                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             April 25, 2017




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 47251-1-II

                                Respondent,

          v.

    BRIAN M. BASSETT,                                         PART PUBLISHED OPINION

                                Appellant.

         JOHANSON, J. — In 1996, a jury found Brian M. Bassett guilty of three counts of

aggravated first degree murder committed when he was 16 years old. The trial court imposed three

“life without parole” sentences. In 2015, after a Miller1 hearing, the resentencing court again

imposed three life without parole sentences. Bassett appeals his new sentence and successfully

argues that a provision of the Miller-fix statute, RCW 10.95.030(3)(a)(ii),2 violates our State’s

constitutional prohibition against cruel punishment. In the published portion of this opinion, we

waive procedural defects and treat Bassett’s claim as a personal restraint petition (PRP). We hold


1
    Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
2
  In 2014, the legislature enacted RCW 10.95.035(1), requiring that persons sentenced “prior to
June 1, 2014 . . . to a term of life without the possibility of parole for an offense committed prior
to their eighteenth birthday, shall be returned to the sentencing court . . . for sentencing consistent
with RCW 10.95.030.” LAWS OF 2014, ch. 130, § 11. Thus, we cite to the current version of RCW
10.95.030 unless otherwise noted.
No. 47251-1-II


that under a categorical bar analysis, the statutory Miller-fix provision that allows 16- to 18-year-

old offenders convicted of aggravated first degree murder to be sentenced to life without parole or

early release violates article I, section 14 of the state constitution prohibiting cruel punishment. In

the unpublished portion, we reject Bassett’s remaining arguments. Because Bassett shows that

grounds exist to challenge the legality of his restraint, we reverse Bassett’s sentence and remand

for resentencing in accordance with this opinion.

                                               FACTS

                             I. BACKGROUND FACTS AND PROCEDURE

       In 1995, 16-year-old Bassett, who had been “‘kicked out’” of his home by his parents,

Wendy and Michael Bassett,3 stole a rifle and placed a soda bottle over the gun barrel as a

“‘silencer.’” State v. McDonald, 138 Wn.2d 680, 683, 981 P.2d 443 (1999); State v. Bassett, noted

at 94 Wn. App. 1017, 1999 WL 100872, at *3.4 Several days later, Bassett broke into his parents’

home and shot them multiple times. Bassett, 1999 WL 100872, at *1. Meanwhile, 17-year-old

Nicholaus McDonald disabled the Bassetts’ phone line so that they could not call for help and

waited outside. Bassett, 1999 WL 100872, at *1; McDonald, 138 Wn.2d at 683. McDonald then

entered the home and shot Michael, who was still breathing after Basset had shot him, in the head.

McDonald, 138 Wn.2d at 684. Basset’s five-year-old brother, Austin Bassett, witnessed the

shootings; Bassett or McDonald then drowned Austin in a bathtub. McDonald, 138 Wn.2d at 683-



3
  We use the first names of Bassett’s parents and brother to avoid confusion, and we intend no
disrespect.
4
  Where appropriate, we rely upon the facts from McDonald, 138 Wn.2d at 683-85, and our
unpublished opinion affirming Bassett’s convictions after he appealed several evidentiary rulings.
Bassett, noted at 94 Wn. App. 1017.

                                                  2
No. 47251-1-II


84.5 McDonald hid Austin’s and Michael’s bodies away from the home. McDonald, 138 Wn.2d

at 684. McDonald and Bassett hid Wendy’s body in the Bassetts’ pump house, and McDonald

cleaned the home. McDonald, 138 Wn.2d at 684-85.

       McDonald turned himself in to the police the next day and implicated himself and Bassett

in the killings. McDonald, 138 Wn.2d at 683; Bassett, 1999 WL 100872, at *1. The State charged

Bassett with three counts of aggravated first degree murder. At trial, the State introduced Bassett’s

statement to the police that he and McDonald had tried to kill Bassett’s parents twice before the

crimes, but their attempts were foiled. Bassett, 1999 WL 100872, at *1. A jury convicted Bassett

of three counts of aggravated first degree murder, and the trial court sentenced Bassett to three

consecutive terms of life without the possibility of parole. Former RCW 10.95.030(1) (1993).

                     II. RESENTENCING MITIGATION EVIDENCE AND HEARING

       In 2015, Bassett, who was then 35 years old, appeared for resentencing under RCW

10.95.030(3) (the Miller-fix statute) and .035(1).6 Bassett argued that the Miller-fix statute was

unconstitutional under Miller and requested that he be resentenced to three 25-year concurrent

sentences for each crime and allowed earned early release credit. In support of these arguments,




5
 McDonald initially confessed to killing Austin, but at trial he claimed that Bassett drowned
Austin. McDonald, 138 Wn.2d at 684. At trial, Bassett denied killing his brother. Bassett, 1999
WL 100872, at *1.
6
  In June 2014, the Washington legislature responded to Miller, 567 U.S. 460, by enacting the
Miller-fix statute, which requires that a sentencing court take into account the Miller factors before
sentencing a 16- to 18-year-old offender to life without parole or early release. RCW
10.95.030(3)(a)(ii), (b). The legislature further enacted a statute that requires that juveniles
sentenced before 2014 to life without parole or early release be resentenced under the Miller-fix
statute. RCW 10.95.035(1).

                                                  3
No. 47251-1-II


Bassett offered mitigation information including evidence of rehabilitation and submitted over 100

pages of supporting documentation.

       The mitigation evidence documented Bassett’s home life, high school education, and

general lack of a criminal history. The mitigation evidence also included evidence of Bassett’s

rehabilitation during imprisonment, including his participation in various workshops and

counseling programs, educational achievements including attaining honor roll in community

college and various trade certifications, marriage, infraction-free prison record since 2003, and

mentorship of other inmates. Eighteen inmates and six noninmates wrote letters that supported

mitigation of Bassett’s sentence, including a letter that noted Bassett was a teacher’s assistant in a

prison community college program.

       Dr. Jeffrey Hansen, who had counseled Bassett in 1995, testified at the resentencing

hearing. Dr. Hansen reported that around 1995, Bassett ran away from home sometimes to hurt

his mother, was still trying to establish his identity, had average cognitive ability, had suffered a

self-induced alcohol overdose at age 15, had ongoing relational issues with his parents and felt

hopeless, and had an adjustment disorder resulting in poor emotional behavioral responses to

stress. Dr. Hansen further testified that Bassett faced the stressors of homelessness, joblessness,

and possibly having had an unwanted sexual relationship with McDonald.

       Bassett stated that when he entered prison as a juvenile, he first thought of how much

trouble he would be in when his parents learned that he was in prison because the reality of his

crimes “didn’t click.” Report of Proceedings (RP) (Jan. 30, 2015) at 80. Three weeks after the

murders, Bassett had written, “I wish I hadn’t done anything because now I think of all the good

times that my dad and me had. Before I was just thinking about all of the things they did to piss


                                                  4
No. 47251-1-II


me off.” Clerk’s Papers (CP) at 294. Bassett expressed remorse at resentencing and explained the

challenges that he faced as a homeless youth at 16.

       The State did not rebut Bassett’s evidence; rather, the State argued that compared to the

severity of Bassett’s crimes, the mitigation evidence did not show that Bassett should be

considered for parole or early release. The State opposed a reduction in Bassett’s sentence and

argued that Bassett’s crimes were premeditated, calculated acts and that no evidence demonstrated

an acceptable explanation or excuse for the crimes.

                           III. RESENTENCING COURT’S CONCLUSIONS

       The resentencing court acknowledged that it had a duty to consider the Miller factors and

not to make a decision based upon the horrific circumstances of the crime alone. Further, the

resentencing court noted that it had to assess Bassett’s degree of responsibility and whether

Bassett’s crimes were the result of immaturity, impulsiveness, and emotion stimuli that caused

Bassett to “snap.” RP (Jan. 30, 2015) at 85.

       The resentencing court concluded that Bassett’s two previous attempts to commit the

crimes and his stealing a gun in advance, fashioning a silencer, and cutting the phone lines evinced

that Bassett had not acted from emotion or impulse. Bassett appreciated his actions’ risks and

consequences because he “did several things to try to reduce his risk” and fled after the crimes.

