State v. Reynolds

• Court: Washington Supreme Court
• Decided: September 21, 2023
• Docket: 100,873-2
• Status: Published

Opinion

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 100873-2

Respondent, EN BANC v. Filed: September 21, 2023 MICHAEL SCOTT REYNOLDS, JR.,

Petitioner.

GORDON MCCLOUD, J.—“[I]n the context of juvenile sentencing, article

I, section 14 [of the Washington Constitution] provides greater protection than the

Eighth Amendment.” State v. Bassett, 192 Wn.2d 67, 82, 428 P.3d 343 (2017);

U.S. CONST. amend. VIII. We have therefore ruled that article I, section 14

categorically bars imposition of a sentence of life in prison without possibility of

parole on a juvenile—no matter how serious the crime—even though the Eighth

Amendment permits this. Bassett, 192 Wn.2d at 72-73.

In this case, Michael Scott Reynolds Jr. received a mandatory sentence of

life in prison without possibility of parole for a crime he committed at age 33. The

events triggering that sentence, though, were his two prior convictions—or For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

“strikes” under our state’s “three strikes”1 law—one of which Reynolds committed

at age 17, when he was a juvenile.

If Reynolds’ current sentence constitutes punishment for his earlier offense

committed at age 17, then it would be unconstitutional under Bassett. But under

our recent precedent, his current sentence does not constitute punishment for that

prior offense. In State v. Moretti, decided two years after Bassett, this court held

that a “three strikes” sentence of mandatory life in prison without possibility of

parole constitutes punishment for the last crime or third “strike,” not the earlier

first or second “strikes.” 193 Wn.2d 809, 826, 446 P.3d 609 (2019). And for

years, we have held that our state’s “three strikes” law as applied to adults does not

violate article I, section 14.2 That assessment could certainly change over time.

But in this case, the parties have not asked us to overrule it.

We therefore affirm the Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

Under Washington’s Persistent Offender Accountability Act (POAA), an

offender who commits three “most serious offense[s]” must be sentenced to life in

1 Persistent Offender Accountability Act (or “three strikes” law), RCW 9.94A.570, of the Sentencing Reform Act of 1981, ch. 9.94A. RCW. 2 See, e.g., State v. Witherspoon, 180 Wn.2d 875, 889, 329 P.3d 888 (2014); State v. Magers, 164 Wn.2d 174, 193, 189 P.3d 126 (2008) (plurality opinion); State v. Manussier, 129 Wn.2d 652, 677, 921 P.2d 473 (1996); State v. Rivers, 129 Wn.2d 697, 715, 921 P.2d 495 (1996). 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

prison without the possibility of parole. RCW 9.94A.030(37), .570. This “three

strikes” law requires sentencing courts to count all prior adult convictions for

“most serious offense[s]” as strikes. It explicitly bars sentencing courts from

counting juvenile adjudications as strikes. RCW 9.94A.030(37), (34). But it does

not bar sentencing courts from counting adult “most serious offense[s]”—even if

the adult conviction resulted from a crime committed as a juvenile.

Following that law, after Reynolds was convicted of a “most serious

offense” for a crime he committed at age 33, the sentencing court determined that

it was his “third strike.” As the following summary shows, the sentencing court’s

determination was correct under the three strikes statute.

First, on December 30, 2001, 17-year-old Reynolds tried to rob a gas station

with a BB3 gun. 3 Clerk’s Papers (CP) at 360, 387-88. He was charged with first

degree attempted robbery in juvenile court. Id. at 349. But the juvenile court

declined jurisdiction, and the case was transferred to adult court, where Reynolds

pleaded guilty as charged. Id. at 364, 398-99. This was Reynolds’ first strike. Id. at

357.

Next, on January 1, 2006, 21-year-old Reynolds forcefully entered a

couple’s apartment and held them hostage while Reynolds and an accomplice tried

to rob them. Id. at 314-15. Reynolds pleaded guilty to robbery in the first degree

3 BB is a shot pellet 0.175 inch in diameter for use in a BB gun. 3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

and burglary in the first degree. Id. at 329-336. This was Reynolds’ second strike.

Id. at 333.

Finally, on February 20, 2018, 33-year-old Reynolds pulled a barista out of a

coffee stand, dragged her to a nearby wooded area, and violently attempted to rape

her at knifepoint. 1 CP at 3. A jury found him guilty of first degree burglary and

second degree attempted rape. Id. at 243. This was Reynolds’ third strike. Id. at

250.

Because this was Reynolds’ third strike, the trial court determined that he

was a persistent offender under RCW 9.94A.030 and sentenced him to life in

prison without the possibility of parole (LWOP). 2 CP at 251.

Reynolds appealed. Id. at 253. He argued, among other things, that imposing

a sentence of LWOP based in part on his prior conviction for a crime he committed

as a juvenile violated state and federal constitutional protections against cruel or

cruel and unusual punishments. State v. Reynolds, 21 Wn. App. 2d 179, 184, 505

P.3d 1174 (2022). The Court of Appeals affirmed. Id.

We granted review on the question of whether counting an adult conviction

for a crime committed as a juvenile as a “strike” violates the United States or state

constitutional protections against cruel or cruel and unusual punishment. Ord.,

State v. Reynolds, No. 100873-2 (Wash. 2022).

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

STANDARD OF REVIEW

We review a statute’s constitutionality de novo. Kitsap County v. Mattress

Outlet, 153 Wn.2d 506, 509, 104 P.3d 1280 (2005) (plurality opinion); Bassett,

192 Wn.2d at 77. The cruel punishment clause in article I, section 14 of our state

constitution is more protective than the Eighth Amendment of the federal

constitution. Id. at 82. Reynolds raises both constitutional provisions, so we start

with our more protective state clause. See Moretti, 193 Wn.2d at 819.

ANALYSIS

The POAA states that “a persistent offender shall be sentenced to a term of

total confinement for life without the possibility of release.” RCW 9.94A.570. The

POAA defines “offender” as a person who has committed a felony and is 18 years

of age or older or is less than 18 years of age but whose case has been transferred

to adult court. RCW 9.94A.030(34). It then defines “persistent offender” as an

“offender” whose current conviction is for “a most serious offense” and who has

prior convictions of “most serious offenses” “on at least two separate occasions.”

RCW 9.94A.030(37).

