State v. Haag

• Court: Washington Supreme Court
• Decided: September 23, 2021
• Docket: 97766-6
• Status: Published

Opinion

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) Respondent, ) No. 97766-6 ) v. ) En Banc ) TIMOTHY HAAG, ) Filed : September 23, 2021 ) Petitioner. ) )

WHITENER, J.—It is well established that “children are different from

adults” for sentencing purposes. State v. Houston-Sconiers, 188 Wn.2d 1, 18, 391

P.3d 409 (2017). When a child commits the crime of aggravated first degree murder,

the federal and state constitutions, the enactments of our legislature, and our case

law demand that such a child be treated differently from an adult. Here, this body of

law demands another resentencing hearing for Timothy Haag.

In 1995, Haag was sentenced to mandatory life without parole for a crime he

committed at the age of 17. In 2018, at a Miller-fix 1 resentencing conducted pursuant

1 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

to RCW 10.95.030, the resentencing court expressly found that “Haag is not

irretrievably depraved nor irreparably corrupt.” 1 Verbatim Report of Proceedings

(VRP) (Jan. 19, 2018) at 25. Yet the court resentenced Haag to a term of 46 years to

life; the earliest that he could be released is at the age of 63. Id. at 27. Haag sought

review in this court, arguing that the trial court erroneously emphasized retribution

over mitigation and that his sentence amounts to an unconstitutional de facto life

sentence. We agree.

We hold that the resentencing court erred because it gave undue emphasis to

retributive factors over mitigating factors. We also hold that Haag’s 46-year

minimum term amounts to an unconstitutional de facto life sentence. We reverse and

remand for resentencing in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

In July 1994, at the age of 17, Haag killed Rachel Dillard, his 7-year-old

neighbor. At that point in his life, Haag had already gone through several difficult

experiences: abandonment by his father; poverty; bullying at school; “psychological

maltreatment by his stepfather[;] and the sudden loss of his best friend,” Alex

Dillard 2—the victim’s older brother—who had recently fled the Dillard family

home. Clerk’s Papers (CP) at 68. He was also a closeted gay juvenile in a small

2 Alex Dillard now goes by Alex Stephen Anderson. We refer to him as Alex Dillard for clarity. No disrespect is meant.

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

community in the early 1990s; he worried that if anyone learned he was gay, he

would be rejected. Id. at 71-72.

Convicted in 1995 of aggravated first degree murder for the killing of Rachel

Dillard, Haag has spent the decades since in prison. During that time, Haag has

shown tremendous growth and maturity. He accumulated only one infraction, in

1997. Id. at 88-89. He earned a high school diploma “as soon as he got to Walla

Walla [State Penitentiary].” 2 VRP (Jan. 12, 2018) at 159. He has worked throughout

his incarceration, including in the prison chapel and in the kitchen. Id. He became a

Jehovah’s Witness, testifying that “as [a] [W]itness I believe in trying to help

others.” Id. at 162.

In 2018, Haag was resentenced under our Miller-fix statutes, RCW

10.95.030(3) and RCW 10.95.035. Two expert witnesses, Dr. Marty Beyer and Dr.

Ronald Roesch, wrote detailed analyses and testified on Haag’s behalf at the

resentencing hearing. Additional testimony was offered by a volunteer prison

chaplain, Kenneth Pearson; Dorcy Long, who was incarcerated with Haag; Sharon

Owens, Haag’s mother; Janice Beaty, Haag’s aunt; and Haag himself.

Both of Haag’s expert witnesses independently administered the SAVRY test

(Structured Assessment of Violence Risk in Youth test) to analyze whether, at the

time of the crime, Haag would likely have reoffended. CP at 76, 90. Both concluded

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

that Haag would have been at a low risk of reoffending at the time of the offense. Id.

at 77, 92.

One of the experts, Dr. Roesch, performed further tests: the Personality

Assessment Inventory (PAI), a self-reported test used to analyze “adult personality

and psychopathology,” and the HCR-20 (Historical Clinical Risk Management-20),

which assessed Haag’s current risk of reoffending. Id. at 89, 92. According to Dr.

Roesch, “the PAI does not indicate any serious mental health issues that would

demand treatment.” Id. at 90. Similarly, the HCR-20 showed that Haag “is currently

considered a low risk for reoffending.” Id. at 93.

Haag also presented evidence that he has matured in prison. Pearson, the

volunteer prison chaplain, testified by video recording that Haag is “a mature adult.”

2 VRP (Jan. 12, 2018) at 108. Dr. Roesch concluded similarly. Id. at 83. Haag

himself testified about the sincere remorse he feels for the crime. Id. at 161. He also

testified that he knew he would not commit another violent act because prison had

presented him with situations where he could have responded with violence, but he

had chosen not to. Id. at 165-66. Haag requested a 25-year minimum term. CP at 59.

In contrast, the State offered no expert testimony and no testimony designed

to rebut the evidence produced showing that Haag was unlikely to reoffend. Instead,

the State offered victim impact testimony from Judith Rodger Dillard, Rachel’s

mother; Alex Dillard, Rachel’s brother; Susan Kahn Dillard, Rachel’s older sister;

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

John Dillard, Rachel’s father; and Dan Huntington, a family friend and Rachel’s

former tae kwon do instructor. Alex Dillard testified, “I do not believe that this man

is capable of being—I do not believe that this crime is capable of reform.” 2 VRP

(Jan. 12, 2018) at 141 (emphasis added). He also stated, “I don’t think that you can

equate a 25-year sentence for, you know, someone who murdered someone in a bar

fight, and give that same sentence to a baby killer.” Id. (emphasis added). His family

expressed similar sentiments. See, e.g., id. at 142-47. The prosecutor asserted that

the “sentencing isn’t about [Haag]” but “about justice for an innocent little girl

whose last 15 minutes of life were a struggle for breath while being throttled by that

man’s hands.” Id. at 114 (emphasis added). The State requested a 60-year minimum

sentence. Id. at 121.

The resentencing court acknowledged that the “State offered nothing to rebut

[the] conclusions and assertions” of Haag’s experts regarding Haag’s rehabilitation.

1 VRP (Jan. 19, 2018) at 23. However, it also found that “there is no analysis that

informs the Court that Mr. Haag has addressed and overcome certain factors that led

to the violent murder of . . . [a] small child.” Id. In deciding on Haag’s new sentence,

the court explained its reasoning:

So the Court is faced with the daunting task of properly weighing a multiplicity of factors, which include a vile, cowardly, and particularly heinous multi-step strangulation and drowning of a defenseless, sixty-five pound little girl committed by a three hundred pound[,] seventeen-year-old young man that resulted in a convict[ion]

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

for aggravated murder in the first degree. I’m also to consider the then- youthful brain of Mr. Haag with diminished decision-making capacity, who simultaneously lived through some very difficult circumstances while still enjoying a supportive relationship and activities. And also, a man convicted of murder who has exhibited a stellar track record in prison and has been assessed as a low risk for violently re-offending.

