1
STATE OF MINNESOTA
IN SUPREME COURT
A21-0453

Hennepin County Anderson, J.
Concurring in part, dissenting in part,
State of Minnesota, Chutich, Thissen, JJ.

Respondent,

vs. Filed: July 13, 2022
Office of Appellate Courts
Omar Nur Hassan,

Appellant.
________________________
Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

Andrew C. Wilson, Charles S. Clas, Jr., Wilson & Clas, Minneapolis, Minnesota, for
appellant.
________________________

S Y L L A B U S
1. The State presented sufficient circumstantial evidence to sustain appellant’s
conviction for first-degree premeditated murder.
2. A mandatory sentence of life without the possibility of release is not
unconstitutionally cruel under Article I, Section 5 , of the Minnesota Constitution when
imposed on a 21-year-old defendant who has been convicted of first -degree premeditated
murder.
Affirmed.
July 13, 2022
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O P I N I O N
ANDERSON, Justice.
Following a jury trial, 21 -year-old appellant Omar Nur Hassan was convicted of
first-degree premeditated murder. The district court imposed a mandatory sentence of life
without the possibility of release. On appeal, Hassan makes two arguments. First, he
argues that the State presented insufficient evidence to support his conviction. Second, he
argues that a mandatory sentence of life without the possibility of release imposed on a
21-year-old defendant is unconstitutionally cruel under Article I, Section 5, of the
Minnesota Constitution. Because the State presented sufficient evidence and the sentence
imposed on Hassan is not unconstitutionally cruel, we affirm.
FACTS
On March 1, 2019, Abdilahi Ibrahim and another person fired over 20 bullets into a
Toyota Camry parked behind a Minneapolis restaurant , killing one of the four occupants,
paralyzing another, and hospitalizing a third. The State alleged that Hassan was the second
shooter. A grand jury indicted Hassan with several offenses , including first -degree
premeditated murder under Minn. Stat. § 609.185(a)(1) (2020).1 Authorities tried Hassan
and Ibrahim together. On the first day of trial, Ibrahim pleaded guilty to second -degree
murder with intent —not premeditated , as a crime committed for the benefit of a gang .2

1 A person commits first -degree premeditated murder when the person “causes the
death of a human being with premeditation and with intent to effect the death of the person
or of another.” Minn. Stat. § 609.185(a)(1).

2 A person commits second -degree intentional murder when the person “causes the
death of a human being with intent to effect the death of that person or another, but without
3
Hassan pleaded not guilty to first-degree premeditated murder, demanded a jury trial, and
proceeded alone.
During the jury trial, Lieutenant Mol ly Fischer testified that, on the night of the
murder, she drove to Hennepin County Medical Center where one of the surviving victims
of the shooting was receiving medical attention. Arriving at approximately 1 a.m., Fischer
spoke with members of the gang investigation team. Fischer was informed by the team
that, earlier that same evening, a suspected gang member had been shot at a Minneapolis
mall and transported to the same hospital as the restaurant shooting victim. The team
suspected that the restaurant shooting might be retaliation for the mall shooting earlier that
evening.
Fischer testified that, shortly after she arrived at the hospital, she learned that both
the restaurant and an adjacent café had video surveillance of the alley where the shooting
occurred. The same night as the shooting, Fischer arranged to download the surveillance
video from the restaurant and the adjacent café , and these videos clearly depicted the
shooting as it occurred, as well as the shooters.
Two days after the murder, Fischer returned to Hennepin County Medical Center to
interview the victim of the mall shooting. After interviewing the mall shooting victim,
Fischer suspected that the restaurant shooting could have been retaliation for the mall

premeditation.” Minn. Stat. § 609.19, subd. 1(1) (2020). When a person commits second-
degree intentional murder “for the benefit of, at the direction of, in association with, or
motivated by involvement with a criminal gang, with the intent to promote, further, or
assist in criminal conduct by gang members,” Minnesota law enhances the available
penalty. Minn. Stat. § 609.229, subds. 2–3 (2020).
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shooting earlier that same evening. Accordingly, a week after the murder, Fischer obtained
video evidence from Hennepin County Medical Center showing the events that transpired
after the victim of the mall shooting arrived at the hospital. During a 1-hour time period
around 10 p.m., several people entered the emergency room. Two hospital visitors and a
shooter depicted in the crime scene surveillance footage were dressed almost identically .
Contemporaneous body camera footage from an officer at Hennepin County Medical
Center included audio in which one of the se similarly dressed individuals gave his name
as Omar Nur Hassan and identified himself as the cousin of the mall shooting victim .
Fischer later labeled the other similarly dressed visitor, who was never identified , as
“individual number five” (Person No. 5).
Fischer testified that she began searching for Hassan, eventually identifying Hassan
as the man in the hospital video. Fischer concluded that the other similarly dressed man ,
Person No. 5, was not the second shooter because he had a “large Adidas symbol on the
left-hand side of his pants,” which she “believed that we would be able to see . . . to some
degree” in the shooting video had Person No. 5 been the second shooter. Because police
“were never able to see the Adidas symbol” in the shooting -scene video, she concluded
that Person No. 5 was not the second shooter.
After identifying Hassan, Fischer testified that she obtained a warrant for his cell
phone records. Hassan’s cell phone information revealed that Hassan’s phone account had
been deactivated 4 days after the restaurant shooting. Fischer later obtained a warrant for
Hassan’s social media accounts a nd consequently learned that he was in Kenya. Federal
authorities confirmed that Hassan had flown to Kenya 5 days after the murder and was still
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there. Following issuance of a criminal complaint against Hassan, Hassan was arrested in
Kenya and extradited to the United States.
Fischer also testified that because Hassan’s cousin (the victim of the mall shooting)
had been shot earlier the same evening in a suspected gang attack, Hassan had a motive to
commit the restaurant shootings, which targeted members of the gang believed to have shot
his cousin. Fischer walked the jury through video evidence of Hassan arriving at the
hospital after the shooting of his cousin. The footage shows Hassan arriving at the hospital
with others shortly after Hassan’s cousin was admitted. The video depicts many of those
who arrived at the hospital together consoling a distraught Hassan as they wait in the
emergency room foyer.
Fischer also explained the similarities between Hassan’s clothing and the
unidentified shooter’s clothing on the night of the murder , again walking the jury through
side-by-side images of Hassan at the hospital and the second shooter in the crime scene
video.
The State also called Ali Murray, a forensic video analyst for the City of
Minneapolis who spent over 100 hours analyzing footage from the hospital and crime
scene. Murray testified that the hospital footage images of Hassan were consistent with
the crime-scene footage of the second shooter . Although Murray conceded that specific
components of Hassan’s clothing from the hospital footage (a tufted pattern on Hassan’s
jacket, a small white Nike logo on Hassan’s pants, and a possible design on Hassan’s shoes)
did not appear in the crime scene footage, she testified that the resolution and lighting were
such that she would not expect these characteristics to be visible . Murray also noted,
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however, that the crime scene footage did not have sufficient resolution to “confirm or
eliminate” Hassan as the second shooter.
In addition to the details the State highlighted at trial, the unidentified shooter in the
crime scene footage resembles the hospital footage of Hassan in other respects.
Specifically, the posture of Hassan and the unidentified shooter do not match the posture
of Person No. 5. Moreover, the unidentified shooter in the crime scene footage appears to
fumble with his firearm before shooting it, compared with Ibrahim, a known gang member
who discharges his weapon without issue. And the unidentified shooter’s uncoordinated
handling of his gun is consistent with a person who lacks experience in gang-related crime,
such as Hassan.3
Witnesses for the State also suggested that Hassan might have acquired a gun while
at the hospital. Fischer directed the jury to a moment in the hospital footage when Hassan
left the hospital, entered a parked car for approximately 15 seconds, and then returned to
the hospital lobby. After leaving the car, Fischer testified, Hassan began to cradle the right
pocket of his jacket “with some frequency that [she] did not observe prior to . . . him getting
into that vehicle.” Fischer testified that, “[f]rom [her] experience of being a police officer
for 18 years, when people are carrying handguns where they don’t have holsters[,] . . . they
tend to keep checking that particular area where they have it . . . to make sure that it’s there
and secure.”

