                                                         This opinion was
      nCTE                                                fiied for record
      IN CLERKS OFFICE
tunsc(»ufn;smE OF yiM»M8nN                         at       on

        AOg i 5 2019 L                                  Susan L. Carlson
 --\-tiXX
  ' GHIEFJUSrKe
                   . Cc                             Supreme Court Clerk




 IN THE SUPREME COURT OF THE STATE OF WASHINGTON


 STATE OF WASHINGTON,                      No. 95263-9


                             Respondent,   EN BANC


 V.                                        Filed        AIIG \ 5

 ANTHONY ALLEN MORETTI,

                             Petitioner.


 STATE OF WASHINGTON,                      No. 95510-7


                             Respondent,

 V.



 HUNG VAN NGUYEN,

                             Petitioner.


 STATE OF WASHINGTON,                      No. 96061-5


                             Respondent,



 FREDERICK DEL ORR,

                             Petitioner.
State V. Moretti, No. 95263-9



      FAIRHURST, C.J.—^Under the Persistent Offender Accountability Act

(POAA),the third time a person is convicted of a "most serious offense," they must

be sentenced to life in prison without the possibility of parole. RCW

9.94A.030(38)(a), .570. This statute is colloquially known as the "three strikes and

you're out" law. State v. Thome, 129 Wn.2d 736, 746, 921 P.2d 514(1996). These

three cases each ask whether it is constitutional to apply the POAA to people who

were in their 30s or 40s when they committed their third strike but were young adults

when they committed their first strike.

      We hold that it is constitutional. Article I, section 14 of the Washington

Constitution does not require a categorical bar on sentences of life in prison without

the possibility of parole for fully developed adult offenders who committed one of

their prior strikes as young adults. We also hold that the sentences in these cases are

not grossly disproportionate to the crimes.

                   I.   FACTS AND PROCEDURAL HISTORY


A.    Anthony Allen Moretti

      Anthony Allen Moretti was bom on April 22, 1983. When he was 20 years

old, he was charged with breaking into a vacant home and setting fire to it. He

pleaded guilty to arson in the first degree and was sentenced to 28 months in prison.

      When he was 26 years old, he was driving while intoxicated and caused an

accident in which someone was injured. He pleaded guilty to vehicular assault
               I


               I                          2
State V. Moretti, No. 95263-9

causing substantial bodily harm to another while under the influence of alcohol and

was sentenced to 13 months in prison.

       At age 32, Moretti assaulted and robbed two men at a boat launch. One of his

victims, Michael Knapp, had recently won $1,250 at a local casino. Knapp and his

friend, Tyson Ball, wanted to use some ofthe money to buy methamphetamine. Ball

arranged to meet a woman at a boat launch in order to buy the drugs, but instead of

completing their purchase, Ball and Knapp were assaulted by two men, later

identified as Moretti and Sam Hill. Hill assaulted Ball while Moretti beat Knapp

with a bat, demanding that he give them the money. Moretti and Hill left after Knapp

complied. Moretti and Hill were both later identified and arrested. Moretti proceeded

to trial and was convicted offirst degree robbery ofKnapp and second degree assault

ofBall. Because Moretti had previously been convicted oftwo separate most serious

offenses,' he was labeled a "persistent offender" under RCW 9.94A.570 and was

given the mandatory sentence of life in prison without the possibility of parole.

       Moretti appealed, arguing, among other things, that his mandatory life without

parole sentence was a violation of article I, section 14. of our constitution and the

Eighth Amendment to the United States Constitution. He claimed that this sentence
                 I




was cruel because the judge was not permitted to consider his youth at the time of



      'All of the petitioners have criminal histories beyond the strike offenses. However, each
defendant was sentenced to life in prison without the possibility of parole based solely on the fact
that these strike offenses qualified them as persistent offenders.
                 i
                 !                              3
State V. Moretti, No. 95263-9
                I                                                                   I
                I                                                                    i
his prior strike offenses. Division Two of the Court of Appeals, by a majority,

affirmed on this issue. State v. Moretti, No. 47868-4-II, slip op. at 19 (Wash. Ct.

App. Oct. 31, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/

D2%2047868-4-II%20Unpublished%200pinion.pdf.

B.    Hung Van Nguyen

      Hung Van Nguyen was bom on July 30, 1973. He grew up in Vietnam and

moved to the United States in 1990. He did not receive any formal education in

Vietnam or in the United States. Psychological evaluations have suggested that he

may suffer from some cognitive difficulties. When he was 20 years old, he was

convicted of first degree burglary and was sentenced to 18 months in prison. The

facts underlying the burglary are not in the record.

       When he was 39 years old, Nguyen pleaded guilty to second degree assault

by strangulation after he put his hands around his sister's throat during an argument,

in front of her 6 year old son. He was sentenced to 17 months in prison. He does not

argue that he was a young adult when he committed this strike.

       At age 41, Nguyen was staying with his friend Thu Nguyen.^ She had asked
him to leave rhore than once, but he refused. She called the police repeatedly over

the course of 10 days in order to force him to leave, but the police were not helpful.



       ^ Thu Nguyen is not related to Hung Van Nguyen. To avoid confusion, we will iise her full
name when referring to her.                                                         i
                !                             4                                     I
State V. Moretti, No. 95263-9

so she eventua'ly locked   him outside while he was speaking to police officers. The

next day, Thu Nguyen was taking a nap with her 4 year old grandson. She woke up

to Nguyen walking out of her bedroom closet, holding a knife. He told her that he

was going to kill her and then stabbed her 10 times, repeatedly catching her as she

tried to escape. At that moment,Thu Nguyen's friend Linh Truong arrived for a visit.

Truong knocked on the door, and Thu Nguyen's grandson opened the door to let her

in. Truong saw Nguyen on top of Thu Nguyen and threw a chair at him to get him

off her. The chair missed, but Nguyen turned and stabbed Truong, giving Thu

Nguyen the chance to escape. Both victims were able to make it outside, and Truong

called 911. Nguyen was arrested and was found competent to stand trial after a

psychological evaluation. The jury convicted him of first and second degree assault.
              I



both while aimed with a deadly weapon.

      Because Nguyen had previously been convicted oftwo separate most serious

offenses, he was labeled a "persistent offender" under RCW 9.94A.570 and was

given the mandatory sentence of life in prison without the possibility of parole.

Nguyen appealed, and Division One of the Court of Appeals affirmed his sentence.