In balancing these pieces of the puzzle, the Miller court and the statutory factors, and all the other factors that I mentioned earlier, the Court does now hereby impose a sentence—a minimum sentence of forty-six years in prison and a maximum of life in prison.

Id. at 27.

Haag appealed, arguing that the resentencing court failed to meaningfully

weigh the mitigating factors and that his sentence amounted to an unconstitutional

de facto life sentence. State v. Haag, No. 51409-5-II, slip op. at 13, 15 (Wash. Ct.

App. Sept. 10, 2019, as amended Sept. 17, 2019) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2051409-5-

II%20Unpublished%20Opinion.pdf. The Court of Appeals upheld his sentence. Id.

at 13-16.

Haag petitioned this court for review. The State filed an answer. We stayed

our decision to grant review pending our decision in State v. Delbosque, 195 Wn.2d

106, 456 P.3d 806 (2020). We then requested and received supplemental briefing

regarding granting review from both parties. The Fred T. Korematsu Center for Law

and Equality also filed two amicus briefs in support of granting the petition for

review. We granted review. Haag and the Korematsu Center filed further briefs.

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

Subsequent to oral argument, we requested and received further briefing on Jones v.

Mississippi, 593 U.S. __, 141 S. Ct. 1307, 209 L. Ed. 2d 390 (2021).

STANDARD OF REVIEW

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

of discretion or misapplication of the law.’” Delbosque, 195 Wn.2d at 116 (internal

quotation marks omitted) (quoting State v. Blair, 191 Wn.2d 155, 159, 421 P.3d 937

(2018)). “A trial court abuses its discretion when ‘its decision is manifestly

unreasonable or based upon untenable grounds.’” Id. (internal quotation marks

omitted) (quoting State v. Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012)).

A decision is based on untenable grounds when its factual findings are

unsupported by the record. Id. (quoting Lamb, 175 Wn.2d at 127). “We review

findings of fact for substantial evidence,” which “‘exists where there is a sufficient

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

truth of the finding.’” Id. (citing State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 705

(2014), and quoting State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994)).

ANALYSIS

Haag argues that the sentencing court erred because it placed more emphasis

on retribution than mitigation and that his sentence amounts to an unconstitutional

de facto life sentence. We agree. At a Miller-fix sentencing conducted pursuant to

RCW 10.95.030, a trial court must place greater emphasis on mitigation factors than

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

on retributive factors. Further, a minimum sentence of 46 years amounts to a de facto

life sentence for a juvenile.

I. Juvenile sentencing under federal and state law

Haag’s appeal arises out of a line of cases and statutes that control juvenile

sentencing in our state. In Roper v. Simmons, the United States Supreme Court held

that “[t]he Eighth and Fourteenth Amendments [to the United States Constitution]

forbid imposition of the death penalty on offenders who were under the age of 18

when their crimes were committed.” 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed.

2d 1 (2005). Then, in Graham v. Florida, the Court held that the Eighth Amendment

forbids “the imposition of a life without parole sentence on a juvenile offender who

did not commit homicide.” 560 U.S. 48, 82, 130 S. Ct. 2011, 176 L. Ed. 2d 825

(2010).

Next, the Court decided Miller, 567 U.S. 460. Noting that “Roper and Graham

establish[ed] that children are constitutionally different from adults for purposes of

sentencing,” id. at 471, the Court held that “mandatory life-without-parole sentences

for juveniles violate the Eighth Amendment.” Id. at 470. Although the Court still

permitted non-mandatory life-without-parole sentences for juveniles, the Court

“require[d the sentencer] to take into account how children are different, and how

those differences counsel against irrevocably sentencing them to a lifetime in

prison.” Id. at 480.

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

The Court based its holding on several principles. These included

“juveniles[’] . . . diminished culpability and greater prospects for reform,” which

was derived from “common sense” as well as “science and social science.” Id. at

471. In particular, the Court made clear that “‘the case for retribution is not as strong

with a minor as with an adult.’” Id. (internal quotation marks omitted) (quoting

Graham, 560 U.S. at 71).

Miller did more than just prohibit mandatory life without parole for juveniles.

It also “determined that sentencing a child to life without parole is excessive for all

but ‘the rare juvenile offender whose crime reflects irreparable corruption.’”

Montgomery v. Louisiana, 577 U.S. 190, 208, 136 S. Ct. 718, 193 L. Ed. 2d 599

(2016) (emphasis added) (internal quotation marks omitted) (quoting Miller, 567

U.S. at 479-80). Under Miller, it is not enough for a sentencing court to merely

consider how children are different. Id. Rather, “[e]ven if a court considers a child’s

age before sentencing him or her to a lifetime in prison, that sentence still violates

the Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient

immaturity.’” Id. (emphasis added) (internal quotation marks omitted) (quoting

Miller, 567 U.S. at 479). While “Miller did not impose a formal factfinding

requirement” that sentencing courts find a child is incorrigible or irreparably corrupt,

states are not “free to sentence a child whose crime reflects transient immaturity to

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

life without parole.” Id. at 211. Such a punishment for such a child violates the

Eighth Amendment. Id. 3

Most recently, the Court decided Jones, 141 S. Ct. 1307. There, the Court

reaffirmed that Miller does not require a juvenile defendant to be found to be

incorrigible before sentencing that juvenile defendant to life without parole. Id. at

1311.

In response to Miller, our state legislature enacted what are commonly

referred to as Miller-fix statutes, including RCW 10.95.030(3) and RCW 10.95.035.

See Delbosque, 195 Wn.2d at 111 n.1. Under RCW 10.95.030(3)(a)(i) and (ii),

juveniles convicted of aggravated first degree murder no longer face mandatory life

without parole. A sentencing hearing conducted under the Miller-fix scheme has

certain requirements:

In setting a minimum term, the court must take into account mitigating factors that account for the diminished culpability of youth as provided in Miller v. Alabama, 132 S. Ct. 2455 (2012)[,] including, but not

3 As the concurrence/dissent points out, Justice Sotomayor’s dissent in Jones suggested that the Jones majority called this rule into question, if not outright abandoned it. Jones, 141 S. Ct. at 1328, 1331 (Sotomayor, J., dissenting). We conclude that the Jones majority does not, in fact, disturb this rule of constitutional law, rather, Jones holds only that no finding of incorrigibility is necessary prior to sentencing a juvenile to life without parole. See Jones, 141 S. Ct. at 1311. When turning to the Jones majority, the concurrence/dissent can assert only that the “Jones majority . . . explains that ‘permanent incorrigibility is not an eligibility criterion’ or ‘a factual prerequisite’ that ‘a sentencer [must] find . . . before sentencing a murderer under 18 to life without parole.’” Concurrence/dissent at 8 (second and third alterations in original) (quoting Jones, 141 S. Ct. at 1315). Precisely—Jones holds there is no required finding of incorrigibility before imposing a life without parole sentence on a juvenile. 141 S. Ct. at 1311.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

limited to, the age of the individual, the youth’s childhood and life experience, the degree of responsibility the youth was capable of exercising, and the youth’s chances of becoming rehabilitated.

