 9.94A.730; RCW

10.95.035. Anderson himself was not entitled to such a hearing under either

statute as his life sentence is merely a matter of fact, not law, and since he had

committed crimes after he turned 18. See RCW 10.95.035; RCW 9.94A.730(1).

That Anderson received a resentencing hearing was effectively an act of

prosecutorial grace, not statutory right. I predict few prosecutors will extend such

grace in the future.

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

II

Even if I agreed with the majority that a de facto life sentence was

constitutionally permissible for a child, I would reverse because the resentencing

judge abused her discretion in several ways.

The resentencing judge abused her discretion by improperly allocating the

burden of proof to Anderson. During the hearing, the judge was under the belief

that “[p]ursuant to State v. Ramos, the burden of proof is on Mr. Anderson to prove

by a preponderance of the evidence transient immaturity at the time of the offense

in order to justify an exceptional sentence below the standard sentencing range.” 2

Tr. of Mot. Hr’g (Apr. 2, 2018) (Tr.) at 65. But the Miller-fix statute does not

allocate a burden of proof to either party. State v. Delbosque, 195 Wn.2d 106,

123-24, 456 P.3d 806 (2020). By placing a burden where it does not lie, the

resentencing judge clearly abused her discretion. We should reverse and remand in

line with our juvenile jurisprudence. Id. at 116 (“We will reverse a sentencing

court’s decision . . . if we find ‘a clear abuse of discretion or misapplication of the

law.’” (internal quotation marks omitted) (quoting State v. Blair, 191 Wn.2d 155,

159, 421 P.3d 937 (2018))).

While, standing alone, misallocating the burden of proof might have been

harmless, the resentencing court clearly abused its discretion by failing to

“meaningfully consider how juveniles are different from adults, how those

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

differences apply to the facts of the case, and whether those facts present the

uncommon situation where a life-without-parole sentence for a juvenile homicide

offender is constitutionally permissible.” State v. Ramos, 187 Wn.2d 420, 434-35,

387 P.3d 650 (2017) (emphasis added). “This means a court ‘must do far more

than simply recite the differences between juveniles and adults and make

conclusory statements that the offender has not shown an exceptional downward

sentence is justified.’” Delbosque, 195 Wn.2d at 121 (quoting Ramos, 187 Wn.2d

at 443). Among other things, courts must consider and focus on rehabilitation that

has occurred while the petitioner has been serving their sentence. Haag, 198

Wn.2d at 321 (quoting Delbosque, 195 Wn.2d at 121). Courts must also put great

emphasis on mitigating factors. See, e.g., State v. O’Dell, 183 Wn.2d 680, 696,

358 P.3d 359 (2015).

Anderson submitted considerable unrebutted evidence he had rehabilitated

himself while in prison. Clerk’s Papers (CP) at 61-96. He worked as a machine

operator and material handler in the license plate shop, a food prep worker, and a

payables clerk in the business office, and he received performance ratings of

superior or above average from the Department of Corrections. He finished

college courses and obtained a certification in bookkeeping and accounting. He

completed numerous training programs; trained dogs and tutored offenders; and

went through substance abuse treatment, anger management and a nonviolent

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

conflict resolution course. He submitted several certificates documenting his

involvement in prosocial activities, such as sports. Anderson’s participation in a

course titled “Thinking for a Change” was described as an indication of “a

willingness to contribute in society with responsibility, to embrace a positive . . .

identity, social behavior, beliefs, and to make decisions of a higher moral

judgment.” CP at 68. The only infraction I can find in the record was for

showering without permission in 2016.

The majority suggests that the court concluded that Anderson’s

rehabilitation evidence was not “‘voluminous and . . . uncontroverted’” like

Haag’s was. Majority at 30 (quoting Haag, 198 Wn.2d at 324). I find no such

conclusion in this record. The trial court made no finding as to Anderson’s

rehabilitation under Haag because Haag had not yet been announced. The closest

thing to a conclusion on the rehabilitation evidence is the resentencing court’s

commendation to Anderson of “well done.” 2 Tr. at 62-63. The only reference to

rehabilitation in the trial court’s findings was regarding the crimes Anderson

committed following treatment at the Juvenile Rehabilitation Administration

decades ago. CP at 301 (findings of fact (FF) 11). The resentencing judge’s

approach to rehabilitation is flatly inconsistent with Haag, where we held that

resentencing courts “‘must consider the measure of rehabilitation that has occurred

since a youth was originally sentenced.’” 198 Wn.2d at 322 (quoting Delbosque,

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

195 Wn.2d at 121). Instead, the trial court considered only “[Anderson’s] age, and

. . . whether youth was a factor in the commission of th[e] crime.” 2 Tr. at 53.