RP (Jan. 30, 2015) at 89. The resentencing court noted Bassett’s strained relationship with his

family, which it determined was by Bassett’s choice, and found no evidence of abuse or neglect.

Further, Bassett’s homelessness meant that he was potentially more responsible and in control of

his behaviors than other 16-year-olds. In the resentencing court’s view, teenage homelessness




                                                 5
No. 47251-1-II


“cause[s] 15 and 16-year-olds to grow up pretty quickly” and to “gain a level of maturity much

quicker than kids who are not in that situation.” RP (Jan. 30, 2015) at 88-89.

       When the resentencing court considered the Miller factors, it concluded that Bassett’s

infraction-free record did not carry “much weight in terms of assessing the likelihood that he can

be rehabilitated or has been.” RP (Jan. 30, 2015) at 90. Bassett’s educational endeavors and trade

certificates were “less evidence of rehabilitation and more evidence that [Bassett was] simply

doing things to make his time in prison more tolerable” and to pass the time, and Bassett’s marriage

was “certainly not evidence of rehabilitation.” RP (Jan. 30, 2015) at 91.

       The resentencing court found that the evidence about the crimes’ commission outweighed

the mitigating nature of Bassett’s adolescence. In doing so, the resentencing court concluded that

Bassett’s crimes “were the result of a cold and calculated and very well planned goal of eliminating

his family from his life. And I don’t believe that any amount of time in prison is going to ever

result in his being rehabilitated such that he could safely return to any community.” RP (Jan. 30,

2015) at 93. The resentencing court imposed three consecutive life without parole sentences.

Bassett appeals.

                                           ANALYSIS

                    I. BASSETT’S CLAIMS ARE NOT PROCEDURALLY BARRED

       As an initial matter, the State argues that a PRP, not a direct appeal, was the proper method

for Bassett to seek review of his resentencing. The State acknowledges that we may waive this

procedural defect to reach the merits of Bassett’s claims but argues that Bassett’s claims must meet

the PRP standards of RAP 16.4. We agree.




                                                 6
No. 47251-1-II


       The legislature provided for certain juveniles sentenced to life without release or parole

before June 1, 2014 to be resentenced consistently with RCW 10.95.030. RCW 10.95.035. RCW

10.95.030(3)(b) requires a court setting a minimum term for a 16- to 18-year-old offender who

committed aggravated first degree murder to take into account “mitigating factors that account for

the diminished culpability of youth as provided in Miller.” “The court’s order setting a minimum

term is subject to review to the same extent as a minimum term decision by the parole board before

July 1, 1986.” RCW 10.95.035(3). Before July 1, 1986, review of a parole board decision setting

a minimum term was obtained by filing a PRP. In re Pers. Restraint of Rolston, 46 Wn. App. 622,

623, 732 P.2d 166 (1987).

       In order to facilitate review of a minimum term decision on the merits, we may disregard

a filing defect and treat a direct appeal as a PRP. Rolston, 46 Wn. App. at 623. Thus, although a

PRP is the proper method for Bassett to seek review of his resentencing, we disregard this

procedural defect and treat Bassett’s appeal as a PRP. See RCW 10.93.035(3); Rolston, 46 Wn.

App. at 623.

       To obtain relief under a PRP where no prior opportunity for judicial review was available,

a petitioner must show that he is restrained under RAP 16.4(b) and that the restraint is unlawful

under RAP 16.4(c). In re Pers. Restraint of Isadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004).

Bassett has had no prior opportunity for judicial review of these claims; accordingly, we consider

whether Bassett’s restraint is unlawful. See Isadore, 151 Wn.2d at 299.

          II. LIFE WITHOUT PAROLE SENTENCES FOR THOSE WHO COMMITTED CRIMES
                           AS JUVENILES ARE UNCONSTITUTIONAL

       We are asked to decide whether the Miller-fix statute, RCW 10.95.030(3)(a)(ii), violates

article I, section 14 of the Washington State Constitution. We conclude that sentences providing

                                                7
No. 47251-1-II


for life without parole or early release under the relevant portion of the Miller-fix statute are

unconstitutional for juveniles who commit crimes when they are under the age of 18.7 Because

we agree that the Miller-fix statute violates the Washington State Constitution, we do not reach

Bassett’s alternative arguments that the statute is unconstitutional under the federal constitution’s

Eighth and Sixth Amendments.8

                                        A. PRINCIPLES OF LAW

          A statute’s constitutionality is a question of law, which we review de novo. State v. Hunley,

175 Wn.2d 901, 908, 287 P.3d 584 (2012). We presume statutes are constitutional, and the party

challenging a statute’s constitutionality has the burden of proving otherwise beyond a reasonable

doubt. Hunley, 175 Wn.2d at 908. The Washington Constitution, article I, section 14, prohibits

the infliction of “cruel punishment.” The state cruel punishment proscription affords greater

protection than its federal counterpart. State v. Manussier, 129 Wn.2d 652, 674, 921 P.2d 473

(1996).




7
 For simplicity, we refer to offenders who committed their crimes when they were under the age
of 18 as “juvenile offenders.”
8
 Bassett argues that we should reverse his sentences under the federal and state constitutions, as
well as for nonconstitutional reasons. Where we can fairly resolve a case on nonconstitutional
grounds, we will avoid deciding constitutional questions. State v. McEnroe, 179 Wn.2d 32, 35,
309 P.3d 428 (2013) (quoting Cmty. Telecable of Seattle, Inc. v. City of Seattle, 164 Wn.2d 35, 41,
186 P.3d 1032 (2008)). Here, we decide the case on constitutional grounds because Bassett’s
nonconstitutional arguments fail for the reasons discussed in the unpublished portion of our
opinion.

                                                   8
No. 47251-1-II


                      B. EVOLUTION OF PERMISSIBLE JUVENILE PUNISHMENT

1.     FEDERAL LAW

       In Roper v. Simmons, the United States Supreme Court banned the death penalty for

juvenile offenders. 543 U.S. 551, 578-79, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). And in Graham

v. Florida, it banned life without parole sentences for juveniles who did not commit homicides.

560 U.S. 48, 82, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). In both cases, the Court stated that

“[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose

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

reflects irreparable corruption.” Roper, 543 U.S. at 573; Graham, 560 U.S. at 73 (quoting Roper,

543 U.S. at 573).     The Graham court stated that some juvenile offenders have sufficient

psychological maturity and demonstrate sufficient depravity to merit a life without parole sentence.

560 U.S. at 77. But “it does not follow that courts taking a case-by-case proportionality approach

could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many

that have the capacity for change.” Graham, 560 U.S. at 77.

       In 2012, in Miller, the Supreme Court banned mandatory life without parole sentences for

juvenile homicide offenders. 132 S. Ct. at 2475. Referring to Roper and Graham, the Court stated

that it has been established that children are “constitutionally different from adults for purposes of

sentencing.” Miller, 132 S. Ct. at 2464. The Court reiterated the findings from Roper and Graham

that children’s lack of maturity and underdeveloped sense of responsibility lead to recklessness,

impulsivity, and heedless risk taking. Miller, 132 S. Ct. at 2464. Children are also more vulnerable

to negative influence and outside pressure from family and peers, have limited control over their

environments, and lack the ability to extricate themselves from horrific, crime-producing settings.


                                                  9
No. 47251-1-II


Miller, 132 S. Ct. at 2464. Further, because a child’s character is not as well formed as an adult’s,

the child’s traits are less fixed, and his actions are less likely to be evidence of irretrievable

depravity. Miller, 132 S. Ct. at 2464.9

       Citing Graham, Miller noted that for youth, life without parole is an especially harsh

punishment because the juvenile will almost inevitably serve more years and a greater percentage

of his life in prison than an adult offender. 132 S. Ct. at 2466. Graham also likened life without

parole sentences to the death penalty for juveniles, stating that a life without parole sentence

“‘means denial of hope; it means that good behavior and character improvement are immaterial; it

means that whatever the future might hold in store for the mind and spirit of [the convict], he will

remain in prison for the rest of his days.’” 560 U.S. at 70 (alteration in original) (quoting

Naovarath v. State, 105 Nev. 525, 526, 779 P.2d 944 (1989)).