State V. Hung Van Nguyen, No. 74962-5-1, slip op. at 7-8 (Wash. Ct. App. Jan. 16,

2018)(unpublished), https://www.courts.wa.gov/opinions/pdf/749625.pdf.
State V. Moretti, No. 95263-9

C.    Frederick Del Orr


      Frederick Del Orr was bom on April 8, 1974. When he was 19 years old, a

police report alleges that he approached a one-legged man in downtown Spokane

and demanded money. The man gave him $6 in cash and some change. Orr became

angry at the low amount and demanded the man's bank card. The man refused. Orr

stmck him in the face with a broken beer bottle, grabbed the crutch that the man used

to walk, struck him again, and then left. Orr did not remember committing the crime,

but he entered an Alford^ plea of guilty to second degree of robbery and was

sentenced to 6 months in the county jail.

      When he was 21 years old, Orr was charged with first degree robbery. The

statement of probable cause alleges that he was drinking beer at a man's apartment

when he started acting strangely and was asked to leave. Orr hit the man, and the

man hit him back. Orr then grabbed a paring knife and threatened to kill the man and

his roommate before eventually leaving with the man's Toshiba portable stereo. The

man tried to stop him from taking the stereo, but Orr raised the knife and chased him

down the hallway. Orr entered an Alford plea of guilty to first degree robbery and

was sentenced to 50 months in prison.
               i

      At age 41, Orr was living on the streets of Spokane. An acquaintance had

allegedly told him that a man named Sasquatch was holding children against their


      3 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162(1970).
                                             6
State V. Moretti, No. 95263-9


will at a house in the area and was sexually abusing them. Orr was abused ks a child
               I                                                           I

himself and had heard sex offenders discuss their abuse of children while he was in


prison. He became deeply upset and decided to investigate. He went to the house in

question carrying a large metal pipe. He investigated and eventually decided to break

in. The owner of the house was inside with her 2 year old child. She saw On-

searching around. When he saw her, he left the house and sat down on the porch.

Meanwhile, a neighbor had seen what had happened and went to confront Orr. The

neighbor had a gun. An argument ensued, and Orr swung the pipe at the neighbor's

head several times, telling the neighbor to shoot him. Orr eventually acknowledged

that he had the wrong house and dropped the metal pipe. He was arrested and was

later convicted offirst degree burglary and second degree assault, both with a deadly

weapon.


      Because Orr had previously been convicted of two separate most serious

offenses, he was labeled a "persistent offender" under ROW 9.94A.570 and was

given the mandatory sentence of life in prison without the possibility of parole. On-

appealed, and Division Three ofthe Court of Appeals affirmed his sentence. State v.

Orr,No. 34729-0-III, slip op. at 9-10(Wash. Ct. App. Apr. 26,2018)(unpublished),

https://www.courts.wa.gov/opinions/pdf/347290_unp.pdf.

      Moretti, Nguyen, and Orr each sought review of the constitutionality of their

sentences in this court. We accepted review and consolidated these cases. {
                                                                           j

                                                                           I
                                                                           I

                                         7
State V. Moretti, No. 95263-9                                              |
                                                                            1


               I                                                            I
              '                 11.    ANALYSIS


      We have repeatedly upheld sentences of life in prison without the possibility

of parole for adults who commit a third most serious offense after having been

convicted of most serious offenses on two separate prior occasions. We now hold

that it is not categorically cruel under article I, section 14 of the Washington

Constitution to impose mandatory sentences of life without the possibility of parole

under the POAA on adult offenders who committed one of their prior most serious

offenses as young adults. The petitioners in these cases have not shown a national

consensus against this sentencing practice, and in our own independent judgment,

the concerns applicable to sentencing juveniles do not apply to adults who continue

to reoffend after their brains have fully developed. Because we have previously held

that article I, section 14 offers more protection than the federal constitution in the

context of sentencing both recidivists and juveniles, we do not address the

petitioners' argument that this punishment is cruel and unusual under the Eighth

Amendment to the United States Constitution.


      We also hold that the sentences in these cases are not grossly disproportionate

to the offenses under the four Fain factors: "(1) the nature of the offense; (2) the
               i




legislative purpose behind the habitual criminal statute; (3) the punishment

defendant would have received in other jurisdictions for the same offense; and (4)
State V. Moretti, No. 95263-9                                                          j
                                                                                       1

                 [                                                                     i

the punishment meted out for other offenses in the same jurisdiction." State v. Fain,
                 i


94 Wn.2d 387, 397,617 P.2d 720(1980).

A.     History of the POAA

       In 1993, 76 percent of the voters in Washington State approved the passage

of the POAA. Under the POAA,"persistent offenders" must be sentenced to life in

prison without the possibility of parole. ROW 9.94A.570. A "persistent offender" is

a person who commits a third most serious offense after having been convicted on

two separate prior occasions of most serious offenses or their out-of-state

equivalents. ROW 9.94A.030(38)."Most serious offense" means any class A felony

or certain class B felonies that are violent, sexual, or dangerous."^ See RCW

9.94A.030(33). The age of majority in Washington State is 18 years old, RCW

26.28.010, and juvenile adjudications are not included as strikes under the POAA.

Thome, 129 Wn.2d at 748; RCW 9.94A.030(35).

       We have continually upheld sentences imposed under the POAA as

constitutional and not cruel under article I, section 14. See, e.g., State v. Witherspoon,

180 Wn.2d 875, 889, 329 P.3d 888 (2014); State v. Magers, 164 Wn.2d 174, 193,



         At the time these defendants committed the instant offenses, "most serious offenses"
included, among other crimes, all class A felonies; assault in the second degree; robbery in the
second degree; vehicular assault, when caused by the operation or driving of a vehicle by a person
while under the influence ofintoxicating liquor or any drug; and any felony with a deadly weapon
verdict. RCW 9.94A.030(33). The legislature recently removed robbery in the second degree from
the list of most serious offenses. Engrossed Substitute S.B. 5288,66th Leg., Reg. Sess.(Wash.
2019). Languagej making this change retroactive was removed by amendment. Amend. 5288-S
AMS PADD S2657.1 to Engrossed Substitute S.B. 5288.                                   '
State V. Moretti, No. 95263-9                                                i
                                                                             i
               ^                                                             j
189 P.3d 126 (2008)(plurality opinion); State v. Manussier, 129 Wn.2d ^52, 667,
921 P.2d 473 (1996); State v. Rivers, 129 Wn.2d 697, 715, 921 P.2d 495 (1996);

Thorne, 129 Wn.2d at 772-73;see also State v. Davis, 133 Wn.2d 187, 190,943 P.2d

283 (1997) (agreeing that the offenders' crimes are not distinguishable from

Manussier, Rivers, and Thorne and, therefore, that a challenge arguing that the

sentences were cruel would be frivolous).

