                IN THE SUPREME COURT OF IOWA
                                  No. 15–0175

                            Filed June 16, 2017


STATE OF IOWA,

      Appellee,

vs.

CHRISTOPHER RYAN LEE ROBY,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County,

Stephen C. Clarke, Judge.



      Christopher   Ryan    Lee     Roby   challenges   the   district   court’s

imposition of a minimum term of incarceration without the possibility of

parole following a resentencing hearing in which the district court was to

consider certain mitigating factors attributable to his youth at the time of

the offense. DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT        SENTENCE    VACATED       AND      CASE    REMANDED         WITH

INSTRUCTIONS.



      John Audlehelm of Audlehelm Law Office, Des Moines, for

appellant.



      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant

Attorney General, for appellee.
                                     2

CADY, Chief Justice.

      In this appeal, we must decide if article I, section 17 of the Iowa

Constitution categorically prohibits any minimum term of incarceration

without the possibility of parole when imposed on an individual who was

a juvenile at the time of the offense. If it does not, we must also decide

whether the district court erred in resentencing Christopher Roby to a

minimum term of incarceration following a hearing in which the court

was to consider certain mitigating factors attributable to his youth at the

time of the offense. In December of 2004, a jury found Roby guilty of two

counts of sexual abuse for his conduct when he was sixteen and

seventeen years of age. The court initially sentenced him, as required by

statute, to twenty-five years with a mandatory minimum of seventeen

and one-half years for sexual abuse in the second degree and a

concurrent term of ten years for sexual abuse in the third degree.

Following our decision in State v. Lyle, 854 N.W.2d 378 (2014), in which

we held all statutorily imposed mandatory minimums constituted cruel

and unusual punishment under the Iowa Constitution, the district court

held a resentencing hearing to determine whether the minimum term of

incarceration should be imposed. It found it should and issued an order

detailing its reasoning. Roby appealed, arguing any minimum term of

incarceration without the possibility of parole is unconstitutional and, in

the alternative, that the district court failed to properly apply the factors

we identified in Lyle. The court of appeals disagreed with Roby on both

matters and affirmed the sentence.       We granted further review.      On

further review, we find the Iowa Constitution does not prohibit a district

court from sentencing a juvenile offender to a minimum term of

incarceration without the possibility of parole, but we remand for

resentencing.
                                   3

      I. Factual Background and Proceedings.

      Christopher Roby was convicted following a jury trial of the crimes

of sexual abuse in the second and third degrees on December 2, 2004.

He was sixteen and seventeen when he committed the crimes.           The

conviction resulted from Roby’s inappropriate sexual conduct with S.M.,

who was ages eleven through thirteen during the relevant times.

      A. The Offenses.     The first incident, for which Roby was not

prosecuted, but the jury did hear evidence on, was apparently in the

spring of 1998. Roby was staying at S.M.’s house. S.M.’s parents were

downstairs, while S.M. and her siblings, along with Roby, were upstairs.

This was not unusual.     Roby was S.M.’s brother’s best friend since

kindergarten and would often stay overnight.      He was considered a

member of the family and would even accompany them on vacations and

to church. S.M., then ten years old, fell asleep in her parents’ bedroom

while watching television. She awoke to Roby, then fifteen, forcing his

hand under her pants and underwear. She immediately left the room,

went downstairs, and told her parents what had occurred.           S.M.’s

parents were furious and confronted Roby, who left the house with S.M.’s

brother, and the two walked to a gas station before Roby went home to

his own parents.    S.M.’s parents did not contact the police or Roby’s

parents at that time.

      After about six to eight weeks, S.M.’s parents allowed Roby back

into the home. They insisted Roby not be left alone with S.M. Over time,

however, this precaution eased.     Years passed with Roby frequently

coming and going and staying over, just as he was before the initial

incident. In March of 2002, Roby, now eighteen, left for the Navy. In

September of 2002, he returned on leave.     That was when S.M., now

fourteen, confided in her brother’s girlfriend that Roby had been abusing
                                        4

her ever since being let back into the house.       S.M. stated the abuse

would occur nearly every time Roby had stayed over during the preceding

three years and that it occurred again with Roby back on leave. Either

Roby would touch S.M.’s genitals and breasts or he would force S.M. to

masturbate him. This contact with S.M. was always nonconsensual and

was severely impacting her mental health. S.M.’s parents learned of the

abuse, and S.M.’s mother confronted Roby.         Roby denied any contact

occurred. S.M.’s mother then went to the police.