RCW 10.95.030(3)(b). Further, any juvenile who had been sentenced to life without

parole prior to June 1, 2014 “shall be returned to the sentencing court or the

sentencing court’s successor for sentencing consistent with RCW 10.95.030.” RCW

10.95.035(1).

Our court has expanded on this background. In State v. Ramos, we held that

“Miller . . . appl[ies] to juvenile homicide offenders facing de facto life-without-

parole sentences,” not just “literal” life-without-parole sentences. 187 Wn.2d 420,

437, 387 P.3d 650 (2017). In State v. Bassett, we held that article I, section 14 of the

Washington Constitution categorically prohibits sentencing juvenile offenders to life

without parole. 192 Wn.2d 67, 91, 428 P.3d 343 (2018).

When conducting a Miller-fix hearing governed by RCW 10.95.035, “courts

‘must meaningfully consider how juveniles are different from adults[ and] how those

differences apply to the facts of the case.’” Delbosque, 195 Wn.2d at 121 (quoting

Ramos, 187 Wn.2d at 434-35). 4 A resentencing court “‘must do far more than simply

4 Ramos, on which Delbosque relied in part, drew on Miller. Ramos, 187 Wn.2d at 442-44. While Jones suggests that there need not be any significant consideration of youth apparent in the record to render a juvenile sentence constitutional under Miller or the Eighth Amendment, 141 S. Ct. at 1319-20, Delbosque had previously made clear that the framework set forth in Ramos also “applies . . . to Miller hearings pursuant to RCW 10.95.030.” 195 Wn.2d at 120. Thus, the rules from Ramos regarding Miller-fix hearings

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

recite the differences between juveniles and adults and make conclusory statements

that the offender has not shown an exceptional downward sentence is justified.’” Id.

(quoting Ramos, 187 Wn.2d at 443). “Instead, the court must ‘receive and consider

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

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

Id. (quoting Ramos, 187 Wn.2d at 443). As Ramos succinctly put it, “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.” 187 Wn.2d at 444.

Additionally, in our state the “resentencing courts must consider the measure

of rehabilitation that has occurred since a youth was originally sentenced to life

without parole.” Delbosque, 195 Wn.2d at 121 (emphasis added). Such hearings

must therefore be forward looking, focusing on rehabilitation rather than on the past.

See id. at 122.

It is on this foundation that Haag’s case has come before us.

apply to this case via the operation of RCW 10.95.030—which governs here—irrespective of Jones. See id. This fits with the principles of federalism acknowledged by Jones. The Court made clear that states remain free to “impos[e] additional sentencing limits in cases involving defendants under 18 convicted of murder.” Jones, 141 S. Ct. at 1323. In line with this, and with Delbosque, we clarify that it is this court’s interpretation of our state statutory scheme and our precedent that control here.

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

II. The resentencing court clearly misapplied the law because it emphasized retribution over mitigation

Haag argues that the resentencing court erred because of its “fixation on

retribution,” which “overshadowed its obligations to conduct a sentencing that meets

the requirements of Miller.” Pet. for Review at 20. We agree.

The Miller Court made clear that retribution cannot take precedence in

juvenile sentencing. See 567 U.S. at 472 (“Because ‘[t]he heart of the retribution

rationale’ relates to an offender’s blameworthiness, ‘the case for retribution is not as

strong with a minor as with an adult.’” (internal quotation marks omitted) (quoting

Graham, 560 U.S. at 71)). It, instead, focused on the “‘mitigating qualities of

youth.’” Id. at 476 (quoting Johnson v. Texas, 509 U.S. 350, 367, 113 S. Ct. 2658,

125 L. Ed. 2d 290 (1993)). This followed the Court’s decision in Graham, where the

Court noted that states must provide juvenile offenders with “some meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation.”

560 U.S. at 75 (emphasis added); see also Miller, 567 U.S. at 473 (“Graham’s

reasoning implicates any life-without-parole sentence imposed on a juvenile.”).

Our Miller-fix statute followed suit. “[T]he purpose [of the Miller-fix statute]

is to require sentencing courts to ‘take into account mitigating factors that account

for the diminished culpability of youth as provided in Miller.’” Bassett, 192 Wn.2d

at 90 (quoting LAWS OF 2014, ch. 130, § 9(3)(b) (codified at RCW 10.95.030(3)(b))).

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

These factors include “‘the age of the individual, the youth’s childhood and life

experience, the degree of responsibility the youth was capable of exercising, and the

youth’s chances of becoming rehabilitated.’” Id. at 94 (quoting RCW

10.95.030(3)(b)). Notably absent from this provision is any reference to retributive

factors. See id. While courts must permit victim impact statements at resentencing

hearings under RCW 10.95.035(b), the structure of the Miller-fix statutes shows that

the legislature intended sentencers to focus on mitigating factors, with retribution

playing a minor role. See Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682,

80 P.3d 598 (2003) (“[A] court must not add words where the legislature has chosen

not to include them.”); Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1,

9-11, 43 P.3d 4 (2002) (plain meaning of a statute’s language is the best indicator of

legislative intent).

Miller-fix resentencing hearings must, therefore, focus on mitigation

evidence. Resentencing courts must take into account the mitigating qualities of

youth and its attendant circumstances. RCW 10.95.030(3)(b). Resentencing courts

also “must consider the measure of rehabilitation that has occurred since a youth was

originally sentenced to life without parole.” Delbosque, 195 Wn.2d at 121 (emphasis

added).

Finally, we have made clear that Miller-fix hearings must be forward looking,

not backward looking. Delbosque, 195 Wn.2d at 122. True, we have not prohibited

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

sentencers from taking into account retributive factors. See Ramos, 187 Wn.2d at

453 (impliedly permitting sentencer’s invocation of the penological justifications

from Miller, which would include retribution); Delbosque, 195 Wn.2d at 118

(impliedly permitting sentencer’s use of the nature of the crime in its evaluations).

But “‘[t]he key question is whether the [juvenile] defendant is capable of

change.’” Delbosque, 195 Wn.2d at 122 (quoting United States v. Briones, 929

F.3d 1057, 1067 (9th Cir. 2019)).

Here, the resentencing court improperly placed more emphasis on retribution

than on mitigation. The court’s focus was clearly backward looking, disregarding

the forward-looking focus required by our statutes and our case law. Rather than

treating the retributive factors as secondary, the resentencing court’s emphasis on

retribution was stark. It noted that “rehabilitation is not the sole measure in

sentencing.” 1 VRP (Jan. 19, 2018) at 25. Retribution also matters, the resentencing

court declared, and “[u]nder the retributive theory, severity of the punishment is

calculated by the gravity of the wrong committed.” Id. With that principle guiding

it, the court weighed what it termed “a vile, cowardly, and particularly heinous multi-

step strangulation and drowning of a defenseless, sixty-five pound little girl

committed by a three hundred pound[,] seventeen-year-old young man” against the

mitigating factors. Id. at 27. The resentencing court’s ultimate explanation of its

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

sentence—set out in full above, see supra pp. 5-6—shows its focus was backward

looking, driven by retribution and not mitigation.