       Thus, the Miller Court mandated that “a sentencer [must] follow a certain process—

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

penalty.” 132 S. Ct. at 2471. The characteristics to be considered include: chronological age,

“immaturity,” “impetuosity,” “failure to appreciate risks and consequences,” the surrounding



9
  Miller, Roper, and Graham further emphasized that “the distinctive attributes of youth diminish
the penological justifications for imposing the harshest sentences on juvenile offenders, even when
they commit terrible crimes.” Miller, 132 S. Ct. at 2465. Deterrence is a flawed rationale because
of juveniles’ impulsivity and inability to consider the consequences of their actions. Miller, 132
S. Ct. at 2465. Retribution’s focus on blameworthiness does not justify a life without parole
sentence because juveniles have severely diminished moral culpability. Miller, 132 S. Ct. at 2465.
Incapacitation fails to justify a life without parole sentence because adolescent development
diminishes the likelihood that an offender forever will be a danger to society. Miller, 132 S. Ct. at
2465. In other words, incorrigibility is “‘inconsistent with youth.’” Miller, 132 S. Ct. at 2465
(internal quotation marks omitted) (quoting Graham, 560 U.S. at 72-73). Finally, rehabilitation
does not justify a life without parole sentence because such a sentence precludes hope for a child’s
ultimate rehabilitation. Miller, 132 S. Ct. at 2465.

                                                 10
No. 47251-1-II


family and home environment, “the circumstances of the homicide offense, including the extent

of his participation in the conduct” and any pressures from friends or family affecting him, the

inability to deal with police officers and prosecutors, incapacity to assist an attorney in his defense,

and the possibility of rehabilitation. Miller, 132 S. Ct. at 2468. But Miller “d[id] not categorically

bar a penalty for a class of offenders or type of crime.” 132 S. Ct. at 2471. Rather, the Court noted

that the appropriate occasion for sentencing a juvenile homicide offender to life without parole

will be “uncommon.” Miller, 132 S. Ct. at 2469.

        In Montgomery v. Louisiana, the Court held that Miller applied retroactively to offenders

who were juveniles when they committed their crimes and who have challenged life sentences

under the Eighth Amendment of the federal constitution. ___ U.S. ___, 136 S. Ct. 718, 725, 736,

193 L. Ed. 2d 599 (2016). The Court stated that Miller did not require a finding of fact regarding

a child’s irreparable corruption before a juvenile could be sentenced to life without parole.

Montgomery, 136 S. Ct. at 735. Rather, Miller established a substantive rule that juveniles whose

crimes reflect “only transient immaturity—and who have since matured—will not be forced to

serve” a life without parole sentence. Montgomery, 136 S. Ct. at 736. Life without parole is

constitutional only for “the rarest of juvenile offenders, those whose crimes reflect permanent

incorrigibility.” Montgomery, 136 S. Ct. at 734. Thus, “prisoners who have shown an inability to

reform will continue to serve life sentences.” Montgomery, 136 S. Ct. at 736. “The opportunity

for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that

children who commit even heinous crimes are capable of change.” Montgomery, 136 S. Ct. at 736.

        Although the Montgomery Court did not determine whether the defendant was eligible for

parole consideration or resentencing, the Court noted that the type of evidence that the defendant


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No. 47251-1-II


submitted was an example of the “kind of evidence that prisoners might use to demonstrate

rehabilitation.” Montgomery, 136 S. Ct. at 736. This evidence included submissions showing the

petitioner to be a “model member of the prison community” who established a boxing team of

which he became a trainer and coach, contributed time and labor to the prison silkscreen

department, and strived to offer advice and to be a role model to other inmates. Montgomery, 136

S. Ct. at 736.

2.      WASHINGTON STATE’S MILLER-FIX

        In Washington, before Miller, life without possibility of release or parole was the

mandatory sentence for aggravated first degree murder regardless of the offender’s age. Former

RCW 10.95.030 (1993). In response to Miller, the legislature amended RCW 10.95.030 (the

“Miller-fix” statute) to state,

                (3)(a)(i) Any person convicted of the crime of aggravated first degree
        murder for an offense committed prior to the person’s sixteenth birthday shall be
        sentenced to a maximum term of life imprisonment and a minimum term of total
        confinement of twenty-five years.
                (ii) Any person convicted of the crime of aggravated first degree murder for
        an offense committed when the person is at least sixteen years old but less than
        eighteen years old shall be sentenced to a maximum term of life imprisonment and
        a minimum term of total confinement of no less than twenty-five years. A minimum
        term of life may be imposed, in which case the person will be ineligible for parole
        or early release.
                (b) 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]
        including, but not 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 (emphasis added).




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No. 47251-1-II


         The legislature also enacted RCW 10.95.035(1), which provided that persons sentenced

before June 1, 2014 to life without parole or early release for aggravated murder committed when

they were under the age of 18 would be resentenced consistently with RCW 10.95.030.

             C. CATEGORICAL BAR ANALYSIS OR FAIN’S PROPORTIONALITY ANALYSIS

         Bassett argues that the imposition of life without parole or early release sentences on

juvenile offenders under the Miller-fix statute violates the cruel punishment clause in article I,

section 14 of the Washington Constitution. Bassett urges us to apply the categorical bar analysis,

as used in State v. Sweet, 879 N.W.2d 811 (Iowa 2016), to determine the Miller-fix statute’s

constitutionality, rather than the traditional proportionality analysis from State v. Fain.10 The State

argues that Iowa’s Sweet decision is not binding on Washington courts, so that we are confined to

applying the Fain analysis. We disagree with the State and adopt and apply the categorical bar

analysis from Sweet.

1.       CATEGORICAL BAR ANALYSIS

         Bassett urges us to follow the reasoning found in Sweet. See 879 N.W.2d 811. Thus, we

begin by examining Sweet’s distillation of the categorical bar analysis. In Sweet, the Iowa Supreme

Court held that juvenile life without parole sentences categorically violate article I, section 17 of

the Iowa Constitution. 879 N.W.2d at 839. Article I, section 17 of the Iowa Constitution matches

the federal Eighth Amendment—both ban “cruel and unusual punishment.” The Sweet court stated

that as a general rule, “[w]hen a different standard is not presented under the Iowa Constitution, . . .

we apply the federal framework, reserving the right to apply that framework in a fashion different




10
     94 Wn.2d 387, 617 P.2d 720 (1980).

                                                  13
No. 47251-1-II


from federal precedents.” 879 N.W.2d at 817. Thus, the Sweet court applied a two-step federal

framework set out in State v. Lyle, 854 N.W.2d 378 (Iowa 2014). 879 N.W.2d at 835.

       In Lyle, the Iowa Supreme Court considered whether a statute mandating a minimum

sentence for nonhomicide juvenile offenders violated article I, section 17 of the Iowa Constitution.

854 N.W.2d at 380. Lyle claimed that the sentencing statute violated article I, section 17 when

applied to all juveniles prosecuted as adults because the mandatory sentence did not allow the court

to consider any circumstances based on youthful attributes or the mitigating circumstances of the

conduct. Lyle, 854 N.W.2d at 380. Acknowledging that state constitutional protections may be

more stringent than federal constitutional protections, the Lyle court stated that the argument

advanced by Lyle was that the court should apply the federal framework set out in Miller, but in a

more stringent fashion. 854 N.W.2d at 384. Thus, the Lyle court concluded that it was appropriate

to apply “the federal analytical framework” to decide the case. 854 N.W.2d at 384.

       Before applying the framework to the facts of the case, the Lyle court acknowledged the

two general classifications of cruel and unusual sentences:

       “In the first classification the Court consider[ed] all of the circumstances of the case
       to determine whether [a term-of-years] sentence is unconstitutionally excessive.”
       [Graham, 560 U.S. at 59.] We recognize this classification under the Iowa
       Constitution, but refer to these sentences as “grossly disproportionate.” [State v.
       Bruegger, 773 N.W.2d 862, 873 (Iowa 2009).] The second classification
       contemplated categorical bars to imposition of the death penalty irrespective of
       idiosyncratic facts. [Graham, 560 U.S. at 60.] This classification of cases has
       traditionally “consist[ed] of two subsets, one considering the nature of the offense,
       the other considering the characteristics of the offender.” [Graham, 560 U.S. at
       60.] In short, the death penalty simply cannot be imposed on certain offenders or
       for certain crimes. For instance, no offender can be sentenced to death—regardless
       of their personal characteristics—if only convicted of a nonhomicide offense and
       they did not intend to cause the death of another. [Kennedy v. Louisiana, 554 U.S.
       407, 438, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008).] Additionally, a death penalty
       cannot be imposed, irrespective of the crime, on an intellectually disabled criminal


                                                 14
No. 47251-1-II


       offender, [Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335
       (2002)], or a juvenile offender, [Roper, 543 U.S. at 578].