B.    Sentencing an older adult recidivist who committed a prior crime as a young
      adult to life in prison without parole is not categorically unconstitutional

      Moretti, Nguyen,and Orr each challenge their POAA sentences, claiming that

imposing a mandatory sentence of life without the possibility of parole on a person

who committed at least one, but not all, of their strike offenses as a young adult

categorically violates article I, section 14 of the Washington Constitution and the

Eighth Amendment to the United States Constitution. We have previously held that

article I, section 14 is more protective than the Eighth Amendment when evaluating

both the proportionality ofthe POAA, Witherspoon, 180 Wn.2d at 887, and juvenile

sentencing. State v. Bassett, 192 Wn.2d 67, 82,428 P.3d 343 (2018). Therefore, if it

is not cruel under article I, section 14 to apply the POAA to offenders who

committed a prior strike offense as a young adult, then it is necessarily not cruel and

unusual under the Eighth Amendment."We review a statute's constitutionality, like

questions oflaw, de novo." Id. at 77.



                                          10
State V. Moretti, No. 95263-9                                                j
               i                                                             I

      1.     There is no evidence of a national consensus against using a crime
             committed as a young adult to enhance the sentence of an adult who
             continues to offend

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

a national consensus against" the sentencing practice at issue.Id. at 85. To determine

this, we consider '"objective indicia of society's standards, as expressed in

legislative enactments and state practice.'" Id. (internal quotation marks omitted)

(quoting Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825

(2010)). '"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)). The United States

Supreme Court has stated that the burden is on the offender to show that a national

consensus exists. See Stanford v. Kentucky, 492 U.S. 361, 373, 109 S. Ct. 2969, 106

L. Ed. 2d 306 (1989), overruled on other grounds by Roper v. Simmons, 543 U.S.

551, 574, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); cf. Bassett, 192 Wn.2d at 86

(explaining that the offender was "correct" that the direction of change was in his

favor).

      None of the petitioners have provided information about whether other states
               [


allow the use of a crime committed as a young adult to enhance a sentence imposed

on an offender who commits a third strike as an older adult. In his amended
               i                                                         ^   (
supplemental brief, Nguyen argues that "states overwhelmingly prohibit the use of
               i                                                             i

               i
               !                         11                                  i
State V. Moretti, No. 95263-9                                                              :
                                                                                           I

                 :                                                                         1
                  j                                                                        1
juvenile offenses to drastically enhance later sentences under recidivist schemes."
                 I

Am. Suppl. Br. of Pet'r Nguyen at 9 (emphasis added). But the POAA already

prohibits counting a juvenile adjudication as a strike offense. RCW 9.94A.030(35).^

       A review of the case law shows that many state courts have held that when

sentencing an adult recidivist, it is not cruel and unusual to consider strike offenses

committed when the offender was not just a young adult, but a juvenile. See, e.g..

Counts V. State, 2014 WY 151, 338 P.3d 902 (holding that it was constitutional to

sentence an adult to life in prison as a habitual offender even though one of his prior

qualifying felony convictions was committed at age 16); State v. Green, 412 S.C.

65, 85-87, 770 S.B.2d 424 (Ct. App. 2015)(holding that it was constitutional to

impose a life without parole sentence on adult recidivist whose prior strike was

committed at age 17). Similarly, federal courts have routinely found that it does not

violate the Eighth Amendment to impose mandatory minimum sentences on adult

recidivists whose prior crimes were committed not just as young adults, but as

juveniles. See, e.g.. United States v. Hoffman, 710 F.3d 1228, 1233 (11th Cir. 2013)

("Nothing in MilleA^^ suggests that an adult offender who has committed prior

crimes as a juvenile should not receive a mandatory life sentence as an adult, after



       ^ We express no opinion on 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.
       ^ Miller v.i Alabama,567 U.S. 460,132 S. Ct. 2455, 183 L. Ed. 2d 407(2012)(holding that
it is unconstitutional to sentence ajuvenile to life in prison without the possibility ofparole without
an individualized determination oftheir culpability in light of their youth).
                                                 12                                        i
State V. Moretti, No. 95263-9                                              |
                                                                            j
                                                                            1


committing a further crime as an adult."(emphasis omitted)); United States v. Scott,
                                                                            \




610 F.3d 1009, 1018(8th Cir. 2010)("Scott was twenty-five years old at the time he

committed the conspiracy offense in this case [and was sentenced to a mandatory

term of life without parole]. . . . The [Supreme] Court in Graham did not call into

question the constitutionality of using prior convictions, juvenile or otherwise, to

enhance the sentence of a convicted adult."); United States v. Mays, 466 F.3d 335,

340 (5th Cir. 2006)(affirming a mandatory sentence of life without parole imposed

on an adult recidivist who committed his first strike offense at age 17 and explaining

that "[t]here is not a national consensus that a sentencing enhancement to life

imprisonment based, in part, upon a juvenile conviction contravenes modern

standards of decency").

      We see no evidence of a national consensus against applying recidivist

statutes to adults who committed prior strike offenses as young adults. This step of

the inquiry weighs against a categorical bar. But "[cjommunity consensus, while

'entitled to great weight,' is not itself determinative of whether a punishment is

cruel." Graham, 560 U.S. at 67(quoting Kennedy v. Louisiana, 554 U.S. 407, 434,

128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008)).

      2.    Independent judgment shows that the concerns raised by . our new
            understanding ofadolescent brain development are notpresent here

      The secbnd step in the categorical bar analysis requires us to exercise our
              I                                                         1
independent judgment. Bassett, 192 Wn.2d at 87. We consider "'the culpability of
                                         13                                :
State V. Moretti, No. 95263-9                                                 |
                                                                              i
              [                                                               j
the offenders at issue in light of their crimes and characteristics, along! with the
                                                                              I




severity of the punishment in question'" and '"whether the challenged sentencing

practice serves legitimate penological goals.'" Id.(quoting Graham,560 U.S. at 67).

            a.      There has been no showing of reduced culpability here

      First, we must assess the culpability ofthese petitioners in light oftheir crimes

and characteristics. We now understand that "children are less criminally culpable

than adults." Id. Petitioners rely on cases and "psychological and neurological

studies showing that the 'parts ofthe brain involved in behavior control' continue to

develop well into a person's 20s" to argue that they are less culpable than other

POAA offenders. State v. O'Dell, 183 Wn.2d 680, 691-92, 358 P.3d 359 (2015)

(footnote omitted) (quoting Miller, 567 U.S. at 472); see also MIT Young Adult

Development       Project:   Brain     Changes,      MASS.      INST.    OF       TECH.,

https://hr.mit.edu/static/worklife/youngadult/brain.html     [https://perma.cc/C9B8-

MWDU]("The brain isn't fully mature at... 18, when we are allowed to vote, or at

21, when we are allowed to drink, but closer to 25, when we are allowed to rent a

car."). "These studies reveal fundamental differences between adolescent and

mature brains in the areas of risk and consequence assessment, impulse control,

tendency towaird antisocial behaviors, and susceptibility to peer pressure." O'Dell,

183 Wn.2d at 692(footnotes omitted). The United States Supreme Court has relied

on this science to hold that "[bjecause juveniles have diminished culpability and
              !