The trial court simply did not give sufficient weight to the unrebutted

evidence of rehabilitation as required by Haag, 198 Wn.2d at 321. I would reverse

on this basis alone.

Anderson also submitted unrebutted evidence establishing that

even when teenagers’ cognitive capacities come close to those of adults, adolescent judgment and their actual decisions may differ from that of adults as a result of psychosocial immaturity. Among the psychosocial factors that are most relevant to understanding differences in judgment and decision making are (a) susceptibility to peer influence, (b) attitudes toward and perception of risk, (c) future orientation, and (d) the capacity for self- management. Whereas cognitive capacities shape the process of decision making, psychosocial immaturity can affect decision-making outcomes, because these psychosocial factors influence adolescent values and preferences in ways that drive the cost-benefit calculus in the making of choices. In other words, to the extent that adolescents are less psychosocially mature than adults, they are likely to be deficient in their decision-making capacity, even if their cognitive processes are mature.

CP at 53 (Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of

Adolescence, Developmental Immaturity, Diminished Responsibility, and the

Juvenile Death Penalty, 58 AM. PSYCH. 1009, 1012 (2003)).

Anderson presented unrebutted evidence that showed teenagers, as a direct

result of their ongoing brain development, are less able to process information

quickly and thoughtfully, have less ability to think about the future, are easily

influenced by peer pressure, take risks, and have unformed identities as they work

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

out who they are and are therefore less culpable than adults. CP at 45-48, 51-58.

The evidence also showed that environmental factors play an overwhelming role in

which children commit crimes and which children do not, suggesting that parents

who are unable to take their children “off the streets” or “away from temptation”

are not successful in reducing juvenile crime. Id. at 49.

While the resentencing judge asserted that she was familiar with adolescent

brain development “because I sat as a juvenile court judge for four years,” 2 Tr. at

55, her conclusory rulings do not give meaningful weight to the mitigating

qualities of youth. I am particularly struck by the weight she gave to the fact

Anderson lived on his own at the time of the crime. CP at 302 (FF 15,16); 2 Tr. at

59. The resentencing judge treated that as evidence of maturity. 2 Tr. at 59. In

my view, treating the fact Anderson was living on his own as evidence of maturity

is a profound misinterpretation of the evidence. Anderson grew up in an

extraordinarily harsh environment. His main caregiver was addicted to crack

cocaine, and his extended family could not intervene or help get him off the streets

because they themselves were involved in drug dealing, prostitution, and the

criminal justice system. Id. at 21-24. Anderson’s aunt testified that as a result, he

grew angrier as his identity developed. Id. at 21. He lived in and out of different

homes, had no male role model, and was described as a “follower.” Id. at 21, 24.

In fact, there was evidence that Anderson was the follower and his codefendant,

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

who had visited the victim’s home on two prior occasions, was the leader in the

shootings. CP at 191. The resentencing judge, however, dismissed the family’s

agonizing testimony as “bare assertions.” Id. at 303 (FF 21). Their testimony

established Anderson was largely without stability, adult protection, and guidance

from a very young age. 2 Tr. at 21-23; cf. Delbosque, 195 Wn.2d at 121 (“court[s]

must ‘receive and consider relevant mitigation evidence bearing on the . . .

culpability of the offender, including . . . lay testimony.’” (quoting Ramos, 187

Wn.2d at 443)). The fact Anderson was living on his own was a sign of a child

thrust into the world far too soon, who was susceptible to peer influence and

tragically made horrible decisions, not a sign of maturity.

The resentencing judge also found the fact Anderson wrote to friends about

the killings showed he knew what the consequences of committing them were. 2

Tr. at 60-61. Nothing in those letters shows he had sufficient brain development at

the time of the crime to make him undeserving of something less than a de facto

life sentence.