854 N.W.2d at 385 (first alteration in original) (emphasis added).

       Lyle further noted that Miller expanded on the second classification, categorical bars under

the Eighth Amendment:

       Miller added to this jurisprudence by conjoining two sets of caselaw: outright
       categorical prohibitions on certain punishments for certain crimes or against certain
       offenders . . . with another line of cases requiring a sentencer have the ability to
       consider certain characteristics about the offender as mitigating circumstances in
       favor of not sentencing the offender to death . . . . Although Miller did not identify
       its holding as a categorical rule, it essentially articulated a categorical prohibition
       on a particular sentencing practice. . . . Yet, Miller implemented a categorical
       prohibition by requiring the sentencing court to consider the offender’s youth along
       with a variety of other individual facts about the offender and the crime to
       determine whether the sentence is appropriate. . . .
               . . . Miller effectively crafted a new subset of categorically unconstitutional
       sentences: sentences in which the legislature has forbidden the sentencing court
       from considering important mitigating characteristics of an offender whose
       culpability is necessarily and categorically reduced as a matter of law, making the
       ultimate sentence categorically inappropriate.

854 N.W.2d at 385-86 (emphasis added).

       Lyle then explained the usual two-step analysis of a categorical challenge to a sentence:

       First, we consider “objective indicia of society’s standards, as expressed in
       legislative enactments and state practice to determine whether there is a national
       consensus against the sentencing practice at issue.” [Graham, 560 U.S. at 61].
       Second, we exercise our own “independent judgment” “guided by the standards
       elaborated by controlling precedents and by [our] own understanding and
       interpretation of the [Iowa Constitution’s] text, history, meaning, and purpose.” See
       [Graham, 560 U.S. at 61]. In exercising 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.” [Graham, 560 U.S. at 67.] We
       also consider if the sentencing practice being challenged serves the legitimate goals
       of punishment.

854 N.W.2d at 386 (some alterations in original) (internal quotation marks omitted). The first

prong, consensus, is not dispositive. Lyle, 854 N.W.2d at 386. Lyle went on to apply this two-

                                                  15
No. 47251-1-II


step inquiry and in doing so considered the evolution of juvenile justice in the last decade. 854

N.W.2d at 387-404. Lyle concluded that mandatory minimum sentences for juvenile offenders

were unconstitutional under Iowa’s proscription against cruel and unusual punishment. 854

N.W.2d at 400.

       After reviewing Lyle, the Sweet court opined that Miller and Montgomery established that

life without parole sentences for juvenile offenders are not available under the federal constitution

even for heinous crimes except in very rare cases. 879 N.W.2d at 835. The Sweet court concluded

that

       [t]he only marginal issue remaining under the Iowa Constitution is whether we
       should continue to reserve the possibility that a juvenile offender may be identified
       as “irretrievable” at the time of sentencing, or whether that determination must be
       made by the parole board at a later time after the offender’s juvenile brain has been
       fully developed and a behavior pattern established by a substantial period of
       incarceration.

879 N.W.2d at 835. The Sweet court then applied the categorical bar analysis to determine whether

life without parole for the rarest juvenile offenders passed muster under the more protective Iowan

cruel and unusual punishment clause. 879 N.W.2d at 835. In other words, following Lyle’s lead,

the Sweet court applied a traditionally federal framework to address a state constitutional

challenge. Sweet held that all life without parole sentences for juvenile offenders offended the

Iowa State Constitution. 879 N.W.2d at 839. Bassett urges us to similarly hold that all juvenile

life without parole or early release sentences under the Miller-fix statute violate our state

constitution.




                                                 16
No. 47251-1-II


2.     FAIN PROPORTIONALITY ANALYSIS

       The State argues that Sweet is not controlling and that we should follow our traditional

approach. Thus, we next examine the traditional Fain proportionality analysis. Fain held that

RCW 9.92.090 (the habitual criminal statute) constituted cruel punishment under the state

constitution. 94 Wn.2d at 402-03. The court emphasized that Fain did not challenge the facial

constitutionality of the habitual criminal statute, including the legislature’s decision to enhance the

penalty for recidivists, but squarely addressed the “disproportionality between the nature of his

crimes and the life sentence imposed as punishment for the three offenses which deprived the

victims of less than $470 over a period of 17 years.” 94 Wn.2d at 391. Fain analyzed federal

Supreme Court precedent and distilled a “proportionality doctrine” that existed “[i]n addition to

the traditional view that the Eighth Amendment proscribes certain modes of punishment.” 94

Wn.2d at 395-96.        “While not expressly adopted by the judiciary in Washington, the

[proportionality] principle is implied in some of our cases” and legislative enactments. Fain, 94

Wn.2d at 396. Fain borrowed a four-factor proportionality analysis from a Fourth Circuit federal

case that also involved a life sentence imposed under a habitual criminal statute: Hart v. Coiner,

483 F.2d 136 (4th Cir. 1973). 94 Wn.2d at 397.

       The four Fain factors to consider in analyzing whether punishment is prohibited as cruel

under article I, section 14 are “‘(1) the nature of the offense, (2) the legislative purpose behind the

statute, (3) the punishment the defendant would have received in other jurisdictions, and (4) the

punishment meted out for other offenses in the same jurisdiction.’” State v. Witherspoon, 180

Wn.2d 875, 887, 329 P.3d 888 (2014) (quoting State v. Rivers, 129 Wn.2d 697, 713, 921 P.2d 495

(1996)).


                                                  17
No. 47251-1-II


3.     ADOPTING THE CATEGORICAL ANALYSIS

       As in Iowa, Washington has recognized the two general classifications of cruel and unusual

sentences that violate the Eighth Amendment: those that are disproportionate and those that are

categorically barred. See State v. Schmeling, 191 Wn. App. 795, 799-800, 365 P.3d 202 (2015).

In Schmeling, we analyzed whether RCW 69.50.4013 (which makes drug possession a felony

regardless of the defendant’s mental state) violated the Eighth Amendment. 191 Wn. App. at 797.

In doing so, we recognized that “[t]here are two types of Eighth Amendment analysis”:

proportionality analysis and the use of “categorical rules to define constitutional standards for

certain classes of crimes or offenders.” Schmeling, 191 Wn. App. at 798. The categorical analysis

requires both the review of objective indicia of societal standards expressed through legislative

enactments and state practice to determine whether there is a national consensus and the exercise

of independent judgment. Schmeling, 191 Wn. App. at 799-800 (quoting Graham, 560 U.S. at

61). In dicta, we noted that Washington applies the Fain analysis under the cruel punishment

clause. Schmeling, 191 Wn. App. at 798 n.3. But in Schmeling, the defendant brought his

challenge under only the Eighth Amendment, so that the court did not need to determine whether

the statute was constitutional under state law. 191 Wn. App. at 798 n.3.

       Further, our Supreme Court has recognized that “[A]rticle I, Section 14 of the state

constitution, like the Eighth Amendment, proscribes disproportionate sentencing in addition to

certain modes of punishment.” Manussier, 129 Wn.2d at 676 (emphasis added); see also State v.

Ramos, 187 Wn.2d 420, 455, 387 P.3d 650 (2017) (“We do not foreclose the possibility that this

court may reach a similar conclusion [to Sweet’s application of categorical bar analysis] in a future

case.”). Thus, although Washington courts recognize the categorical analysis’s existence, unlike


                                                 18
No. 47251-1-II


Iowa, our courts have to date stopped short of applying the two-step categorical analysis to evaluate

a statute’s constitutionality under the state cruel punishment clause.