Reynolds has now been convicted on three separate occasions as an

“offender” for three “most serious offense[s].” He therefore fits within the

POAA’s definition of a “persistent offender.” And he does not dispute that. See

Suppl. Br. of Pet’r at 8-9.

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

Reynolds argues, instead, that this statutory scheme is unconstitutional for

allowing a trial court to use a conviction for a crime committed as a juvenile as a

predicate for a later, adult, mandatory LWOP sentence. Specifically, he asserts

that such a mandatory LWOP sentence violates the Eighth Amendment’s bar on

cruel and unusual punishment and the Washington Constitution’s article I, section

14 bar on cruel punishment. He bases both of these arguments on the fact that he

committed his first strike as a juvenile rather than as an adult. Id. at 9-10.

Reynolds’ briefing, however, focuses only on the Washington Constitution.

He argues that under Bassett, 192 Wn.2d 67, the state constitution categorically

bars imposing an LWOP sentence on an offender who committed their first strike

as a juvenile. Suppl. Br. of Pet’r at 14. In the alternative, he argues that his LWOP

sentence is unconstitutionally disproportionate under State v. Fain, 94 Wn.2d 387,

617 P.2d 720 (1980). Id. at 21.

We address both of his arguments—the claim of unconstitutionality under

our categorial Bassett analysis and the claim of unconstitutionality under our Fain

proportionality analysis. But we do so with Moretti’s holding, that the current

sentence punishes the current crime rather than the prior strikes, in mind. 193

Wn.2d at 826 (“The petitioners’ argument depends on the assumption that these

sentences punish them for crimes they committed as young adults. But these

sentences are for the most serious offenses they committed at either age 32

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

(Moretti) or age 41 (Nguyen and Orr), well into adulthood.”). 4 We conclude that

Reynolds’ sentence is constitutional under article I, section 14 of our state

constitution.

I. Under the Bassett categorical bar inquiry, there is no national consensus or independent Washington bar against counting a defendant’s prior conviction in adult court for a crime committed as a juvenile as a “strike”

Both the Eighth Amendment to the United States Constitution and article I,

section 14 of the Washington State Constitution categorically bar sentences that are

disproportionate to the crime of conviction and the culpability of the offender.

Bassett, 192 Wn.2d at 84 (citing Graham v. Florida, 560 U.S. 48, 59-62, 130 S. Ct.

2011, 176 L. Ed. 2d 825 (2010)).

In Bassett, we outlined one test that we can use to determine if a punishment

is disproportionate: the categorical bar test. We held that under article I, section

14 of our state constitution, we must address (1) whether there are “objective

indicia of a national consensus against the sentencing practice” and (2) whether our

independent judgment, based on controlling precedent and our understanding and

interpretation of the cruel punishment provision’s text, history, and purpose,

We also note that Moretti’s holding on this point is consistent with our prior 4

precedent. We have repeatedly held that habitual offender statutes like the POAA are “not cumulative punishment for prior crimes” but rather the “repetition of criminal conduct aggravates the guilt of the last conviction and justifies a heavier penalty for the crime.” State v. Lee, 87 Wn.2d 932, 937, 558 P.2d 236 (1976); State v. Le Pitre, 54 Wash. 166, 168, 103 P. 27 (1909) (habitual offender statute does not violate double jeopardy principles but “merely provides an increased punishment for the last offense”). 7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

weighs against the sentencing practice. Id. at 83. “Th[is] categorical approach

‘requires consideration of the culpability of the offenders at issue in light of their

crimes and characteristics, along with the severity of the punishment in question’

and whether the sentence ‘serves legitimate penological goals.’” Id. at 83-84

(quoting Graham, 560 U.S. at 67).

A. There is an emerging trend, but no “national consensus,” against the sentencing practice at issue here

So the first step in the categorical bar analysis is to determine whether there

is a national consensus against the sentencing practice at issue. Here, the

sentencing practice at issue is counting the defendant’s commission of a “strike” as

a juvenile as a predicate “strike” supporting that defendant’s later three strikes

LWOP sentence. (The challenged practice involves only prior offenses committed

as a juvenile but transferred to, and adjudicated in, adult court.)

We determine whether there is a national consensus by looking at the

“‘“objective indicia of society’s standards, as expressed in legislative enactments

and state practice.”’” Bassett, 192 Wn.2d at 85 (quoting Graham, 560 U.S. at 61

(quoting Roper v. Simmons, 543 U.S. 551, 563, 125 S. Ct. 1183, 161 L. Ed. 2d 1

(2005))). “‘It is not so much the number of these States that is significant, but the

consistency of the direction of change.’” Id. at 86 (quoting Atkins v. Virginia, 536

U.S. 304, 315, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)).

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

Reynolds argues that only 10 other states mandate LWOP for a third strike,

even for adult offenses. Suppl. Br. of Pet’r at 17-18. Reynolds continues that in

addition to those 10 states, 3 categorically bar the use of an offense that a

defendant committed as a juvenile (whether or not it was transferred to adult court)

for the purposes of counting strikes. See infra nn.6-8, at 11. As a result, Reynolds

concludes that only 10 states would permit the same sentence he received in

Washington. Id. at 17-18. The State, on the other hand, claims that

“[a]pproximately 25 states impose mandatory LWOP upon a second, third or

fourth conviction for a qualifying offense under some circumstances.” Suppl. Br.

of Resp’t at 27. The State also provided a chart detailing each of those states’

persistent offender sentencing schemes. See id., App.

Both parties are, in their own way, correct. Persistent offender statutes

across the country differ dramatically in the offenses they count, in the number of

strikes they require, and in the situations LWOP must be imposed. 5 These

5 A few examples of different states’ persistent offender sentencing laws show how hard it is to compare one sentencing scheme to another. Delaware does not mandate LWOP for a final strike offense but rather mandates the “statutory maximum” for the final strike; only in some cases is that statutory maximum LWOP. DEL. CODE ANN. tit. 11, § 4214(c), (d), (e). Georgia mandates LWOP when a defendant commits a second serious violent felony and also when a defendant commits a fourth felony (not necessarily serious or violent) but only if the maximum for that fourth offense is LWOP. GA. CODE ANN. § 17-10-7. In California, an offender who has committed three enumerated felonies must serve life in prison—but that offender can become eligible for parole after 20 years (except in limited circumstances). CAL. PENAL CODE § 667.7(a)(1). In other words, these states all require LWOP in certain circumstances, but those circumstances vary greatly. Therefore, a direct comparison to Washington’s POAA is difficult. 9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

differences make it difficult, if not impossible, to compare our state’s POAA to

those of other states.