Even when the resentencing court considered youth, it primarily focused on

the youth of the victim, Rachel Dillard, and not on Haag’s youth at the time of the

offense. See 1 VRP (Jan. 19, 2018) at 17. “Children are our most precious asset, they

literally are the future,” the court said, in reference to Rachel Dillard. Id. Rachel was

a vessel of hope for the future, but these hopes “were obliterated when Miss Rachel

was savagely slain by Mr. Haag.” Id. at 18. In contrast, the resentencing court’s

discussion of Haag’s youth was cursory at best. It is encapsulated by the court’s

comment that “according to case law Mr. Haag’s youthfulness does reduce his

culpability.” Id. at 20. Thus, Haag’s youth was not meaningfully considered as we

require—only Rachel Dillard’s was. See Ramos, 187 Wn.2d at 434-35 (“At the

Miller hearing, the court must meaningfully consider how juveniles are different

from adults [and] how those differences apply to the facts of the case.”).

Focusing on Rachel Dillard’s lost future rather than Haag’s rehabilitation, the

resentencing court drew a contrast between Haag and Rachel Dillard that

exemplifies its focus on retribution and not on mitigation. By minimizing Haag’s

youth and making a “savage[ ]” of him, the resentencing court founded its

resentencing decision on retribution: on the fact that Haag had taken a young life,

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

not on Haag’s youth at the time of the crime or what he has done since his conviction.

1 VRP (Jan. 19, 2018) at 18.

The resentencing court supported its focus on retribution by finding that “there

is no analysis that informs the Court that Mr. Haag has addressed and overcome

certain factors that led to the violent murder of . . . [a] small child.” Id. at 23. But

Haag’s rehabilitation evidence was voluminous and was uncontroverted by the State.

He had only one infraction in prison, in 1997, and no evidence was presented of any

poor behavior in the decades since. CP at 88-89. He obtained a high school diploma

soon after entering prison. 2 VRP (Jan. 12, 2018) at 159. He worked throughout his

incarceration in the prison chapel and the kitchen. Id. He became a Jehovah’s

Witness, and his religious beliefs motivate him to help others. Id. at 162. Both of

Haag’s expert witnesses concluded that he would have been at a low risk of

reoffending just after having committed the crime. CP at 77, 92. One expert, Dr.

Roesch, provided evidence that Haag is unlikely to reoffend now. Id. at 93. Expert

testimony also provided evidence that Haag would have had trouble, as a 17-year-

old, making decisions—even more so than the average juvenile. Id. at 73-74.

In contrast, the State produced only victim impact testimony. The only

evidence the State presented on Haag’s present mental state was a reference to a

statement made by an unnamed person allegedly incarcerated alongside Haag that

was conveyed by a third party via Facebook to Alex Dillard. 2 VRP (Jan. 12, 2018)

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

at 137. In fact, the resentencing court noted that the “State offered nothing to rebut

[the] conclusions and assertions” regarding Haag being “a good candidate for

rehabilitation.” 1 VRP (Jan. 19, 2018) at 23. There was thus not “‘a sufficient

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

Haag was not rehabilitated. Delbosque, 195 Wn.2d at 116 (quoting Hill, 123 Wn.2d

at 644); see also id. at 124 (Miller-fix statute does not allocate the burden of proof

to either the defendant or the State at a resentencing hearing). The resentencing

court’s finding of fact to the contrary therefore lacked substantial evidence,

amounting to an abuse of discretion. See Delbosque, 195 Wn.2d at 116 (trial court

abuses its discretion when a finding of fact lacks substantial evidence).

Overall, in the face of the substantial and uncontroverted mitigating evidence

presented by Haag, the resentencing court favored retributive factors over an

abundance of mitigation factors. We agree with Haag that “the uncontroverted

evidence of change and maturity produced by Haag was impermissibly discounted

by the [resentencing] court in its focus on the crime and the role of retribution.”

Suppl. Mem. in Supp. for Pet. for Review (Jul. 20, 2020) at 16. We hold that in a

Miller-fix hearing conducted under RCW 10.95.030, retributive factors must count

for less than mitigating factors. The resentencing court’s inversion of this balance

clearly misapplies our statutes and our precedent, amounting to reversible error. See

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

Delbosque, 195 Wn.2d at 116 (clear misapplication of the law by a resentencing

court is reversible error).

Taking a different approach, the Court of Appeals reasoned that trial courts

have “‘complete discretion’” to weigh the factors however they see fit in a Miller-

fix sentencing. Haag, No. 51409-5-II, slip op. at 14 (emphasis added) (quoting

Houston-Sconiers, 188 Wn.2d at 21). But Houston-Sconiers held “that sentencing

courts must have complete discretion to consider mitigating circumstances

associated with the youth of any juvenile defendant, even in the adult criminal justice

system, regardless of whether the juvenile is there following a decline hearing or

not.” 188 Wn.2d at 21. This does not mean that a sentencing court’s application of

mitigating factors is unreviewable on appeal.

Our holding today does not prevent future trial courts from exercising

discretion. They retain the discretion to determine whether and to what extent a

juvenile offender has been rehabilitated, whether youthfulness contributed to the

crime, and whether he or she is likely to reoffend. We do, however, provide guidance

to resentencing courts, highlighting the very factors of mitigation that our legislature

and this court have identified as paramount.

To reject Haag’s argument, the Court of Appeals also relied on our statement

in Ramos that “‘we cannot reweigh the evidence [from a sentencing decision] on

review.’” Haag, No. 51409-5-II, slip op. at 12 (quoting Ramos, 187 Wn.2d at 453).

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

But in Ramos, our overall concern was whether the resentencing court reasonably

considered the appropriate factors and correctly applied Miller. Id. at 14. Reversing

does not run afoul of Ramos, as here we are analogously concerned with whether the

resentencing court correctly applied our statutes and our precedent. Our statutes and

precedent require that mitigation factors count for more than retributive factors.

Reversing on the ground that the resentencing court here did not adhere to that rule

does not result in impermissible reweighing of the evidence but, instead, follows the

requirements set forth in the analogous scenario presented in Ramos.

The State argues that “[t]he Petitioner’s claim [regarding the sentence] comes

down to a simple disagreement with the sentence and with the outcome of the trial

court’s evaluation.” Resp. to Pet. for Review at 7. But Haag’s claim amounts to more

than a simple disagreement about the sentence. It shows how the resentencing court

erroneously applied our precedent and our statutory scheme, thereby committing

reversible error.

III. Haag’s sentence amounts to an unconstitutional de facto life sentence

Haag also argues that his 46-year minimum sentence amounts to an

unconstitutional de facto life sentence. We agree.

