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%: SUSAN L. CARLSOW
Supreme COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
Petitioner,
V.
BRIAN M.BASSETT,

)
)
)
)
)
)
)

)
Respondent.

No. 94556-0

Filed

OCT ] 8 2018

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)

OWENS,J. — At issue here is the constitutionality of sentencing juvenile

offenders to life in prison without the possibility of parole or early release. The State
appeals a Court of Appeals, Division Two decision holding that the provision of our

state's Miller^-fix statute that allows 16- and 17-year-olds to be sentenced to life
without parole violates the Washington Constitution's ban on cruel punishment.
Brian Bassett, recently resentenced to life without parole under the Miller-fix statute,

argued at the Court of Appeals that juvenile life without parole is categorically
unconstitutional. The court adopted the categorical approach, rather than our

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

 State V. Bassett
No. 94556-0

traditional Fain proportionality test, and found that sentencing juvenile offenders to

life without parole or early release constituted cruel punishment. State v. Bassett, 198

Wn. App. 714, 744, 394 P.3d 430(2017)(puhlished in part); State v. Fain,94 Wn.2d
387,617 P.2d 720(1980). We affirm the Court of Appeals' decision and hold that

sentencing juvenile offenders to life without parole or early release constitutes cruel
punishment and therefore is unconstitutional under article I, section 14 ofthe
Washington Constitution.
PROCEDURAL AND FACTUAL BACKGROUND

When Brian Bassett was 16 years old, he was living in a "shack" with
Nicholaus McDonald after Bassett's parents '"kicked [him] out'" of their home. State

V. Bassett, noted at 94 Wn. App. 1017, 1999 WL 100872, at *1. With McDonald's
assistance, Bassett snuck back into his home and shot his mother and father. Id. His
brother was drowned in the bathtub, an act that McDonald initially confessed to but
later blamed on Bassett at trial. State v. McDonald, 138 Wn.2d 680,684, 981 P.2d

443(1999). Bassett was convicted ofthree counts of aggravated first degree murder
for the deaths of his mother, father, and brother. The judge commented that Bassett,

still a child, was "a walking advertisement" for the death penalty and sentenced him to
three consecutive terms of life in prison without the possibility of parole. Clerk's

Papers at 19. At this time, 1996, life without parole was the mandatory sentence
under our state statute. Former RCW 10.95.030 (1993).

 State V. Bassett
No. 94556-0

After nearly two decades in prison, Bassett had another chance at sentencing in

light of the Supreme Court's Miller decision. 567 U.S. 460. In Miller, the Court held
that mandatory juvenile life without parole sentences were unconstitutional under the

Eighth Amendment to the United States Constitution. Id. at 479. It reasoned that
because a mandatory juvenile life without parole scheme did not consider the nature

of youth and "children's diminished culpability and heightened capacity for change,"
it "poses too great a risk of disproportionate punishment." Id. It noted that

"appropriate occasions for sentencing juveniles to this harshest possible penalty will
be uncommon." Id. This decision is one from a line of cases wherein the Court

curtailed states from imposing the harshest punishments against juveniles. See

Montgomery v. Louisiana,

U.S.

, 136 S. Ct. 718, 193 L. Ed. 2d 599(2016)

(holding that Miller announced a new substantive constitutional rule that was
retroactive); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825

(2010)(barring life without parole sentences for juveniles convicted of nonhomicide
offenses); Roper v. Simmons,543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)
(barring capital punishment for juvenile offenders).

In response to Miller, our state legislature enacted what is referred to as the
Miller-fix statute. RCW 10.95.030. It requires sentencing courts to consider the

Miller factors before sentencing a 16- or 17-year-old convicted of aggravated first

degree murder to life without parole. Id. The statute provides that "the court must

 State V. Bassett

No. 94556-0

take into account mitigating factors that account for the diminished culpability of
youth as provided in Miller v. Alabama, 132 S. Ct. 2455(2012)including, but not
limited to, the age ofthe individual, the youth's childhood and life experience, the
degree of responsibility the youth was capable of exercising, and the youth's chances
of becoming rehabilitated." RCW 10.95.030(3)(b). The statute mandated that
individuals who had been sentenced to juvenile life without parole under the former
mandatory scheme, such as Bassett, be resentenced under this new statute. RCW
10.95.035.

Bassett, at 35 years old, appeared for resentencing pursuant to the Miller-fix
statute in 2015. Bassett requested three concurrent 25-year sentences and submitted

over 100 pages of mitigation documentation, including evidence that he had been
rehabilitated since his days as a teenager.

A pediatric psychologist who treated Bassett prior to the murders shed light on
Bassett's childhood and life experience. He testified that Bassett had suffered from an

adjustment disorder, struggling to cope effectively with the stressors of homelessness
and his strained relationship with his parents. The psychologist testified that during a

family counseling session, Bassett attempted to reconcile with his parents, expressing
a desire to come back home, but his parents rejected the idea. Bassett addressed the
court and stated that at the time ofthe crimes he was unable to "comprehend the

totality" and "see the long-term consequences of[his] actions." Verbatim Report of

4

 State V. Bassett
No. 94556-0

Proceedings(VRP)at 79. He said that when he was taken to jail on suspicion of
murdering his parents, his first thoughts were "how much trouble [he] was going to be
in when [his] parents learned that [he] was there in jail." VRP at 79-80.
Bassett also submitted significant evidence demonstrating how he has matured
emotionally and behaviorally. He successfully completed courses examining stress
and family violence in order to, as his brief states,"better understand his crimes." Br.
of Resp't at 3 n.6. He has not had any prison violations since 2003, and the
Department of Corrections classified him as a moderate-to-low security risk. He
earned his GED (general equivalency diploma) and a full tuition scholarship for

college, and was on the Edmonds Community College honor roll. Many letters from
Bassett's supporters stated that he serves as a mentor to other men in prison. He
married Joanne Pfeifer in 2010 after premarital counseling.

The State did not present any evidence rebutting Bassett's mitigating
information. The sentencing judge rejected most ofthe mitigation evidence and

imposed three consecutive life without parole sentences.
Bassett appealed, arguing, among other things, that Washington's Miller-fix
statute violated article I, section 14 because life without parole was categorically a
cruel punishment for juvenile offenders. Bassett, 198 Wn. App. 714. The State did
not address this argument in its briefing or at oral argument, and so the court ordered

the State to file a supplemental briefresponding to this argument.

 State V. Bassett
No. 94556-0

The Court of Appeals held in the published portion of its opinion thatjuvenile

life without parole was categorically unconstitutional under article I, section 14. Id. at
744. The court came to this conclusion by adopting the categorical bar analysis, a

framework used by the United States Supreme Court and, most recently, by the Iowa

Supreme Court to assess the categorical challenges againstjuvenile sentences. Id.
(referencing Graham, 560 U.S. at 82; State v. Sweet, 879 N.W.2d 811 (Iowa 2016)).
In the court's unpublished portion ofthe opinion, it dismissed Bassett's remaining

arguments, including his claim that the sentencing court erred in applying the Miller
factors. Bassett, No. 47251-1-II, slip op. at 30-36(Wash. Ct. App. Apr. 25, 2017)

(unpublished), http://www.courts.wa.gov/opinions/.