                                         14
State V. Moretti, No. 95263-9                                                          j

greater prospects for reform, . . . 'they are less deserving of the most severe
                                                                                       I




punishments.'" Miller, 567 U.S. at 471 (quoting Graham,560 U.S. at 68).
                i

      It is true that our new understanding ofjuvenile brains "establish[es] a clear

connection between youth and decreased moral culpability for criminal conduct."

O'Dell, 183 Wn.2d at 695. And in O'Dell, we recognized that "age may well

mitigate a defendant's culpability, even if that defendant is over the age of 18." Id.

But "age is not a per se mitigating factor automatically entitling every youthful

defendant to an exceptional sentence." Id. Instead, we held that trial courts are

statutorily allowed to consider evidence that a "youth in fact diminished [the young

adult] defendant's culpability." Id. at 689. Moretti, Nguyen, and Orr have not

produced any evidence that their youth contributed to the commission ofthe instant

offenses, or even that youth contributed to their prior offenses. They have not

suggested that the brains of 32 or 41 year old men are not fully mature. Nothing in

this record suggests that they are any less culpable than any other adult offender.

      Many of the cases exempting juveniles from harsh sentencing practices have

relied on the strong prospects ofjuveniles for change.^ For example, in Bassett, we


      ^ Just as risk taking peaks during adolescence, studies that have been conducted in
        different historical epochs and in countries around the world have found that
        crime engagement peaks at ahout age seventeen (slightly younger for nonviolent
        crimes and slightly older for violent ones), and declines significantly thereafter.
        Longitudinal studies have shown that the majority of adolescents who commit
        crime desist as they mature into adulthood. Only a small percentage—generally
        between five and ten percent—^become chronic offenders or continue offending
        during adulthood.
               '                              15-                                      i
State V. Moretti, No. 95263-9                                                        |
                                                                                      I




explained that a life without parole sentence is inappropriate for juveniles in part

because 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

child], he will remain in prison for the rest of his days.'" 192 Wn.2d at 88 (alteration

in original)(internal quotation marks omitted)(quoting Graham,560 U.S. at 70). In

Bassett, we also noted that a life without parole sentence "is 'especially harsh' for
                 I




children, who will 'on average serve more years and a greater percentage of[their]

li[ves] in prison than an adult offender." Id. (alterations in original) (quoting

Graham, 560 U.S. at 70). This is not the case here. These petitioners are fully

developed adults who were repeatedly given opportunities to prove they could

change. Moretti, Nguyen, and Orr each committed a most serious offense, were

sentenced and released, then committed another most serious offense, were

sentenced and released, and then chose to commit yet another most serious offense.^

It was their decisions to commit their third most serious offenses that triggered the




Elizabeth Cauffman et ah. How Developmental Science Influences Juvenile Justice Reform, 8 UC
Irvine L. Rev.21,26(2018)(footnotes omitted). The petitioners have proved that they are part of
this rare group of chronic offenders.
       ^ In reality, the petitioners had more than two chances to show that they were reformed.
Moretti was corivicted of and sentenced for five other felony offenses and seyeral other
misdemeanors before committing his third strike offense. Nguyen was convicted of a host of
misdemeanor offenses over a 20 year period, including domestic violence assault, before he
committed his third strike offense. After committing his first two strike offenses, Orr pleaded
guilty to unlawful possession of a firearm, assault in the third degree, two counts of;residential
burglary, and harassment. He was sentenced to 20 years and committed his third strike offense 15
months after he was released.
                 I
                                               16
State V. Moretti, No. 95263-9                                               :
                                                                            ]
             I                                                       !
mandatory sentences of life without the possibility of parole. The POAA gives

offenders a chance to show that they can be reformed, but the petitioners failed to

do so.


         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 (Moretti) or age 41

(Nguyen and Orr), well into adulthood. These POAA sentences are not punishment

for the crimes the petitioners committed as young adults because recidivist statutes

do not impose "cumulative punishment for prior crimes. The repetition of criminal

conduct aggravates the guilt ofthe last conviction and justifies a heavier penalty for

the crime." State v. Lee, 87 Wn.2d 932, 937, 558 P.2d 236 (1976); see also State v.

Le Pitre, 54 Wash. 166, 168, 103 P. 27(1909)(The habitual criminal statute did not

"inflict a cruel or unusual punishment, or impose a penalty for crimes committed

outside of the state. It merely provide[d] an increased punishment for the last

offense."). The United States Supreme Court has explained that

         an offense committed by a repeat offender is often thought to reflect
         greater culpability and thus to merit greater punishment. Similarly, a
         second or subsequent offense is often regarded as more serious because
         it portends greater future danger and therefore warrants an increased
         sentence for purposes of deterrence and incapacitation.




                                          17
State V. Moretti, No. 95263-9                                                I

United States v. Rodriguez, 553 U.S. 377, 385, 128 S. Ct. 1783, 170 L. Ed. 2d 719

(2008). "[The] state is justified in punishing a reeidivist more severely than it

punishes a first offender." Thorne, 129 Wn.2d at 772.

      Beeause the petitioners have made no showing that the factors that lessen the

culpability ofjuveniles apply to offenders well into adulthood, they have not shown

that they are less culpable than any other POAA offender.

             b.    The goals of punishment justify this sentence

      The next question is "whether the penological goals ofretribution, deterrence,

incapaeitation, and rehabilitation are served by this sentence." Bassett, 192 Wn.2d

at 88. A sentence oflife without the possibility of parole will never serve the goal of

rehabilitation because sentencing someone to spend the rest of their life in prison

'"forswears altogether the rehabilitative ideal.'" Id. (internal quotation marks

omitted)(quoting Miller, 567 U.S. at 473). However, these sentences do serve the

other goals of punishment.

      In Bassett, we recognized that "the case for retribution is weakened for

children because '"[t]he heart of the retribution rationale" relates to an offender's

blameworthiness' and children have diminished culpability." Id. (alteration in

original)(quoting M?7/er,567 U.S. at 472(quoting Graham,560 U.S. at 71-74)). But
               j           _                                                 :

these petitioners were each well into adulthood when they committed the instant

offenses. They have not shown that they are less blameworthy than other adults for
                                                                             1



                                         18
State V. Moretti, No. 95263-9                                               |

               I                               .           .                 i
these choices. It is true that the case for retribution against the petitioners is less
               i                                                             ;
               i                                                             [

Strong than,for example,someone who committed multiple aggravated mufders. But

each ofthe crimes before us did involve violence or attempted violence. 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. Retribution may not

be sufficient to support the sentences in and of itself, but it does not detract from

their constitutionality. Cf. Graham, 560 U.S. at 71 ("Society is entitled to impose

severe sanctions on a juvenile nonhomicide offender to express its condemnation of

the crime and to seek restoration of the moral imbalance caused by the offense.").