I am also disturbed with the extent to which the resentencing judge relied on

the original sentencing transcript. Not only because resentencing hearings must be

“forward-looking,” Haag, 198 Wn.2d at 323, but because Anderson was a young

Black man sentenced, as amicus rightly notes, “during an era rife with racialized

media attention to violent crime. In the 1980s and 1990s, headlines emerged

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

depicting inner-city youth as ‘hedonistic . . . youngsters from badland

neighborhoods who murder, assault, rape, rob, burglarize, deal [. . .] drugs, join [. .

.] gangs and create [. . .] disorder.’” Br. of Amici Curiae Cmty. Passageways,

CHOOSE 180, Rooted ReEntry, Creative Just., Juv. L. Ctr., the Fred T. Korematsu

Ctr. for L. & Equal., the Am. C.L. Union of Wash., Columbia Legal Servs., State

Office of Pub. Def., King County Dep’t of Pub. Def., and TeamChild at 4

(alterations in original) (internal quotation marks omitted) (quoting Elizabeth R.

Jackson-Cruz, Social Constructionism and Cultivation Theory in Development of

the Juvenile “Super-Predator” 6 (Mar. 5, 2019) (unpublished M.A. thesis,

University of South Florida),

https://www.proquest.com/openview/d1158cb2b58a735edd5105794c992c0c/1?pq-

origsite=gscholar&cbl=18750&diss=y). Anderson was sentenced against that

backdrop. Accordingly, that hearing deserved less weight than the resentencing

judge gave it. Cf. Belcher, 342 Conn. at 17.

The resentencing judge concluded that Anderson had not proved his crime

was the product of transient immaturity. 2 Tr. at 65; CP at 304 (conclusion of law

1). This conclusion is simply not sustainable. Given the situation in which he was

living and his enormous growth since then, Anderson established that he is entitled

to relief.

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (González, C.J., dissenting)

The crime Anderson committed was horrible and deserving of significant

punishment. The ongoing grief of the victim’s families is palpable even in a cold

record. 2 Tr. at 29-41. But based on this record, even if a de facto life sentence

was constitutionally permissible, the trial court abused its discretion in imposing

one in this way. I would reverse and remand for a resentencing hearing consistent

with Delbosque and Haag.

More importantly, the majority rewrites our jurisprudence to profoundly

limit the protection we have found our state constitution gives to children without

showing that those decisions should be overruled. I would hold under the

categorical bars announced in Bassett and Haag, a 61 year sentence for crimes

committed as a juvenile is not constitutional and thus Anderson is entitled to

resentencing. Accordingly, I respectfully dissent.

__________________________

______________________________

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

YU, J. (concurring in dissent) — I agree with the dissent that Tonelli

Anderson is entitled to resentencing pursuant to this court’s precedent, which

recognizes “that life is more than just life expectancy and that a juvenile must have

a meaningful opportunity to rejoin society after leaving prison.” State v. Haag,

198 Wn.2d 309, 328, 495 P.3d 241 (2021). I write separately to elaborate on the

ways in which the majority undermines our precedent, ignores fundamental

principles of stare decisis, and disregards this court’s own call to “recognize the

role we have played in devaluing [B]lack lives.” Letter from Wash. State Sup. Ct.

to Members of Judiciary & Legal Cmty. at 1 (June 4, 2020),

https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20

News/Judiciary%20Legal%20Community%20SIGNED%20060420.pdf

[https://perma.cc/QNT4-H5P7]. Today’s decision is contrary to both long-

established principles of law and newly recognized principles of justice. I

therefore respectfully concur in the dissent. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

BACKGROUND

In 2000, Anderson was sentenced to a prison term of 736 months—over 61

years—for homicide offenses he committed when he was 17 years old. Anderson

is unlikely to survive his sentence, “given the shortened life expectancy and

compromised health associated with life in prison.” Haag, 198 Wn.2d at 329

(citing Evelyn J. Patterson, The Dose-Response of Time Served in Prison on

Mortality: New York State, 1989-2003, 103 AM. J. PUB. HEALTH 523, 523 (Mar.

2013)). If he manages to beat the odds, Anderson will be in his 80s when he is

released. Wash. Sup. Ct. oral argument, State v. Anderson, No. 97890-5 (Feb. 10,

2022), at 9 min., 45 sec., video recording by TVW, Washington State’s Public

Affairs Network, http://www.tvw.org.