The State petitioned our court for review, arguing that the Court of Appeals'
decision "ignore[d] the history ofjuvenile sentencing in Washington and abandon[ed]

[Fain,] Washington's long-standing framework for evaluating cruel punishment under
the state constitution[,]... in favor ofthe analysis of a foreign state court." Pet. for
Review at 11-12. We accepted review ofthe State's petition and denied review ofthe

issues raised by Bassett in his cross petition for review. State v. Bassett, 189 Wn.2d
1008, 402 P.3d827(2017).
ISSUES

I.

Is article I, section 14 ofthe Washington Constitution more protective than the

Eighth Amendment to the United States Constitution?

 State V. Bassett
No. 94556-0

II.

Should this court apply the categorical bar analysis or the Fain proportionality

test to this constitutional challenge?

III.

Under the categorical bar analysis, does a juvenile life without parole sentence

violate article I, section 14 of the Washington Constitution?

IV.

Under the Fain proportionality test, does ajuvenile life without parole sentence

violate article I, section 14 ofthe Washington Constitution?
ANALYSIS

We must determine whether the Washington Constitution's ban on "cruel

punishment" prohibits sentencing juveniles to life without parole, rendering RCW

10.95.030(3)(a)(ii) unconstitutional. WASH. CONST, art. I, § 14. This subsection of
the Miller-fix statute provides that

[a]ny person convicted ofthe 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 confmement of no less than
twenty-five years. A minimum term oflife may be imposed, in which
case the person will he ineligiblefor parole or early release.
RCW 10.95.030(3)(a)(ii)(emphasis added). As the last sentence explains, when a

court imposes a maximum term of life and a minimum term of life, the sentence
becomes a life sentence without parole or early release.
We review a statute's constitutionality, like questions of law, de novo. State v.

Hunley, 175 Wn.2d 901, 908, 287 P.3d 584(2012). We presume statutes are

7

 State V. Bassett

No. 94556-0

constitutional, and Bassett has the burden to prove otherwise beyond a reasonable
doubt. Id.

The State argues that the Court of Appeals "subverted the constitutional
authority of a duly-elected legislature to fix punishments for criminal offenses" by
holding juvenile life without parole unconstitutional. Revised Suppl. Br. ofPet'r at
18-20. It argues that the legislature had the opportunity to do away with juvenile life
without parole after Miller and chose not to do so. Id. While the legislature surely is
responsible for enacting appropriate sentences, this "authority is ultimately
circumscribed by the constitutional mandate forbidding cruel punishment." Fain, 94
Wn.2d at 402. And as we have said before, while this constitutional decision "is not

one which we assume eagerly,... we do not shrink from our responsibility." Id.
I.

Under Gunwalf Article I, Section 14 Is More Protective Than the Eighth
Amendment

Our first step is to determine whether article I, section 14 ofthe Washington
Constitution is more protective than its federal counterpart, the Eighth Amendment.
The State argues that we must conduct a Gunwall analysis in order to answer this

question. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808(1986). Bassett argues that
our prior case law has consistently held that article I, section 14 is more protective.
This court has "repeated[ly] recogni[zed] that the Washington State

Constitution's cruel punishment clause often provides greater protection than the

 State V. Bassett
No. 94556-0

Eighth Amendment."^ State v. Roberts, 142 Wn.2d 471,506,14 P.3d 713(2000).
However, there are four instances where we said this is not always so. First, in Dodd,
we found that article I, section 14 was not more protective than the Eighth
Amendment. State v. Dodd, 120 Wn.2d 1,21, 838 P.2d 86(1992). A few years later,

we recognized that Dodd had unique facts as the capital defendant wanted to waive
general review in hopes of a speedier execution and thus the "ruling in Dodd is
limited to the facts ofthat case." State v. Thome, 129 Wn.2d 736, 772 n.lO, 921 P.2d

514(1996); see also State v. Manussier, 129 Wn.2d 652,674 n.89, 921 P.2d 473

(1996). Despite finding Dodd unique, we cited the decision in three death penalty
cases for the proposition that the Gunwall factors do not always demand that we
interpret article I, section 14 more broadly than the Eighth Amendment. In re Pers.
Restraint ofCross, 180 Wn.2d 664,731, 327 P.3d 660(2014); State v. Yates, 161
Wn.2d 714,792, 168 P.3d 359(2007); State v. Gentry, 125 Wn.2d 570,631-32,888

P.2d 1105 (1995). With our inconsistent precedent, conducting the Gunwall analysis
for this particular context is the prudent starting point for this case.

^ See State v. Witherspoon, 180 Wn.2d 875, 887, 329 P.3d 888(2014); State v.
Manussier, 129 Wn.2d 652,674, 921 P.2d 473 (1996); State v. Rivers, 129 Wn.2d 697,

712, 921 P.2d 495 (1996); State v. Thome, 129 Wn.2d 736, 772-33, 921 P.2d 514(1996),
abrogated on other grounds byBlakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531,
159 L. Ed. 2d 403 (2004); State v. Bartholomew, 101 Wn.2d 631,639-40,683 P.2d 1079
(1984); Fain,94 Wn.2d at 392-93.

 State V. Bassett

No. 94556-0

Moreover, we recently indicated that the Gunwall analysis should be conducted

in the specific context of challenges to juvenile life without parole sentences. In
Ramos, we agreed with Ramos that our court has repeatedly found that article I,
section 14 is more protective than the Eighth Amendment. State v. Ramos, 187
Wn.2d 420,453-54, 387 P.3d 650, cert, denied, 138 S. Ct. 467(2017). Yet we noted

that "[ejven where it is already established that the Washington Constitution may

provide enhanced protections on a general topic, parties are still required to explain
why enhanced protections are appropriate in specific applications." Id. at 454.
Thus, we use the six nonexclusive criteria from Gunwall to determine whether

the Washington Constitution's ban on cruel punishment should be considered as
extending broader rights to its citizens than the Eighth Amendment:(1)the textual
language ofthe state constitution,(2) differences in the texts of parallel provisions of
the federal and state constitutions,(3)state constitutional and common law history,

(4)preexisting state law,(5) structural differences between the federal and state
constitutions, and(6) matters of particular state interest or local concern. Gunwall,
106 Wn.2d at 61-62.

The first three factors provide cogent grounds for finding article I, section 14

more protective than the Eighth Amendment. The Washington Constitution provides
that "[ejxcessive bail shall not be required, excessive fines imposed, nor cruel

punishment inflicted." WASH. CONST, art. I, § 14. This provision is similar to the

10

 State V. Bassett

No. 94556-0

Eighth Amendment but omits the words "and unusual." U.S. CONST, amend. VIII

("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted."). This difference indicates that "Article 1, section 14,
on its face, may offer greater protection than the Eighth Amendment, because it
prohibits conduct that is merely cruel; it does not require that the conduct be both
cruel and unusual." Dodd, 120 Wn.2d at 21. "The historical evidence reveals that the

framers of[Wash.] Const, art. 1, § 14 were ofthe view that the word 'cruel'
sufficiently expressed their intent, and refused to adopt an amendment inserting the
word 'unusual'." Fain, 94 Wn.2d at 393 (citing The Journal ofthe Washington State