      The main purposes of the POAA are '"deterrence of criminals who commit

three "most serious offenses" and the segregation ofthose criminals from the rest of

society.'" Witherspoon, 180 Wn.2d at 888 (quoting Rivers, 129 Wn.2d at 712);

Thorne, 129 Wn.2d at 775; cf. Ewingv. California, 538 U.S. 11, 29, 123 S. Ct. 1179,

155 L. Ed. 2d 108(2003)(plurality opinion)(finding that these are goals ofrecidivist

statutes in general); Rummel v. Estelle, 445 U.S. 263, 284, 100 S. Ct. 1133, 63 L.

Ed. 2d 382 (1980)(same). In Bassett, we explained that deterrence cannot justify

life without parole sentences for juveniles because '"the same characteristics that

render juveniles less culpable than adults—^their immaturity, recklessness, and
               i                                                             I



impetuosity—^make them less likely to consider potential punishment.'" 192 Wn.2d

at 88 (internal quotation marks omitted) (quoting Miller, 567 U.S. at 472). But,

               !                          19                                 ;
State V. Moretti, No. 95263-9                                                j
               i                                                             I
               1                                                             I

again,the petitioners have made no showing that their youth at the time oftheir prior

offenses made them less culpable than a typical POAA offender. The POAA makes

it clear that every offender who commits a third most serious offense will be

sentenced to life in prison without the possibility of parole. Each ofthese petitioners

had been imprisoned twice before for committing most serious offenses. There is no

evidence before us that adults in their 30s or 40s are less likely than any other adult

to consider the consequences of choosing to reoffend.

      Incapacitation is a particularly strong justification in this context. As the

United States Supreme Court has recognized,"[rjecidivism is a serious risk to public

safety, and so incapacitation is an important goal." Graham, 560 U.S. at 72. In

passing the POAA, the voters explained, "Community protection from persistent

offenders is a priority," and by passing this law, "the people intend[ed] to . . .

[ijmprove public safety." RCW 9.94A.555.

      In Bassett, we explained that incapacitation could not justify sentencing a

juvenile to life in prison without the possibility of parole because this "sentence

'makes an irrevocable judgment about that person[ ]' that is at odds with what we

know about children's capacity for change." 192 Wn.2d at 89(alteration in original)

(quoting Graham, 560 U.S. at 74). We noted that "children have 'diminished

culpability and heightened capacity for change.'" Id. (internal quotation marks

omitted) (quoting State v. Ramos, 187 Wn.2d 420, 444, 387 P.3d 650 (2017)).

               ^                          20                                 i
State V. Moretti, No. 95263-9
               1                                                            '
Similarly, in Miller, the Supreme Court held that "[djeciding that a I'juvenile
               1
               I                                                             1


offender forever will be a danger to society' would require 'mak[ing] a judgment

that [he] is incorrigible'—but 'incorrigibility is inconsistent with youth.'" 567 U.S.
               I



               I

at 472-73 (second and third alterations in original) (internal quotation marks

omitted)(quoting Graham 560 U.S. at 12-13)', see also Montgomery v. Louisiana,

_ U.S.        136 S. Ct. 718, 733, 193 L. Ed. 2d 599 (2016) ("The need for

incapacitation is lessened, too, because ordinary adolescent development diminishes

the likelihood that ajuvenile offender 'forever will be a danger to society.'"(internal

quotation marks omitted)(quoting Miller, 567 U.S. at 472)). Montgomery clarified

that life without the possibility of parole was an unconstitutional sentence for all

juvenile offenders "whose crimes reflect the transient immaturity of youth." 136 S.

Ct. at 734. These judgments relied on the principle that most juveniles are capable

of change and will not continue to recidivate into adulthood. As we noted in Bassett,

"'It 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.'" 192 Wn.2d at 89

(quoting Roper, 543 U.S. at 573).

      But the petitioners are neither juveniles nor young adults. We do not have to

guess whether they will continue committing crimes into adulthood because they

already have. Moretti was the youngest of the petitioners when he chose to commit


                                          21
State V. Moretti, No. 95263-9
               i
               I                                                             1

his third most serious offense, but even he was 32 years old. This is well past the age

when courts have recognized that youth may mitigate criminal culpability. See

O'Dell, 183 Wn.2d at 692 n.5 (citing reports that the brain may not fully mature until

age 25). Because Moretti, Nguyen, and Orr each committed their third most serious

offense as adults in their 30s and 40s, they have shown that they are part of this rare
               I
group of offenders who are "simply unable to bring [their] conduct within the social

norms prescribed by the criminal law." Rummel,445 U.S. at 284. It was rational for

the people to decide that offenders like the petitioners must be incarcerated in order

to protect the public.

      Regardless of any personal opinions as to the wisdom ofthis statute, we have

"long deferred to the legislative judgment that repeat offenders may face an

enhanced penalty because of their recidivism." Fain, 94 Wn.2d at 390-91, 402

(explaining that a challenge to the constitutionality of the habitual criminal statute

would have failed based on this deference because "we must and do defer to the


legislative decision to impose an enhanced penalty on recidivists"). The petitioners

have failed to establish a national consensus against the sentencing practice at issue

here and our own independentjudgment confirms that these sentences are supported

by legitimate penological goals. We hold that article I, section 14 does not

categorically prohibit imposing a life without parole sentence on a fully developed

adult offender|who committed one oftheir prior strike offenses as a young adult.
               !
               I



                                          22
State V. Moretti, No. 95263-9

C.     These sentences are proportional under the Fain factors

       A sentence may also be cruel under article I, section 14 if it is grossly
                 I
                 I
                 1                                                                    ■   ,


disproportionate to the offense. When conducting a proportionality analysis, we

consider "'(1)the nature ofthe 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.'" Witherspoon,

180 Wn.2d at 887(quoting                129 Wn.2dat 713(citmgFain,94 Wn.2d at 397)).

Under the Fain factors, these sentences are not grossly disproportionate to the

offenses.