A person can accomplish great things between their 80th birthday and the

end of their life. However, if that person has spent the previous six decades in

prison, they will certainly have “miss[ed] out on the developments of the world,”

and “will inevitably fall behind.” Haag, 198 Wn.2d at 327. Anderson’s sentence

thus “deprives him of a meaningful opportunity to return to society, depriving him

of a meaningful life.” Id. at 329. In accordance with our precedent, there can be

no question that Anderson’s original 61-year sentence “amounts to a de facto life

sentence for a juvenile.” Id. at 317.

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

When Anderson was resentenced in April 2018, the resentencing court had

the benefit of our decision in State v. Ramos, which analyzed the “minimal federal

constitutional requirements” that apply when sentencing a juvenile homicide

offender. 187 Wn.2d 420, 450, 387 P.3d 650 (2017). However, Ramos explicitly

“decline[d] to engage in an independent state constitutional analysis.” Id. at 453.

Later decisions of this court concluded that additional protections are required as a

matter of independent state law, as discussed further below. However, those

opinions were issued after the resentencing court in this case concluded that

Anderson had not provided “evidence sufficient to change [the original] sentence.”

2 Tr. of Mot. Hr’g (Apr. 2, 2018) at 65. Thus, Anderson remains subject to the

same de facto life sentence he was given in 2000.

The resentencing court committed multiple errors in evaluating the evidence

Anderson presented, as described by the dissent. See dissent at 10-16. However,

those discrete errors are irrelevant in light of this court’s controlling precedent,

which categorically holds that “under article I, section 14 of our constitution, any

life-without-parole sentence for a juvenile offender is unconstitutional.” Haag,

198 Wn.2d at 330 (emphasis added) (citing State v. Bassett, 192 Wn.2d 67, 91, 428

P.3d 343 (2018)). Therefore, Anderson’s “de facto life sentence is also

unconstitutional under article I, section 14.” Id. The majority’s decision to the

contrary is unsupportable and indefensible.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

Six months after Anderson was resentenced, we decided Bassett, a landmark

decision of Washington constitutional law in the area of juvenile sentencing.

Bassett conducted a meticulous analysis pursuant to State v. Gunwall, 1 and held for

the first time that “[t]he six Gunwall factors all direct us toward interpreting article

I, section 14 more broadly than the Eighth Amendment. Thus, we h[e]ld that in the

context of juvenile sentencing, article I, section 14 provides greater protection than

the Eighth Amendment.” 192 Wn.2d at 82; U.S. CONST. amend. VIII.

Next, we carefully analyzed whether Bassett’s article I, section 14 challenge

to his life-without-parole (LWOP) sentence should be reviewed in accordance with

“our traditional Fain[2] proportionality analysis” for individual “claims that a

sentence was grossly disproportionate,” or if we should instead apply a

“categorical bar analysis . . . based on the nature of the juvenile offender class.”

Id. at 82-83. To make this determination, we considered the nature of Bassett’s

claim, which was “a categorical challenge based on the characteristics of the

offender class—children,” as well as the purposes underlying the Fain

proportionality test and the categorical bar analysis. Id. at 83. Based on this

analysis, the court concluded that “though we have adopted Fain to assess other

1 106 Wn.2d 54, 720 P.2d 808 (1986). 2 State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980).

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

cruel punishment claims under our state constitution, it is inappropriate to assess

Bassett’s categorical challenge.” Id. at 85. As a result, Bassett adopted the

categorical bar analysis to apply where a former juvenile offender brings a

“categorical challenge” to their life sentence pursuant to article I, section 14, based

on the “characteristics of youth.” Id.

Finally, because Bassett adopted a categorical analysis, its central holding

announced a categorical rule: “[S]entencing juvenile offenders to life without

parole or early release is cruel punishment.” Id. at 90. “[C]ruel punishment” is

explicitly prohibited by article I, section 14 of the Washington Constitution. As a

result, RCW 10.95.030(3)(a)(ii), which purports to permit (but not require) life-

without-parole sentences for juvenile homicide offenders, “is unconstitutional

under article I, section 14.” Id.

The majority mischaracterizes Bassett’s clear and unequivocal holdings. As

the dissent correctly notes, “there was no ‘almost’ in Bassett’s categorical holding

about the meaning of our state constitution.” Dissent at 7. Contra majority at 14.

In addition, the majority incorrectly asserts that Bassett “recogni[zed] that judicial

discretion generally provides the necessary protection against cruel punishments

when imposing adult sentences on juvenile offenders,” with life without parole

being a “unique” exception. Majority at 20-21 (citing Bassett, 192 Wn.2d at 89).