3 The jury acquitted Hassan of gang-related charges.
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The State also introduced testimony analyzing DNA evidence from the crime scene.
During the investigation, a bullet found at the scene produced a DNA profile that did not
match Hassan or Ibrahim , a fact the defense characterized as supporting Hassan’s
innocence. To explain this evidence, the State called Amber Folsum, a forensic scientist.
Folsum testified that she examined swabs of a fired bullet found in the back seat of the
Camry as well as the discharged cartridge casings found on the snow -packed parking lot.
She explained that, although the swab of the bullet found in the back seat of the Camry
produced “a single source male DNA profile that does not match Abdilahi Ibrahim or Omar
Hassan,” a bullet passing through a person —for example a shooting victim —would
produce a DNA profile that matches that person, rather than the shooter . Folsom also
testified that the swabs of the discharged cartridge casings contained insufficient DNA to
conduct any scientific testing but clarified that a lack of sufficient DNA is very common
when dealing with discharged cartridge casings. On cross-examination, Folsum conceded
that she did not personally know whether the bullet that was found in the back seat of the
Camry had passed through a person.
The State also introduced testimony regarding Hassan’s cell phone record s.
Specifically, Richard Fennern, a special agent with the FBI Cellular Analysis Survey Team,
testified that he and his colleagues were able to use cell towers to “determine where the
defendant’s phone . . . was during the time frame in question.” Fennern testified that at
11:52 p.m. (approximately 2 minutes before the murder) , Hassan’s cell phone pinged a
tower that served an area “that would include” the restaurant where the shooting occurred.
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Finally, the State introduced evidence of Hassan’s actions after the shooting . The
State’s witnesses testified that Hassan purchased a round-trip ticket to Kenya the day after
the shooting, cancelled his phone plan 4 days after the shooting, and flew to Africa 5 days
after the shooting. The Stat e’s witnesses also testified that, shortly before Hassan was
scheduled to return to the United States on March 31, 2019, he sent an Instagram message
saying that he intended to stay in Africa for another month. Hassan never voluntarily
returned from Kenya; the State observed that authorities apprehended Hassan in Kenya in
July, almost 4 months after his scheduled return. Additionally, the State introduced
evidence of an Instagram message from Hassan to Ibrahim on the day that he was originally
scheduled to return from Kenya, in which Hassan wrote that “N*GGAS BE THINKING
POLICE AIN’T WATCHING” and “they just be waiting, f*ck n*gga.”
In its closing argument, the State asserted that the evidence it introduced was
consistent with a hypothesis of Hassan’s guilt and inconsistent with any other verdict .
Finding Hassan not guilty, the State contended, would require finding that the numerous
pieces of inculpatory evidence it presented amounted to nothing more than unfor tunate
coincidence. Consequently, the State urged the jury to return a guilty verdict.
The defense countered by arguing that police were so focused on Hassan in the
investigation that they completely failed to probe the possibility that others, such as Person
No. 5, might be the second shooter. Specifically, the defense noted that the prosecution
interviewed only Hassan and Ibrahim out of the 17 people in the hospital footage and did
not contact the families of the restaurant shooting victims to investigate potential leads.
The defense also drew the jury’s attention to the State’s failure to request cell phone dat a
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for anyone other than Hassan and Ibrahim, as well as the State’s failure to request a cell
phone “dump” of all the phones that pinged near Hennepin County Medical Center and the
shooting site.
The defense also argued that the State’s cell phone evidenc e did not conclusively
establish that Hassan was the second shooter. The defense instead contended that Hassan’s
phone pinging near the restaurant at the time of the murder was an “unfortunate
coincidence” and pointed out that (1) cell phone pings show only general (not exact)
locations, and (2) State experts could not verify that Hassan was actually with his cell
phone.
The defense attempted to show that the State’s video evidence could support an
inference that the still -unidentified Person No. 5 was the second shooter. For instance,
during cross-examination, Fischer conceded that Person No. 5’s clothing was “very similar
to Omar Hassan’s.” Additionally, the defense noted that DNA samples from the crime
scene bullet casings were not consistent with either Hassan or Ibrahim. Finally, the defense
elicited a concession from the State’s clothing expert that a comparison of the shooting
footage and hospital footage did not contain “enough information” to “confirm” that
Hassan was the killer.
The jury found Hassan guilty of first-degree premeditated murder, under Minn. Stat.
§ 609.185(a)(1). The district court sentenced Hassan to a mandatory sentence of life
without parole.
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ANALYSIS
I.
Hassan argues that the State presented insufficient circumstantial evidence to
support his conviction. According to Hassan, the circumstances proved are consistent with
the rational hypothesis that Person No. 5 is the second shooter. We disagree.
In reviewing the sufficiency of evidence for a conviction , we painstakingly review
the record to determine whether that evidence , viewed in the light most favorable to the
verdict, was sufficient to permit the jurors to reach the verdict that they did. State v. Webb,
440 N.W.2d 426, 430 (Minn. 1989). Evaluating the sufficiency of circumstantial evidence
involves a two-step process. First, we identify the circumstances proved. State v. Hawes,
801 N.W.2d 659 , 668 (Minn. 2011). In so doing, “we winnow down the evidence
presented at trial” to a “subset of facts,” State v. Noor, 964 N.W.2d 424, 438 (Minn. 2021)
(citation omitted) (internal quotation marks omitted) , that are “consistent with the jury’s
verdict,” disregarding evidence that is inconsistent with the verdict , State v. Allwine ,
963 N.W.2d 178, 186 (Minn. 2021). As the sole judge of credibility, the jury “is free to
accept part and reject part” of the testimony of a particular witness. Coker v. Jesson ,
831 N.W.2d 483, 492 (Minn. 2013).
Next, we identify the rea sonable inferences that can be drawn from the
circumstances proved when viewed “as a whole and not as discrete and isolated facts.”
State v. Cox , 884 N.W.2d 400, 412 (Minn. 2016). Although we defer to the jury in
determining the circumstances proved, we give “no deference to the fact finder’s choice
between reasonable inferences.” State v. Andersen, 784 N.W.2d 320, 329–30 (Minn. 2010)
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(citation omitted) (internal quotation marks omitted). The State’s circumstantial evidence
is sufficient when the reasonable inferences are consistent with the hypothesis that the
accused is guilty and inconsistent with any rational hypothesis other than guilt. Cox,
884 N.W.2d at 411; see also State v. Hokanson , 821 N.W.2d 340, 35 4–55 (Minn. 2012)
(explaining that the State’s obligation is to exclude all reasonable inferences other than
guilt).
Here, the circumstances proved are as follows: (1) Hassan had a motive to kill
because his cousin had been shot earlier in the evening, 4 (2) Fisher testified (and the jury
presumably believed after reviewing the videos) that the Adidas logo on Person No. 5’s
leg was so large that it would have been visible in the crime scene video , (3) the Adidas
logo is not visible in the crime scene video , ( 4) Hassan and the shooter have similar
posture—a fact not mentioned by the parties or witnesses but nevertheless visible upon
reviewing relevant video evidence, (5) unlike Ibrahim who confidently fires his gun into
the Camry, the second shooter hesitates and then struggles to retrieve his gun—another fact
visible from the footage of the murder, (6) Ibrahim was a known gang member and Hassan
was not a gang member—a characteristic consistent with the second shooter’s clumsiness
in han dling the gun , ( 7) Hassan’s apparel is consistent with the apparel of the second
shooter, (8) Murray testified that based on the low resolution and lighting conditions, she
would not expect the tufted pattern of Hassan’s jacket, the small white Nike logo, or a
possible design feature on the shoes to be visible in the crime scene video , (9) Hassan’s

