Michael E. HARRIS, Petitioner-Appellant, v. Robert WRIGHT, Superintendent, Clallam Bay Correction Center, Respondent-Appellee

dissenting:

I dissent.

On appeal Harris, in my view, makes a persuasive argument that Washington’s aggravated murder statute is unconstitutionally ambiguous because it does not evince the legislature’s clear intent to impose a mandatory sentence of life without the possibility of parole on juveniles under the age of 16. Harris argues that even though a Washington statute, R.C.W. 13.40.110, provides that some 15-year olds may be channeled into the adult criminal justice process, that statute alone does not constitute the Washington legislature’s affirmative endorsement of a mandatory sentence of life imprisonment without the possibility of parole for juvenile convicts under the age of 16.

In Thompson v. Oklahoma, 487 U.S. 815 , 826 n. 24, 850, 108 S.Ct. 2687 , 2694 n. 24, 2707, 101 L.Ed.2d 702 (1988), the Supreme Court rejected the state’s argument that when a juvenile is deemed fit to stand trial as an adult, he is also subject to all adult penalties. The Court stated that when a legislature allows juveniles to be processed through the adult criminal justice system “it does not necessarily follow that the legislature ... deliberately concluded that it would be appropriate to…

93 F.3d 581 96 Cal. Daily Op. Serv. 6150 , 96 Daily Journal D.A.R. 10,051 Michael E. HARRIS, Petitioner-Appellant, v. Robert WRIGHT, Superintendent, Clallam Bay Correction Center, Respondent-Appellee. No. 94-35365. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 6, 1995. Decided Aug. 19, 1996. Cynthia M. Boersma, William I. Lee, Tacoma, Washington, for petitioner-appellant. Christine O. Gregoire, Attorney General, Paul D. Weisser, Assistant Attorney General, Olympia, Washington, for respondent-appellee. Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, District Judge, Presiding. D.C. No. CV-93-05256-RJB. Before: PREGERSON, KOZINSKI and LEAVY, Circuit Judges. KOZINSKI, Circuit Judge. 1 The principal question presented is whether a fifteen-year-old murderer may be sentenced to mandatory life imprisonment without possibility of parole. 2 * One afternoon in 1987, Michael Harris, age 15, and Barry Massey, age 13, went to Paul Wang's store to rob it. ER at 8, 10, 13 (Washington Superior Court Memorandum Decision). Along the way, the two discussed how to use the pistol Harris had brought along. Massey proposed…

The principal question presented is whether a fifteen-year-old murderer may be sentenced to mandatory life imprisonment without possibility of parole.

I

One afternoon in 1987, Michael Harris, age 15, and Barry Massey, age 13, went to Paul Wang’s store to rob it. ER at 8, 10, 13 (Washington Superior Court Memorandum Decision). Along the way, the two discussed how to use the pistol Harris had brought along. Massey proposed that Harris simply walk in and shoot Wang; instead, Harris gave Massey the gun. Id. at 14. Shortly thereafter, Massey and Harris entered the store and Massey shot and stabbed Wang to death. Id. at 13-15. The two then cleaned out the cash register, took assorted merchandise and left. Id. at 14-15. Harris was arrested later that day. After he was advised of his rights, and without asking to see a lawyer or anyone else, he confessed. Id. at 12-17.

The Washington Juvenile Court declined jurisdiction, id. at 1-6, and Harris was convicted of aggravated first degree murder, id. at 27. The state didn’t seek death and Harris received the only other sentence Washington law allows for his crime: life imprisonment without possibility of parole. Id. at 34; see Wash.…