A sentence of 46 years to life amounts to a de facto life sentence for a juvenile

offender because it leaves the incarcerated individual without a meaningful life

outside of prison. As our sister states have persuasively reasoned, “[t]he United

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

States Supreme Court viewed the concept of ‘life’ in Miller and Graham more

broadly than biological survival; it implicitly endorsed the notion that an individual

is effectively incarcerated for ‘life’ if he will have no opportunity to truly reenter

society or have any meaningful life outside of prison.” Casiano v. Comm’r of Corr.,

317 Conn. 52, 78, 115 A.3d 1031 (2015) (citing Graham, 560 U.S. at 75). “A

juvenile offender,” like Haag, “is typically put behind bars before he [or she] has

had the chance to exercise the rights and responsibilities of adulthood, such as

establishing a career, marrying, raising a family, or voting.” Id. at 77. A 46-year

sentence for Haag results in his losing meaningful opportunities to reenter society

and to have a meaningful life.

A 46-year sentence for a 17-year-old offender means they will miss out on the

developments of the world. They will inevitably fall behind. Technological

advancements will have occurred during their decades in prison that will make

readjustment to life on the outside difficult. The very way people interface with each

other, and the world, will have dramatically changed. Such changes have already

occurred since Haag’s conviction in 1995. The Internet was a nascent thing; cell

phones were, for the few who had them, only phones. Now, the Internet is

ubiquitous: it is how many apply for jobs, how many (especially in a time of national

crisis) are able to do their jobs at all.

21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

As Casiano shows, we are not the first court to come to such conclusions. See

317 Conn. at 54, 76-80 (holding that a 50-year minimum term “may be deemed a

life sentence for purposes of Miller”). Several of our sister states, faced with this

same issue, have come to the same or a similar result for much the same reasons. See

State v. Zuber, 227 N.J. 422, 448, 152 A.3d 197 (2017) (55-year minimum sentence

for juvenile is the “practical equivalent of life without parole”); Bear Cloud v. State,

2014 WY 113, ¶¶ 11, 33, 334 P.3d 132, 136, 141-42 (2014) (Miller applied to what

was effectively a 45-year minimum sentence, which was the “functional equivalent

of life without parole”); see also State v. Null, 836 N.W.2d 41, 70-71 (Iowa 2013)

(52.5-year minimum term “is sufficient to trigger Miller-type protections”). These

cases reasoned much as Casiano did: that life is more than just life expectancy and

that a juvenile must have a meaningful opportunity to rejoin society after leaving

prison. 317 Conn. at 78; see also Null, 836 N.W.2d at 71 (“The prospect of geriatric

release, if one is to be afforded the opportunity for release at all, does not provide a

‘meaningful opportunity’ to demonstrate the ‘maturity and rehabilitation’ required

to obtain release and reenter society as required by Graham.” (quoting Graham, 560

U.S. at 75)); Bear Cloud, 2014 WY ¶ 34, 334 P.3d at 142 (“As a practical matter, a

juvenile offender sentenced to a lengthy term-of-years sentence will not have a

‘meaningful opportunity for release.’”).

22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

These cases from our sister states are instructive. In light of them, and the

foregoing principles, we hold that a juvenile offender sentenced to a 46-year

minimum term simply has little chance to meaningfully engage with society as an

adult. 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. Moreover, a crime committed by a juvenile is inherently

different from a crime committed by an adult, due to juveniles’ decreased

culpability. See, e.g., Bassett, 192 Wn.2d 81 (discussing how children are different

for sentencing purposes). Haag, having committed a terrible crime at the age of 17,

deserved and received punishment—but given the shortened life expectancy and

compromised health associated with life in prison, releasing Haag from confinement

at the age of 63 deprives him of a meaningful opportunity to return to society,

depriving him of a meaningful life. See 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) (discussing shorter life expectancy for incarcerated

persons). Haag’s sentence is therefore a de facto life sentence.

The State disagrees, asserting that Haag’s sentence cannot be a de facto life

sentence because the age at he which he will be eligible for release, 63, is shorter

than the average human life-span. The State relies on Ramos for this conclusion. But

Ramos did not hold that a sentence must exceed the average human life-span to

23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

amount to a de facto life sentence; it indicated only that such a sentence was a de

facto life sentence. 187 Wn.2d at 434. Any confusion on this matter was cleared up

in Delbosque, where we clarified that Ramos “did not define ‘de facto life sentence’

as a ‘total prison term exceeding the average human life-span.’” 195 Wn.2d at 122

(quoting Ramos, 187 Wn.2d at 434).

Today we determine that Haag’s 46-year sentence amounts to a de facto life

sentence; therefore his sentence is unconstitutional under the Eighth Amendment

because the resentencing court expressly found Haag was “not

irretrievably depraved nor irreparably corrupt.” 1 VRP (Jan. 19, 2018) at 25; see

Montgomery, 190 U.S. at 208 (Miller and its progeny prohibit life sentences

imposed on children who are not one of the “‘rare juvenile offender[s] whose

crime reflects irreparable corruption.’” (internal quotation marks omitted)

(quoting Miller, 567 U.S. at 479-80)); Ramos, 187 Wn.2d at 437 (Miller

applies to de facto life sentences). In addition, in Bassett, we held that under

article I, section 14 of our constitution, any life-without-parole sentence for a

juvenile offender is unconstitutional. 192 Wn.2d at 91. Therefore, Haag’s de facto

life sentence is also unconstitutional under article I, section 14. See id.

24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

CONCLUSION

The resentencing court clearly misapplied the law because it placed far more

emphasis on retributive factors than on mitigation factors when determining Haag’s

new sentence. It also abused its discretion because its finding lacked substantial

evidence that Haag had not overcome the factors that led to the murder. In addition,

we hold that Haag’s sentence amounts to an unconstitutional de facto life sentence

under both the state and federal constitutions. We reverse and remand for a new

sentencing hearing in accordance with this opinion. 5

5 Amicus Korematsu Center argues that “where a sentencing court finds a child to be both less culpable and not irreparably corrupt, the sentence imposed should be at or near the 25- year minimum term allowed by the [Miller-fix] statute.” Br. of Fred T. Korematsu Ctr. for Law & Equality as Amicus Curiae in Supp. of Appellant (Sept. 3, 2020) at 3. We decline to reach this argument, having resolved this case in Haag’s favor on other grounds.

25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Timothy), No. 97766-6

WE CONCUR.

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

State v. Haag (Johnson, J., concurring)

No. 97766-6

JOHNSON, J. (concurrence)—I agree with the majority’s conclusion that

the resentencing court abused its discretion and committed reversible error. I agree

that the proper remedy is to vacate the sentence and remand for resentencing.