4 See State v. Silvernail, 831 N.W.2d 594, 600 (Minn. 2013) ( reasoning that motive
to kill is circumstantial evidence of guilt).
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behavior at the hospital suggested that he may have acquired a gun, (10) the unidentified
DNA profile from the scene does not prove that someone besides Hassan is the second
shooter (and exonerate Hassan) because the profile could belong to one of the shooting
victims, (11) Hassan’s cell phone communicated with the cell tower closest to the
restaurant at the time of the shooting , (12) Hassan cancelled his cell phone account and
flew to Kenya, which suggests that he did not intend to return to Minneapolis , (13) on the
day Hassan was scheduled to return from Kenya, he sent a message to Ibrahim expressing
a belief that the police were watching and waiting, and (14) Hassan never voluntarily
returned to the United States.
We must next determine whether the circumstances proved are consistent with guilt
and, “on the whole,” inconsistent with any reasonable hypothesis of innocence. Andersen,
784 N.W.2d at 332. To the extent that Hassan invokes evidentiary inconsistencies , even
inconsistencies in the testimony of one witness , we must resolve those inconsistencies in
favor of the jury’s verdict. Allwine, 963 N.W.2d at 186; Noor, 964 N.W.2d at 438.
Hassan argues that the circumstances proved are consistent with the rational
hypothesis that Person No. 5 is the second shooter, which exonerates Hassan. Because
Hassan’s argument fails to consider the circumstances proved as a whole, it is unavailing.
Viewed as a whole, the circumstances proved do not support a reasonable inference
inconsistent with guilt. To hold otherwise, we would need to conclude that the numerous
inculpatory circumstances proved by the State are simply a series of unfortunate
coincidences. Because such a conclusion is unreasonable, we conclude that the State
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presented sufficient evidence to support Hassan’s conviction for first-degree premeditated
murder.
II.
Hassan also argues that a mandatory sentence of life without the possibility of
release is unconstitutionally cruel under Article I, Section 5, of the Minnesota Constitution
when imposed on a 21 -year-old defendant who has been convicted of first -degree
premeditated murder.5 According to Hassan, such a sentence “is cruel given his youth.”
We disagree.
Article I, Section 5 , of the Minnesota Constitution provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel or unusual punishments
inflicted.” By contrast, the Eighth Amendment to the United States Constitution only
prohibits punishment that is “cruel and unusual.” (Emphasis added.) We have previously
held that the distinction between Article I, Section 5 , and the Eighth Amendment is “not
trivial.” State v. Mitchell , 577 N.W.2d 481, 488 (Minn. 1998) . Because the Minnesota
Constitution prohibits cruel punishments that are not unusual, it provides more protection
than the United States Constitution. Id. (citing Harmelin v. Michigan, 501 U.S. 957, 994–
95 (1991) (explaining that even though severe mandatory penalties may be cruel, they are
not unusual)).
Hassan fails to meet the heavy burden necessary to invalidate a legislatively
imposed punishment. The Legislature has dictated that “[t]he court shall sentence a person