Constitutional Convention: 1889, at 501-02(Beverly Paulik Rosenow ed. 1962)).
Thus, these factors weigh in favor of interpreting article I, section 14 as affording
broader rights than the Eighth Amendment.
The fourth factor asks us to consider how "established bodies of state law,

including statutory law, may also bear on the granting of distinctive state
constitutional rights." Gunwall, 106 Wn.2d at 61. The State argues that this factor
does not favor independent state constitutional analysis, stretching its memory back to
the way our justice system treated children over 100 years ago and ignoring our trend
of affording more protections for juveniles. First, it points out that at statehood, we
had no juvenile courts and that our constitution is silent on juveniles. It cites two
decisions wherein our court approved death sentences for children, no doubt now an

11

 State V. Bassett

No. 94556-0

unconstitutional and shameful practice, and notes that one ofthe defendants was

executed when he was 17 years old. Our state's execution of a child, Walter Dubuc,
in 1932, is not a guiding light for interpreting our constitution's ban on cruel
punishment today in 2018. "We are not impressed by the implicit suggestion that the
state of Washington should regress to territorial days and adopt a system where

juveniles ... are afforded no special protections." State v. Schaaf, 109 Wn.2d 1,1415, 743 P.2d 240(1987). It is more instructive to look at how our jurisprudence on
juvenile sentencing has evolved to ensure greater protections for children.
This court has consistently applied the Miller principle that "children are
different." Miller, 567 U.S. at 481. In O'Dell, we used the psychological and

neurological studies discussed in Miller, Roper, and Graham to hold that age may
well mitigate a defendant's culpability, even if the defendant is slightly older than 18.
State V. O'Dell, 183 Wn.2d 680, 691-96, 358 P.3d 359(2015). In Ramos, we noted

that Miller's reasoning applies not only to literal juvenile life without parole sentences

but also to de facto juvenile life without parole sentences. 187 Wn.2d at 438. This
court has also applied Miller's reasoning to hold that "sentencing courts must have
complete discretion to consider mitigating circumstances associated with the youth of
any juvenile defendant" and "must have discretion to impose any sentence below the
otherwise applicable SRA range and/or sentence enhancements." State v. HoustonSconiers, 188 Wn.2d 1, 21, 391 P.3d 409(2017).

12

 State V. Bassett
No. 94556-0

Our legislature has also demonstrated its "ongoing eoneem for juvenile justiee
issues." Ramos, 187 Wn.2d at 446 (citing ROW 9.94A.540(3)(eliminating mandatory

minimum sentences for juvenile offenders tried as adults),.730(expanding parole
eligibility for juvenile offenders tried as adults)). After Miller, the legislature did
away with life without parole sentences for children age 15 and under. RCW
10.95.030(3)(a)(i). Thus, we see that established bodies of state law, both statutory

and ease-based, recognize that children warrant special protections in sentencing. This
weighs in favor of interpreting article I, section 14 more broadly than the Eighth
Amendment.

The fifth Gunwall factor "will always point toward pursuing an independent

state constitutional analysis because the federal constitution is a grant of power from
the states, while the state constitution represents a limitation ofthe State's power."
State V. Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994).
The sixth factor also weighs in favor of interpreting article I, section 14 more

broadly than the Eighth Amendment. While there may be some benefit to national
uniformity for sentencing children, it is outweighed by the state policy considerations
discussed under the fourth factor, to grant juveniles special sentencing protections

where appropriate. See Gunwall, 106 Wn.2d at 67(explaining that the discussion of
the fourth factor may pertain to the sixth factor).

13

 State V. Bassett
No. 94556-0

The six Gunwall factors all direct us toward interpreting article I, section 14

more broadly than the Eighth Amendment. Thus, we hold that in the context of
juvenile sentencing, article I, section 14 provides greater protection than the Eighth
Amendment.

IE The Categorical Bar Analysis Better Considers the Characteristics ofthe
Offender Class Than the Fain Test

The State argues that the Court of Appeals wrongly abandoned our traditional

Fain proportionality analysis in favor ofthe categorical bar analysis, rooted in United
States Supreme Courtjurisprudence. The State is correct that our court has used Fain
to analyze proportionality challenges under article I, section 14. State v. Witherspoon,
180 Wn.2d 875, 887, 329 P.3d 888 (2014); State v. Davis, 175 Wn.2d 287, 344, 290

P.3d 43(2012)abrogated by State v. Gregory, No. 88086-7(Wash. Oct. 11, 2018),

http://www.courts.wa.gov/opinions/pdf/880867.pdf; Manussier, 129 Wn.2d at 676-77.
Elowever, we are not bound to apply Fain to every cruel punishment claim under
article I, section 14. While Fain is the traditional test, it has been used for claims that
a sentence was grossly disproportionate, not that a sentence was categorically
unconstitutional based on the nature of the juvenile offender class. Thus,this unique

type of cruel punishment claim is distinguishable from our precedent adopting Fain,
and we are free to choose the most appropriate framework for this case. See Ramos,

187 Wn.2d at 454-55 (explaining that we do not foreclose the possibility offollowing
the Iowa Supreme Court's lead of adopting a categorical rule).
14

 State V. Bassett
No. 94556-0

The Fain proportionality test considers(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. Fain,94 Wn.2d at 397. The categorical bar analysis considers
(1) whether there is objective indicia of a national consensus against the sentencing

practice at issue and(2)the court's own independent judgment based on '"the
standards elaborated by controlling precedents and by the [cjourt's own understanding

and interpretation ofthe [cruel punishment provision]'s text, history,... and
purpose.'" Graham,560 U.S. at 61 (quoting Kennedy v. Louisiana, 554 U.S. 407,421,
128 S. Ct. 2641,171 L. Ed. 2d 525 (2008)).

The United States Supreme Court's jurisprudence on the categorical bar
analysis is helpful in understanding why Fain should not be adopted here. The Fain
framework does not include significant consideration ofthe characteristics ofthe
offender class. Instead, it weighs the offense with the punishment. This makes it ill
suited to analyze Bassett's claim because he asserts a categorical challenge based on
the characteristics ofthe offender class—children. The categorical bar analysis, on
the other hand, directs us to consider the nature of children. Graham,560 U.S. at 67.

The categorical approach "requires consideration ofthe culpability ofthe offenders at
issue in light of their crimes and characteristics, along with the severity ofthe

punishment in question" and whether the sentence "serves legitimate penological

15

 State V. Bassett
No. 94556-0

goals." Id. Issues of culpability, the severity ofthe punishment, and whether
penological goals are served all allow the court to include youth-specific reasoning
into the analysis.