What the parties do agree on is that fewer than half of the 50 states mandate

LWOP after a defendant repeatedly commits serious offenses. And even fewer

states mandate LWOP in the particular circumstances of Reynolds’ case.

But at this point, this count does not constitute a national consensus against

the practice of imposing a mandatory LWOP sentence on a defendant whose first

“strike” resulted from a crime committed as a juvenile. The reason is that a

minority of states mandate LWOP sentences even for persistent offenders with

exclusively adult strikes. For the minority of states that do require LWOP for

persistent offenders, there’s no consensus on how or when it’s appropriate.

This could all be considered an emerging trend against harsh “three strikes”

laws in general. But we have not considered that a national consensus against

“three strikes” laws in general. It necessarily follows that we cannot consider it a

national consensus against “three strikes” laws predicated on prior crimes

committed as a juvenile.

Reynolds does point to three states that categorically bar the use of any

childhood offenses (whether convicted in adult or juvenile court) as strikes to show

that there is a growing national consensus against the practice. Those states are

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

New Mexico,6 Kentucky, 7 and Illinois.8 Suppl. Br. of Pet’r at 18. Illinois banned

the use of offenses committed as a juvenile (even when convicted in adult court) as

predicate strikes as recently as 2021. Id. Reynolds also argues that there is a

national consensus “that children are constitutionally different from adults for

purposes of sentencing” because “juveniles have diminished culpability and greater

prospects for reform.” Miller v. Alabama, 567 U.S. 460, 471, 132 S. Ct. 2455, 183

L. Ed. 2d 407 (2012); see also State v. Houston-Sconiers, 188 Wn.2d 1, 8, 391

P.3d 409 (2017).

We agree with Reynolds that children are different from adults and that this

difference has constitutional consequences for sentencing. 9 We also agree with

Reynolds that three states bar the specific practice he attacks. We would even

identify those three states’ decisions as a small trend, considering the direction in

which those states are moving.

6 N.M. STAT. ANN. § 31-18-23(C) (“violent felony conviction incurred by a defendant before the defendant reaches the age of eighteen shall not count as a violent felony conviction” for purposes of three strikes law). 7 KY. REV. STAT. ANN. § 532.080(3)(b) (cannot count previous offense as a strike unless offender committed that offense when they were 18 or older; cannot convict an offender as a persistent offender unless they are more than 21 years of age). 8 ILL. COMP. STAT. 5/5-4.5-95(a)(4)(E) (first offense must be committed “when the person was 21 years of age or older.”). 9 Miller, 567 U.S. at 480; Houston-Sconiers, 188 Wn.2d at 9.

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

But it is far from a national consensus. And to the extent there are a greater

number of states that bar the use of a prior juvenile adjudication in juvenile court at

a later sentencing hearing, our state is on board with that trend. The state

legislature already prohibits sentencing courts from counting a prior juvenile

adjudication in juvenile court as a strike offense. Moretti, 193 Wn.2d at 821 (citing

RCW 9.94A.030(35)). And the legislature recently prohibited sentencing courts

from counting prior juvenile adjudications in juvenile court as part of “criminal

history” calculations in SRA10 sentencing for non-POAA crimes. ENGROSSED H.B.

1324, 68th Leg., Reg. Sess. (Wash. 2023).

In sum, we find no national consensus against the particular sentencing

practice at issue in Reynolds’ case.

But, while the showing of a national consensus is entitled to great weight, it

is “‘not itself determinative’” of whether a punishment is cruel. Moretti, 193

Wn.2d at 823 (quoting Graham, 560 U.S. at 67). Under Bassett, we must still

exercise our independent judgment based on state precedent, goals, history, and

values.

10 Sentencing Reform Act of 1981, ch. 9.94A RCW. 12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

B. Under our independent judgment, Reynolds’ sentence is not categorically cruel punishment

The second part of Bassett’s categorical bar analysis requires this court to

exercise our own independent judgment. We consider the “‘culpability of the

offenders at issue in light of their crimes and characteristics, along with the

severity of the punishment in question’” and “‘whether the challenged sentencing

practice serves legitimate penological goals.’” 192 Wn.2d at 87 (quoting Graham,

560 U.S. at 67). The four recognized “legitimate penological goals” are retribution,

deterrence, incapacitation, and rehabilitation. Id.

i. Reynolds’ culpability in light of his crimes and characteristics compared to the severity of his POAA punishment

Reynolds argues that “in light of children’s reduced culpability, mandatory

sentencing statutes must be interpreted as discretionary for children, and life

without parole may not be imposed upon them even for the worst crimes.” Suppl.

Br. of Resp’t at 19.

We agree. But as discussed above, Moretti holds that this court cannot

consider Reynolds’ culpability at the time he committed his first strike offense.

193 Wn.2d at 826. Moretti requires us to consider the culpability of the 33-year-

old Reynolds when he committed his most recent, third strike offense. Id. (“The

petitioners’ argument depends on the assumption that these sentences punish them

for crimes they committed as young adults. But these sentences are for the most

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

serious offenses they committed at either age 32 (Moretti) or age 41 (Nguyen and

Orr), well into adulthood.”).

To be sure, the question presented in Moretti was whether a sentencing court

could count prior convictions of “most serious” offenses or strikes that the

defendant committed as a young adult, not a juvenile. And the question presented

in this case is whether a sentencing court can count prior convictions of “most

serious” offenses or strikes that the defendant committed as a juvenile (whose guilt

was determined in adult court).

But Moretti retained our court’s traditional means of analyzing whether a

sentence for a particular crime violates article I, section 14, and that analysis

applies just as much to Reynolds’ claim as it did to Moretti’s claim. That analysis

is that “‘[t]he repetition of criminal conduct aggravates the guilt of the last

conviction and justifies a heavier penalty for the crime.’” Id. at 826 (quoting State

v. Lee, 87 Wn.2d 932, 937, 558 P.2d 236 (1976)); see also id. at 824 (defendant

must show that “youth contributed to the commission of the instant offenses”

(emphasis added)).