5 Hassan concedes that his sentence is not unusual. In his brief, Hassan specifically
asserts that his sentence is “cruel, although not unusual.”
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to life imprisonment without possibility of release” under certain circumstances, including
when “the person is convicted of first-degree murder under section 609.185, paragraph (a),
clause (1),” Minn. Stat. § 609.106, subd. 2(1) (2020), as Hassan was here. Statutory
punishments are “presumed constitutional ,” and defendants challenging a punishment
under Article I, Section 5 , bear a “heavy burden” of showing that “our culture and laws
emphatically and well nigh universally reject” a challenged sentence. State v. Chambers,
589 N.W.2d 466, 479 (Minn. 1999) (citation omitted) (internal quotation marks omitted) .
The Legislature is the best arbiter of Minnesota’s “culture” because it is “constituted to
respond to the will and consequently the moral values of the people.” Id. at 480 (citation
omitted) (internal quotation marks omitted) . Here, rather than embracing judicial
discretion in sentencing, the Minnesota Legislature deliberately rejected a scheme of
indeterminate sentencing in favor of mandatory sentences. See Minn. Stat. § 244.09 (2020)
(governing the Minnesota Sentencing Guidelines Commission) ; see also Act of April 5,
1978, ch. 723, § 9, 1978 Minn. Laws 761, 765 –67 (promulgating the law creating the
Sentencing Guideline’s Commission).6

6 Until the advent of determinate sentencing, the length of a sentence “was left almost
entirely to the sentencing judge’s discretion, within the maximum terms established by the
legislature.” State v. Shattuck , 704 N.W.2d 131, 144 (Minn. 2005) (citation omitted)
(internal quotation marks omitted) . Relief was available only through the parole board,
which had broad authority to “parole or discharge a defendant sentenced to prison, without
regard to the length of the sentence.” Id. at 145. As part of the move toward determinate
sentencing, however, the Legislature eliminated the role of the parole board. Act of June 6,
1983, ch. 274, §§ 1–20, 1983 Minn. Laws 1171–80. Although legislators have repeatedly
introduced legislation that would reinstate the parole board, those efforts have not been
successful. See, e.g., 1 Journal of the House of Representatives 654 (84th Minn. Leg. Feb.
28, 2005) (detailing a bill to reinstate a “conditional release board”); 1 Journal of the House
of Representatives 867 ( 91st Minn. Leg. Mar. 7, 2019) (detailing a bill establishing an
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Moreover, Hassan fails to demonstrate that his punishment is disproportionate to his
offense and, consequently, fails to establish that his punishment is cruel . In determining
whether a punishment is cruel under Article I, Section 5 , of the Minnesota Constitution,
we “compare the gravity of the offense to the severity of the sentence.” 7 State v. Vang ,
847 N.W.2d 248, 263 (Minn. 2014) (citation omitted) (internal quotaton marks omitted) .
We have previously compared the gravity of the offense of first-degree felony murder to a
mandatory sentence of life with the possibility of release after 30 years. See Mitchell,
577 N.W.2d at 488–89. We concluded that such a punishment was not cruel under the
Minnesota Constitution, even though the defendant in Mitchell was 15 years old when he
committed the offense. Id. at 490. Sixteen years later, we reaffirmed that such a sentence
is not cruel under the Minnesota Constitution when imposed on a 14 -year-old defendant
who commits first -degree felony murder. See Vang, 847 N.W.2d at 262 –64. As part of
our analysis in Vang, we acknowledged that the United States Supreme Court’s decisions
in Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and
Miller v. Alabama, 567 U.S. 460 (2012), “afford juveniles greater constitutional protection
than adults in certain circumstances.” 847 N.W.2d at 263. But because these decisions did
not involve mandatory sentences of life with the possibility of release after 30 years , we

“indeterminate sentence release board ”). Moreover, even under the earlier discretionary
scheme, first -degree murder (the crime Hassan committed) still carried a mandatory
sentence beyond the discretion of a sentencing judge. Shattuck, 704 N.W.2d at 144–45.

7 Because Hassan concedes that his sentence is not unusual , we need not further
consider this issue.
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concluded that the defendant in Vang failed to present a compelling reason to overrule
Mitchell. Id.
We have also compared the gravity of two offenses of first-degree felony murder to
the discretionary imposition against a juvenile of two consecutive sentences of life with
the possibility of release after 30 years . See State v. Ali , 855 N.W.2d 235, 258 ( Minn.
2014). In Ali, the juvenile defendant argued that his consecutive sentences were the
practical equivalent of a sentence of life without the possibility of release. Id. at 257–58.
We concluded that the two consecutive sentences were not cruel under the Minnesota
Constitution because they were not disproportionate to the gravity of his offenses. Id. at
259.
We now compare the gravity of the offense of premeditated murder to a sentence of
life without the possibility of release imposed on a 21-year-old defendant. Unlike the
offense of first -degree felony murder, the offense of first -degree premedi tated murder
requires “some appreciable passage of time between a defendant’s formati on of the intent
to kill and the act of killing.” State v. McInnis, 962 N.W.2d 874, 890 (Minn. 2021) (citation
omitted) (internal quotation marks omitted) . This additional requirement makes the
offense of first-degree premeditated murder graver than the offenses discussed in Mitchell,
Vang, and Ali. In addition, the calculated way that Hassan committed this first-degree
premeditated murder—walking up behind a car full of unsuspecting individuals and firing
a barrage of bullets into the car—makes the offense more serious. Moreover, Hassan was
of legal age at the time of the offense, fully entitled to all the benefits and responsibilities
of other adults. That makes this case fundamentally different from Mitchell, Vang, and Ali,
17
which all concerned juvenile defendants. We therefore hold that a mandatory sentence of
life without the possibility of release is not unconstitutionally cruel under Article I, Section
5, of the Minnesota Constitution when imposed on a 21-year-old defendant who has been
convicted of first-degree premeditated murder.8
CONCLUSION
For the foregoing reasons, we affirm the decision of the district court.
Affirmed.