The United States Supreme Court developed the categorical framework to
address categorical cruel punishment claims based on the nature ofthe offense or the
characteristics ofthe offender. Graham, 560 U.S. at 59-62. In Graham,the Court

explained that a framework that compares "the severity ofthe penalty and the gravity
ofthe crime," which is what Fain does, does not advance an analysis of a claim that

challenges "a particular type of sentence as it applies to an entire class of offenders
who have committed a range of crimes." Id. at 61. Our circumstance differs slightly
as we are assessing life without parole for juveniles convicted ofthe same crime.
However, because Bassett's categorical cruel punishment claim is based on a

particular type of sentence as it applies to an entire class of offenders—16- and 17year-olds—a test that does not consider youthful characteristics should not be
adopted. Moreover, adopting a framework that considers the characteristics of youth
is in line with the Miller reasoning, which we have adopted. See supra Part I
(discussion ofthe fourth Gunwall factor).
Understanding why we created the Fain test helps us appreciate why it is

appropriate to adopt the categorical bar analysis for Bassett's constitutional challenge.
The Fourth Circuit adopted the four-factor test when considering whether a life

16

 State V, Bassett

No. 94556-0

sentence was disproportionate to the underlying offenses in a habitual criminal case.
Hart V. Coiner, 483 F.2d 136(4th Cir. 1973). In Fain, we noted that this was the first
time our court was expressly adopting proportionality principles and that the four
factors in Hart were useful in analyzing a cruel punishment claim. Fain, 94 Wn.2d at

397(noting that the factor on legislative purpose should be employed only with
caution and was not necessary for Fain's case {id. at 401 n.7)). Thus, in Fain, we

adopted a framework from a nonbinding court to analyze proportionality because it fit
the challenge Fain brought—^that Fain's sentence was cruel punishment because it was
grossly disproportionate to his crimes—and the particular statute we were assessing—
a habitual criminal statute. Similarly, here, the categorical bar analysis fits the

challenge Bassett brings—^that life without parole is a categorically unconstitutional
sentence for juveniles—and the statute we are assessing—a juvenile life without
parole statute.

In conclusion, though we have adopted Fain to assess other cruel punishment

claims under our state constitution, it is inappropriate to assess Bassett's categorical
challenge, which is based on the characteristics of children. We are jhee to evolve our
state constitutional framework as novel issues arise to ensure the most appropriate
factors are considered. Because the categorical bar analysis allows us to consider the

characteristics of youth, the crux ofthis categorical challenge, we adopt it in this
instance. This holding does not disturb our Fain decision.

17

 State V. Bassett

No. 94556-0

III.

Under the Categorical Bar Analysis, Sentencing a Juvenile Offender to
Life without Parole Constitutes CruelPunishment
a. There Is a Strong and Rapid Trend ofAbandoning Juvenile Life
without Parole Sentences

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

national consensus against sentencing juveniles to life without parole by looking at
'"objective indicia of society's standards, as expressed in legislative enactments and
state practice.'" Graham,560 U.S. at 61 (quoting Roper, 543 U.S. at 563). "'[T]he

clearest and most reliable objective evidence of contemporary values is the legislation
enacted by the country's legislatures.'" Id. at 62(intemal quotation marks omitted)
(quoting

v. Virginia, 536 U.S. 304, 312,122 S. Ct. 2242, 153 L. Ed. 2d 335

(2002)(applying the categorical bar analysis to find that a person with intellectual
disabilities cannot be sentenced to death)). "It is not so much the number ofthese

States that is significant, but the consistency ofthe direction of change." Atkins, 536
U.S. at 315.

Bassett is correct that the direction of change in this country is unmistakably

and steadily moving toward abandoning the practice of putting child offenders in
prison for their entire lives. As of January 2018,20 states and the District of

Columbia have abolished life without parole for juveniles.^ This trend has occurred

2 Alaska Stat. § 12.55.015(g); Ark. Code Ann. § 5-4-108; Cal.Penal Code
§§ 3051, 4801; Colo.Rev. Stat. §§ 17-22.5-104(2)(d)(IV), 18-1.3-40l(4)(b)(I); Conn.
Gen. Stat. § 54-125a(f); Del. Code Ann.tit. 11, §§ 4209A,4204A(d); D.C. Code § 2218

 State V. Bassett
No. 94556-0

rapidly since Miller, before which only 4 states banned juvenile life without parole."^
Additionally,4 states no longer have anyone serving a life without parole sentence

under their respective statutes.^ Other states have limited the offenses that qualify for
juvenile life without parole.® Lastly, several states moved to provide parole eligibility
to those sentenced to juvenile life without parole prQ-MillerP There is a clear trend of
states rapidly abandoning or curtailing juvenile life without parole sentences. While
this step is not dispositive, it weighs in favor offinding that sentencing juvenile
offenders to life without parole is cruel punishment under article I, section 14. See
Graham,560 U.S. at 80.

2104(a); Haw.Rev. Stat. § 706-656; State v. Sweet, 879 N.W.2d 811 (Iowa 2016);
Kan. Stat. Ann. § 21-6618; Ky.Rev. Stat. Ann.§ 640.040(1); Diatchenko v. Dist.
Att'y, 466 Mass. 655,674, 1 N.E.3d 270(2013); Nev.P^V. Stat. § 176.025; N.J. Stat.
Ann. § 2C;11-3;N.D. Cent. CODE Ann. §§ 12.1-20-03(4), 12.1-32-13.1; S.D. Codified
Laws § 22-6-1; Tex.Penal Code Ann. § 12.31; Utah Code Ann.§ 76-3-209; Vt.
Stat. Ann.tit. 13, § 7045; W.Va. Code Ann.§ 61-1 l-23(a)(2); Wyo.Stat. Ann.§ 62-101(b).
Alaska Stat. § 12.55.015(g); Colo.Rev. Stat. §§ 17-22.5-104(2)(d)(IV), 18-1.3401(4)(b)(I); Kan.Stat. Ann.§ 21-6618; Ky.Rev. Stat. Ann. § 640.040(1).

® See Does Your State Still Use Life-without-Parole Sentencesfor Kids?, QAMPAIGN FOR
Fair Sent'G of Youth(Feb. 1, 2018)https://www.fairsentencingofyouth.org/does-yourstate-use-juvenile-life-without-parole-jlwop/[https://perma.cc/H3BW-YM3Y](an update
from February 2018, showing that Maine, New Mexico, New York, and Rhode Island do
not use the sentence).

® Fla. Stat. § 921.1402(2)(a); 18 Pa. Cons. Stat. §§ 1102,1102.1; N.C. Gen. Stat.
§§ 15A-1340.19A, 15A-1340.19B, 15A-1340.19C.
Mo.Rev. Stat. § 558.047(1); Colo.Rev. Stat. § 18-1.3-40l(4)(b); Jackson v. State,
883 N.W.2d 272(Minn. 2016).
19

 State V. Bassett

No. 94556-0

b. The Exercise ofIndependent Judgment Weighs in Favor ofFinding
Juvenile Life without Parole Cruel Punishment
The second step in the categorical bar analysis, the judicial exercise of

independentjudgment, requires consideration of"the culpability ofthe offenders at
issue in light of their crimes and characteristics, along with the severity ofthe

punishment in question" and "whether the challenged sentencing practice serves
legitimate penological goals." Graham,560 U.S. at 67.

The United States Supreme Court and this court have concluded that children

are less criminally culpable than adults. As we have stated, we now "have the benefit
ofthe studies underlying Miller, Roper, and Graham . .. that establish a clear
connection between youth and decreased moral culpability for criminal conduct."
O'Dell, 183 Wn.2d at 695 (citing the fmdings in Miller that a child's "transient

rashness, proclivity for risk, and inability to assess consequences" lessen their
culpability {Miller, 567 U.S. at 472)). "As compared to adults,juveniles have a Tack
of maturity and an underdeveloped sense of responsibility'; they 'are more vulnerable

or susceptible to negative influences and outside pressures, including peer pressure';
and their characters are 'not as well formed.'" Graham, 560 U.S. at 68 (internal

quotation marks omitted)(quoting Roper, 543 U.S. at 569-70). Because children have
"lessened culpability they are less deserving ofthe most severe punishments." Id.
Yet the Miller-fix statute allows children to be sentenced to the extremely severe

punishment of life without parole.
20

 State V. Bassett
No. 94556-0

The United States Supreme Court has recognized the harsh nature of sentencing

a juvenile to die in prison. The Court explained that life without parole "alters the
offender's life by a forfeiture that is irrevocable" and "deprives [individuals] ofthe
most basic liberties without giving hope of restoration." Id. at 69-70. The sentence is

"especially harsh" for children, who will "on average serve more years and a greater
percentage of[their] li[ves] in prison than an adult offender." Id. at 70. The
punishment "'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 child], he will remain in prison for the rest of his days.'"