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

It is true that the “extremely high stakes” of LWOP sentences were relevant

to Bassett’s specific holding striking down RCW 10.95.030(3)(a)(ii). 192 Wn.2d

at 90. However, everything Bassett said about “the imprecise and subjective

judgments a sentencing court could make” when assessing a juvenile offender’s

“‘diminished culpability and heightened capacity for change’” applies equally to

any proceeding in which a person is sentenced in adult court for offenses

committed as a juvenile. Id. at 89 (internal quotation marks omitted) (quoting

Ramos, 187 Wn.2d at 444). As a result, “sentencing courts must have complete

discretion to consider mitigating circumstances associated with the youth of any

juvenile defendant,” and article I, section 14 limits judicial discretion by

prohibiting Washington courts from sentencing any juvenile offenders to “liv[e]

out the rest of their lives in prison.” State v. Houston-Sconiers, 188 Wn.2d 1, 21,

391 P.3d 409 (2017) (emphasis added); Bassett, 192 Wn.2d at 90.

Thus, contrary to the majority’s analysis, Bassett strongly supports

Anderson’s claim that his 61-year sentence is categorically prohibited by article I,

section 14. Nevertheless, the majority is correct insofar as it recognizes that

Bassett does not directly control here because Bassett struck down only literal life

sentences for juvenile offenders. We were not presented with, and therefore did

not address, the constitutionality of de facto life sentences for juvenile offenders

until three years later, when Haag held as a matter of independent state law that

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

“any life-without-parole sentence for a juvenile offender is unconstitutional.” 198

Wn.2d at 330 (emphasis added). Therefore, we held that article I, section 14

categorically bars “de facto life sentence[s]” for juvenile offenders. Id.

Like our decision in Bassett, Haag’s unambiguous holding was based on a

thorough and reasoned analysis. The court first concluded that Haag’s 46-year

minimum term “amounts to a de facto life sentence for a juvenile offender because

it leaves the incarcerated individual without a meaningful life outside of prison.”

Id. at 327. Haag next correctly recognized that “in Bassett, we held that under

article I, section 14 of our constitution, any life-without-parole sentence for a

juvenile offender is unconstitutional.” Id. at 330 (emphasis added) (citing Bassett,

192 Wn.2d at 91). We therefore concluded that “Haag’s de facto life sentence is

also unconstitutional under article I, section 14.” Id.

The majority is thus either mistaken or dishonest in its claim that Haag

“recognized a categorical bar prohibiting de facto LWOP sentences [only] for

juvenile offenders who have shown that their crimes reflect youthful immaturity,

impetuosity, or failure to appreciate risks and consequences.” Majority at 16. That

is the holding of Ramos, which was based on federal law. 187 Wn.2d at 439-40. It

is not the independent state law holding of Haag.

It is true that in addition to adopting a categorical bar, Haag held that the

“resentencing court clearly misapplied the law because it emphasized retribution

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

over mitigation,” thus acting contrary to the legislature’s intent by failing to

“highlight[ ] the very factors of mitigation that our legislature and this court have

identified as paramount.” 198 Wn.2d at 321, 326. However, this part of our

analysis was explicitly intended to “provide guidance to resentencing courts.” Id.

at 326. It was analytically independent of Haag’s holding that article I, section 14

categorically bars de facto life sentences for all juvenile offenders. Id. at 330.

Contra majority at 16.

The majority is also either mistaken or dishonest in its view that Haag “does

not explain how Bassett’s reasoning could be modified or extended to this different

context.” Majority at 20. To the contrary, Haag explained in great detail its

reasons for extending Bassett’s categorical bar to de facto life sentences,

recognizing that “‘the concept of “life”’” cannot be reduced to mere “‘biological

survival,’” and that “‘an individual is effectively incarcerated for “life” if [they]

will have no opportunity to truly reenter society or have any meaningful life

outside of prison.’” 198 Wn.2d at 327 (quoting Casiano v. Comm’r of Corr., 317

Conn. 52, 78, 115 A.3d 1031 (2015)). We explicitly held that a “46-year sentence

for Haag results in his losing meaningful opportunities to reenter society and to

have a meaningful life” and thus constituted a de facto life sentence. Id. No less

can honestly be said of Anderson’s 61-year sentence.