       Although no Washington case has applied the categorical bar analysis, we further note that

in interpreting the cruel punishment clause, our courts have twice borrowed analytical frameworks

from federal case law interpreting the Eighth Amendment. See Fain, 94 Wn.2d at 397; State v.

Smith, 93 Wn.2d 329, 339-40, 610 P.2d 869 (1980). Fain drew the four-part proportionality

analysis directly from a Fourth Circuit federal case. 94 Wn.2d at 396-97 (citing Hart, 483 F.2d at

140-43). And in Smith, the court analyzed a claim brought under both the federal and state cruel

punishment clauses by considering whether the punishment was “clearly arbitrary and shocking to

the sense of justice,” a test drawn from a Sixth Circuit case. 93 Wn.2d at 339, 344-45 (citing

Kasper v. Brittain, 245 F.2d 92 (6th Cir. 1957)).

       Thus, our precedent both recognizes the existence of the categorical bar analysis in federal

case law and readily supports our drawing on federal analytical framework to resolve state

constitutional issues. We next turn to reasons for abandoning the traditional Fain framework in

this instance in favor of the categorical bar analysis.

       First, the nature of Bassett’s claim supports a categorical analysis under the Supreme

Court’s reasoning in Graham. There, the Supreme Court explained that categorical analysis was

necessary because the defendant challenged “a sentencing practice itself,” and his challenge

“implicate[d] a particular type of sentence as it applie[d] to an entire class of offenders who ha[d]

committed a range of crimes.” Graham, 560 U.S. at 61. In contrast, proportionality analysis is

suitable for a challenge “to a particular defendant’s sentence.” Graham, 560 U.S. at 61.




                                                  19
No. 47251-1-II


       Here, as in Graham, a categorical approach is appropriate because Bassett’s challenge

implicates a sentencing practice as it applies to an entire class of juvenile offenders. Like Graham,

here, “a threshold comparison between the severity of the penalty and the gravity of the crime does

not advance” our analysis. 560 U.S. at 61.

       Further, a categorical rule is particularly appropriate under these circumstances for the

reasons discussed in Graham, where the Supreme Court held that the Eighth Amendment barred

the option of life without parole for nonhomicide juvenile offenders:

       [A] categorical rule gives all juvenile nonhomicide offenders a chance to
       demonstrate maturity and reform. The juvenile should not be deprived of the
       opportunity to achieve maturity of judgment and self-recognition of human worth
       and potential. . . . Life in prison without the possibility of parole gives no chance
       for fulfillment outside prison walls, no chance for reconciliation with society, no
       hope. Maturity can lead to that considered reflection which is the foundation for
       remorse, renewal, and rehabilitation. A young person who knows that he or she
       has no chance to leave prison before life’s end has little incentive to become a
       responsible individual. In some prisons, moreover, the system itself becomes
       complicit in the lack of development. . . . A categorical rule against life without
       parole for juvenile nonhomicide offenders avoids the perverse consequence in
       which the lack of maturity that led to an offender’s crime is reinforced by the prison
       term.

560 U.S. at 79.

       Second, as in Sweet, our State’s extension of Miller similarly compels the application of

the categorical bar analysis. In Sweet, the Iowa Supreme Court noted that it had “embraced”

federal Supreme Court reasoning in interpreting the state constitution, as well as “built upon [that

reasoning] and extended its principles.” 879 N.W.2d at 832. After analyzing recent Iowa

decisions, the court determined it would no longer “opt for the narrower, more incremental

approach” of addressing whether the defendant was one of the extremely rare, irredeemably

corrupt juveniles.   Sweet, 879 N.W.2d at 834.         Based upon “experience and the caselaw


                                                 20
No. 47251-1-II


developments . . . there [was] little to be gained by allowing further caselaw development” and not

confronting the “larger categorical issue.” Sweet, 879 N.W.2d at 834.

        Our Supreme Court has similarly adopted and extended Miller in the juvenile sentencing

context. In Ramos, the court embraced Miller’s reasoning that “‘children are different’” and

recognized the three significant gaps between juveniles and adults:

        “[A] lack of maturity and an underdeveloped sense of responsibility leading to
        recklessness, impulsivity, and heedless risk taking”; the fact that “[c]hildren are
        more vulnerable to negative influences and outside pressures and lack the ability to
        extricate themselves from horrific crime-producing settings”; and the fact “that a
        juvenile’s actions are less likely to be evidence of irretrievable depravity.”

187 Wn.2d at 445, 452 (second alteration in original) (internal quotation marks omitted) (quoting

132 S. Ct. at 2469). The court noted that Miller requires, at the very least, consideration of a

juvenile defendant’s “‘chronological age and its hallmark features—among them, immaturity,

impetuosity, and failure to appreciate risks and consequences.’” Ramos, 187 Wn.2d at 443

(quoting Miller, 132 S. Ct. at 2468). Further, the sentencing court must consider “the juvenile’s

‘family and home environment,’” “‘the circumstances of the homicide offense’” including

participation and the effect of any familial or peer pressures, and “‘incompetencies associated with

youth.’” Ramos, 187 Wn.2d at 443-44 (quoting Miller, 132 S. Ct. at 2468). Finally, due to

“‘children’s diminished culpability and heightened capacity for change . . . appropriate occasions

for sentencing juveniles to this harshest possible penalty will be uncommon.’” Ramos, 187 Wn.2d

at 444 (alteration in original) (quoting Miller, 132 S. Ct. at 2469).

        Our Supreme Court has also extended Miller’s protections beyond its holding. In Ramos,

which extended Miller to juveniles sentenced for multiple homicides or to de facto life sentences,

the court stated,


                                                 21
No. 47251-1-II


       Miller’s reasoning clearly shows that it applies to any juvenile homicide offender
       who might be sentenced to die in prison without a meaningful opportunity to gain
       early release based on demonstrated rehabilitation. . . .
               . . . [N]othing about Miller suggests its individualized sentencing
       requirement is limited to single homicides because “the distinctive attributes of
       youth diminish the penological justifications for imposing the harshest sentences
       on juvenile offenders, even when they commit terrible crimes.” Miller, 132 S. Ct.
       at 2465 (emphasis added). . . .
               ....
               . . . [Similarly,] we also reject the notion that Miller applies only to literal,
       not de facto, life-without-parole sentences. Holding otherwise would effectively
       prohibit the sentencing court from considering the specific nature of the crimes and
       the individual’s culpability before sentencing a juvenile homicide offender to die
       in prison, in direct contradiction to Miller. Whether that sentence is for a single
       crime or an aggregated sentence for multiple crimes, we cannot ignore that the
       practical result is the same.

187 Wn.2d at 438 (emphasis added).

       The court also extended Miller’s reasoning in State v. O’Dell when it held that a

defendant’s youth supports departure from a standard sentencing range. 183 Wn.2d 680, 690, 358

P.3d 359 (2015). The court noted the scientific studies underlying Miller, Roper, and Graham and

establishing a “clear connection between youth and decreased moral culpability for criminal

conduct.” O’Dell, 183 Wn.2d at 695. Accordingly, youth was likely to diminish a defendant’s

culpability and could amount to a substantial and compelling factor that justified a below-standard-

range sentence. O’Dell, 183 Wn.2d at 695-96. And in State v. S.J.C., our Supreme Court

considered Miller when it analyzed juvenile record sealing practices and noted that the material

differences between juveniles and adults have constitutional implications. 183 Wn.2d 408, 428,

352 P.3d 749 (2015).

       Most recently, in State v. Houston-Sconiers, our Supreme Court addressed Miller’s

applicability to juvenile defendants who had received lengthy mandatory sentences that were

attributable to firearm sentencing enhancements and lacked the possibility of early release. ___

                                                  22
No. 47251-1-II


Wn.2d ___, 391 P.3d 409, 2017 WL 825654, at *1, *3. The court acknowledged that the United

States Supreme Court had yet to extend Miller to the situation of “26 and 31 year [sentences] for .

. . robberies.” 2017 WL 825654, at *7. Regardless, our Supreme Court held that the Eighth

Amendment and Miller required that “sentencing courts must have absolute discretion to depart as

far as they want below otherwise applicable [Sentencing Reform Act of 1981, ch. 9.94A RCW,]

ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of

how the juvenile got there.” 2017 WL 825654, at *1.

