¶1(dissenting) — I dissent. In this case the majority holds that drug addiction can never as a matter of law be a factor supporting a deviation from the standard sentence range. In its zeal to give effect to the language of RCW 9.94A.390(1)(e), this court seriously undermines one of the basic functions the Sentencing Reform Act of 1981 (SRA) was designed to achieve, the structuring, rather than the ehmination, of trial court discretion.
¶2There is an unfortunate logic to the majority's holding in this case. In retrospect, it is apparent that it culminates a process by which we have progressively divested the trial court of sentencing discretion in cases involving substance addiction. I do not believe the SRA, nor our case law construing it, supports that result.
¶3RCW 9.94A.390 provides:
If the sentencing court finds that an exceptional sentence outside the standard range should be imposed in accordance with RCW 9.94A. 120(2), the sentence is subject to review only as provided for in RCW 9.94A.210(4).
The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence. The following are illustrative only and are not intended to be exclusive reasons for exceptional sentences.
(1) Mitigating Circumstances
(c) The defendant committed the crime under duress, coercion, threat, or a compulsion insufficient to constitute a complete defense but which significantly affected his or her conduct.
(e) The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of *519the law, was significantly impaired (voluntary use of drugs or alcohol is excluded).
¶4(Italics mine.)
¶5It is one thing to hold that drug addiction does not qualify as a mitigating factor under subsection (l)(e) of the statute, clearly a result the Legislature intended. It is another thing entirely to rob the trial court of discretion to consider the defendant's actions within the context of his or her particular circumstances. Nothing in the statutory design, in subsection (l)(e), or in our case law prohibits the trial court from fashioning the defendant's sentence in view of the circumstances the trial court deems relevant to this particular defendant.
¶6The cases on which the majority relies do not hold that drug and alcohol addiction can never, under any set of circumstances, inform the trial court's judgment in fashioning the defendant’s sentence. Rather, they hold that substance abuse in and of itself does not entitle the defendant to a lesser sentence under RCW 9.94A.390. See State v. Pennington, 112 Wn.2d 606, 611, 772 P.2d 1009 (1989) ("a drug or alcohol problem in and of itself is not a substantial or compelling reason justifying imposition of an exceptional sentence" under RCW 9.94A.120) (italics mine); State v. Estrella, 115 Wn.2d 350, 359, 798 P.2d 289 (1990) (an exceptional sentence is proper only where the circumstances of the crime distinguish it from others in the same statutory category) (citing and elaborating Pennington, 112 Wn.2d at 610-11). See also State v. Allert, 117 Wn.2d 156, 815 P.2d 752 (1991) and State v. Hutsell, 120 Wn.2d 913, 845 P.2d 1325 (1993) (alcoholism and drug addiction are not alone sufficient to qualify as a substantial and compelling circumstance supporting an exceptional sentence under RCW 9.94A.390(1)(e)).
¶7In this case, Gaines' addiction to drugs, alone, would be insufficient as a matter of law to entitle him to a lesser sentence. However, his addiction is something the court should be permitted to consider in evaluating both the circumstances under which he came to commit the offense and his culpability.