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Sentencing Law and Policy
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Split Washington Supreme Court, relying on state constitution, forbids mandatory LWOP sentences for those under 21

By Douglas Berman

Today, via a 5-4 ruling in In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 (Wash. Mar. 11, 2021) (available here), the Supreme Court of Washington extended the reach of the US Supreme Court’s Miller ruling by declaring mandatory LWOP for those under 21 to be unconstitutional (pursuant to Washington’s state constitutional prohibition of “cruel punishment”).  Here is how the majority opinion starts and ends:

Dwayne Earl Bartholomew and Kurtis William Monschke were each convicted of aggravated first degree murder and sentenced to life in prison without possibility of parole — a mandatory, nondiscretionary sentence under Washington’s aggravated murder statute.  RCW 10.95.030.  Bartholomew was 20 years old; Monschke was 19.  Many years after their convictions, each filed a personal restraint petition (PRP) asking us to consider whether article I, section 14 of our state constitution or the Eighth Amendment to the United States Constitution permits a mandatory life without parole (LWOP) sentence for youthful defendants like themselves.  Specifically, they ask us to decide whether the constitutional requirement that judges exercise discretion at sentencing, which forbids such mandatory LWOP sentences for those under 18, also forbids those sentences for 18- to 21-year-old defendants.

Modern social science, our precedent, and a long history of arbitrary line drawing have all shown that no clear line exists between childhood and adulthood.  For some purposes, we defer to the legislature’s decisions as to who constitutes an “adult.”  But when it comes to mandatory LWOP sentences, Miller’s constitutional guarantee of an individualized sentence — one that considers the mitigating qualities of youth — must apply to defendants at least as old as these defendants were at the time of their crimes.  Miller v. United States, 567 U.S. 460, 469-80, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).  Accordingly, we grant both PRPs and order that Bartholomew and Monschke each receive a new sentencing hearing….

There is no meaningful cognitive difference between 17-year-olds and many 18-year-olds.  When it comes to Miller’s prohibition on mandatory LWOP sentences, there is no constitutional difference either.  Just as courts must exercise discretion before sentencing a 17-year-old to die in prison, so must they exercise the same discretion when sentencing an 18-, 19-, or 20-year-old.  We grant Monschke’s and Bartholomew’s PRPs and vacate their mandatory LWOP sentences.  We remand each case for a new sentencing hearing at which the trial court must consider whether each defendant was subject to the mitigating qualities of youth.

The dissent authored by Justice Owens begins this way:

Kurtis Monschke and Dwayne Bartholomew committed brutal murders decades ago.  At the time, they were 19 and 20 years old, respectively.  They were not children. Under Washington law, when an individual turns 18 years old, they are empowered to make a range of life-altering decisions: suddenly, they can form contracts, drop out of school, get married, work a hazardous job, and serve in the military.  But at this same moment, they also obtain the full responsibilities and consequences of adulthood, and the court will no longer intervene on their behalf on the basis of age.  Nonetheless, the lead opinion holds today that we must create an exception in treating these individuals as adults when they commit aggravated murder between the ages of 18 and 20.  Mandatory life without parole (LWOP) sentences are now prohibited for this age category.  The lead opinion crafts this new rule by filtering our state constitution’s “cruel punishment” prohibition through a handful of scientific studies and circumvents the reality that no legislatures or courts in the other 49 states have ever recognized such a protection.  WASH. CONST. art. I, § 14.  As the final arbiters of what “cruel” means under article I, section 14 of our state constitution, this court must use a disciplined and evenhanded approach in evaluating its meaning. If we do not, we risk transforming our protection against “cruelty” into whatever is supported by a smattering of studies and five concurring members of this court.

At the heart of this case is the important question of when a person should be held fully accountable as an adult.  This is a question that requires a meticulous examination of a number of scientific, moral, ethical, and practical considerations. Our court is not a legislature, and it is insufficiently equipped to decide this issue on selectively presented evidence put forth by limited parties on a constrained schedule.  The lead opinion broadly seeks to protect against the “unacceptable risk that youthful defendants without fully developed brains will receive a cruel LWOP sentence.”  Lead opinion at 29. But I struggle to identify at what precise age we will stop redrawing these lines based on this brain development evidence, be it 20, 22, 25, or even older.  I further caution that today’s decision may eventually compel us to revisit and invalidate a staggering number of LWOP and Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, sentences for this growing group under our recent decisions in State v. Bassett and State v. Houston-Sconiers.  This task would tremendously burden the State’s resources and the victims’ families. I respectfully dissent.