       The first factor is the nature of the offense. Moretti was convicted of first


degree robbery and second degree assault; Nguyen was convicted offirst and second

degree assault with a deadly weapon; and Orr was convicted offirst degree burglary

and second degree assault, both with a deadly weapon. Each of the petitioners was

convicted of two most serious offenses, one of which was a class A felony. Under

RCW 9A.20.021, class A felonies are punishable by a maximum of life in prison

even for people who are not persistent offenders.^


       ^ If Moretti had not been a persistent offender, his standard range sentenee for his class A
first degree robbery conviction would have been 129-171 months, or approximately 11 to 14 years.
RCW 9.94A.510. If Nguyen had not been a persistent offender, his standard range sentence for his
class A first degree assault conviction would have been 178-236 months with a 24 month
enhancement for using a deadly weapon, and a 12 month deadly weapon enhancement for his class
B second degree assault conviction would have had to run consecutively to any sentence, resulting
in a standard range of approximately 16 to 21 years. Id. If Orr had not been a persistent offender,
his standard range sentence for his class A first degree burglary conviction would have been 87-
                 i                             23
State V. Moretti, No. 95263-9                                                        :
                :                                                                    I

                I
                !
                                                                                     i
                                                                                     I

        The instant offenses were serious, violent crimes. Moretti beat a man with a
                I


bat in order to pb him, breaking the bat against the victim's arms as be struggled to

defend himself. Moretti and bis companion also attacked a second man, splitting
open bis forehead, the back of bis bead, and bis ear. Nguyen told Tbu Nguyen that

be was going to kill her and then stabbed her 10 times in front of her four year old

grandson. His knife penetrated and partially broke her skull, narrowly missing her

brain. His victim only escaped because a friend stopped by the bouse and was able

to intervene, but the friend did not escape unscathed. Nguyen stabbed her in the side

when she attempted to rescue Tbu Nguyen. Orr's crime was the least violent, but be

too assaulted another person. Orr broke into a woman's bouse while she was there

with her child, intending to beat up a man who be bad beard was inside, and then

swung a large metal pipe at the bead of a neighbor several times. These crimes are

each more violent than those that we held supported a POAA sentence in

Witherspoon, 180 Wn.2d at 888, and in Rivers, 129 Wn.2d at 713. Each offender

here either injured another person or attempted to do so. These crimes are therefore

"far more serious offense[s] than the second degree theft" found to be

disproportionate in Fain. Id.




116 months with a 24 month enhancement for using a deadly weapon, and a 12 month deadly
weapon enhancement for his class B second degree assault conviction would have had to run
consecutively to |any sentence, resulting in a standard range sentence of approximately 10 to 13
years. Id.      \                                                                   '
                                              24
State V. Moretti, No. 95263-9                                                         I
                                                                                      I
                 !                                                                    I
                 I                                                                    I

                 i            ,     ,                      ,                          1,     .
       As the State recognized in oral argument, this factor demands consideration
                 I



of not only the nature of the crime but also the culpability of the offender who

committed it.| The petitioners in these cases argue that their sentences are

disproportionate because they were either 19 or 20 years old when they committed

their first strike offense and their relative youth therefore made them less culpable.

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

nature of past offenses. Moretti was 32 when he committed the instant offense, and

both Nguyen and Orr were 41. None of the petitioners have shown that their

culpability was reduced when they committed the instant offenses. Far from showing

that "as the years go by . . . [their] 'deficiencies will be reformed,'" the petitioners

have continued to recidivate after their brains were fully developed and have shown

'"entrenched patterns of problem behavior.'" Miller, 567 U.S. at 472-73, 471

(internal quotation marks omitted) (quoting Graham, 560 U.S. at 68; Roper, 543

U.S. at 570). This factor indicates that these sentences are not grossly

disproportionate.




           Nguyen also argues that his sentence is disproportionate because of his "possible
intellectual disability," Am. Suppl. Br. of Pet'r Nguyen at 17, but this claim is not supported by
the record. Although there was previously a suggestion that he may have a mild intellectual
disability, his most recent forensic mental health evaluation reported that he seemed to be
pretending to be toable to remember details about the charges against him and found that this was
"not a function ^bf impaired memory, cognitive impairment, or underlying mood or thought
disorder." Nguyen Clerk's Papers at 31.                                               i
                                               25                                     :
State V. Moretti, No. 95263-9

       The second factor is the legislative purpose ofthe statute. 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. See Thome,129 Wn.2d at 774-75. As discussed above,supra. Section B.2.b,

these goals are! served by these sentences. Moretti, Nguyen, and Orr all committed

dangerous felonies time and time again. They have shown that they are unwilling to

stop endangering the public. This factor also suggests that these sentences are not

grossly disproportionate.

       The third factor is the punishment that the offenders would have received in

other jurisdictions. The petitioners did not address this factor in their briefing.
                 i
                 i

According to the State's brief from Spokane County, it appears as though 13 other

states impose mandatory sentences oflife without parole on offenders who continue

to recidivate.^^ Am. Suppl. Br. of Resp't, Attach. A. A total of 34 states appear to

have some sort ofhabitual offender statute, many ofwhich allow or require imposing



          These states are Alabama(Ala. Code § 13A-5-9(c)(4)), California(Cal.Penal Code
§ 667.7(a)(2)), Delaware(Del. Code Ann. tit. 11, § 4214(d),(e)), Georgia(Ga.Code Ann. § 17-
10-7(b)(2)), Loui^ana (La. Rev. Stat. Ann. § 15:529.1A(3)^)), Maryland (Md. Code Ann.,
Crim. Law § H-jOl), Mississippi (Miss. Code Ann. § 99-19-83), Montana(Mont. Code Ann.
§ 46-18-219), North Carolina(N.C. Gen.Stat. Ann.§ 14-7.12), South Carolina(S.C. CODE Ann.
§ 17-25-45), Tennessee (Tenn. Code Ann. § 40-35-120(g)), Virginia (Va. Code. Ann. § 19.2-
297.1), and Wisconsin (Wis. Stat. Ann. § 939.62(2m)(c)). Alabama, California, and Maryland
only impose life without parole after the fourth qualifying offense, while Georgia, Montana, and
South Carolina irnpose this sentence after the second qualifying offense for particularly egregious
crimes. Hawaii, West Virginia, Pennsylvania, and the District of Columbia will also impose this
sentence in certain circumstances. Haw.Rev. Stat. Ann. §§ 706-661, -662; W.Va. Code Ann.
§ 61-11-18; 42 Pa. Cons. Stat. Ann.§ 9714(a); D.C. Code § 22-1804a.
                                               26
State V. Moretti, No. 95263-9                                               I

life sentences. Id. Because each state has a different threshold for what qualifies as
               1


a strike offense, it is unclear exactly how each ofthe petitioners would have fared in

other jurisdictions. But even if they would have received shorter sentences in some

other jurisdictions,"this factor alone is not dispositive." Witherspoon, 180 Wn.2d at

888.


       The fourth and final Fain factor is the punishment the offenders would have
               j

received for a i different crime in the same jurisdiction. Mandatory life in prison

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

Washington. See State v. Gregory, 192 Wn.2d 1, 5, 427 P.3d 621 (2018)(plurality

opinion)(abolishing the death penalty as currently applied). But, "[i]n Washington,

all adult offenders convicted ofthree 'most serious offenses' are sentenced to life in


prison without the possibility ofrelease under the POAA." Witherspoon, 180 Wn.2d

at 888. These' petitioners would have received the same sentence if they had

committed any other most serious offenses. This final factor supports the

constitutionality of these sentences.