Based on this, it is not necessary to go further and analyze whether the now

vacated sentence amounts to a de facto life sentence. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

STEPHENS, J. (concurring in part, dissenting in part)—When Timothy Haag

was 17 years old, he killed his 7 year old neighbor. Haag was convicted of

aggravated first degree murder in 1995, and the sentencing court imposed the only

punishment then allowed by Washington law: life in prison without the

possibility of parole. See former RCW 10.95.030 (1993).1

Seventeen years after Haag’s conviction, the United States Supreme Court

decided the Eighth Amendment to the United States Constitution bars the mandatory

imposition of life without parole (LWOP) sentences on juvenile homicide offenders

because “these laws prohibit a sentencing authority from assessing whether the law’s

harshest term of imprisonment proportionately punishes a juvenile offender.” Miller

1 Had the prosecuting attorney filed a notice of a special sentencing proceeding, Washington law would have allowed Haag to be sentenced to death. See former RCW 10.95.030(2); RCW 10.95.040(3). The United States Supreme Court later held that the Eighth Amendment bars imposition of the death penalty on juvenile offenders. Roper v. Simmons, 543 U.S. 551, 575, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); U.S. CONST. amend. VIII. 1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

v. Alabama, 567 U.S. 460, 474, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). So

Washington’s legislature passed new laws—commonly called Miller-fix statutes—

allowing juveniles like Haag to be resentenced in light of the “mitigating factors that

account for the diminished culpability of youth as provided in Miller.” LAWS OF

2014, ch. 130, §§ 9, 11; RCW 10.95.030(3)(b), 035. 2

Haag was resentenced in 2018 and received a minimum term of 46 years in

prison. He appealed, arguing the resentencing court did not meaningfully weigh his

extensive—and uncontested—evidence of diminished culpability. Haag also argues

his 46-year minimum term constitutes a de facto LWOP sentence in violation of the

federal and state constitutions. The Court of Appeals rejected Haag’s claims, and

we granted review.

I agree with the majority’s conclusion that Washington’s Miller-fix statutes

require courts to emphasize the mitigating qualities of youth over retributive factors

when sentencing an offender who committed aggravated first degree murder as a

child. Because Haag’s resentencing court failed to do so, I agree the proper remedy

2 Though Miller applies only to juvenile homicide offenders, our legislature also enacted a law allowing any juvenile currently serving a lengthy adult prison sentence for any other criminal offenses to receive a parole hearing with a presumption of “early release after serving no less than twenty years of total confinement.” LAWS OF 2014, ch. 130, § 10; RCW 9.94A.730(1), (3). Juvenile homicide offenders resentenced under RCW 10.95.035 also receive a parole hearing with a presumption of release after they have served their minimum term. RCW 10.95.030(3)(f). 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

is to vacate Haag’s sentence and remand for resentencing consistent with RCW

10.95.030(3)(b). But, like Justice Johnson, I believe that conclusion resolves this

case and I would not reach the broader question of whether a 46-year minimum term

constitutes an unconstitutional de facto LWOP sentence for any juvenile offender.

While I join Justice Johnson’s concurrence, I write separately to explain why

Haag’s argument that a 46-year minimum sentence is unconstitutional is inconsistent

with the United States Supreme Court’s recent decision in Jones v. Mississippi. 3

Because this court’s interpretation of the Eighth Amendment is bound by that

decision, I am compelled to respectfully dissent from the majority’s conclusion that

Haag’s 46-year minimum term constitutes an unconstitutional de facto LWOP

sentence.

The Eighth Amendment prohibits sentencing courts from treating children

like adults when imposing LWOP sentences. Miller, 567 U.S. at 474 (“[I]mposition

of a State’s most severe penalties on juvenile offenders cannot proceed as though

they were not children.”). Sentencing courts must “take into account how children

are different [from adults], and how those differences counsel against irrevocably

3 593 U.S. ___, 141 S. Ct. 1307, 209 L. Ed. 2d 390 (2021).

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

sentencing them to a lifetime in prison.” Id. at 480. But the Eighth Amendment

does not bar sentencing courts from imposing LWOP sentences on juvenile

homicide offenders, so long as they consider the appropriateness of such

punishments in light of the mitigating qualities of youth. Id. at 483 (“Our decision

does not categorically bar a penalty for a class of offenders or type of crime—as, for

example, we did in Roper or Graham. Instead, it mandates only that a sentencer

follow a certain process—considering an offender’s youth and attendant

characteristics—before imposing a particular penalty.”).

The Supreme Court seemed to retreat from Miller’s announcement that it did

not categorically bar LWOP sentences for any class of juvenile offenders in

Montgomery v. Louisiana. 4 There, the Court held that “Miller drew a line between

children whose crimes reflect transient immaturity and those rare children whose

crimes reflect irreparable corruption.” Montgomery, 577 U.S. at 209. Drawing that

line, the Court explained, “rendered life without parole an unconstitutional penalty

for . . . juvenile offenders whose crimes reflect the transient immaturity of youth.”

Id. at 208 (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L.

Ed. 2d 256 (1989)); see also id. (“Even if a court considers a child’s age before

4 577 U.S. 190, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). 4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

sentencing him or her to a lifetime in prison, that sentence still violates the Eighth

Amendment for a child whose crime reflects ‘unfortunate yet transient immaturity.’”

(internal quotation marks omitted) (quoting Miller, 567 U.S. at 479-80)).

So courts across the country, including this court, understood and applied the

Eighth Amendment to prohibit LWOP sentences for all juvenile offenders except

those whose crimes reflect “irreparable corruption.” See, e.g., State v. Ramos, 187

Wn.2d 420, 444, 387 P.3d 650 (2017). It is on this understanding that the majority

here concludes Haag’s 46-year minimum term is an unconstitutional de facto LWOP

sentence. See majority at 24 (“Today we determine that Haag’s 46-year sentence

amounts to a de facto life sentence; therefore his sentence is unconstitutional under

the Eighth Amendment because the resentencing court expressly found Haag was

‘not irretrievably depraved nor irreparably corrupt.’” (quoting 1 Verbatim Report of

Proceedings (VRP) (Jan. 19, 2018) at 25)). But that understanding—that the Eighth

Amendment categorically bars LWOP sentences for juvenile offenders capable of

rehabilitation—is no longer good law.

I. Haag’s Sentence is Not Unconstitutional under Jones v. Mississippi’s Interpretation of the Eighth Amendment

While Haag’s case was pending before us, the United States Supreme Court

again revisited its Eighth Amendment rule under Miller. Jones, 141 S. Ct. 1307.

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

Jones returned to Miller’s statement that the Eighth Amendment “require[s] that a

sentencer consider youth as a mitigating factor when deciding whether to impose a

life-without-parole sentence,” but it “d[oes] not require the sentencer to make a

separate finding of permanent incorrigibility before imposing such a sentence.” Id.

at 1316. In so holding, Jones retreated from Montgomery’s interpretation of Miller.