       Thus, examination of our precedent illustrates that our Supreme Court has adopted and

applied Miller’s reasoning beyond its holding. Similar to the Iowa precedent examined in Sweet,

Washington’s jurisprudence has “embraced the reasoning” of Miller, Roper, and Graham and has

“built upon it and extended its principles.” Sweet, 879 N.W.2d at 832.

       Third, the Fain analysis does not adequately address the special concerns inherent to

juvenile sentencing.    The first Fain factor requires a consideration purely of the crime’s

characteristics. See 94 Wn.2d at 397-98. Miller, however, explicitly requires a sentencing court

to consider an offender’s youth and attendant characteristics before imposing a particular penalty.

132 S. Ct. at 2471. Thus, to exclusively focus on the nature of the crime and ignore the nature of

the offender conflicts with Miller’s principles. Similarly, the fourth Fain factor, the punishment

meted out for other offenses in the same jurisdiction, conflicts with Miller because it allows

comparison with the punishment for adult offenders who commit the same crimes. See 94 Wn.2d

at 397, 401-02. Again, this factor conflicts with the principles of Miller, which states that children

cannot simply be treated as miniature adults for punishment purposes. 132 S. Ct. at 2470.




                                                 23
No. 47251-1-II


        We hold that because our courts recognize both the categorical bar and proportionality

approaches to constitutional issues and because Bassett challenges a sentencing statute as applied

to a class of offenders, rather than solely the constitutionality of his sentence alone, the categorical

approach is necessary. We hold, as the Sweet court did, that there is “little to be gained” by

applying a proportionality analysis. 897 N.W.2d at 834. We apply the categorical bar analysis to

the Miller-fix statute as set forth below.

             D. CATEGORICAL BAR ANALYSIS APPLIED TO THE MILLER-FIX STATUTE

1.      NATIONAL CONSENSUS

        Bassett argues that societal standards of decency favor banning juvenile life without parole

or early release sentences based on the number of states that have abolished or functionally

abandoned juvenile life without parole sentences and the direction of this change. Although the

State does not address the categorical analysis, the State argues under the Fain analysis that “the

vast majority of states” have not abolished life without parole sentences. Suppl. Br. of Resp’t at

5. We agree with Bassett.

        The first step to the categorical bar analysis is to consider “‘objective indicia of society’s

standards, as expressed in legislative enactments and state practice’ to determine whether there is

a national consensus against the sentencing practice at issue.” Graham, 560 U.S. at 60 (quoting

Roper, 543 U.S. at 572). Legislation is the “‘clearest and most reliable objective evidence of

contemporary values.’” Atkins, 536 U.S. at 312 (quoting Penry v. Lynaugh, 492 U.S. 302, 331,

109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), abrogated by Atkins, 536 U.S. 304). In Sweet, the court

did not find a consensus regarding whether juveniles may be sentenced to life in prison without

the possibility of parole at the time of trial or whether a parole board must make such a


                                                  24
No. 47251-1-II


determination at a later date. 879 N.W.2d at 836. However, the court stated that the first prong is

not dispositive to the analysis. Sweet, 879 N.W.2d at 836. And it is not so much the number of

states that is important, but the consistency of the change’s direction. Atkins, 536 U.S. at 315.

       As of February 2017, 19 states and the District of Columbia have banned all juvenile life

without parole sentences.11 Although this is not the majority of United States jurisdictions, we

focus on the recent proliferation of legislative decisions to ban juvenile life without parole

sentences because it is the direction of the change that matters. Atkins, 536 U.S. at 315. Before

Miller, only 6 states and the District of Columbia banned juvenile life without parole sentences.12

But in the five years since Miller, 13 more states and the District of Columbia have banned juvenile




11
   See ALASKA STAT. § 12.55.015(g) (1997); ARK. CODE ANN. § 5-4-108 (2017); COLO. REV. STAT.
§§ 17-22.5-104(2)(d)(IV), 18-1.3-401(4)(b)(1) (2006); CONN. GEN. STAT. § 54-125a(f) (2015);
DEL. CODE ANN. tit. 11, §§ 4209A, 4204A(d) (2013); D.C. CODE § 22-2104(a) (2001); HAW. REV.
STAT. § 706-656 (2014); Sweet, 879 N.W.2d at 839; KAN. STAT. ANN. § 21-6618 (2010); KY. REV.
STAT. ANN. § 640.040(1) (1986); Diatchenko v. Dist. Att’y for Suffolk Dist., 466 Mass. 655, 674,
1 N.E.3d 270 (2013); MONT. CODE. ANN. § 46-18-222(1); NEV. REV. STAT. § 176.025 (2015); OR.
REV. STAT. § 161.620 (1985); S.D. CODIFIED LAWS § 22-6-1 (2016); TEX. PENAL CODE ANN. §
12.31 (2013); UTAH CODE ANN. § 76-3-209 (2016); VT. STAT. ANN. tit. 13, § 7045 (2015); W.
VA. CODE § 61-11-23 (2014); WYO. STAT. ANN. § 6-2-101(b) (2013); see also Juvenile Life
Without Parole in Philadelphia: A Time for Hope?, FAIR PUNISHMENT PROJECT, at 9 (2016) (not
including Iowa and Arkansas), http://fairpunishment.org/wp-content/uploads/2016/03/FPP_
JLWOP_philadelphia_r601.pdf.
         An additional six states have functionally abandoned juvenile life without parole by having
no juvenile life without parole prisoners as of March 2016. Juvenile Life Without Parole in
Philadelphia, at 9. And North Dakota’s legislature is considering banning juvenile life without
parole. H.B. 1195, 65th Legis. Assembly (N.D. 2017), https://legiscan.com /ND/bill/1195/2017
(last visited Apr. 18, 2017).
12
   See note 12, supra; see also Br. of Amici Curiae Charles Hamilton Houston Inst. for Race &
Justice & the Criminal Justice Inst., at 3, Montgomery, 136 S. Ct. 718,
http://www.scotusblog.com/wp-content/uploads/2015/08/Montgomery_CHHIRJ-and-
CriminalJusticeInstitute-Amicus.pdf (last visited Apr. 18, 2017).

                                                 25
No. 47251-1-II


life without parole sentences, and 11 states did so by legislative enactment.13 Four states banned

juvenile life without parole sentences in 2016 and 2017 alone, 3 by legislative enactment.14 This

movement toward banning juvenile life without parole is particularly striking in light of “the well-

known fact that anticrime legislation is far more popular than legislation providing protections for

persons guilty of violent crime.” Atkins, 536 U.S. at 315. Further, among the 31 states that allow

the sentence, only 4 states—Pennsylvania, Michigan, Louisiana, and California—account for half

of the juvenile life without parole sentences currently being served. Juvenile Life without Parole:

An Overview, THE SENTENCING PROJECT, at 3.15 And the United States stands alone as the only

nation to allow juveniles to serve life in prison without parole. Connie de la Vega et al., Cruel and

Unusual: U.S. Sentencing Practices in a Global Context, UNIV. OF SAN FRANCISCO LAW SCH., at

59 (2012).16

          Comparison with Atkins, in which the Supreme Court concluded there was a “national

consensus” against the execution of those with intellectual disabilities, is illustrative. 536 U.S. at

316. By the time Atkins was decided, 19 states had legislatively barred the intellectually disabled’s

execution. 536 U.S. at 314-15. Seventeen of those states had done so in the 12 years immediately

preceding the Atkins decision. 536 U.S. at 314-15. Here, 19 states currently ban juvenile life

without parole sentences, and most of those states have done so within the last five years. A



13
     See note 12, supra.
14
     Arkansas, Iowa, South Dakota, and Utah; see note 12, supra.
15
    Http://www.sentencingproject.org/wp-content/uploads/2015/12/Juvenile-Life-Without-Parole
.pdf (last visited Apr. 18, 2017).
16
     Https://www.usfca.edu/sites/default/files/law/cruel-and-unusual.pdf (last visited Apr. 18, 2017).

                                                   26
No. 47251-1-II


comparison with Atkins compels the conclusion that a national consensus is building against

juvenile life without parole sentences.