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

By thus distorting our precedent beyond recognition, today’s majority

“effectively overrul[es] [Haag’s] categorical bar without expressly saying so or

showing that it is either incorrect or harmful.” Dissent at 9 (citing State v. Pierce,

195 Wn.2d 230, 240, 455 P.3d 647 (2020)). If a majority of this court now

believes that our “prior decision is so problematic that it must be rejected, despite

the many benefits of adhering to precedent,” then it should have the courage to say

so and the integrity to provide a reasoned analysis in support. State v. Otton, 185

Wn.2d 673, 678, 374 P.3d 1108 (2016). Instead, the majority resorts to

“rewrit[ing] our jurisprudence to profoundly limit the protection we have found our

state constitution gives to children,” while disingenuously claiming to “clarify” the

law. Dissent at 17; majority at 16. In fact, by disregarding both our precedent and

the stare decisis considerations supporting it, the majority causes confusion and

invites further litigation attempting to undermine settled law.

“The majority’s cavalier approach to overturning this [c]ourt’s precedents”

without acknowledgement or justification is directly contrary to the “judicial

modesty and humility” required by the doctrine of stare decisis. Dobbs v. Jackson

Women’s Health Org., 597 U.S. ___, 142 S. Ct. 2228, 2319, 213 L. Ed. 2d 545

(2022) (Breyer, Sotomayor, and Kagan, JJ., dissenting). Moreover, the majority’s

inaccurate assertions about our precedent threaten the “‘the actual and perceived

integrity of the judicial process,’” one of the core values stare decisis is intended to

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

protect. Id. at 2320 (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct.

2597, 115 L. Ed. 2d 720 (1991)); see also State v. Barber, 170 Wn.2d 854, 863,

248 P.3d 494 (2011).

All of this would be reason enough to dissent. However, there is an

additional, deeply troubling aspect of the majority’s decision in this case that must

be acknowledged.

Bassett and Haag treated the former juvenile offenders before the court as

precisely that—former juvenile offenders. We concluded that Brian Bassett’s and

Timothy Haag’s crimes, though unquestionably horrific, did not justify the State in

depriving them of any chance to have a meaningful life outside of prison walls.

Both decisions were based on considerations of the many ways in which “children

are different for sentencing purposes,” including their “‘diminished culpability and

heightened capacity for change.’” Haag, 198 Wn.2d at 329; Bassett, 192 Wn.2d at

89 (internal quotation marks omitted) (quoting Ramos, 187 Wn.2d at 444).

The majority goes to great lengths to avoid giving Anderson the same

consideration, refusing to apply controlling precedent, as discussed above, and

drawing false distinctions between the evidence presented at Anderson’s

resentencing hearing and the evidence presented in other cases, as discussed in the

dissent. See dissent at 12-17. However, the majority conspicuously fails to

mention one additional factor distinguishing Bassett and Haag from Anderson.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

Bassett and Haag are both white. State v. Bassett (Wash. Ct. App. No.

47251-1-II (2015)), Clerk’s Papers (CP) at 140; State v. Haag (Wash. Ct. App. No.

51409-5-II (2018)), CP at 41, 765. Anderson is Black. CP at 168. Bassett and

Haag were both recognized by this court as former juvenile offenders capable of

redemption and rehabilitation, and they were ordered to be resentenced

accordingly. Anderson has been denied any such recognition and resentencing,

contrary to the law and the evidence. I do not suggest that the majority is

knowingly or intentionally discriminating against Anderson on the basis of his

race. However, it is only by “develop[ing] a greater awareness of our own

conscious and unconscious biases” that we can hope to move forward. Letter from

Wash. State Sup. Ct., supra, at 1. In this case, it would be willfully oblivious to

conclude that race has played no role in the dramatically inconsistent treatment

given to these three former juvenile offenders by our court system.

“[I]t is well established by empirical literature and has been acknowledged

by [this court] that Black children are prejudiced by, in addition to other

stereotypes, ‘adultification,’ or the tendency of society to view Black children as

older than similarly aged youths.” In re Pers. Restraint of Miller, 21 Wn. App. 2d

257, 265, 505 P.3d 585 (2022); see GENDER & JUST. COMM’N, WASH. CTS., 2021:

HOW GENDER AND RACE AFFECT JUSTICE NOW 452-53 & nn.96-97 (2021). One

result of this adultification bias is that “juvenile offenders of color are seen as more

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

blameworthy and deserving of harsher punishment” than their white counterparts.