Id. at 1328 (Sotomayor, J., dissenting) (noting the decision “guts” Montgomery’s

interpretation of Miller and “reduces Miller to a decision requiring ‘just a

discretionary sentencing procedure where youth [is] considered.’” (alteration in

original) (quoting id. at 1317)). Under Jones, the Eighth Amendment does not

categorically bar LWOP sentences for juvenile homicide offenders who demonstrate

their capacity for rehabilitation. Instead, “a State’s discretionary sentencing system

is both constitutionally necessary and constitutionally sufficient” to permit the

imposition of LWOP sentences on juvenile homicide offenders under the Eighth

Amendment. Id. at 1313.

Haag’s argument, accepted by today’s majority, is premised on Montgomery’s

now-rejected view that “states are not ‘free to sentence a child whose crime reflects

transient immaturity to life without parole’” under “the Eighth Amendment.” See

majority at 9-10 (quoting Montgomery, 577 U.S. at 211), 24 (concluding Haag’s

“sentence is unconstitutional under the Eighth Amendment because the resentencing 6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

court expressly found Haag was ‘not irretrievably depraved nor irreparably

corrupt.’” (quoting 1 VRP (Jan. 19, 2018) at 25)). That view is unsustainable in light

of Jones.

The majority admits “Justice Sotomayor’s dissent . . . suggested that the Jones

majority called this rule into question, if not outright abandoned it,” but it

nevertheless concludes that “the Jones majority does not, in fact, disturb this rule.”

Majority at 10 n.3. I acknowledge a dissent’s view is not binding precedent. But

when a dissent, a concurrence, and the majority opinion all agree on what a Supreme

Court decision means, this court is not free to disregard that meaning. And here,

every published opinion in Jones makes clear that the majority’s holding means the

Eighth Amendment permits a sentencing court to impose LWOP sentences on

juvenile homicide offenders, even if they are not permanently incorrigible.

Justice Sotomayor’s dissent makes that point in its opening paragraph:

[T]he majority claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as ‘the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.’ In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of ‘those rare children whose crimes reflect irreparable corruption.’ Even if the juvenile’s crime reflects ‘unfortunate yet transient immaturity,’ he can be sentenced to die in prison.

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

Jones, 141 S. Ct. at 1328 (Sotomayor, J., dissenting) (emphasis added) (citations and

internal quotation marks omitted) (citing id. at 1311; Montgomery, 577 U.S. at 209;

Miller, 567 U.S. at 479).

Justice Thomas’s concurrence similarly explains the majority’s holding:

The [majority] opinion candidly admits both that Miller’s rule was “procedural” and that Montgomery “ma[de] the rule retroactive.” The only way to reconcile these statements with the bottom-line judgment in this case—that Jones is not entitled to a determination whether he falls within a constitutionally protected category of offenders—is to reject Montgomery. And sure enough, the majority does just that, albeit in a footnote.

Id. at 1327 (Thomas, J., concurring) (second alteration in original) (citation omitted)

(quoting and citing id. at 1315-16, 1316-18, 1317 n.4 (explaining Montgomery is “in

tension” with many other decisions)).

And the Jones majority itself explains that “permanent incorrigibility is not

an eligibility criterion” or “a factual prerequisite” which “a sentencer [must] find . . .

before sentencing a murderer under 18 to life without parole.”5 Id. at 1315, 1316

n.3. If the Eighth Amendment does not require courts to determine whether a

juvenile offender is permanently incorrigible before sentencing them to LWOP,

5 To be sure, the Jones majority does not make the consequences of its holding as explicit as it might have. But “[t]he Court is fooling no one.” Jones, 141 S. Ct. at 1328 (Sotomayor, J., dissenting); see also id. at 1327 (Thomas, J., concurring) (“[T]he majority’s whisper is worth restating above the line: Montgomery gave a good-for-one- ride ticket to a class of juvenile offenders, and its errors will never be repeated.”).

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

inevitably some juvenile offenders who are not permanently incorrigible will be

sentenced to LWOP. Therefore, the Eighth Amendment does not categorically bar

the imposition of LWOP sentences on juvenile offenders who are not permanently

incorrigible. 6

Though I might prefer Montgomery’s interpretation of Miller to Jones’s as a

matter of policy, I cannot ignore that Jones’s interpretation is controlling as a matter

of Eighth Amendment law. Therefore, “[e]ven if the juvenile’s crime ‘reflects

unfortunate yet transient immaturity,’ he can be sentenced to die in prison.” Id. at

1328 (Sotomayor. J., dissenting) (citation and internal quotation marks omitted)

(quoting Miller, 567 U.S. at 479) (describing the majority’s holding). In Haag’s

6 The majority nevertheless suggests that because “Jones holds there is no required finding of incorrigibility before imposing a life without parole sentence on a juvenile,” it does not disturb Montgomery’s rule that the Eighth Amendment forbids LWOP sentences for juveniles found not to be permanently incorrigible. Majority at 10 n.3. But that reading of Jones creates the absurd consequence that the Eighth Amendment forbids LWOP sentences for some juvenile offenders who are not permanently incorrigible (namely, those lucky enough to have a court make explicit findings on the record) but not for others. It cannot be that juvenile offenders lose the Eighth Amendment’s protection merely because a judge decides not to make a finding that is not constitutionally required. See Jones, 141 S. Ct. at 1326 (Thomas, J., concurring) (“If Montgomery is correct about the existence of a concrete class of offenders who—as a matter of fundamental constitutional law—are categorically exempt from a sentence of life without parole, then there must be a determination as to whether Jones falls within that protected class. Otherwise, the ‘line’ Miller ostensibly ‘drew . . . between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption’ is more fanciful than real.” (alteration in original) (quoting Montgomery, 577 U.S. at 209)). 9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

case, this means the Eighth Amendment did not prohibit the resentencing court from

exercising discretion to impose an LWOP sentence, much less the 46-year minimum

term that gives Haag the opportunity for parole.

II. The Decisions of Other State Supreme Courts Do Not Support Categorically Barring a 46-Year Minimum Sentence

In my view, the majority unnecessarily 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.” Majority at 20.

In support of this broad holding, the majority cites four decisions from other state

supreme courts. Majority at 21-22 (citing Casiano v. Comm’r of Corr., 317 Conn.

52, 54, 115 A.3d 1031 (2015) (holding 50-year minimum term for juvenile

implicates Miller); State v. Zuber, 227 N.J. 422, 448, 152 A.3d 197 (2017) (55-year

minimum sentence for juvenile implicates Miller); Bear Cloud v. State, 2014 WY

113, ¶¶ 11, 33, 334 P.3d 132 (2014) (Miller applied to what was effectively a 45-

year minimum sentence, which was the “functional equivalent of life without

parole”); State v. Null, 836 N.W.2d 41, 70-71 (Iowa 2013) (52.5-year minimum term

implicates Miller)). The majority effectively suggests we would join our sister states

by recognizing a minimum term of 46 years constitutes a de facto life sentence for

juvenile offenders. Majority at 22.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

I respectfully disagree. We have already joined our sister states in recognizing

that a de facto life sentence implicates the protections of Miller. See Ramos, 187

Wn.2d at 437 (“We now join the majority of jurisdictions that have considered the

question and hold that Miller does apply to juvenile homicide offenders facing de

facto life-without-parole sentences.”). In reaching that conclusion, Ramos cited

three of the four out-of-state cases the majority relies on today. Id. at 439 n.3 (citing

Casiano, 317 Conn. at 72-75; Bear Cloud, 2014 WY 113, ¶ 33; Null, 836 N.W.2d at

72).