8 Hassan cites scientific literature on brain development to contend that , because his
brain is not fully developed, there is a risk that no penological rationale justifies a
mandatory sentence of life without the possibility of parole, and his punishment is therefore
unconstitutionally cruel. We consider the scientific literature, however, to be inconclusive.
See, e.g. , Larry Cunningham, A Question of Capacity: Towards a Comprehensive and
Consistent Vision of Children and Their Status Under Law , 10 U.C. Davis J.L. & Pol’y
275, 283 (2006) (citing numerous studies that suggest that by age 15, a child “has amassed
an adult-like cognitive ability”); Brief for American Psychological Association as Amicus
Curiae at 19–20, Hodgson v. Minnesota, 497 U.S. 417 (1990) (No. 88-805) (“[B]y middle
adolescence (age 14–15) young people develop abilities similar to adults in reasoning about
moral dilemmas, understanding social rules and la ws, [and] reasoning about interpersonal
relationships and interpersonal problems.”). “Legislatures also are better qualified to
weigh and evaluate the results of statistical studies.” McCleskey v. Kemp , 481 U.S. 279,
319 (1987) (citation omitted) (internal quotation marks omitted). We consequently decline
to invalidate a law based on conflicting science and leave it to the Legislature to assess the
evidence and enact policy accordingly.
C/D-1
C O N C U R R E N C E & D I S S E N T
CHUTICH, Justice (concurring in part, dissenting in part).
I agree with the court that the State presented sufficient evidence to sustain the jury’s
verdict. I write separately because I respectfully disagree with t he court’s analysis of a
critical issue of first impression —whether, as applied to a 21 -year-old offender, a
mandatory sentence of life without the possibility of release is unconstitutionally cruel
punishment under Article I, Section 5, of the Minnesota C onstitution. A sentence
unsupported by penological justification is by its nature disproportionate and,
consequently, unconstitutionally cruel under Article I, Section 5, of our Minnesota
Constitution. In my view, given recent and compelling advances in brain science, it is not
hard to imagine a situation in which sentencing a 21 -year-old offender to life in prison
without the possibility of release would be without any p enological justification because
the brain of the offender was not fully developed when the offense occurred. Accordingly,
using our inherent judicial power, I would adopt a procedural rule requiring a district court
to hold an individualized sentencing hearing to determine whether, based on relevant brain
science, the brain of the youthful offender was fully developed when the offense occurred
before the court may impose a sentence of life in prison without hope of release.
To be clear, this proposed pr ocedural rule does not prevent a 21 -year-old like
appellant Omar Nur Hassan from receiving such a sentence after a hearing occurs and the
district court makes the necessary determination. And, if after a hearing, a district court
concludes that a sentence of life without the possibility of release lacks any penological
justification based upon the youthful offender’s brain development, safeguards exist to
C/D-2
ensure that the offender is not automatically released after 30 years of imprisonment when
public safety would then be endangered. Because the court declines to exercise its inherent
judicial power to require individualized hearings for youthful offenders before a mandatory
sentence of life without release may be imposed, I respectfully dissent.
A.
At the outset, I emphasize that my analysis is based on the distinct language of the
Minnesota Constitution and the convincing new developments in neuroscience. I do not
contend here that the Eighth Amendment protections articulated in Miller v. Alabama ,
567 U.S. 460 (2012), and Montgomery v. Louisiana , 577 U.S. 190 (2016), should be
extended to offenders who are age 18 or older. Nor am I making an ethical, moral, or
public-policy argument that 21 -year-old offenders should never be sentenced to life
without the possibility of release. Our court determined in Nelson v. State that such an
expansion of Eighth Amendment precedent is unwarranted without further guidance from
the United States Supreme Court and that the Legislature is in the best position to decide
whether 21 -year-old offenders should never be sentenced to life in prison without the
possibility of release. 947 N.W.2d 31, 38, 39 n.9 (Minn. 2020). My analysis focuses
instead on an issue that was not addressed in Nelson—whether we should exercise our
inherent judicial power to adopt a procedural rule that limits the risk of unconstitutionally
cruel sentences under our Minnesota Constitution.
On appeal, Hassan argues that the “automatic imposition” of a life sentence without
the possibility of release on youthful offenders is cruel under Article I, Section 5, of the
C/D-3
Minnesota Constitution. 1 He asks us to remand his case to the district court for an
individualized sentencing hearing. The State asks us to affirm, asserting that Hassan’s
sentence of life imprisonment without the possibility of release is not disproportionate to
the gravity of his offense.
Article I, Section 5, of the Minnesota Constitution establishes that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel or unusual punishments
inflicted.” ( Emphasis added .) This language differs from the language of the Eighth
Amendment to the United States Constitution that prohibits “cruel and unusual”
punishment. (Emphasis added.) We have explicitly held that the difference between the
Eighth Amendment and Article I, Section 5, is “not trivial.” State v. Mitchell, 577 N.W.2d
481, 488 (Minn. 1998). Specifically, the Minnesota Constitution “provides more
protection than the U.S. Constitution” because it prohibits punishments that are merely
cruel, even if not unusual. State v. McDaniel, 777 N.W.2d 739, 753 (Minn. 2010).
In determining whether a punishment is cruel under Article I, Section 5, we compare
the gravity of the offense to the severity of the sentence. 2 State v. Ali , 855 N.W.2d 235,

1 Hassan concedes that his sentence is not unusual.

2 In determining whether a particular sentence is cruel or unusual under the Minnesota
Constitution, we separately examine whether the sentence is cruel and whether it is
unusual. State v. Vang , 847 N.W.2d 248, 263 (Minn. 2014). Unlike the analysis for
determining whether a sentence is cruel, the analysis for determining whether a sentence is
unusual considers whether a consensus exists among the states that the sentence offends
evolving standards of decency. Id. In State v. Chambers, we discussed the analyses that
are applied when an offender claims that a sentence is cruel or unusual, explaining that we
focus on (1) the proportionality of the crime to the punishment, and (2) whether the
punishment comports with t he evolving standards of decency that mark the progress of a
maturing society. 589 N.W.2d 466, 480 (Minn. 1999). But because we used the general
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259 (Minn. 2014). Put differently, we focus “on the proportionality of the crime to the
punishment.” Mitchell, 577 N.W.2d at 489; see also State v. Chambers, 589 N.W.2d 466,
480 (Minn. 1999) (same); State v. Anderson, 159 N.W.2d 892, 894 (Minn. 1968) (same).
Although we have not previously considered whether a punishment lacking any
penological justification is by its nature disproportionate under Article I, Section 5, other
state and federal courts have held that a punishment lacking any penological justification
is by its nature disproportionate. 3 For example, in State v. Santiago , the Connect icut
Supreme Court held that its state constitution did not permit the imposition of a sanction
“so totally without penological justification that it results in the gratuitous infliction of
suffering.” 122 A.3d 1, 56 (Conn. 2015) (quoting Gregg v. Georgia , 428 U.S. 153, 183
(1976)). And in Coker v. Georgia , the United States Supreme Court explained that a
punishment is “excessive” when it “makes no measurable contribution to acceptable goals
of punishment” or “is grossly out of proportion to the severity of the crime.” 433 U.S. 584,
592 (1977).
The legal principle articulated in Santiago and Coker is sound. Consequently, I
conclude th at a punishment lacking any penological justification is by its nature
disproportionate, and therefore cruel under Article I, Section 5.