      The police arrested Roby. There is some indication Roby initially

thought the police were investigating him for stealing a video game or

maybe      thought   admitting   that   crime   would   deflect   them   from

investigating the abuse. During an interrogation, Roby confessed to the

contact.    However, the court ultimately suppressed the interrogation

because Roby only confessed after the investigator implied he must

submit to a polygraph for use in court, promised him leniency, and

threatened greater punishment if he continued to deny the allegations.

      After the interrogation, Roby was charged and released on bond to

return to the Navy. He served for two years until being discharged to

answer for this case. The prosecutor had initially charged Roby with one

count of sexual abuse in the third degree for the alleged conduct while

Roby was eighteen and S.M. was under fourteen. After a breakdown in

plea negotiations, the prosecutor charged Roby with four counts,

delineated by Roby and S.M.’s birthdays: (Count I) sexual abuse in the

second degree for conduct occurring when S.M. was under twelve and

Roby was fifteen or sixteen, (Count II) sexual abuse in the third degree

for conduct occurring when S.M. was under fourteen and Roby was

under eighteen, (Count III) sexual abuse in the third degree for conduct

occurring when S.M. was under fourteen and Roby was eighteen, and
                                       5

(Count IV) sexual abuse in the third degree for conduct occurring when

S.M. was fourteen and Roby was eighteen. After Roby moved to dismiss

Count I for alleging conduct while Roby was fifteen and therefore under

the jurisdiction of the juvenile court, the prosecutor amended Count I a

second time and confined it to the time after Roby turned sixteen. Thus,

while the jury heard evidence regarding the initial incident when S.M.

told her parents Roby was touching her while she was sleeping, he was

not charged for this event.    Instead, he was charged based on S.M.’s

statements of continuing abuse from that point.

      At trial, the State presented testimony from S.M., her parents, and

her brother.   Roby did not testify.       He also did not present witnesses.

The jury found Roby guilty of Counts I and II. They found him guilty of

sexual abuse occurring when Roby was sixteen and S.M. was eleven, and

when Roby was seventeen and S.M. was twelve or thirteen years old. The

jury found Roby not guilty of Counts III and IV, abuse occurring after he

turned eighteen.

      B. Initial Sentencing.    A presentence investigation (PSI) report

was prepared, and the court held a sentencing hearing with testimony

from Roby and his parents. Though the record is limited on Roby’s life

before prison, at least some history appears from trial testimony, this

hearing, and the PSI.    The record shows Roby was born two months

premature on December 20, 1983. His mother indicated his biological

father abducted, abused, and neglected him for four years when he was

very young.    Roby’s father eventually returned him to his mother in

Waterloo, who later married a man who adopted Roby. Roby’s mother

was a homemaker and his adoptive father worked for a farm implement

company as a designer.        Roby is the middle child of three.          He

maintained a good relationship with his family, despite the absence of his
                                     6

biological father, but generally felt his childhood was “rough.” He was

diagnosed with attention-deficit disorder. He completed the tenth grade

at Expo Alternative Learning Center in Waterloo and reported getting

along well with his teachers, although he was suspended once for

fighting. Roby joined the Navy to, in his words, straighten out his life.

The PSI reported Roby frequently consumed alcohol while in the Navy

and used marijuana.     At sentencing, Roby denied any alcohol or drug

use. Roby had no juvenile record before this case.

      Roby’s mother testified,

             It just seems like it’s been one thing after another with
      this kid. . . . This kid has tried and tried and tried to get his
      life on track, and it seems like every time he does, it’s one
      thing after another waitin’ there to knock him back down.
      And now you’re going to take him away from me for 25 years
      or whatever, and I just—I think it’s ridiculous.

Roby’s adoptive father testified,

            I think the penalty for the crime far outweighs the
      crime. It’s absurd and it’s even more absurd that the judge
      is not allowed to make any adjustments to that. I don’t
      think you can take things like that away from the judges.
      Second-degree sexual abuse, you can’t lump all of them into
      one. Chris was a minor when it happened. And like what he
      did get a little therapy, you don’t put them in jail for 25
      years. That’s not going to solve anything.

      Roby also testified.    He maintained his innocence and stated,

“There’s just so many inconsistencies in her story, and I mean, I just—I

don’t see how one person can—can take another person’s life like this.”

      The court sentenced Roby, stating, “The court is sympathetic to the

feelings of the family, however, as they point out, this is the only

disposition available to the court under the law[] as it presently stands.”