       We hold that objective indicia of societal standards expressed through legislative

enactments and state practice illustrate a building of national consensus against juvenile life

without parole sentences. Accordingly, the first prong of the categorical bar analysis favors

holding that our Miller-fix statute allowing for the imposition of a juvenile life without parole or

release sentence is unconstitutional.

2.     INDEPENDENT JUDGMENT

       Bassett argues that imposing juvenile life without parole or early release sentences is

unworkable under Washington’s broader protection against cruel punishment. The State does not

address this argument. We agree with Bassett.

       The second step of the categorical bar analysis is to make an independent judgment of

whether the punishment in question violates our State’s cruel punishment proscription. Sweet, 879

N.W.2d at 836. In Sweet, the court explained that “the enterprise of identifying which juvenile

offenders are irretrievable at the time of trial is simply too speculative” and that Miller asks “the

sentencer to do the impossible.” 879 N.W.2d at 836-37.

       Informed by our precedent embracing and extending Miller, we turn to whether, in our

independent judgment, a juvenile life without parole or early release sentence is permissible under

Washington’s cruel punishment proscription.           To begin, “[i]t is difficult even for expert

psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet

transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”

Roper, 543 U.S. at 573.


                                                 27
No. 47251-1-II


       This leads to the fundamental problem with our Miller-fix statute: the sentencing court is

placed in the impossible position of predicting from its application of the Miller factors which

juveniles will prove to be irretrievably corrupt.        The sentencing court must separate the

irretrievably corrupt juveniles from those whose crimes reflect transient immaturity—a task even

expert psychologists cannot complete with certainty. Thus, the Miller-fix statute results in an

unacceptable risk that juvenile offenders whose crimes reflect transient immaturity will be

sentenced to life without parole or early release because the sentencing court mistakenly identifies

the juvenile as one of the uncommon, irretrievably corrupt juveniles.17                   See RCW

10.95.030(3)(a)(ii).

       Further, the sentencing court’s task is made even more difficult under Washington law

because Washington’s cruel punishment clause provides greater protection than its federal

counterpart. Under federal law, life without parole sentences for juvenile homicide offenders are

to be “uncommon” and “‘rare.’” Ramos, 187 Wn.2d at 435, 450 (quoting Montgomery, 136 S. Ct.

at 734). Thus, to comport with Washington’s broader protections, life without parole or early

release sentences may be imposed upon only the most uncommon and rarest of offenders, an

impossible determination for the sentencing court to make when faced with a juvenile offender.




17
   Moreover, as Miller noted, juveniles’ distinctive characteristics undermine the justifications for
imposing harsh sentences on juvenile offenders. See 132 S. Ct. at 2465. In particular, the potential
of life without parole sentences is unlikely to deter juvenile crime because the failure to appreciate
risk is a hallmark of immaturity. Miller, 132 S. Ct. at 2465; Katherine Hunt Federle, The Right to
Redemption: Juvenile Dispositions and Sentences, 77 LA. L. REV. 47, at 61 (2016). And life
without parole sentences do not well further the retribution rationale because juveniles are less
culpable as a class and a life without parole sentence is comparatively harsher for a juvenile than
for an adult. Miller, 132 S. Ct. at 2465; Federle, supra, at 61-62.

                                                 28
No. 47251-1-II


       Additionally, the factors identified in Miller provide little guidance for a sentencing court

and do not alleviate the unacceptable risk identified. We find persuasive Sweet’s criticism of the

Miller factors:

               [Consideration of] the offender’s family and home environment . . . is . . .
       fraught with risks. For example, what significance should a sentencing court attach
       to a juvenile offender’s stable home environment? Would the fact that the
       adolescent offender failed to benefit from a comparatively positive home
       environment suggest he or she is irreparable and an unlikely candidate for
       rehabilitation? Or conversely, would the offender’s experience with a stable home
       environment suggest that his or her character and personality have not been
       irreparably damaged and prospects for rehabilitation are therefore greater? . . .
               A similar quandary faces courts sentencing juvenile offenders who have
       experienced horrendous abuse and neglect or otherwise have been deprived of a
       stable home environment. Should the offenders’ resulting profound character
       deficits and deep-seated wounds count against the prospects for rehabilitation and
       in favor of life-without-the-possibility-of-parole sentences under the Miller
       framework? Or should sentencing courts view the deprivation of a stable home
       environment as a contraindication for life without the possibility of parole because
       only time will tell whether maturation will come with age and treatment in a
       structured environment?

Sweet, 879 N.W.2d at 838. In light of the speculative and uncertain nature of the Miller analysis,

the Miller-fix statute creates a risk of misidentifying juveniles with hope of rehabilitation for those

who are irretrievably corrupt.       That is unacceptable under our State’s cruel punishment

proscription. For these reasons, life sentences without parole or early release for juvenile offenders

as allowed under RCW 10.95.030(3)(a)(ii) are unconstitutional.

                                          E. CONCLUSION

       A categorical bar analysis is best suited to determine whether the Miller-fix statute violates

the Washington Constitution’s prohibition against cruel punishment. Under a categorical analysis,

we hold that to the extent that a life without parole or early release sentence may be imposed

against a juvenile offender under the Miller-fix statute, RCW 10.95.030(3)(a)(ii), it fails the


                                                  29
No. 47251-1-II


constitutional categorical bar analysis. Therefore, a life without parole or early release sentence is

unconstitutional under article I, section 14 of our state constitution. Bassett successfully shows

that his restraint is unlawful. See Isadore, 151 Wn.2d at 299 (citing RAP 16.4(c)). We reverse his

sentence and remand for resentencing in accordance with this opinion.

       A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record pursuant to RCW 2.06.040, it is so ordered.

                                      FURTHER ANALYSIS

                          BASSETT’S NONCONSTITUTIONAL ARGUMENTS

       Bassett argues that for various reasons, the resentencing court erred when it applied the

Miller-fix statute. We address and reject these arguments in turn.

               I. NO PRESUMPTION OF LIFE WITHOUT PAROLE OR EARLY RELEASE

       Bassett contends that Miller creates a presumption against sentencing a juvenile to life

without parole or early release and that the resentencing court erred because it did not apply such

a presumption. Bassett further claims that the resentencing court erred because it presumed that

juvenile life without parole or early release was appropriate. We disagree.

       The Miller-fix statute requires that in setting a minimum term, the sentencing court “must

take into account mitigating factors that account for the diminished culpability of youth as

provided in Miller.” RCW 10.95.030(3)(b) (emphasis added). But neither the Miller-fix statute

nor Miller itself requires that the sentencing court apply a presumption for or against juvenile life

without parole or early release when it imposes a sentence. See RCW 10.95.030.




                                                 30
No. 47251-1-II


       In Ramos, our Supreme Court considered an argument that Miller’s holding, which requires

a sentencing court to account for how children are different and how those differences counsel

against sentencing them to life in prison, created a presumption against imposing a juvenile life

without parole sentence. 187 Wn.2d at 444 (quoting Miller, 132 S. Ct. at 2469). The court rejected

this argument. Ramos, 187 Wn.2d at 445 (citing Montgomery, 136 S. Ct. at 735). We decline to

hold that under Miller, the resentencing court was required to apply any presumption, either for or

against life without parole or early release.

                  II. NO PROOF BEYOND A REASONABLE DOUBT REQUIREMENT

       Bassett next argues that the resentencing court could not impose life without parole or early

release unless it had proof beyond a reasonable doubt that such a sentence was appropriate. This

argument fails.

       The Miller-fix statute allows a sentencing court the discretion to impose a minimum

sentence anywhere from 25 years to life without the possibility of parole or early release upon

consideration of the Miller factors. RCW 10.95.030(3)(a)(ii), (b). However, the Miller-fix statute

does not require that in doing so, the sentencing court find the Miller factors or any other

circumstances by proof beyond a reasonable doubt. See RCW 10.95.030. Thus, we reject Bassett’s

argument that the resentencing court erroneously applied the Miller-fix statute when it did not find

that life without parole or early release was appropriate by proof beyond a reasonable doubt.18




18
   Because we resolve Bassett’s appeal on the state constitutional cruel punishment claim, we
decline to reach Bassett’s other constitutional arguments. Thus, to the extent that Bassett argues
that his sentence violates the Sixth Amendment, we do not reach his argument.
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No. 47251-1-II


                 III. MEANINGFUL CONSIDERATION OF MITIGATING INFORMATION

       Bassett argues that the resentencing court abused its discretion because it failed to

meaningfully consider Bassett’s mitigation evidence. We disagree.