       Therefore, these sentences are not grossly disproportionate to the offenses.

                                III. CONCLUSION
               I


       Petitioners argued that sentencing adult offenders to mandatory sentences of
               1




life without the possibility of parole under the POAA when one oftheir prior strike

offenses was committed as young adults is either cruel, in violation of article I,


                                         27
State V. Moretti, No. 95263-9
               !                                                             I


section 14 of the Washington Constitution, or cruel and unusual, in violation of the

Eighth Amendment to the United States constitution. We hold that it is not.

      The petitioners have not shown a national consensus against this sentencing

practice, and our own independentjudgment confirms that there is nothing to suggest

that these petitioners are less culpable than other POAA offenders. The sentences in

these cases do|not categorically violate the Washington Constitution. Because our
               I


constitution is imore protective than the federal constitution in this context, we need

not analyze this question under the Eighth Amendment. Finally, we hold that these

sentences are not grossly disproportionate to the offenses under the Fain factors.

      We affirm the Court of Appeals.




                                          28
State V. Moretti, No. 95263-9



                                       ■>
                                     i C



WE CONCUR:




                  7^




c




                                29
State V. Moretti, No. 95263-9
Yu, J.(concurring)




                                         No. 95263-9


        YU,J.(concurring) — This case touches on the issue of sentencing

individuals to life without the possibility of parole for a wide range oflower level

offenses. I agree with the court's narrow holding that there is currently no

categorical constitutional bar to the inclusion of an offense committed as a young

adult as a predicate for purposes ofthe Persistent Offender Accountability Act

("Three Strikes Law"), ROW 9.94A.570. See majority at 2. But a punishment that

may be constitutionally permissible today may not pass muster tomorrow.' I

therefore write separately to express my growing discomfort with the routine

practice of sentencing individuals to life without the possibility of parole,

regardless of the offense or the age of the offender.




       'Interpretation of the Eighth Amendment to the United States Constitution is not static
but, instead,"'draw[s] its meaning from the evolving standards of decency that mark the
progress of a maturing society.'" Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S. Ct. 2641, 171
L. Ed. 2d 525 (2008)(alteration in original)(quoting Trap v. Dulles, 356 U.S. 86, 101, 78 S. Ct.
590, 2 L. Ed. 2d 630(1958)(plurality opinion)). This holds true for.article 1, section 14 of our
state constitution as well.
State V. Moretti, No. 95263-9                                                '
Yu, J. (concurring)                                                          !

       This court's decision in State v, Gregory limited the array of punishments

that may be inlposed for the most serious offenses by eliminating the death
penalty. 192 Wn.2d 1, 427 P.3d 621 (2018)(plurality opinion). Every death

sentence in this state has been commuted to the next most severe punishment

available—life without the possibility of parole. Id. at 36. As a result, the range of

offenses that require imposition of the most severe punishment the state can

impose has been expanded. Persistent offenders who have committed robberies

and assaults afe now grouped with offenders who have committed the most violent

of crimes, incltiding aggravated murder and multiple rapes. The gradation of

sentences that once existed before Gregory have now been condensed. As a result,

a serious reexamination of our mandatory sentencing practices is required to ensure
                i



a just and proportionate sentencing scheme.

       Our invalidation of the death penalty signified an effort to align this state's

sentencing practices with society's expectations of a criminal justice system that is
                !

both fair and free of bias and imposes punishment that is proportional to the crime.

In recent years, we have also seen challenges to the death penalty in courts all over

the country, including the United States Supreme Court, which evidences the

public's discomfort with the imposition of death sentences. Though a number of
                i

states still utilize the death penalty, 37 states have not performed an execution in
                i
the last five years. States with No Recent Executions, Death Penalty Info. Ctr.
State V. Moretti, No. 95263-9
Yu, J. (concurring)                                                          '
                                                                             i

(July 8, 2019),^https://deathpenaltyinfo.org/executions/executions-overvie'>v/states-

with-no-recent-executions [https://perma.cc/ZY98-WYGC]. A nationwide decline

in the use ofthe death penalty suggests that society's appreciation for the risk of

error and recognition of the finality of such a sentence has become a limiting

principle on the application of this most severe sentence. But the elimination of

the death penalty only partially addresses these underlying concerns. In my view,

our entire sentencing structure should also be reassessed.

       There aije similarities between the death penalty and life without parole.
Justice Kennedy touched on these similarities in a case discussing the imposition

of life without parole for juvenile offenders:

       The State does not execute the offender sentenced to life without parole,
       but the sentence alters the offender's life by a forfeiture that is
       irrevocable. It deprives the convict of the most basic liberties without
       giving hope ofrestoration, except perhaps by executive clemency—the
       remote possibility of which does not mitigate the harshness of the
       sentence.


Graham v. Fldrida, 560 U.S. 48, 69-70, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

Like the death penalty, a life sentence without the possibility of parole is the

deprivation of hope. It is the forfeiture of liberty for life.

       Proportionality in sentencing is required by both article I, section 14 of the
                i                                                            :
                I



Washington Constitution and the Eighth Amendment to the United States :

Constitution. E.g., Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 53 L. Ed.

2d 982(1977); State v. Fain, 94 Wn.2d 387, 402, 617 P.2d 720 (1980). It is well
State V. Moretti, No. 95263-9
Yu, J. (concurring)

settled that our state constitution provides more protection for criminal offenders as
                                                                                       j

it prohibits the imposition of cruel punishment, whereas the Eighth Amendment

prohibits the imposition of cruel and unusual punishment. Fain, 94 Wn.2d at 393.

Despite this heightened protection, this court has been reluctant to hold that life

sentences without the possibility of parole are disproportionate and thus in

violation of article I, section 14. See, e.g., State v. Witherspoon, 180 Wn.2d 875,

887-91, 329 P.|3d 888 (2014); State v. Magers, 164 Wn.2d 174, 192-94, 189 P.3d
                 t




126(2008)(plurality opinion); State v. Rivers, 129 Wn.2d 697, 712-15, 921 P.2d

495 (1996); State v. Manussier, 129 Wn.2d 652, 674-79, 921 P.2d 473 (1996).