Moretti denied relief because Moretti “made no showing that the factors that

lessen the culpability of juveniles apply to offenders well into adulthood.” Id. at

826. Applying that analysis here, Reynolds makes no showing on that point, either.

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

ii. Whether the sentence serves legitimate penological goals

Next, as to the penological goals of the sentence, Reynolds argues that

children’s diminished culpability reduces the case for retribution and that children

are less likely to be deterred by the prospect of severe consequences. Suppl. Br. of

Pet’r at 19. Additionally, he argues that a standard SRA sentence better suits the

goals of incapacitation and rehabilitation because it provides a possibility of

release and therefore the motivation to rehabilitate. Id. at 19-20.

This requires us to analyze the penological goals of retribution, deterrence,

and incapacitation. Reynolds committed or attempted three violent offenses over

the course of his life and was convicted of two most serious offenses in the current

adult matter now before this court. Retribution is justified because the “people of

Washington are entitled to condemn adults who chose to commit serious crimes

after having twice been given a chance to reform themselves.” Moretti, 193 Wn.2d

at 827. The main purposes of the POAA are “deterrence of criminals who commit

three ‘most serious offenses’ and the segregation of those criminals from the rest of

society.” State v. Rivers, 129 Wn.2d 697, 713, 921 P.2d 495 (1996) (quoting State

v. Thorne, 129 Wn.2d 736, 775, 921 P.2d 514 (1996), abrogated on other grounds

by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403

(2004))). Those purposes seem to be satisfied by Reynolds’ sentence for his two

current crimes of conviction.

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

Therefore, based on our independent judgment looking at Reynolds’

culpability and the penological justifications of the POAA, Reynolds’ sentence is

not categorically unconstitutional under article I, section 14 of our state

II. Under the Fain proportionality inquiry, Reynolds’ sentence is not unconstitutionally disproportionate to his sentence

We can also use another test to determine whether a sentence is

unconstitutionally cruel under article I, section 14: the Fain proportionality test.

Under this test, courts ask whether the sentence is grossly disproportionate to the

crime based on four factors: “(1) the nature of the offense; (2) the legislative

purpose behind the habitual criminal statute; (3) the punishment defendant would

have received in other jurisdictions for the same offense; and (4) the punishment

meted out for other offenses in the same jurisdiction.” Fain, 94 Wn.2d at 397

(citing Hart v. Coiner, 483 F.2d 136, 140-43 (4th Cir. 1973); State v. Gibson, 16

Wn. App. 119, 125-26, 553 P.2d 131 (1976)). Again, we have stated that “our

proportionality review focuses on the nature of the current offense, not the nature

of past offenses.” Moretti, 193 Wn.2d at 832.

Reynolds argues that his sentence was disproportionate under a combination

of the Fain factors. He argues that childhood strike offenses are significantly less

blameworthy than adult strike offenses. Suppl Br. of Pet’r at 23. And he argues that

a typical SRA sentence would better serve the goals of deterrence and 16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

rehabilitation. Id. at 23-24. Additionally, he argues that it would increase public

trust in our criminal justice system to bar sentencing courts from imposing LWOP

on defendants based even in part on criminal conduct that they committed as a

child. Id.

He makes valid policy arguments. But we cannot disturb his sentence for

the adult crime at issue here based on disagreement with legislative policy choices.

We can determine only whether the legislative policy choices violate the

constitution. In this case, our precedent compels us to answer that they do not.

First, the nature of the offenses that Reynolds committed were first degree

burglary and attempted second degree rape. Reynolds forcefully dragged a barista

out of her workplace and violently attempted to rape her at knifepoint. 3 Verbatim

Report of Proceedings (Nov. 20, 2019) at 1028-30. These are violent, serious

crimes, comparable to those committed by the offenders in Moretti. See 193 Wn.2d

at 831 (one defendant beat a man with a bat in order to rob him, one stabbed a

woman ten times, and one swung a metal pipe at a man’s head). In addition, both

second degree attempted rape and first degree burglary carry maximum sentences

of life. RCW 9A.28.020; RCW 9A.44.050; RCW 9A.52.020; RCW 9A.20.021.

And Reynolds was 33 years old when he committed this offense; thus, he did not

have the reduced culpability of a child. This factor shows no constitutional

disproportionality between the sentence and the crimes of conviction.

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

The second factor is the legislative purpose behind the POAA. “We have

previously recognized that the purpose of the POAA is to deter criminals who

commit three most serious offenses and to incapacitate them by segregating them

from the rest of society.” Moretti, 193 Wn.2d at 832. Another purpose of the

POAA is to increase the punishment of any offender who is convicted in adult

court of a most serious offense. The POAA already bars counting prior juvenile

adjudications as strikes for purposes of the POAA. See RCW 9.94A.030(37), (34)

(“offender” does not include a juvenile whose case was retained by juvenile court).

The legislature clearly drew a distinction between a prior offense that was

committed as a juvenile and tried in juvenile court and a prior offense that was

committed as a juvenile but declined to adult court. See C.J.C. v. Corp. of Cath.

Bishop of Yakima, 138 Wn.2d 699, 713, 985 P.2d 262 (1999) (plurality opinion)

(specifically including or excluding class of people shows legislative intent for

how the act should apply). This factor shows no unconstitutional disproportionality

between the sentence and the crime.

The third factor is the punishment that Reynolds would receive in other

jurisdictions. Similar to the national consensus prong of the categorical test,

Reynolds argues that in only 10 other jurisdictions would he have received an

LWOP sentence. Suppl. Br. of Pet’r at 24-25. As discussed above, other states’

persistent offender statutes vary dramatically from each other and from

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

Washington’s POAA. They all have different prerequisites to imposition of a

mandatory or discretionary LWOP sentence. We addressed how to consider such a

confusing array of statutes in Moretti: “[b]ecause each state has a different

threshold for what qualifies as a strike offense, it is unclear exactly how each of the

petitioners would have fared in other jurisdictions.” 193 Wn.2d at 833. Therefore,

this factor is inconclusive. But “this factor alone is not dispositive.” State v.

Witherspoon, 180 Wn.2d 875, 888, 329 P.3d 888 (2014).