Id. (quoting iV(30vara//z v. State, 105 Nev. 525, 526, 779 P.2d 944(1989)).
Lastly, we look to whether the penological goals of retribution, deterrence,
incapacitation, and rehabilitation are served by this sentence. "'[T]he distinctive

attributes of youth diminish the penological justifications for imposing the harshest
sentences on juvenile offenders, even when they commit terrible crimes.'" Ramos,
187 Wn.2d at 438 (quoting Miller, 567 U.S. at 472). First, the case for retribution is
weakened for children because "'[t]he heart ofthe retribution rationale' relates to an

offender's blameworthiness" and children have diminished culpability. Miller, 567
U.S. at 472 (alteration in original)(internal quotation marks omitted)(quoting
Graham, 560 U.S. at 71-74). "Nor can deterrence do the work in this context, because
'the same characteristics that render juveniles less culpable than adults'—^their

21

 State V. Bassett

No. 94556-0

immaturity, recklessness, and impetuosity—^make them less likely to consider
potential punishment." Id. (internal quotation marks omitted)(quoting Graham, 560
U.S. at 72). Rehabilitation is not supported by a juvenile life without parole sentence
because the sentence '"forswears altogether the rehabilitative ideal.'" Id. at 473

(quoting Graham, 560 U.S. at 74).

Lastly, incapacitation is not well served by sentencing juveniles to life without
parole because "[djeciding that a 'juvenile offender forever will be a danger to
society' would require 'mak[ing] ajudgment that [he] is incorrigible'—^but
'incorrigibility is inconsistent with youth.'" Id. at 472-73 (second and third alterations

in original)(internal quotation marks omitted)(quoting Graham,560 U.S. at 72-73).
The penological goal of incapacitation is especially concerning given the fact that the
sentence "makes an irrevocable judgment about that person[ ]" that is at odds with
what we know about children's capacity for change. Graham, 560 U.S. at 74. We

have recognized that children have "'diminished culpability and heightened capacity
for change.'" Ramos, 187 Wn.2d at 444(quoting Miller, 561 U.S. at 479). While the
Miller-fix statute requires sentencing courts to consider "youth's chances of becoming
rehabilitated," it is extremely difficult to make that determination. RCW

10.95.030(3)(b). "It is difficult even for expert psychologists to differentiate between

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

22

 State V. Bassett
No. 94556-0

the rare juvenile offender whose crime reflects irreparable corruption." Roper, 543
U.S. at 573.

Bassett's resentencing hearing provides an illustration ofthe imprecise and

subjective judgments a sentencing court could make regarding transient immaturity
and irreparable corruption. Some judges may fmd an infraction-free record from the
last 12 years evidence of rehabilitation, but Bassett's judge concluded it didn't
"carr[y] much weight" because "prisoners have some incentive to follow the rules."
VRP at 90. He also found that Bassett's academic achievements were "less evidence

of rehabilitation and more evidence that... he is simply doing things to make his time

in prison more tolerable." Id. at 91. The judge concluded that Bassett's homelessness
was evidence that he was more mature than "kids who are not in that situation." Id. at

89. This conclusion could have easily gone the other way, with a judge finding that

the instability and insecurity of homelessness caused Bassett to have less control over
his emotions and actions. Of course, sentencing courts use their expert discretion in

many aspects of sentencing. However, in this situation, given the difficulty even

expert psychologists have in determining whether a person is irreparably corrupt and
the extremely high stakes ofthe decision—^the difference between living out the rest
of their lives in prison or having a chance to return to society—^this type of discretion
produces the unacceptable risk that children undeserving of a life without parole
sentence will receive one.

23

 State V. Bassett

No. 94556-0

Under the two-pronged categorical bar analysis, we find that states are rapidly

abandoning juvenile life without parole sentences, children are less criminally
culpable than adults, and the characteristics of youth do not support the penological
goals of a life without parole sentence. Thus, we hold that sentencing juvenile
offenders to life without parole or early release is cruel punishment and therefore
RCW 10.95.030(3)(a)(ii) is unconstitutional under article I, section 14.
IV. Even under the Fain Proportionality Test, Sentencing a Juvenile Offender
to Life without Parole Constitutes Cruel Punishment
Even if this court applied the Fain proportionality test here, we would still find
that sentencing a juvenile offender to life without parole violates article I, section 14.
First, looking to the nature ofthe offense, there is no doubt that aggravated first
degree murder is the most serious criminal offense. The second factor asks us to look
at the legislative purpose behind the Miller-fix statute. According to the legislature,
the purpose is to require sentencing courts to "take into account mitigating factors that
account for the diminished culpability of youth as provided in Miller." LAWS OF

2014, ch. 130, § 9(3)(b). Taken together, these factors show that while aggravated
murder warrants a serious punishment, youth convicted ofthe offense have the special
protections from the Miller-fix statute requiring sentencing courts to consider
children's diminished culpability.

The third factor, the punishmentjuveniles would receive in other jurisdictions,

weighs in favor offinding juvenile life without parole sentences cruel punishment and
24

 State V. Bassett

No. 94556-0

unconstitutional. See supra Section Ill.a. Lastly, the fourth factor directs us to look at
the punishment juveniles would receive for other offenses in the same jurisdiction.
Juveniles in Washington can be sentenced to life without parole only if they are
convicted of aggravated first degree murder. RCW 10.95.030. If a juvenile is
convicted of any other crime or combination of crimes, he or she would be eligible for
release after 20 years, unless he or she has committed a disqualifying infraction in the
prior year. RCW 9.94A.730(1). This extreme jump from eligibility for release after

20 years to life without parole shows the extreme severity ofthe sentence in the
broader context ofjuvenile sentencing. Thus, it weighs in favor offinding life

without parole a disproportionate and cruel sentence as applied to juvenile offenders.
This test shows us that while the offense is serious, the punishment is extreme

in comparison to the sentence other jurisdictions would impose and the sentence
Washington would impose for other crimes. Even if we applied the Fain test to
Bassett's categorical constitutional challenge, life without parole is a disproportionate
sentence for juvenile offenders, and therefore, RCW 10.95.030(3)(a)(ii) is
unconstitutional under article I, section 14.
CONCLUSION

We hold that sentencing juvenile offenders to life without parole or early
release constitutes cruel punishment and, therefore, RCW 10.95.030(3)(a)(ii) is
unconstitutional, insofar as it allows such a sentence, under article I, section 14 ofthe

25

 State V. Bassett
No. 94556-0

Washington Constitution. We affirm the Court of Appeals' decision to remand to the
trial court for resentencing in accordance with this opinion. On remand,the trial court

may not impose a minimum term of life as it would result in a life without parole
sentence.