phrase “cruel or unusual” when discussing each analysis in Chambers, our imprecise
language created a risk that someone might mix the two distinct analyses. See id. at 479–
81. We have since clarified that we separately examine whether a sentence is cruel and
that the determination of whether a sentence is cruel focuses on the proportionality of the
crime to the punishment. Vang, 847 N.W.2d at 263; Ali, 855 N.W.2d at 259.

3 Recognized penological justifications include “retribution, deterrence,
incapacitation, and rehabilitation.” Graham v. Florida, 560 U.S. 48, 71 (2010).
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B.
Here, Hassan admittedly committed the most severe of crimes —the unjustified
taking of another person’s life. At fir st glance, imposing Minnesota’s harshest possible
sentence, life in prison with no hope of release , for the most severe crime in Minnesota
seems appropriate. And that punishment will be constitutional in many, if not most, cases.
But when the harshest possible sentence is automatically imposed, brain science suggests
that we run the risk that in one or more cases, such a sentence will not be supported by any
underlying penological justification, and therefore by its nature, the sentence will be
unconstitutionally cruel under Article I, Section 5. This conclusion is based on current
brain science, the legitimate penological goals of sentencing, and the implications of recent
advances in brain science on these penological goals when a 21 -year-old offender i s
sentenced to life in prison with no possibility of release.
First, brain scientists have discovered that “the brain undergoes a ‘rewiring’ process
that is not complete until approximately 25 years of age.”4 Mariam Arain et al., Maturation

4 Other scientific studies have reached similar conclusions. See M. Eve Hanan ,
Incapacitating Errors: Sentencing and the Science of Change , 97 Denv. L. Rev. 151, 175
(2019) (contending that the brain continues maturing into the twenties); Elizabeth S. Scott
et al., Young Adulthood as a Transitional Legal Category: Science, Social Change, and
Justice Policy, 85 Fordham L. Rev. 641, 642 (2016) (“[D]evelopmental psychologists and
neuroscientists have found that biological and psychological development continues into
the early twenties, well beyond the age of majority.”); Alexandra O. Cohen et al., When
Does a Juvenile Become an Adult? Implications for Law and Policy , 88 Temp. L. Rev.
769, 783 (2016) (“[N]oninvasive brain imaging and postmortem studies have shown
continued regional development of the prefrontal cortex, implicated in judgment and self -
control beyond the teen years and into the twenties.”); Kathryn Monahan et al., Juvenile
Justice Policy and Practice: A Developmental Perspective , 44 Crime & Just. 57 7, 582
(2015) (identifying components of brain development that continue into the twenties);
Laurence Steinberg, A Dual Systems Model of Adolescent Risk-Taking, 52 Developmental
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of the Adolescent Brain, 9 Neuropsychiatric Disease & Treatment 449, 451 (2013). “The
rewiring is accomplished by dendritic pruning and myelination.” Id. at 452. “Dendritic
pruning eradicates unused synapses and is generally considered a beneficial process,
whereas myelination increases the speed of impulse conduction across the brain’s
region-specific neurocircuitry.” Id. This rewiring is a critical component of brain
“plasticity” during adolescence, which notably is defined as ages 10 to 24. Id. at 450–51.
“The term ‘plasticity’ refers to the possible significant neuronal changes that occur
in the acquisition of new skills.” Id. at 451. Although plasticity “increases an individual’s
vulnerability toward making improper decisions because the brain’s region -specific
neurocircuitry remains under construction, thus making it difficult to think critically and
rationally before making complex decisions,” it also permits a person “to learn and adapt.”
Id. When scientists say that “brain development is not complete until near the age of 25,”
they are referring “specifically to the development of the prefrontal cortex,” which “is
responsible for cognitive analysis, abstract thought, and moderation of correct behavior in
social situations.”5 Id. at 453.

Psychobiology 216, 219 –20 (2010) (noting elevated levels of impulsivity into a person’s
late twenties); Jensen Arnett, Emerging Adulthood: A Theory of Development from the Late
Teens Through the Twenties, 55 Am. Psych. 469, 471 (2000) (characterizing people from
age 18 up to age 25 as “emerging adults” based on underdevelopment); Jay N. Giedd et al.,
Brain Development During Childhood and Adolescence: A Longitudinal MRI Study ,
2 Nature Neuroscience 861, 861–63 (1999) (identifying components of brain development
that continue into a person’s twenties).

5 Other sources confirm the conclusion that brain development typically continues
until a person’s twenties. See Mary Beckman, Neuroscience: Crime, Culpability, and the
Adolescent Brain, 305 Science 596, 596 (2004) (asserting that the brain grows in volume
and becomes more organized into a person’s early twenties); Elizabeth R. Sowell et al.,
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In a recent study, scientists determined that negative emotional arousal diminishes
the cognitive control of “individuals ages 18 to 21 more than older individuals.” Alexandra
O. Cohen et al., When is an Adolescent an Adult? Assessing Cognitive Control in Emotional
and Nonemotional Contexts , 27 Psych. Sci. 549, 560 (2016). 6 On the other hand,
cross-disciplinary evidence supports “the idea that positive social, environmental, and
emotional stimuli and support can reshape brain circuits that are responsible f or
socio-emotional competencies that are implicated in morality and prosocial behavior, with
beneficial and enduring effects on social functioning.” Frederica Coppola, Valuing
Emotions in Punishment: An Argument for Social Rehabilitation with the Aid of Social and
Affective Neuroscience, 14 Neuroethics S251, S256 (2018). 7 In short, when the brain is

Mapping Continued Brain Growth and Gray Matter Density Reduction in Dorsal Frontal
Cortex: Inverse Relationships During Post Adolescent Brain Mat uration, 21 J.
Neuroscience 8819, 8826 (2001) (“[W]e have mapped the spatial distribution of late brain
growth and demonstrate that it does indeed continue in the frontal and posterior temporal
lobes during the postadolescent years.”); Elizabeth R. Sowell et al., In Vivo Evidence for
Post-Adolescent Brain Maturation in Frontal and Striatal Regions, 2 Nature Neuroscience
859, 860 (1999) (showing that the prefrontal cortex does not fully mature until the
twenties).