The fourth factor is the punishment that Reynolds would have received for a

different crime in the same jurisdiction. Reynolds argues that no other law permits

LWOP for childhood conduct and that “even children who commit multiple

aggravated murders may not be condemned to die in prison in Washington.” Suppl.

Br. of Pet’r at 25 (citing Bassett, 192 Wn.2d at 90). Additionally, “[m]andatory life

in prison without the possibility of parole is the harshest sentence currently

available in Washington.” Moretti, 193 Wn.2d at 833.

Once again, Reynolds’ statements on these points are accurate. But they do

not support his main point, that is, that he would not have received the same

sentence for comparable offenses in Washington. Actually, he would have

received the same sentence for any comparable “most serious” offense in

Washington: under the POAA, all adult offenders convicted of three “most serious

offenses” are sentenced to LWOP. Id. at 834 (“These petitioners would have

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

received the same sentence if they had committed any other most serious offenses.

This final factor supports the constitutionality of these sentences.”). This factor

shows no unconstitutional disproportionality between the sentence and the crime,

either.

Therefore, Reynolds’ sentence is not unconstitutional under article I, section

14 based on the four Fain factors.

CONCLUSION

Reynolds is correct that “‘children are different’” and that an offender’s

status as a juvenile mitigates that juvenile’s culpability. See, e.g., Houston-

Sconiers, 188 Wn.2d at 8 (quoting Miller, 567 U.S. at 480); State v. O’Dell, 183

Wn.2d 680, 695-96, 358 P.3d 359 (2015); State v. Ramos, 187 Wn.2d 420, 428,

387 P.3d 650 (2017).

But Reynolds is not a juvenile and he was not sentenced to LWOP for a

crime that he committed as a juvenile. He was sentenced to LWOP for first degree

burglary and attempted second degree rape, which he committed at age 33. His

previous criminal conduct aggravates his sentence, but under recent, controlling

precedent, his punishment is for his adult conduct.

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds (Michael Scott, Jr.), No. 100873-2

We therefore hold that Reynolds’ sentence is not unconstitutional under

article I, section 14 or the Eighth Amendment.11 We affirm the Court of Appeals.

WE CONCUR:

11 Since we conclude that Reynolds’ claim fails under our more protective state constitutional provision, we do not separately discuss his Eighth Amendment claim. See Moretti, 193 Wn.2d at 819. 21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

No. 100873-2

WHITENER, J. (dissenting)— A juvenile charged and sentenced in adult

court does not magically become an adult because of the venue in which the case is

resolved. This case brings to us a novel issue—whether it is constitutional under

article I, section 14 of the Washington Constitution for sentencing courts to

automatically weigh juvenile strikes 1 the same as adult strikes for the purpose of

imposing a mandatory life in prison without the possibility of parole (LWOP)

sentence under the Persistent Offender Accountability Act (POAA), RCW

9.94A.570. It is foregone that in the context of juvenile sentencing, our state

constitution’s cruel punishment clause provides greater protection than the Eighth

Amendment to the United States Constitution. In re Pers. Restraint of Monschke,

197 Wn.2d 305, 311 n.6, 482 P.3d 276 (2021) (plurality opinion) (citing State v.

Bassett, 192 Wn.2d 67, 78, 428 P.3d 343 (2018)); Bassett, 192 Wn.2d at 82.

Washington jurisprudence acknowledges that children are different. Therefore, I

cannot agree with the majority that using juvenile strikes to impose a mandatory

LWOP sentence under the POAA is constitutional.

1 I use the term “juvenile strike” to mean a strike committed by a juvenile that is adjudicated in adult court.

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

I. A juvenile’s age, and not the court in which a juvenile’s case is adjudicated, should drive this court’s analysis Children are different2 and age matters. 3 In this case, Reynolds was 17 when

he committed his first strike offense, first degree attempted robbery. He was 17 when

he was charged, 17 when he pleaded guilty, and 17 when he was sentenced. Reynolds

was a juvenile, and remained a juvenile, when he was charged and sentenced as an

adult in superior court for his first strike offense.

The majority is correct, the POAA “explicitly bars sentencing courts from

counting juvenile adjudications as strikes. RCW 9.94A.030(37), (34). But it does not

bar sentencing courts from counting adult “most serious offense[s]”—even if the

adult conviction resulted from a crime committed as a juvenile.” Majority at 3. The

POAA was codified in 1994 into Washington’s Sentencing Reform Act of 1981

(SRA), ch. 9.94A RCW. At that time, the distinction between a juvenile adjudication

2 Miller v. Alabama, 567 U.S. 460, 481, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). 3 Roper v. Simmons, 543 U.S. 551, 570, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (abolished the juvenile death penalty); Graham v. Florida, 560 U.S. 48, 69, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (abolished life without parole categorically for juveniles in non-homicide cases); Miller, 567 U.S. at 481 (no mandatory sentences for juveniles in a homicide case); Montgomery v. Louisiana, 577 U.S. 190, 195, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016) (quoting Miller, 567 U.S. at 479) (courts must “consider a child’s ‘diminished culpability and heightened capacity for change’ before condemning him or her to die in prison”).

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

in juvenile court and a juvenile conviction in adult court reflected the legislature’s

attitude toward juvenile sentencing.

Since the POAA was codified, the laws in Washington State regarding

juvenile sentencing have evolved, partly in response to advancements in brain

science. Under Monschke, “neurological science recognizes no meaningful

distinction between 17- and 18-year-olds as a class,” therefore, “no meaningful

developmental difference exists between the brain of a 17-year-old and the brain of

an 18-year-old.” 197 Wn.2d at 321 (italics and capitalization omitted). Necessarily

then, there is no meaningful developmental difference between the brains of two 17-

year-old juveniles regardless of the venue in which their case is decided. If “we have

already concluded that under the Sentencing Reform Act of 1981 … ‘age may well

mitigate a defendant’s culpability, even if that defendant is over the age of 18,’” we

necessarily concede that age may well mitigate a defendant’s culpability if they are

under 18. Id. (citing State v. O’Dell, 183 Wn.2d 680, 695, 358 P.3d 359 (2015)). A

juvenile’s “lack of maturity and responsibility, their vulnerability to negative

influences, and their transitory and developing character” are traits that are

inherently tied to a juvenile’s age and do not simply vanish if a juvenile’s case is

transferred to adult court. Id. (citing Roper v. Simmons, 543 U.S. 551, 569-70, 125