26

 State V. Bassett
No. 94556-0

WE CONCUR:

.27

 State V. Bassett(Brian M.)
(Stephens, J., dissenting)

No. 94556-0

STEPHENS, J. (dissenting)—^The majority's decision to invalidate a
provision ofour Miller-fix statute, RCW 10.95.030(3)(a)(ii), and to categorically bar
the imposition of a juvenile life without parole(LWOP)sentence purports to rest on
article I, section 14 of the Washington State Constitution. However, it offers no

basis in state law but is simply a reinterpretation ofMiller v. Alabama,567 U.S. 460,
132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). More precisely, the majority takes
Miller's federal constitutional requirement—^that a sentencing court consider youth
and its attendant characteristics as mitigating factors in exercising sentencing
discretion to impose LWOP—and uses it to categorically bar the exercise of such
discretion under the state constitution. Not only is this contrary to the holding in

Miller itself, which does not categorically bar LWOP sentences for juvenile

homicide offenders, it also departs from state precedent rejecting similar
constitutional challenges and upholding judicial sentencing discretion.

 State V. Bassett(Brian M.), 94556-0 (Stephens, J., dissenting)

I respectfully dissent. I would hold that the provision of Washington's Miller-

fix statute, RCW 10.95.030(3)(a)(ii),^ complies with article I, section 14 and ensures
that LWOP will rarely be imposed on juveniles who commit murder. That statute
appropriately requires sentencing courts exercising discretion to "take into account
mitigating factors that account for the diminished culpability of youth as provided
mMiller v. Alabama, 132 S.Ct. 2455(2012)." RCW 10.95.030(3)(b). While

prohibits the imposition of LWOP on "juvenile offenders whose crimes reflect the
traiisient immaturity of youth," Montgomery v. Louisiana,

U.S.

, 136 S. Ct.

718, 734, 193 L. Ed. 2d 599 (2016), it does not categorically prohibit this sentence
for all juvenile homicide offenders. In reviewing a juvenile LWOP sentence, the
considerations required under RCW 10.95.030(3) modify our traditional state
constitutional analysis undQr State v. Fain,94 Wn.2d 387,617 P.2d 720(1980). Just

'Although the Court of Appeals holds that "life sentences without parole or early
release for juvenile offenders as allowed under RCW 10.95.030(3)(a)(ii) are
unconstitutional," State v. Bassett, 198 Wn. App. 714, 743, 394 P.3d 430 (2017), at one
point the court also reasons that "[bjecause we agree that the Miller-fix statute violates the
Washington State Constitution, we do not reach Bassett's altemative arguments that the
statute is unconstitutional under the federal constitution's Eighth and Sixth Amendments."
Id. at 722; U.S. CONST, amends. VIII, VI. Based on the concise holding, I presume that
the Court of Appeals never intended to invalidate the entire Miller-fix statute but, instead,
only the provision that was before the court. See id. at 716 ("Bassett appeals his new
sentence and successfully argues that a provision of the Miller-fix statute, RCW
10.95.030(3)(a)(ii), violates our State's constitutional prohibition against cruel
punishment. . . . We hold 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 cmel punishment."(footnote omitted)).
-2-

 State V. Bassett(Brian M.), 94556-0 (Stephens, J., dissenting)

as RCW 10.95.030(3)(a)(ii) complies with the Eighth Amendment under the
reasoning in Miller, it complies with article I, section 14 of the Washington
Constitution. I would reverse the Court of Appeals and uphold the sentencing
judge's discretion to impose LWOP on Brian Bassett.

I.

The Proportionality Testfrom State v. Fain,as Modified by RCW 10.95.030(3),
Governs Review of Sentences under Article I, Section 14 of the Washington
Constitution

Washington State has long used the proportionality principles adopted in Fain
to determine whether punishment is constitutional under article I, section 14 of the
Washington Constitution. See State v. Witherspoon, 180 Wn.2d 875, 895,329 P.3d
888 (2014) (Gordon McCloud, J., concurring and dissenting) ("The controlling
Washington case interpreting the applicable provision of the Washington State
Constitution is State v. Fain. Fain requires us to do just such a disproportionality

analysis now, in reviewing the sentence." (citation omitted)); see also State v.
Ramos, 187 Wn.2d 420,454 & n.lO,387 P.3d 650(2017)(refusing to consider state

constitutional argument in part because defendant failed to "address the factors for
determining whether a sentence independently violates the Washington
Constitution" (citing Fain, 94 Wn.2d at 397)). The Fain proportionality factors
include "(1) the nature of the offense; (2) the legislative purpose behind the
[relevant] statute; (3) the punishment defendant would have received in other

-3-

 State V. Bassett(Brian M.), 94556-0 (Stephens, J., dissenting)

jurisdictions for the same offense; and (4) the punishment meted out for other
offenses in the same jurisdiction." 94 Wn.2d at 397.

The majority casts aside the Fain analysis on the ground that it "does not
include significant consideration ofthe characteristics ofthe offender class," and is
thus "ill suited" to address claims based on "the nature of children." Majority at 15.

This fails to appreciate the breadth of the inquiry under Fain, which fully
incorporates consideration of the unique characteristics of youth under
Washington's Miller-fix statute, RCW 10.95.030(3).

Following the United States Supreme Court decision in Miller, the legislature
directed that Washington sentencing courts must consider "mitigating factors that
account for the diminished culpability of youth ... 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(3)(b). The Washington M7/er-fix statute

addresses the foundational principle from Miller and the previous cases it built
on—"that imposition ofa State's most severe penalties on juvenile offenders cannot
proceed as though they were not children." 567 U.S. at 474.
Vost-Miller, our constitutional analysis under Fain necessarily incorporates

these considerations. The majority repeats the error of the Court of Appeals by

-4-

 State V. Bassett(Brian M.), 94556-0(Stephens, J., dissenting)

divorcing theFam analysis horn Miller'^ requirements, when we must respect both.
Majority at 16 (stating,"a test that does not consider youthful characteristics should
not be adopted"); State v. Bassett, 198 Wn. App. 714, 738, 394 P.3d 430 (2017)
(suggesting Fain conflicts with Miller by requiring courts "to focus exclusively on
the nature of the crime and ignore the nature of the offender"). Although the
majority complains that Fain fails to consider the nature of children, majority at 15,
it ultimately acknowledges that applying Fain along with the Miller-fix statute
actually does require consideration of the characteristics of youth. See Id. at 24
("[Wjhile aggravated murder warrants a serious punishment, youth convicted ofthe
offense have the special protections from the Miller-fix statute requiring sentencing
courts to consider children's diminished culpability."). Properly understood, our
Fain analysis does not fail to account for youth and its attendant characteristics but,
instead, folds these considerations into our constitutional review under article I,
section 14.

II.

Our fosi-Miller State Constitutional Analysis under Fain Fully Accounts for
Youth and Its Attendant Characteristics in Deciding Whether To Impose
LWOP on a Juvenile Homicide Offender

Understanding that adequate sentencing review must account for both Miller

and Fain, there is no basis to abandon our traditional state constitutional analysis.
Both the substantive and procedural aspects of the holding in Miller may be

-5-

 State V. Bassett(Brian M.), 94556-0 (Stephens, J., dissenting)

harmonized with the Fain factors under our analysis. Nothing in Miller forecloses
individual sentence review. Instead, '"'"Miller drew a line between children whose

crimes reflect transient immaturity and those rare children whose crimes reflect

irreparable corruption. The fact that life without parole could be a proportionate
sentence for the latter kind ofjuvenile offender does not mean that all other children

imprisoned under a disproportionate sentence have not suffered the deprivation of a
substantive right." Montgomery, 136 S. Ct. at 734. The Court in Miller could have
extended the categorical reasoning of its earlier juvenile sentencing decisions to

entirely eliminate the discretion ofa sentencingjudge to consider LWOP forjuvenile
homicide offenders, but it did not. Miller examined Roper v. Simmons, 543 U.S.