       The Miller-fix statute requires that the sentencing court take into account mitigating factors

set forth in Miller and gives the sentencing court discretion to determine whether to impose a

minimum term of life without parole or early release after considering the factors. See RCW

10.95.030(3); Ramos, 187 Wn.2d at 449. A sentencing court must consider the capacity for

rehabilitation. Ramos, 187 Wn.2d at 449. However, it is within a resentencing court’s discretion

whether to consider evidence of actual subsequent rehabilitation at the time of resentencing to the

extent that it bears upon the offender’s culpability. Ramos, 187 Wn.2d at 449.

       Here, the resentencing court considered the Miller mitigation factors, and the record

supports its conclusions. First, the resentencing court properly focused on the nature of the crime

and whether Bassett “snapp[ed]” pursuant to the Miller factors of the offense’s circumstances and

the mitigating quality of impetuosity. RP (Jan. 30, 2015) at 85; see 132 S. Ct. at 2468. The

resentencing court concluded that during the crimes, Bassett did not act based on emotion or

impulse as evidenced by the facts that he stole a gun in advance, fashioned a silencer on the gun

to avoid detection, cut the phone lines, and had previously come to the home to commit the crime.

These facts were supported by the record. See McDonald, 138 Wn.2d at 683-85.

       Second, the resentencing court did not err when it disregarded Dr. Hansen’s testimony.

The Miller-fix statute requires consideration of the degree of responsibility that Bassett was

capable of exercising. RCW 10.95.030(3)(b). The trial court acknowledged this factor, although

it concluded that Bassett had not acted based on emotion or impulse. Again, this conclusion was


                                                32
No. 47251-1-II


supported by the record. Although Dr. Hansen testified about Bassett’s adjustment disorder and

stressors, as Bassett concedes, Dr. Hansen did not testify that the murders were a direct result of

Bassett’s adjustment disorder limiting his ability to cope with stressors.

       Third, contrary to Bassett’s contention, the resentencing court did consider evidence of

Bassett’s family situation pursuant to the Miller factor of the juvenile’s surrounding family and

home environment. 132 S. Ct. at 2468. Here, the resentencing court acknowledged Bassett’s

strained relationship with his family, that Bassett’s parents tried to help Bassett by taking him to

Dr. Hansen, and that Bassett expressed interest in reconciling with his parents but “wasn’t willing

to take the necessary steps to accomplish that reconciliation.” RP (Jan. 30, 2015) at 88. These

findings were supported by the record. Thus, the trial court did not err.

       Fourth, the resentencing court considered evidence of Bassett’s immaturity pursuant to

Miller. 132 S. Ct. at 2468. The resentencing court heard evidence of immaturity, including

Bassett’s alcohol overdose and running away from home to hurt his mother and that Bassett was

still establishing his identity around the time that he committed the crimes. During Bassett’s

allocution, he stated that his first thoughts in jail were of how much trouble he would be in when

his parents learned that he was in jail because the reality of his crimes “didn’t click.” RP (Jan. 30,

2015) at 80. He also wrote shortly after his arrest that he regretted what happened and remembered

all the good times he had with his father. The resentencing court acknowledged that Bassett was

16 when the crimes occurred, but it found that the evidence about the crimes outweighed the

mitigating nature of Bassett’s adolescence. In doing so, the resentencing court followed the

direction of Miller.




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No. 47251-1-II


       Fifth, the resentencing court did not err under Miller when it considered homelessness as a

sign of maturity that did not mitigate Bassett’s culpability. Although Miller directs a sentencing

court to consider a youth’s life experience and home as mitigating factors, it does not provide

guidance regarding how to apply the factors. See 132 S. Ct. at 2468; see also Sweet, 879 N.W.2d

at 838 (discussing the inherent uncertainty in evaluating a juvenile’s home environment under

Miller). Here, the resentencing court reflected that because Bassett was homeless, he was “almost

solely responsible for himself” and may have “had a higher degree of responsibility and - and

ability to control his behavior then [sic] other teenagers of that same age.” RP (Jan. 30, 2015) at

88. The resentencing court further noted that although teenage homelessness was a problem in our

society, those “situations . . . cause 15 and 16 year olds to grow up pretty quickly” and to “gain a

level of maturity much quicker than kids who are not in that situation.” RP (Jan. 30, 2015) at 88-

89. And the resentencing court noted that it had not “heard anything that causes me to conclude

that Mr. Bassett did not possess the ability or the capability of controlling his behavior and being

responsible for his behavior.” RP (Jan. 30, 2015) at 89. In light of Miller’s lack of guidance in

applying the Miller factors, we decline to hold that the resentencing court erred.

       Sixth, the resentencing court did not abuse its discretion when it concluded that the

rehabilitation evidence did not outweigh the circumstances of the crime and other evidence

pertaining to culpability. In Ramos, our Supreme Court held that the resentencing court has

discretion about how and if it considers subsequent rehabilitation evidence in each case—

“[w]hether . . . evidence [of actual demonstrated maturity and rehabilitation] should be considered

at the time of resentencing to the extent that it bears on the offender’s culpability is a question we

leave to the discretion of the trial court in each case.” 187 Wn.2d at 449. Here, we note that


                                                 34
No. 47251-1-II


Bassett presented considerable evidence demonstrating rehabilitation. In light of the resentencing

court’s discretion under Ramos, however, we cannot hold that the trial court abused its discretion

when it concluded that the other evidence outweighed this rehabilitation evidence. Further, when

we review a trial court’s decision for an abuse of discretion, we do not substitute our own judgment

for that of the trial court, and we affirm unless no reasonable person could have come to the same

conclusion. In re Det. of Duncan, 167 Wn.2d 398, 406, 219 P.3d 666 (2009).

       Bassett’s abuse of discretion arguments lack merit. Accordingly, we hold that the trial

court did not abuse its discretion at Bassett’s resentencing.

                                   IV. REASSIGNMENT REQUEST

       Bassett argues also that due process and the appearance of fairness entitle him to a new

judge if he is granted a resentencing hearing. We disagree.

       Reassignment first sought on appeal is available only in limited circumstances, including

where the trial judge will exercise discretion on remand regarding the issue that triggered the

appeal and has apparently prejudged the issue. State v. Solis-Diaz, 187 Wn.2d 535, 540, 387 P.3d

703 (2017) (citing State v. McEnroe, 181 Wn.2d 375, 387, 333 P.3d 402 (2014)). We remand to

a different judge where the facts in the record show that “the judge’s impartiality might reasonably

be questioned.” Solis-Diaz, 187 Wn.2d at 540. “[E]ven where a trial judge has expressed a strong

opinion as to the matter appealed, reassignment is generally not available as an appellate remedy

if the appellate court’s decision effectively limits the trial court’s discretion on remand.” McEnroe,

181 Wn.2d at 387.

       Here, the record does not compel the conclusion that Bassett’s resentencing judge’s

impartiality might reasonably be questioned. See Solis-Diaz, 187 Wn.2d at 540. We note that


                                                 35
No. 47251-1-II


when the court resentenced Bassett, it expressly acknowledged its duty to balance the Miller

factors and that it could not make a decision based solely upon the circumstances of the crime.

The resentencing court’s decision to impose life without parole or early release was a reasoned

application of the Miller-fix statute and was supported by the record as discussed. Further, on

remand, our opinion prevents the resentencing court from again imposing life without parole or

early release. See McEnroe, 181 Wn.2d at 387. Thus, we hold that reassignment to a different

judge is not merited, and we reject Bassett’s request.

       For the reasons discussed, we reject Bassett’s various arguments that the resentencing court

erred when it applied the Miller-fix statute. We hold that the Miller-fix statute’s provision allowing

for juvenile life without parole or early release for offenders between 16 and 18 years old violates

our State’s cruel punishment proscription.       We reverse Bassett’s sentence and remand for

resentencing; however, we decline to reassign the matter to a different judge.



                                                      JOHANSON, J.
 We concur:



WORSWICK, P.J.




LEE, J.




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