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

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

Our state’s juvenile jurisprudence is rapidly evolving and today requires

sentencing courts to consider the mitigating circumstances associated with the youth

of any juvenile defendant. See State v. Anderson, 200 Wn.2d 266, 285, 516 P.3d

1213 (2022) (“‘[C]hildren are different’ from adults, so ‘our criminal justice system

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

sentences.” (alterations in original) (internal quotation marks omitted) (quoting In re

Pers. Restraint of Ali, 196 Wn.2d 220, 225, 474 P.3d 507 (2020)); Monschke, 197

Wn.2d at 311 (“That state constitutional bar against ‘cruel punishment,’ like the

Eighth Amendment bar against ‘cruel and unusual punishments,’ … further requires

courts to exercise ‘complete discretion to consider mitigating circumstances

associated with the youth of any juvenile defendant,’ even when faced with

mandatory statutory language.”); Ali, 196 Wn.2d at 237 (“We concluded that ‘the

Eighth Amendment to the United States Constitution compels us to recognize that

children are different’ and ‘courts must address those differences in order to comply

with the Eighth Amendment[ ] with discretion to consider the mitigating qualities of

youth.’ We reached this conclusion based on rules stemming from Roper, Graham,4

and Miller, 5 which we identified as ‘substantive rules’” (alteration in original)

(citation omitted) (quoting State v. Houston-Sconiers, 188 Wn.2d 1, 18-19, 391 P.3d

4 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). 5 Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

409 (2017)); Bassett, 192 Wn.2d at 81 (“This court has consistently applied the

Miller principle that ‘children are different.’ Miller, 567 U.S. at 481. … This court

has also applied Miller’s reasoning to hold that ‘sentencing courts must have

complete discretion to consider mitigating circumstances associated with the youth

of any juvenile defendant’ and ‘must have discretion to impose any sentence below

the otherwise applicable [SRA] range and/or sentence enhancements.’” (quoting

Houston-Sconiers, 188 Wn.2d at 21)); Houston-Sconiers, 188 Wn. 2d at 21 (“In

accordance with Miller, we hold 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. To the extent our state

statutes have been interpreted to bar such discretion with regard to juveniles, they

are overruled. Trial courts must consider mitigating qualities of youth at sentencing

and must have discretion to impose any sentence below the otherwise applicable

SRA range and/or sentence enhancements.” (footnote omitted)); O’Dell, 183 Wn.2d

at 691-92 (“The legislature has determined that all defendants 18 and over are, in

general, equally culpable for equivalent crimes. But it could not have considered the

particular vulnerabilities—for example, impulsivity, poor judgment, and

susceptibility to outside influences—of specific individuals. The trial court is in the

best position to consider those factors…. [W]hen the legislature enacted RCW

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

9.94A.030(34), it did not have the benefit of psychological and neurological studies

showing that the ‘parts of the brain involved in behavior control’ continue to develop

well into a person’s 20s.” (emphasis, footnote, and internal quotation marks omitted)

(quoting Miller, 567 U.S. at 472)).

Clearly, for his first strike offense, Reynolds has not received the benefit of

our current juvenile jurisprudence that mandates consideration of mitigating

qualities of youth coupled with a trial court’s discretion to impose any sentence

below the SRA range. Nor could Reynolds have received the benefit of recent

Washington legislation enacted to reform policies regarding juveniles. Starting in

2018, the Washington Legislature made changes to the laws regarding prosecuting

juveniles as adults for felony crimes, as well as placement of juveniles who were

convicted of adult felonies. See RCW 13.40.110; RCW 72.01.410. In enacting these

changes, the legislature made its intent clear:

The legislature recognizes state and national efforts to reform policies that incarcerate youth and young adults in the adult criminal justice system. The legislature acknowledges that transferring youth and young adults to the adult criminal justice system is not effective in reducing future criminal behavior. Youth and young adults incarcerated in the adult criminal justice system are more likely to recidivate than their counterparts housed in juvenile facilities. LAWS OF 2019, ch. 322, § 1 (emphasis added). This court’s juvenile jurisprudence acknowledges age and analyzes the

attendant youthful qualities of juveniles that may lessen their culpability. Yet the

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

majority surprisingly relies on the outdated distinction between a juvenile

adjudication in juvenile court and a juvenile conviction in adult court to try to

identify cases that fall outside Miller’s scope. This distinction does not comport with

our current juvenile jurisprudence.6

Similar to other areas of law, our current juvenile jurisprudence builds on the

evolving standards of decency7 in sentencing juveniles. The POAA was enacted

before Miller’s guiding principle that “children are different.” The POAA could not

have contemplated nor could it have addressed the issue this case presents—whether

it is constitutional under article I, section 14 for sentencing courts to automatically

weigh juvenile strikes the same as adult strikes for the purpose of imposing a

6 The POAA and RCW 9.94A.030(34), enacted almost three decades ago and before the development of juvenile brain science, create a bright statutory line that results in two classes of juveniles: those under 18 whose cases remained in juvenile court and those under 18 whose cases were transferred to superior court. This distinction is outdated. We now know that a juvenile’s age may impact their level of culpability, regardless of the venue in which their case is resolved. Therefore, “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.” Houston-Sconiers, 188 Wn.2d at 21 (emphasis added). 7 One example of the evolving standards of decency can be seen in the regard of the intellectually disabled (which Atkins outdatedly refers to as “mentally retarded”) and their reduced culpability. Atkins v. Virginia, 536 U.S. 304, 315, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Atkins is analogous to our cases that describe the evolving standards of decency regarding juveniles and their reduced culpability. A poignant example of evolving standards of decency is the shift towards using the term “intellectual disability” instead of the term “mentally retarded.” See https://www.federalregister.gov/documents/2013/08/01/2013-18552/change-in-terminology- mental-retardation-to-intellectual-disability [https://perma.cc/MPH9-9J8K]; https://www.wrightslaw.com/blog/changing-terms-mentally-retarded-to-cognitive-disability/ [https://perma.cc/2N74-AAFP]; https://www.govtrack.us/congress/bills/111/s2781 [https://perma.cc/AB3N-73B4].

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

mandatory LWOP sentence under the POAA. In the context of our current juvenile

jurisprudence, Reynolds’ age at the time he was convicted of his juvenile strike

offense, not the venue in which he was convicted, matters.