6 See also Scott et al., supra, at 642 (“Recently, researchers have found that
eighteen- to twenty-one-year-old adults are more like younger adolescents than older adults
in their impulsivity under conditions of emotional arousal.”).

7 See also Hanan, supra, at 174 (“[A]reas of neuroplasticity are relevant to sentencing
because they demonstrate the potential for significant personal change in response to
environment, presumably even among adults who have committed violent crimes.”);
Vincent Schiraldi et al., Community-Based Responses to Justice -Involved Young Adults ,
New Thinking Cmty . Corr. Bull., Sept. 2015, at 1, 2 (“Young adults are malleable, and
systematic changes that positively affect their lives can have long -lasting, perhaps
permanent impacts on them and, subsequently, on their communities.”).
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undergoing rewiring, young adults can react as impulsively as teenagers in highly charged
situations, but that active rewiring also allows positive personal and moral growth.
Second, criminal sentences are based on legitimate penological goals. “A sentence
can have a variety of justifications, such as incapacitation, deterrence, retribution, or
rehabilitation.” Ewing v. California, 538 U.S. 11, 25 (2003) (citing 1 Wayne R. LaFave &
Austin W. Scott, Jr., Substantive Criminal Law § 1.5 (1986)). We acknowledged the
justifications of rehabilitation, deterrence, and retribution as part of our analysis in State v.
Fearon, 166 N.W.2d 720, 725 (Minn. 1969) (interp reting a statute to avoid criminalizing
the disease of alcoholism). The justifications of incapacitation, rehabilitation, and
deterrence have also been recognized by the Minnesota Legislature. See Minn. Stat.
§ 609.01 (2020) (explaining that the purpose of the criminal code is “to protect the public
safety and welfare by preventing the commission of crime through the deterring effect of
the sentences authorized, the rehabilitation of those convicted, and their confinement when
the public safety and interest requires”).
The incapacitation justification reflects the principle that “society may protect itself
from persons deemed dangerous because of past criminal conduct by isolating [them] from
society.” 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 1.5
(1986). The rehabilitation justification “rests upon the belief that human behavior is the
product of antecedent causes, that these causes can be identified, and that on this basis
therapeutic measures can be employed to effect changes in the behavior of the person
treated.” Id. Under the deterrence justification, “punishment aims to deter the
criminal . . . from committing further crimes, by giving [the criminal] an unpleasant
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experience [they] will not want to endure again.” Id. Historically, the retribution
justification reflected a desire for “revenge.” Id. But now it reflects the rubric of “just
deserts,” meaning offenders are “subjected to certain deprivations because [they] deserve
it.” Id.
To determine whether automaticall y imposing a sentence of life without the
possibility of release runs too great a risk of being disproportionate for a youthful offender,
we must consider the implications of current advances in brain science on the legitimate
penological goals of sentenci ng. The scientific studies documenting the heightened
plasticity of a 21-year-old’s brain—which allows beneficial and enduring effects on social
and moral functioning in response to positive social, environmental, and emotional
stimuli—affect all of the penological justifications.
For example, concerning incapacitation and rehabilitation, the scientific studies
support a reasonable inference that the brains of some of the 21-year-old offenders serving
sentences of life in prison without release will develo p beneficial and enduring social and
moral functioning that make the offenders no longer a danger to society. Imprisoning such
an offender until death is not warranted under the penological justification of incapacitation
because isolation is no longer re quired to protect society from the offender after the
necessary positive behavioral changes have occurred. And once those positive changes
have taken place, the important societal goal of rehabilitation has been satisfied.
Similarly, the scientific studie s documenting a 21 -year-old’s underdeveloped
prefrontal cortex, which controls cognitive analysis, abstract thought, and moderation of
correct behavior in social situations, undercut the penological justifications of deterrence
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and retribution. The scient ific studies support a reasonable inference that the
underdeveloped prefrontal cortex of some of the 21 -year-old offenders affected their
cognitive analysis, abstract thought, and moderation of correct behavior in social situations.
Imprisoning such an of fender until death is not warranted under the penological
justifications of deterrence and retribution; an offender with an underdeveloped prefrontal
cortex is (1) less likely to even consider possible punishment, no matter how harsh, when
making decisions, and (2) is less culpable for their ultimate actions. In sum, convincing
evidence from the science of brain development shows that for some 21-year-old offenders,
sentencing them to die in prison lack s any penological justification and therefore is
unconstitutionally cruel under Article I, Section 5, of the Minnesota Constitution.
C.
Here, we do not know whether Hassan’s sentence lacks any penological justification
because the sentence was imposed “automatically” without any consideration of his brain
development. Without an individualized sentencing hearing, a risk exists that Hassan ’s
sentence of life without the possibility of release lacks any penological justification. I
would respond to this risk by adopting the following procedural rule: Before a district court
may impose a sentence of life in prison without the hope of release on a youthful offender,
it must hold an individualized sentencing hearing to determine whether, based on relevant
brain science, the brain of the youthful offender was fully developed when the offense
occurred.
Our court has the inherent judicial power to adopt a procedural rule that limits the
risk of unconstitutionally cruel sentences: “The authority to regulate the procedures
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governing judicial proceedings is an inherent judicial power.” 8 In re Welfare of Child of
B.J.-M. & H.W. , 744 N.W.2d 669, 673 ( Minn. 2008). This inherent judicial power has
been used in a variety of contexts, including sentencing.9 In State v. Chauvin, 723 N.W.2d
20, 25 –27 (Minn. 2006), we held that to ensure that the offender’s sentence was not
unconstitutional under Blakely v. Washington, 542 U.S. 296, 303 (2004), the district court
had the inherent judicial power to impanel a sentencing jury. Because limiting the risk of
unconstitutionally cruel sentences is equally important, we have the inherent judicial power
to adopt a p rocedural rule requiring a district court to hold an individualized sentencing
hearing to determine whether, based on relevant brain science, the brain of the youthful
offender was fully developed at the time of the offense before the court may impose a
sentence of a lifetime in prison without the possibility of release.
To be clear, I am not suggesting that a district court has the power to ignore a
mandatory sentence simply because the court disagrees with the sentencing statute. As we

8 The Minnesota Legislature expressly acknowledged this power in Minn esota
Statutes section 480.059, subdivision 1 (2020), which provides: “The supreme court shall
have the power to regulate the pleadings, practice, procedure, and the forms thereof in
criminal actions in all courts of this state, by rules promulgated by it from time to time.”
Although “[s]uch rules shall not abridge, enlarge, or modify the substantive rights of any
person,” id., the proposed procedural rule does not create a substantive right, see Schriro
v. Summerlin , 542 U.S. 348, 353 (2004) (distinguishing between substantive and
procedural rules and holding that rules that regulate only the manner of determining the
defendant’s culpability are procedural and typically do not apply retroactively).