Like Ramos, these four out-of-state cases considered whether a lengthy term

of years triggers Miller’s requirement that sentencing courts “consider[] the specific

nature of the crimes and the individual’s culpability before sentencing a juvenile

homicide offender to die in prison.” Ramos, 187 Wn.2d at 438-39; see also Casiano,

317 Conn. at 73 (“Our inquiry in the present case, therefore, focuses on whether the

imposition of a fifty year sentence without the possibility of parole is subject to the

sentencing procedures set forth in Miller.”); Zuber, 227 N.J. at 448 (“[W]e find that

the lengthy term-of-years sentences imposed on the juveniles in these cases are

sufficient to trigger the protections of Miller.”); Bear Cloud, 2014 WY 113, ¶ 32

(“We next turn to the question of whether a lengthy aggregate sentence . . . whose

practical effect is that the juvenile offender will spend his lifetime in prison triggers 11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

the Eighth Amendment protections set forth by the United States Supreme Court in

Miller.”); Null, 836 N.W.2d at 72 (“We conclude that Miller’s principles are fully

applicable to a lengthy term-of-years sentence . . . because an offender sentenced to

a lengthy term-of-years sentence should not be worse off than an offender sentenced

to life in prison without parole who has the benefit of an individualized hearing under

Miller.”). All recognize that a Miller analysis is necessary before a court may

impose a lengthy sentence that is comparable to an LWOP sentence.

However, none of these cases hold that the Eighth Amendment prohibits a

lengthy sentence that “results in [a juvenile offender] losing meaningful

opportunities to reenter society and to have a meaningful life.” Majority at 21.

Instead, our sister states have determined only that juvenile offenders may not be so

sentenced unless they received the protections of the Eighth Amendment under

Miller. And Miller itself did not even “consider . . . [the] argument that the Eighth

Amendment requires a categorical bar on life without parole for juveniles.” 567 U.S.

at 479. Instead, Miller “mandates only that a sentencer follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing a

particular penalty.” Id. at 483. Therefore, the cases cited by the majority stand only

for the proposition that juvenile offenders cannot be sentenced to die in prison unless

the sentencing court first considers whether that sentence is appropriate in light of 12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

the mitigating qualities of the offender’s youth. And that consideration is precisely

what Haag will receive when he is resentenced on remand. As Jones makes clear,

the Eighth Amendment requires nothing more.

The majority attempts to buttress its holding that a 46-year sentence is

categorically unconstitutional with a single reference to a case interpreting

Washington’s constitution as more protective than the Eighth Amendment. See

majority at 24 (“In addition, in Bassett, we held that under article I, section 14 of our

constitution, any life-without-parole sentence for a juvenile offender is

unconstitutional. Therefore, Haag’s de facto life sentence is also unconstitutional

under article I, section 14.” (citation omitted) (citing State v. Bassett, 192 Wn.2d 67,

91, 428 P.3d 343 (2018))). But the Eighth Amendment does not prohibit Haag’s

sentence, so the majority must explain why Washington’s constitution does. And

the majority does not explain how Bassett’s reasoning—which rejects the notion that

sentencing courts can accurately assess a juvenile offender’s capacity for

rehabilitation, see Bassett, 192 Wn.2d at 89-90—supports its holding that a

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

sentencing court’s assessment of a juvenile offender’s capacity for rehabilitation

controls which sentences are permissible under article I, section 14. 7

We have never announced that a term of years less than life is categorically

equivalent to an LWOP sentence for juvenile offenders. See Ramos, 187 Wn.2d at

439 n.6 (“We reserve ruling on that question until we have a case in which it is

squarely presented.”); State v. Delbosque, 195 Wn.2d 106, 122, 456 P.3d 806 (2020)

(“Although the trial court clearly intended to impose a life sentence when setting

Delbosque’s 48-year minimum term, the question of whether this amounts to a de

facto life sentence is not squarely presented here, either. We therefore decline to

address the issue.”). Bassett alone cannot support such a holding, as it did not

7 The majority does not consider how its focus on Haag’s rehabilitation as the reason for invalidating his 46-year minimum term stands in tension with the reasoning in Bassett. The consequences of deciding that a term of years sentence is a de facto LWOP sentence differ significantly between the state and federal constitutions. Under the Eighth Amendment, such a determination means sentencing courts must consider the mitigating qualities of youth before imposing that sentence; in other words, the sentence implicates Miller’s protections. See Ramos, 187 Wn.2d at 440. But under Bassett’s reasoning, that same determination would lead to the conclusion that article I, section 14 of the Washington constitution categorically bars that term of years sentence for any juvenile offender, regardless of whether they have demonstrated rehabilitation. See Bassett, 192 Wn.2d at 89-90. Thus, the majority’s reasoning and Bassett’s reasoning appear incompatible. Lower courts will have good reason to wonder when they must assess the individual offender’s rehabilitation before imposing a term of years and when a specific term of years is simply unconstitutional for any juvenile offender. We should not announce a major new rule of state constitutional law absent adequate briefing and analysis explaining the applicable standard to guide lower courts in the future. 14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

involve a term of years sentence with the possibility of release. Yet the majority

provides no other reasoning or authority under Washington’s constitution.

The majority’s de facto LWOP holding is all the more puzzling because it is

unnecessary to resolve the case before us. This court unanimously agrees that Haag

must be resentenced in light of the evidence of his rehabilitation, with the appropriate

focus on the mitigating qualities of youth under RCW 10.95.030(3)(b). See majority

at 18 (“We hold that, in a Miller-fix hearing conducted under

RCW 10.95.030, retributive factors must count for less than mitigating factors.”);

concurrence at 1 (“I agree with the majority’s conclusion that the resentencing court

abused its discretion and committed reversible error. I agree that the proper remedy

is to vacate the sentence and remand for resentencing.”). That decision is

important—it will ensure Haag and others like him will be resentenced in light of

their evidence of rehabilitation, consistent with RCW 10.95.030(3)(b) and the

constitutional protections we, and our sister states, have recognized under the Eighth

Amendment. Because that decision is sufficient to resolve this case, I would end

our analysis there.

Under RCW 10.95.030(3)(b), Haag is entitled to a new resentencing hearing

in which the court gives due weight to the mitigating qualities of youth described by 15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Haag (Stephens, J., concurring in part, dissenting in part)

Miller, including Haag’s proven capacity for rehabilitation. The Eighth Amendment

does not categorically prohibit the 46-year minimum term sentence he received, and

the majority does not explain why Washington’s constitution would do so.

Accordingly, I respectfully concur in the majority’s first holding and dissent from

its second.