The majority fails to answer the issue of first impression granted for review

by this court. Its reliance on Moretti fails to acknowledge that this is the very issue

Moretti left to be answered.8 “In State v. Moretti, decided two years after Bassett,

this court held that a ‘three strikes’ sentence of mandatory life in prison without

possibility of parole constitutes punishment for the last crime or third ‘strike,’ not

the earlier first or second ‘strikes.’ Majority at 2. However, a crucial distinction

between Reynolds’ case and Moretti is that Reynolds committed his first strike

offense as a juvenile, whereas the Moretti defendants each committed all their strike

offenses as adults. The majority states that “Moretti requires us to consider the

culpability of the 33-year-old Reynolds when he committed his most recent, third

strike offense.” Id. at 13. This would be true if Reynolds, like the defendants in

Moretti, committed all of his strike offenses as an adult. But that is not this case. The

majority errs in its reliance on Moretti because Moretti never intended to address the

issue presently before this court.

8 Moretti expressly left open the issue at the heart of this case: “whether it is constitutional to apply the POAA to an offender who committed a strike offense as a juvenile and was convicted in adult court.” State v. Moretti, 193 Wn.2d 809, 821 n.5, 446 P.3d 609 (2019).

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

Again, the issue here is whether it is constitutional under article I, section 14

for sentencing courts to automatically weigh juvenile strikes the same as adult strikes

for the purpose of imposing a mandatory LWOP sentence under the POAA.

Reynolds’ culpability at the time he committed his juvenile strike is the heart of the

issue we are now asked to answer.

II. The broad lens of Washington’s juvenile jurisprudence

A. This court may, but will not necessarily, look to the legislature when determining what constitutes cruel punishment We review a statute’s constitutionality under a de novo standard of review.

State v. Hunley, 175 Wn. 2d 901, 908, 287 P.3d 584 (2012) (citing City of Bothell v.

Barnhart, 172 Wn.2d 223, 229, 257 P.3d 648 (2011)). We presume a statute is

constitutional and that the burden is on the challenger to prove otherwise beyond a

reasonable doubt. Id. We have clarified, however, that the “beyond a reasonable

doubt” standard in this context “is not an evidentiary standard but a reflection of

‘respect for the legislature.’” Quinn v. State, __ Wn.3d __, 526 P.3d 1, 12 n.9 (2023)

(quoting Sch. Dists.’ All. for Adequate Funding of Special Educ. v. State, 170 Wn.2d

599, 606, 244 P.3d 1 (2010)).

Respect for legislative decisions may not always align with our evolving

standards of decency, especially with regard to determining whether a statute

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

violates constitutional bans on cruel punishment. 9 This is such a case. The POAA

and RCW 9.94A.030(34), enacted almost three decades ago and before the

development of juvenile brain science, create a bright statutory line that results in

two classes of juveniles: those under 18 whose cases were adjudicated in juvenile

court and those under 18 whose cases were transferred to superior court. This

statutory bright line was drawn long before our standard of decency with regard to

juvenile sentencing began to evolve and that has since compelled this court to uphold

the premise that children are different, that a juvenile’s age matters, and that a

juvenile’s culpability is to be analyzed and weighed differently from adults.

In 1994, the POAA’s intent was to offer a simple sentencing practice and to

emphasize tougher sentencing as a way to reduce recidivism. The POAA was never

meant to address the nuances in juvenile sentencing that both the legislature and our

court’s juvenile jurisprudence have since addressed. The legislative intent behind

the POAA was as follows:

(2) By sentencing three-time, most serious offenders to prison for life without the possibility of parole, the people intend to: (a) Improve public safety by placing the most dangerous criminals in prison.

9 In Monschke, we stated that “some bright statutory lines fail to comply with the Eighth Amendment” and necessarily fail to comply with article I, section 14, which is more protective than the Eighth Amendment. 197 Wn.2d at 317, 311 n.6.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

(b) Reduce the number of serious, repeat offenders by tougher sentencing. (c) Set proper and simplified sentencing practices that both the victims and persistent offenders can understand. (d) Restore public trust in our criminal justice system by directly involving the people in the process. RCW 9.94A.555.

Starting in 2018, the legislature updated two juvenile laws relevant to this

case: RCW 13.40.110, which governs how and when a juvenile court declines

jurisdiction and transfers it to adult court, and RCW 72.01.410, which governs the

type of facility a person under the age of 18 is placed in when they are convicted as

an adult for a felony offense. The changes were meant to reflect the following

legislative intent:

The legislature recognizes state and national efforts to reform policies that incarcerate youth and young adults in the adult criminal justice system. The legislature acknowledges that transferring youth and young adults to the adult criminal justice system is not effective in reducing future criminal behavior. Youth and young adults incarcerated in the adult criminal justice system are more likely to recidivate than their counterparts housed in juvenile facilities. LAWS OF 2019, ch. 322, § 1 (emphasis added).

Our state legislature, in making these changes, fell in line with federal

legislation and “[took] advantage of recent changes made by congress during the

reauthorization of the juvenile justice and delinquency prevention act by the juvenile

justice reform act of 2018….” LAWS OF 2019, ch. 322, § 1. Notably, the federal

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

Juvenile Justice Reform Act of 2018, which inspired our legislature to revise the

above juvenile law statutes, added, “as a new purpose area, support for a continuum

of evidence-based or promising programs that are trauma-informed, reflect the

science of adolescent development, and are designed to meet the needs of at-risk

youth who come into contact with the juvenile justice system.” H.R. 6964, 115th

Cong. §101 (2018) (as passed by House, Sept. 28, 2018) (emphasis added)

https://www.congress.gov/bill/115th-congress/house-bill/6964.

Reynolds’ case is before us with several years’ worth of our juvenile

jurisprudence and relevant changes in legislation preceding it. When bright statutory

lines drawn by the legislature do not comply with article I, section 14, we have

appropriately held, “Clearly, bright constitutional lines in the cruel punishment

context shift over time in order to accord with the ‘evolving standards of decency

that mark the progress of a maturing society.’” Monschke, 197 Wn.2d at 317

(emphasis added) (quoting Trop v. Dulles, 356 U.S. 86, 100-01, 78 S. Ct. 590, 2 L.

Ed. 2d 630 (1958) (plurality opinion)).