551, 575, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)and Graham v. Florida, 560 U.S.
48, 82, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), in which the Court held,

respectively, that the execution ofindividuals who were under 18 years of age at the
time oftheir capital crimes is prohibited by the Eighth and Fourteenth Amendments,
and that LWOP is an unconstitutional sentence for juveniles who commit crimes

other than murder. In refusing to extend a categorical bar to juvenile LWOP
sentences for homicide offenders, the Court in Miller upheld the discretion of

sentencing judges, guided by consideration of the mitigating circumstances of

youthfiilness. See Miller, 567 U.S. at 483("Our decision does not categorically bar

-6-

 State V. Bassett(Brian M.), 94556-0 (Stephens, J., dissenting)

a penalty for a class of offenders or type ofcrime—as,for example, we did in Roper
or Graham. Instead, it mandates only that a sentencer follow a certain process—

considering an offender's youth and attendant characteristics—^before imposing a
particular penalty."). Miller noted the distinction between a categorical ban on
LWOP applied to nonhomicide crimes in Graham and allowance of this penalty in
light ofthe additional moral culpability and consequential harm arising from murder.
Miller, 567 U.S. at 473 (citing Graham,560 U.S. at 69).

We recently recognized that ''Miller's procedural requirement for

individualized sentencing ofjuvenile homicide offenders'does not replace but rather
gives effect to Miller's substantive holding that life without parole is an excessive
sentence for children whose crimes reflect transient immaturity.'" Ramos, 187

Wn.2d at 441 (quoting Montgomery, 136 S. Ct. at 735). Miller explicitly requires
sentencing courts to
receive and consider relevant mitigation evidence bearing on the
circumstances of the offense and the culpability of the offender, including
... the juvenile's "chronological age and its hallmark features—among
them, immaturity, impetuosity, and failure to appreciate risks and

consequences." It is also necessary to consider the juvenile's "family and
home environment" and "the circumstances of the homicide offense,

including the extent of his participation in the conduct and the way familial
and peer pressures may have affected him." And where appropriate,the court
should account for "incompeteneies associated with youth" that may have

had an impact on the proceedings, such as the juvenile's "inability to deal
with police officers or prosecutors (including on a plea agreement) or his
incapacity to assist his own attomeys."

-7-

 State V. Bassett(Brian M.), 94556-0(Stephens, J., dissenting)

Ramos, 187 Wn.2d at 443-44 (citations omitted)(quoting Miller, 567 U.S. at 477-

78). "[E]vidence ofactual "'demonstrated maturity and rehabilitation'" is generally
considered later, when it is time to determine whether a former juvenile offender

who is up for parole should be given early release." Id. at 449(quoting Miller, 567
U.S. at 479(quoting Graham,560 U.S. at 75)). "Whether such evidence 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."
Id. "[T]he Supreme Court has expressly acknowledged that 'Miller did not require
trial courts to make a finding of fact regarding a child's incorrigibility.'" Id. at
449-50(quoting Montgomery, 136 S. Ct. at 735).

The majority fails to explain why the line drawn in Miller and recognized by
this court in Ramos is now constitutionally inadequate. It is not enough to say, as

the majority does, that we have relied on Miller to impose additional restraints on

juvenile sentencing. See majority at 12. Our cases applying Miller all recognize
that Miller allows sentencing judges the discretion to impose harsh sentences on

juvenile offenders, including LWOP in rare circumstances. See State v. O'Dell, 183
Wn.2d 680,698-99,358 P.3d 359(2015)("We hold that a defendant's youthfulness

can support an exceptional sentence below the standard range ... and that the
sentencing court must exercise its discretion to decide when that is."); Ramos, 187

-8-

 State V. Bassett(Brian M.), 94556-0 (Stephens, J., dissenting)

Wn.2d at 428("[WJhere a convicted juvenile offender faces a possible life-withoutparole sentence, the sentencing court must conduct an individualized hearing and
'take into account how children are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in prison.'" (quoting Miller, 567
U.S. at 480)); State v. Houston-Sconiers, 188 Wn.2d 1,21, 391 P.3d 409(2017)("In
accordance with Miller, we hold that sentencing courts must have complete
discretion to consider mitigating circumstances associated with the youth of any
juvenile defendant, even in the adult criminal justice system."). Legislative changes
conforming judicial sentencing practices to Miller similarly recognize that judges
have discretion to impose LWOP in uncommon cases of 16- and 17-year-olds who
commit murder. RCW 10.95.030(3)(a)(ii). There is simply no foundation in

Washington law ^ost-Miller to support the majority's newfound interpretation of
article I, section 14 to categorically prohibit juvenile LWOP sentences.

III. The Majority's Gunwall Analysis Ultimately Relies on Reinterpreting Miller
and Offers No State Law Basis To Categorically Bar Juvenile LWOP for
Homicide Offenses

The majority recognizes that a meaningful analysis under State v. Gunwall,
106 Wn.2d 54,720 P.2d 808(1986), must focus on "specific applications" of article

I, section 14, not general comparisons of state and federal constitutional provisions.
See majority at 9-10; Ramos, 187 Wn.2d at 454 ("Even where it is already

-9-

 State V. Bassett(Brian M.), 94556-0 (Stephens, J., dissenting)

established that the Washington Constitution may provide enhanced protections on
a general topic, parties are still required to explain why enhanced protections are

appropriate in specific applications."). Nonetheless, as discussed above, the only
authority the majority relies on specific to juvenile sentencing are our prior decisions
applying Miller and related federal cases, and Washington juvenile sentencing
statutes, including the M7/er-fix statute. Majority at 12-13. That the majority walks

through the six Gunwall factors^ cannot obscure the fact that there is no independent
source of state law categorically prohibiting LWOP in this context.

Prior to Miller, Washington precedent and statutes allowed for juvenile
LWOP sentencing on a wider scale. The State correctly points out that"Washington
courts have repeatedly rejected constitutional challenges to juvenile LWOP

sentences." Revised Suppl. Br. of Pet'r at 10 (citing State v. Furman, 122 Wn.2d
440, 458, 858 P.2d 1092 (1993); State v. Massey, 60 Wn. App. 131, 145-46, 803

P.2d 340, review denied, 115 Wn.2d 1021, 802 P.2d 126 (1990), cert, denied, 499
U.S. 960(1991);State v. Stevenson, 55 Wn. App. 725,737-38,780 P.2d 873(1989),

^ The Gunwall analysis considers the following factors to determine whether the
Washington Constitution provides greater protection than the United States Constitution:
(1)"The textual language ofthe state constitution,"(2)"Significant differences in the texts
of parallel provisions of the federal and state constitutions,"(3)"State constitutional and
common law history,"(4)"Preexisting state law,"(5)"Differences in structure between
the federal and state constitutions," and (6) "Matters of particular state interest or local
concem." 106 Wn.2d at 61-62 (italics omitted).
-10-

 State V. Bassett(Brian M.), 94556-0 (Stephens, J., dissenting)

review denied, 113 Wn.2d 1040, 785 P.2d 827 (1990); State v. Forrester, 21 Wn.