9 In other contexts, we have used our inherent judicial power over the administration
of justice “to ensure the fairness of judicial proceedings.” Fagin v. State, 933 N.W.2d 774,
780 (Minn. 2019). In Fagin, we adopted “a heightened pleading requirement for
Birchfield/Johnson postconviction proceedings” to ensure the fairness of judicial
proceedings. Id. And in State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994), we adopted
a recording rule for custodial interrogations to ensure the fairness of judicial proceedings.
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made clear in Mitchell, district courts generally do not have the authority to depart from a
mandatory sentencing statute. 577 N.W.2d at 493. But equally clear is the principle that
the Legislature cannot authorize, much less mandate, an unconstitutional sentence.10 State
v. Shattuck, 704 N.W.2d 131, 142 (Minn. 2005) (striking down a statute that mandated a
30-year minimum sentence that was unconstitutional under Blakely); see also Harmelin v.
Michigan, 501 U.S. 957, 994–95 (1991) (acknowledging that “severe, mandatory penalties
may be cruel,” even if “they are not unusual”).
The proposed procedural rule simply requires a district court to hold an
individualized sentencing hearing to determine whether, based on relevant brain science,
the brain of the youthful offender wa s fully developed at the time of the offense. If not, a
sentence of life without the possibility of release would be without any penological
justification. Because a sentence without any penological justification is by its nature
disproportionate, imposi tion of such a sentence would be unconstitutionally cruel under
Article I, Section 5. In those circumstances, the district court should impose a sentence of
life with the possibility of release after 30 years because we have previously held that such
a sentence is not unconstitutionally cruel under Article I, Section 5. See, e.g., State v. Vang,

10 In other contexts, we have not hesitated to invalidate laws that contravene the
Minnesota Constitution. See, e.g. , Leiendecker v. Asian Women United of Minn. ,
895 N.W.2d 623, 628 (Minn. 2017) (Minn. Stat. § 554.02 (2016)); State v. Garcia ,
683 N.W.2d 294, 296 (Minn. 2004) (Minn. Stat. § 260B.130, subd. 5 (2002)); Friedman v.
Comm’r of Pub. Safety , 473 N.W.2d 828, 829 (Minn. 1991) (Minn. Stat. § 169.123,
subd. 2(b)(4) (1990)); State v. Russell , 477 N.W.2d 886, 887 (Minn. 1991) (Minn. Stat.
§ 152.023 (1990)); State v. Hershberger, 462 N.W.2d 393, 395 (Minn. 1990) (Minn. Stat.
§ 169.522 (1990)); Thompson v. Est. of Petroff, 319 N.W.2d 400, 401 (Minn. 1982) (Minn.
Stat. § 573.01 (1980)).
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847 N.W.2d 248, 263 (Minn. 2014); Mitchell, 577 N.W.2d at 490. On the other hand, if
the district court determines that, based on relevant brain science, the brain of the youthful
offender was fully developed at the time of the offense, such a sentence would have a
penological justification, in which case the court must impose the statutorily mandated
sentence of life without the possibility of release.
Here, Hassan had only recently turned 21 when he committed this murder. Given
his young age, he squarely falls within the age range that scientific studies have identified
as a period in which the brain has a high level of plasticity, especially in the prefrontal
cortex.11 Consequently, under the proposed procedural rule, a remand is required to allow
the district court to conduct an individualized sentencing hearing to determine whether a
sentence of life without the hope of release is without any penological jus tification, given
the status of Hassan’s brain.
I note that even if an offender like Hassan is sentenced to life with the possibility of
release, he would not necessarily experience life outside of prison walls again. Release is
not automatic because “pu blic safety and the interests of the victims’ families will be
carefully considered before any eventual release could be approved.” State v. Ali ,
895 N.W.2d 237, 253 ( Minn. 2017) (Chutich, J., dissenting); see also Jackson v. State ,
883 N.W.2d 272, 281 n. 8 (Minn. 2016) (detailing statutory steps that must occur before
supervised release of an offender is authorized).

11 Current brain studies show that the brain is fully mature by age 25. Consistent with
that science, it is reasonable to limit the procedural rule that I propose to offenders who are
younger than 25 years old. But here, I do not need to define the upper limit of the rule
because Hassan is clearly in the range of those who may still have developing brains.
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* * *
In sum, a sentence of life without the possibility of release that serves no penological
purpose is by its nature disproportionate and therefore unconstitutionally cruel under
Article I, Section 5, of the Minnesota Constitution. Given recent and compelling advances
in brain science, we can anticipate a situation in which sentencing a 21 -year-old offender
to life without the possibility o f release would be without penological justification.
Although the severity of criminal sanctions is a legislative concern, we have the inherent
judicial power and duty to adopt a procedural rule that limits the risk of unconstitutionally
cruel sentences. In response to this risk, I would adopt a procedural rule that requires a
district court to hold an individualized sentencing hearing to determine whether, based on
relevant brain science, the brain of the youthful offender was fully developed at the tim e
of the offense before the court may sentence the offender to life in prison without the hope
of release.
Applying the proposed rule here, I would remand this case to the district court to
hold an individualized sentencing hearing to determine whether, ba sed on relevant brain
science, Hassan’s brain was fully developed when he committed the offense. Because I
disagree with the court’s response to the risk of unconstitutionally cruel sentences for
youthful offenders under our state constitution, I respectfully concur in part and dissent in
part.

THISSEN, Justice (concurring in part, dissenting in part).
I join in the concurrence and dissent of Justice Chutich.