2021: HOW GENDER AND RACE AFFECT JUSTICE NOW, supra, at 453.

Viewed in this light, the otherwise-inexplicable inconsistencies between

Bassett’s and Haag’s cases, on one hand, and Anderson’s case, on the other, raise

serious concerns. To provide one striking example, as the dissent notes, the

resentencing court here viewed “the fact Anderson lived on his own at the time of

the crime . . . as evidence of maturity.” Dissent at 14; see CP at 302 (“There is no

evidence that defendant lacked maturity, or that any lack of maturity mitigated his

culpability for these crimes. . . . He was living on his own, with control over his

own environment.”). When such reasoning was applied to Brian Bassett at his

resentencing, this court highlighted it as “an illustration of the imprecise and

subjective judgments a sentencing court could make regarding transient immaturity

and irreparable corruption.” Bassett, 192 Wn.2d at 89. In stark contrast, the

majority today concludes that in applying the exact same reasoning to Tonelli

Anderson, “the resentencing court meaningfully and properly considered the

mitigating qualities of Anderson’s youth.” Majority at 26.

There can be no doubt that “adultification is real and can lead to harsher

sentences for children of color if care is not taken to consciously avoid biased

outcomes.” Miller, 21 Wn. App. 2d at 267. The majority today fails to take such

care, leading to a harsh result for a former juvenile offender who is Black, which is

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

irreconcilable with more lenient results obtained by former juvenile offenders who

are white. We are not asked to decide in this case whether such inequitable

treatment justifies applying a standard of “presumptive prejudice to juvenile

resentencing cases” involving youth of color. Id. at 265. However, the majority

opinion today indicates that such a presumption may prove necessary in the future.

Although this court has made great strides and has much to be proud of, we

must never forget “the shameful legacy we inherit.” Letter from Wash. State Sup.

Ct., supra, at 2. This is the court that once routinely affirmed criminal convictions

of Native people for lawfully exercising their treaty-protected fishing rights,

issuing opinions that were “supported in theory by ingenious reasons and excuses”

but “based in fact upon the strength of the violator and the weakness of the

violated.” State v. Meninock, 115 Wash. 528, 534, 197 P. 641 (1921) (Mackintosh,

J., dissenting), abrogated by State v. Towessnute, 197 Wn.2d 574, 486 P.3d 111

(2020). These opinions should be a sobering reminder that sometimes the State—

and this court—can be “the violator.”

This is also the court that once held a white couple in publicly assisted

housing had a constitutional right to “refuse[ ] to sell their home to complainant

because of his color” because others who did not live in publicly assisted housing

were “at perfect liberty to do” so. O’Meara v. Wash. State Bd. Against

Discrimination, 58 Wn.2d 793, 795, 799, 365 P.2d 1 (1961) (plurality opinion).

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)

The legislature responded by prohibiting racial discrimination in all real estate

transactions, thus recognizing what our court refused to see: “Few state interests

are more compelling than those surrounding the eradication of social disparity

created by racial discrimination.” Voris v. Hum. Rts. Comm’n, 41 Wn. App. 283,

290, 704 P.2d 632, review denied, 104 Wn.2d 1018 (1985) (upholding

constitutionality of former RCW 49.60.222 (1977)).

The majority fails to apply the lessons from our past to the case now before

us. As a result, today’s opinion will “continue to perpetrate injustice by [its] very

existence” until it is one day rejected by jurists and lawmakers as a “historical

injustice[ ].” Towessnute, 197 Wn.2d at 575. That day may not come for many

years, and the path we will take to get there is not yet clear. But it will come.

“Hope is a crushed stalk / Between clenched fingers. Hope is a bird’s wing /

Broken by a stone. . . . Hope is a song in a weary throat. Give me a song of hope /

And a world where I can sing it.” PAULI MURRAY, Dark Testament, verse 8, in

DARK TESTAMENT AND OTHER POEMS 2, 13 (1970). Though I am dismayed by the

court’s walk back, I maintain hope that Anderson and other juveniles who have

been wronged by today’s decision will someday obtain the relief to which they are

constitutionally entitled. I respectfully concur in the dissent.

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Anderson, No. 97890-5 (Yu, J., concurring in dissent)