       The petitioners advocate for a proportionality analysis that considers the

characteristics of the offender, including relative youth and culpability, in addition

to the Fain factors. Although the current case law does not support this argument,

there have been significant advancements in the scientific community to suggest

that "emerging adults" should be treated as a distinct developmental stage in the

criminal justice system.^



       ^ Dr. Jeffrey Arnett first coined the term "emerging adult" in 2000. Selen Siringil
Perker et al., Columbia Univ. Justice Lab,Emerging Adult Justice in Illinois: Towards
AN Age-Appropriate Approach 2(2019), https://justicelab.columbia.edu/sites/default/files/
content/EAJ%20jn%20Illinois%20Report%20Final.pdf[https://perma.cc/TJ4C-NVYM].
Further research has concluded that persons age 18 to 25 tend to act impulsively and are more
susceptible to peer pressure and emotions, but they also have a greater capacity for reform than
older adults. Anjjali Tsui, How Brain Science Is Changing How Long Teens Spend in Prison,
Frontline (Mayj2, 2017), https://vvAvw.pbs.org/wgbh/frontline/article/how-brain-science-is-
changing-how-long-teens-spend-in-prison [https://perma.cc/8CAZ-AB6K]. These findings have
already influenced legislation in many states—including Washington—that is geared toward
State V. Moretti, No. 95263-9
Yu, J.(concurring)

        Those sentenced to life without a possibility of parole are treated as

irredeemable and incapable of rehabilitation. The indefinite isolation of an
                 [

individual conflicts with the prohibition on cruel punishment because removing the
possibility of redemption is the definition of cruel. It may be difficult to

understand how some of the most violent criminals could safely reenter society

after incarceration. But even the most violent of criminals are entitled to have their
                 i

constitutional rights respected. Life without parole sentences represent a '"denial

of hope; it means that good behavior and character improvement are immaterial.'"

State V. Bassett, 192 Wn.2d 67, 88, 428 P.3d 343 (2018)(internal quotation marks

omitted)(quoting Graham, 560 U.S. at 70).
                 j
       The penological goals thought to be advanced by long term incarceration are

retribution, deterrence, incapacitation, and rehabilitation. As the majority notes,

retribution and incapacitation may be achieved in some circumstances but

deterrence and rehabilitation are not likely to be achieved by sentencing someone

to life without parole. Majority at 18-19. When penological goals are not

furthered by the imposition of a long term sentence such as life without parole, "'it

"is nothing more than the purposeless and needless imposition of pain and


providing emerging adults with age-appropriate services during incarceration thi'ough the
juvenile justice system. See generally RCW 13.04.030; State v. Watkins, 191 Wn.2d 530, 547-
52, 423 P.3d 8301(2018)(Yu, J., dissenting); Clare Ryan, The Law ofEmerging Adults, 97
Wash. U. L. Rev.(forthcoming 2019); Stephanie Tabashneck, "Raise the Age" Legislation:
Developmentally.Tailored Justice, 32 Crim. Just., no. 4, 2018, at 13
(papers.ssrn.com/sol3/papers.cfm?abstract_id=3336932).
State V. Moretti, No. 95263-9                                                     !
Yu, J.(concurring)                                                                i

suffering," and hence an unconstitutional punishment.'" Gregory, 192 Wn.2d at
                                                                                  I




24-25 {eyxo^mg Enmundv. Florida, 458 U.S. 782, 798, 102 S. Ct. 3368, 73 L. Ed.

2d 1140(1982)(quoting Coker, 433 U.S. at 592)).

       The criminal justice system is not one size fits all. Courts have been

entrusted with discretion in sentencing because our society understands that each
                i
case is different. To assign one sentence for such a wide range of offenses is to
                i



disregard our notions of fairness and justice. Our analysis of proportionality must

consider both the nature of the offense and the characteristics ofthe offender.

Courts have already shown a willingness to consider the characteristics of an

offender when it comes to age or intellectual disability. See Miller v. Alabama,

567 U.S. 460,132 S. Ct. 2455, 183 L. Ed. 2d 407(2012); Graham, 560 U.S. 48.

However,judicial mercy should not be restricted to considerations of youthfulness

or competency. There are adults who are also deserving of leniency and an

individualized I inquiry as to their level of culpability and capacity for rehabilitation.

A judge cannot measure at sentencing an individual's capacity for change. Shon

Hopwood,Second Looks & Second Chances, Cardozo L. Rev.(forthcorning

2019)(manuscript at 4)(https://ssm.com/abstract=3404899); see also Michael M.

O'Hear, Not Just Kid Stuff? Extending Graham and Miller to Adults, 78 Mo.L.
                I




Rev. 1087(2013)(analyzing Graham, Miller, Ewing, and Harmelif and


        Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991).
                                             6
State V. Moretti, No. 95263-9                                                         |
Yu, J.(concurring)

reconciling the varying outcomes of each case based on principles of culpability,

legislative deference, and aversion to certain sentencing practices).

       When considering life sentences, it is also important to recognize the
                 I
                 I



disparate impadts that the criminal justice system has on people of color. This
                 i

necessarily results in disparate impact in the imposition of life sentences. 'One size

fits all approaches to sentencing reveal the institutional and systemic biases of our
                 j
society. See Amicus Curiae Br. of the Am. Civil Liberties Union of Wash. 8-11.

The effects of disproportionate enforcement of criminal laws against people of
color, especially African-Americans, will continue—exaggerated by laws that limit

the discretion of trial judges in sentencing decisions.

       We can hnd must avoid the imposition of a cruel punishment by providing

an opportunity for release to every convicted defendant. One way to do this would

be to reestablish a parole board, which was eliminated in 1981 with the passage of
                 1


the Sentencing!Reform Act of 1981, ch. 9.94A RCW.'^ Such a board could provide
an opportunity for a confined individual to show evidence of rehabilitation and
                 1




genuine transformation.

       In recent years, a robust academic discussion has developed regarding the

impacts that incarceration has on family, friends, and the greater community. See,


         The federal system has also been exploring policy options that will increase reentry for
inearcerated indiyiduals. See, e.g., First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194;
28 C.F.R. § 572.40 (compassionate release under 18 U.S.C. § 4205(g)).
                                                7
State V. Moretti, No. 95263-9                                               |
Yu, J. (concurring)                                                         I

e.g., Hopwood,supra. Longer sentences exacerbate these consequences while

decreasing the potential for rehabilitation. Id. (manuscript at 8). We should not be

satisfied with the status quo; permanent incarceration has neither reduced crime
                i

nor increased confidence in our criminal justice system. The principles set forth in

Gregory compel us to ask the same questions about a life sentence without the

possibility of parole. Is it fairly applied? Is there a disproportionate impact on
                1
                I

minority populations? Are there state constitutional limitations to such a sentence?

I dare say that jthese questions are not just academic. They also reflect our values

and beliefs about punishment and our criminal justice system. We should join the

national movement favoring release upon a showing of rehabilitation and inject

into our sentencing practices the exercise of mercy, compassion, and the fact that

we know not a person's capacity to change. As Shakespeare so eloquently put it,

"And earthly pbwer doth then show likest God's When mercy seasons justice."

William Shakespeare,The Merchant of Venice, act 4, sc. 1.
State V. Moretti, No. 95263-9
Yu, J. (concurring)




                                 f
                                 V,




                                \^addj^