The court was statutorily required to, and did, impose the maximum

sentence of twenty-five years on Count I with a mandatory minimum of

seventeen and one-half years before eligibility for parole.       The court
                                       7

imposed a concurrent sentence of ten years for Count II. This was in

January of 2005.       Roby had recently turned twenty-one while in jail

awaiting sentencing.

      C. Resentencing. In 2014, following this court’s holdings in State

v. Null, 836 N.W.2d 41 (Iowa 2013), State v. Pearson, 836 N.W.2d 88

(Iowa 2013), and State v. Ragland, 836 N.W.2d 107 (Iowa 2013), Roby,

who was thirty years old, moved to correct an illegal sentence.        He

argued he was entitled to an individualized review under the principles of

those cases. Around the same time, we issued our opinion in Lyle and

confirmed juveniles like Roby were entitled to individualized review of

their statutorily imposed sentences. 854 N.W.2d at 404. Pursuant to

these opinions, the court held a resentencing hearing to correct the

statutorily mandated minimum sentence of seventeen and one-half years

using the five factors identified in Lyle:

      (1) the age of the offender and the features of youthful
      behavior, such as “immaturity, impetuosity, and failure to
      appreciate risks and consequences”; (2) the particular
      “family and home environment” that surround the youth; (3)
      the circumstances of the particular crime and all
      circumstances relating to youth that may have played a role
      in the commission of the crime; (4) the challenges for
      youthful offenders in navigating through the criminal
      process; and (5) the possibility of rehabilitation and the
      capacity for change.

Id. at 404 n.10 (quoting Miller v. Alabama, 567 U.S. 460, ___, 132 S. Ct.

2455, 2468 (2012)). On “considering all the relevant factors and facts of

the case,” the district court had to either “resentence [Roby] by imposing

a condition that [Roby] be eligible for parole” or, “[i]f the mandatory

minimum period of incarceration is warranted, . . . impose the sentence

provided for under the statute, as previously imposed.” Id.

      Roby presented his prison disciplinary and other prison treatment

records. This was the only exhibit. Roby’s counsel addressed the Lyle
                                    8

factors by first noting Roby was kicked out of his parents’ home,

indicating a lack of familial support. Roby’s counsel continued, noting

Roby had no prior criminal record.      She argued Roby had difficulties

navigating the criminal justice system as indicated by the interrogation

the court ultimately had to suppress. She noted he served two years in

the Navy. She argued he had the potential to be rehabilitated based on

his prison disciplinary records, which showed most of his violations

occurred early on in his incarceration. She also noted he had obtained

his GED, taken a college course, been a lead person in the science shop,

worked in the kitchen, and tutored other inmates.         Finally, Roby’s

counsel pointed out that Roby had family in Waterloo willing to assist

him on release.

      The State countered that Roby’s disciplinary records did not

indicate rehabilitation potential because they included an infraction for

inappropriately touching female staff. The State also pointed to Roby’s

failure to obtain sex-offender treatment, which Roby’s counsel argued

was due to department of corrections backlog and policy not to treat

offenders until they are nearing release.   The State also argued Roby

continued to deny responsibility and blame the victim based on

statements he made while being treated for anxiety and sleeplessness.

The State concluded as to the first Lyle factor, “It would cut against him

because of the multiple acts that were involved in this case.” The State

continued its arguments on the Lyle factors, noting Roby’s home

environment was the same as the victim’s. As to the circumstances of

the crime, the State noted Roby’s actions were not sexual exploration,

but abuse. As to navigating the criminal process, the State noted Roby

had to be taken from the Navy and that he exercised his rights to have

the interrogation suppressed.     As to rehabilitation, the State again
                                      9

argued Roby failed to take responsibility, as shown by his numerous

posttrial appeals and motions.

      Roby testified on his own behalf, stating,

            Your Honor, over the last ten years, I’ve tried to better
      myself while I was in there. I was told when I was getting my
      GED, one of the teachers told me that if you fail to plan, you
      plan to fail. So everything I’ve done since I’ve been in there
      has been to make it so I’ll be a better person when I get out,
      Your Honor. I’ve gotten my GED. I’ve taken any courses
      that’s been available to me. I’ve learned job skills. I’ve
      learned trades.       I’ve helped other people bettering
      themselves, teaching them how to do a cover letter, a
      resume, how to use a computer.
             I’m sorry for all of this, Your Honor. I just—I hope that
      after ten years I can get my life back.

Approximately a month later, the court issued its ruling.