B. Our decision must flow straightforwardly from our juvenile law precedent The majority’s reliance on Moretti is misguided. Moretti remains the law for

persistent offenders who committed all three strike offenses in adulthood, but it does

not answer the juvenile law question at issue in this case. The majority relies on

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

Reynolds’ third strike conviction, which occurred when he was an adult, to conclude

that Moretti’s holding governs this case, but the majority does not address the

juvenile law issue that Reynolds’ juvenile strike conviction presents. Under our

current juvenile jurisprudence, you do not get to three strikes by using a juvenile

strike unless the trial court at sentencing gave meaningful consideration of the

mitigating qualities of youth and had discretion to impose any sentence below the

otherwise applicable SRA range and/or sentence enhancements. We now know that

children are different and are to be treated as such.

1. Where our existing juvenile jurisprudence is the controlling precedent, the categorical bar test and the Fain10 disproportionality test are inapplicable The categorical bar test and the Fain disproportionality test are applied “to

determine when a particular punishment is categorically cruel in violation of article

I, section 14 in the first place.” Id. at 312 (emphasis added) (citing Bassett, 192

Wn.2d at 83). In the context of a juvenile strike offense however, we are not starting

from the “first place.” Our court’s juvenile jurisprudence has already established that

crimes committed by juveniles must be analyzed with respect to their age and must

be analyzed differently from the same crimes committed by adults. See supra pp. 3-

5. As in Monschke, where our decision “‘flow[ed] straightforwardly from our

10 State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980).

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

precedents’” such that “[n]o Fain [disproportionality analysis] or categorical bar

analysis [was] necessary to reach [that] decision,” our decision here should flow

straightforwardly from our present and evolving juvenile law jurisprudence. 197

Wn.2d at 326-28 (quoting Miller, 567 U.S. at 483). The categorical bar test and the

Fain disproportionality test are inapplicable.

We do not need to analyze the categorical bar test’s national consensus prong

because the national consensus regarding juvenile sentencing has already been

decided, and the takeaway is children are to be treated differently. First, the

sentencing practice at issue before this court is whether a court should use a juvenile

strike that was adjudicated in adult court to impose a mandatory LWOP sentence

under the POAA. Second, the ultimate conclusion reached by the majority that the

“national consensus” prong is not helpful in this context is correct. “[W]hile the

showing of a national consensus is entitled to great weight, it is ‘not determinative’

of whether a punishment is cruel.” Majority at 12 (citing Moretti, 193 Wn.2d at 823).

Our court’s juvenile jurisprudence and our independent judgment regarding

juvenile law is clear—children are different and a juvenile’s age matters. Therefore,

neither prong of the categorical bar test needs to be analyzed.

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

2. Similarly, in this case, the Fain disproportionality test is inadequate Under the disproportionality test,11 we examine the four Fain factors: “(1) the

nature of the offense; (2) the legislative purpose behind the … statute; (3) the

punishment defendant would have received in other jurisdictions for the same

offense; and (4) the punishment meted out for other offenses in the same

jurisdiction.” 94 Wn.2d at 397.

The nature of the offense in this case is Reynolds’ juvenile strike offense,

which is the strike offense that raises the juvenile law issue on which we granted

review. The majority’s focus on Reynolds’ third strike offense, which he committed

as an adult, fails to answer the nuanced issue before us. See majority at 17-18.

The legislative purpose behind the POAA was conceived almost 30 years ago,

prior to our evolving juvenile jurisprudence that acknowledges that children are

different and their age matters at sentencing, regardless of the venue in which their

case is held. See Houston-Sconiers, 188 Wn.2d at 18-19. Yet, the majority

emphasizes the legislative purpose behind the POAA and endorses the distinction

11 In Bassett, we held the Fain disproportionality test was not appropriate in reaching our holding that imposing an LWOP sentence on 16- and 17-year-olds violated article I, section 14 because the disproportionality test “does not include significant consideration of the characteristics of the offender class” and does not consider “the culpability of the offenders … in light of their crimes and characteristics.” Bassett, 192 Wn.2d at 83, 87. Furthermore, the Fain disproportionality test “does not advance an analysis of a claim that challenges ‘a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.’” Id. at 84 (quoting Graham, 560 U.S. at 61).

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

between juveniles whose cases remained in juvenile court and juveniles whose cases

were transferred to adult court. See majority at 18.

As to the third and fourth Fain factors, I agree with the majority that a national

consensus on using juvenile strikes to impose mandatory LWOP sentences is

“difficult, if not impossible” because “[p]ersistent offender statutes across the

country differ dramatically in the offenses they count, in the number of strikes they

require, and in the situations LWOP must be imposed.” Id. at 9-10. When looking to

other jurisdictions is not helpful in our analysis, we should hold strong to our juvenile

jurisprudence that clearly states children are different 12 and their age matters at

sentencing regardless of the venue in which their case is held. See Anderson, 200

Wn.2d at 285; Monschke, 197 Wn.2d at 311; Ali, 196 Wn.2d at 237; Bassett, 192

Wn.2d at 81; Houston-Sconiers, 188 Wn.2d at 21; O’Dell, 183 Wn.2d at 691.

CONCLUSION Reynolds was 17, a juvenile, when he was charged and sentenced in adult

court with a strike offense. At no time during the disposition of his juvenile strike

offense did he become an adult. Reynolds’ case is best understood as being a part of

our evolving line of juvenile law cases espousing the principle that children are

different and their age matters at sentencing. Regardless of when or what venue

12 Miller, 567 U.S. at 481.

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Reynolds, No. 100873-2 Whitener, J., dissenting

Reynolds’ sentencing occurred, his juvenile strike should be analyzed differently

from an adult strike. Our juvenile jurisprudence requires us to hold that it is

unconstitutional under article I, section 14 for sentencing courts to automatically

weigh juvenile strikes the same as adult strikes for the purpose of imposing a

mandatory LWOP sentence under the POAA. In the end, Reynolds may not receive

much benefit from our evolving juvenile jurisprudence, but it requires he be given

the opportunity to have a meaningful sentencing—a sentencing that takes into

consideration his age at the time he committed his juvenile strike offense.

I would reverse the Court of Appeals with instructions to remand to the trial

court for a sentencing in line with our court’s juvenile sentencing jurisprudence.