App. 855, 870-71, 587 P.2d 179(1978), review denied, 92 Wn.2d 1006(1979)). As
the Court of Appeals acknowledged, even after Miller "no Washington case has
applied the categorical bar analysis." Bassett, 198 Wn. App. at 733. To the contrary,
our cases have consistently recognized the limited reach ofthe holding in Miller and
that our Miller-fix statute complies with it. See Ramos 187 Wn.2d at 440-53. Nor

has our legislature taken the approach that some other states have taken ^post-Miller,
of categorically eliminating LWOP as a permissible sentence for all juvenile
offenders. Instead, RCW 10.95.030(3)(a) removes LWOP from consideration only

for juveniles age 15 and under, and retains judicial discretion to impose LWOP on

16- and 17-year-old homicide defendants in rare circumstances. I thus fail to see
how the majority finds evidence supporting a categorical bar in Washington law
when these authorities all rely on or respond to Miller, which itself imposes no

categorical constitutional bar to LWOP for juvenile homicide offenders.^
At the end of the day, the majority's circular path of reasoning leads back to
Miller, and it attempts to reinterpret Miller in a way that expands the substantive
holding in that case to make it more like Graham. The majority ultimately rejects

2 The majority finds it significant that several states have completely eliminated
juvenile LWOP as a discretionary sentence in all circumstances, with most taking this step
after Miller. Majority at 18 (citing state statutes). It acknowledges, however, that the
approach taken by Washington and other states is consistent with Miller. Id. at 18-19.
-11-

 State V. Bassett(Brian M.), 94556-0 (Stephens, J., dissenting)

Miller's actual holding, requiring individualized review of youth and attendant
characteristics for LWOP sentencing of juvenile homicide offenders, because it
elevates Graham's reasoning to an absolute. Majority at 15 (citing Graham, 560

U.S. at 67). Graham appropriately recognized that children are different from adults
and that juvenile LWOP sentences often fail to serve valid penological goals. See
Graham, 560 U.S. at 61. However, the Court in Graham made clear that this

"categorical bar [to LWOP]relates only to nonhomicide offenses." Miller, 567 U.S.
at 473 (citing Graham, 560 U.S. at 69). Here, of course, we are concerned with
homicide crimes, specifically homicide crimes committed by juvenile offenders

between the ages of 16 and 18. Notwithstanding Graham's recognition of the
mitigating impact of youth and its attendant characteristics. Miller determined it is
sufficient that sentencers must consider individual differences among juvenile

homicide defendants when imposing LWOP sentences. Id. at 480. In Ramos, we

recognized that Miller allows for sentencing discretion to impose LWOP on juvenile
homicide offenders, consistent with the Eighth Amendment. We refused to entertain

the very argument the majority today embraces in the absence of a state

constitutional analysis under the Fain factors. 187 Wn.2d at 454-55."^ The

^ We also recognized in Ramos that "the Miller Court left state legislatures with
considerable flexibility to develop their own procedures for implementing its substantive
holding." 187 Wn.2d at 440. "[T]he fixing of legal punishments for criminal offenses is a
legislative function." State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d 719, 718 P.2d 796
-12-

 State V. Bassett(Brian M.), 94556-0(Stephens, J., dissenting)

majority's answer to Ramos,apparently, is to now say a Fain analysis must give way
to a categorical analysis. See majority at 14-17 (rejecting Fain analysis as
insufficient to consider the characteristics of youth); see also Bassett, 198 Wn. App.
at 738 (refiising to apply Fain).

Although the majority walks through the Gunwall factors to find that article
I, section 14 is more protective than the Eighth Amendment to the United States
Constitution, majority at 10-13, its reasoning rests entirely on reinterpreting Miller
to follow the categorical bar approach of Graham. The majority is careful not to
expressly rely on the single Iowa case to take this approach,see State v. Sweet, 879

N.W.2d 811 (Iowa 2016), but it endorses the Court of Appeals' categorical bar
analysis that leans heavily on Sweet. See majority at 14; Bassett, 198 Wn. App. at

735. The problem with this analysis is that it uses Graham's general recognition
that LWOP is often unconstitutional for children to overrule Miller's specific
holding that it is sometimes allowed. See Sweet, 879 N.W.2d at 829-30. Reaching
such a result by invoking state law rather than resting on federal law provides thin
cover.

Washington State law does not categorically bar LWOP forjuvenile homicide
offenders. We consistently upheld juvenile LWOP before Miller, and it remains a

(1986). It is '"the function ofthe legislature and not ofthe judiciary to alter the sentencing
process.'" Id.(quoting State v. Monday, 85 Wn.2d 906, 909-10, 540 P.2d 416 (1975)).
-13-

 State V. Bassett(Brian M.), 94556-0(Stephens, J., dissenting)

constitutionally permissible sentence for some juveniles under Miller's clear
holding. Nothing in our subsequent precedent adhering to Miller supports using
article I, section 14 to expand Miller's holding. I would uphold the constitutionality
of RCW 10.95.030(3)(a)(ii) and recognize the discretion of sentencing courts to

impose LWOP on juvenile homicide offenders in rare cases such as this.
CONCLUSION

Bassett, pursuant to the Miller-fix statute, was resentenced in 2015 when he
was 35 years old. Bassett, 198 Wn. App. at 718, 721. Consistent with RCW
10.95.030(3)(b), the resentencing court explicitly considered the required Miller
factors, including the transient immaturity and impulsivity attendant to youth in
general, as well as the evidence Bassett introduced regarding his disposition. The

court ultimately accepted the original LWOP sentence, finding that Bassett's
conduct in the premeditated murders did not indicate transient immaturity or
impulsiveness. This sentence was within the court's discretion,though based on the

record a different judge may have imposed a lesser sentence.^

^ In his cross petition for review by this court, Bassett challenged the sentencing
judge's exercise of discretion. See Cross-Pet. for Review (requesting review regarding
whether it is constitutional to (1) allow a judge to decide the presence of an aggravating
circumstance necessary to impose ajuvenile LWOP sentence,(2)allow a sentencing judge
to consider information offered as mitigation of punishment into evidence justifying
imposition ofthe most severe punishment possible for ajuvenile offender, and(3)sentence
a juvenile to LWOP on less than proof beyond a reasonable doubt). We rejected the cross
petition, however, and thus the sole issue before us is whether RCW 10.95.030(3)(a)(ii) is
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 State V. Bassett (Brian M.), 94556-0 (Stephens, J., dissenting)

I would conclude that RCW 10.95.030(3)(a)(ii) is constitutional and would

therefore uphold the sentencing court's discretionary decision to impose LWOP on
Bassett for the murders of his parents and brother.

constitutional. See Order, State v. Bassett, No. 94556-0 (Wash. Oct. 4, 2017); Pet. for
Review at 2("Does the provision ofthe Miller-fix statute permitting a sentencing court to

impose LWOP upon a juvenile murderer after fully considering mitigating factors that
account for the diminished culpability of youth and the chances of rehabilitation violate
our state's constitutional prohibition against cruel punishment?").
-15-

 State V. Bassett (Brian M.), 94556-0 (Stephens, J., dissenting)

-16-