      As to the first Lyle factor, the court found,

             The acts that resulted in the jury’s guilty verdicts were
      not merely based on the defendant’s immaturity, impetuosity
      and failure to appreciate the risks and consequences. In this
      case this defendant had been confronted at an earlier time
      about improper touching of this victim. Notwithstanding
      that, the defendant continued to sexually abuse his victim.

As to the second factor,

            While the defendant’s family and home environment
      were obviously not the best, the victim’s family attempted to
      step in and provide a home for him. It was during this time
      that the defendant took advantage of the child victim.

For the third,

             The defendant’s participation in the conduct that
      resulted in his conviction was not the result of any familial
      or peer pressure. It was conduct freely chosen by the
      defendant with no care at all for the victim and less care for
      the victim’s family that was giving him a home.

The court did not address the fourth factor, but noted as to the fifth,

             While the court may have been hopeful that a period of
      incarceration would have led the defendant to some remorse
      for his behavior, it is apparent that this is not the case. The
                                      10
       documents submitted as Defendant’s exhibit 1 show that in
       an evaluation conducted in May of 2005 at the Iowa
       Medication and Classification Center the defendant again
       denied any sexual contact ever occurring with the victim. In
       a note entitled “Psychological Encounter” showing an
       encounter date of October 12, 2012, while explaining his
       sleep problems, it was reported, “He noted that he does not
       understand how his case has not been overturned because
       he was not in Iowa at the time of the crime.”
             The victim stance taken by the defendant does not
       bode well for rehabilitation. After 10 years the defendant
       has yet to confront his own behavior or even begin to be able
       to empathize with the victim of his acts.

       Thus, the court found a mandatory minimum sentence was

appropriate.   Roby appealed, and the court of appeals affirmed.          We

granted further review to address Roby’s two arguments: (1) that the

Iowa   Constitution   categorically   prohibits   all   minimum   terms   of

incarceration without the possibility of parole when imposed on

juveniles, and in the alternative, (2) that the district court erred in its

analysis of the Lyle factors.

       II. Standard of Review.

       We review a constitutional challenge to a sentence de novo. See

State v. Sweet, 879 N.W.2d 811, 816 (Iowa 2016). Roby’s first argument

is a categorical one, and therefore, we apply de novo review. See, e.g., id.

at 816–17; see also Lyle, 854 N.W.2d at 382–83. However, the parties

dispute the appropriate standard of review on Roby’s second challenge,

and we have not yet established the standard of review for appeals

following a juvenile’s resentencing hearing.

       As we recently noted in State v. Seats, “We have expressed three

different standards of review when a defendant challenges his or her

sentence on appeal.” 865 N.W.2d 545, 552 (Iowa 2015). We review for

an “abuse of discretion,” our most deferential standard, “if the sentence

is within the statutory limits.” Id. We review for “correction of errors at
                                         11

law,” an intermediate standard, “when the defendant challenges the

legality of a sentence on nonconstitutional grounds.” Id. at 553. Finally,

we apply de novo review, our least deferential standard, to constitutional

challenges. Id.

      Roby     reasons     the     individualized   hearing     requirement   is

constitutional in origin, and therefore, an appeal from such a hearing is

on constitutional grounds subject to de novo review. The State argues

the sentence imposed is within the statutory limits, and therefore, our

review is for an abuse of discretion. The court of appeals in this case

reviewed Roby’s resentencing hearing for an abuse of discretion.              We

affirm this approach, but would elaborate on the use of the abuse-of-

discretion standard in the juvenile sentencing context.

      We     begin   by   noting    an   unconstitutional     sentence   remains

unconstitutional even if the district court held a hearing before imposing

it. See Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 734

(2016) (“Even if a court considers a child’s age before sentencing him or

her to a lifetime in prison, that sentence still violates the Eighth

Amendment for a child whose crime reflects ‘unfortunate yet transient

immaturity.’ ” (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2469)).

However, we have not yet categorically declared all minimum sentences

of incarceration unconstitutional when imposed on juvenile offenders.

See Lyle, 854 N.W.2d at 403 (“[T]he holding in this case does not prohibit

judges from sentencing juveniles to prison for the length of time

identified by the legislature for the crime committed . . . .”). Instead, we

have held it is the “absence of a sentencing procedure” that offends

article I, section 17 of the Iowa Constitution. Id. at 402.         Thus, when

there is an appropriate sentencing procedure there is no constitutional

violation.   Under our existing law, if the district court follows the
                                      12

sentencing procedure we have identified and a statute authorizes the

sentence ultimately imposed, then our review is for abuse of discretion;

we ask whether there is “evidence [that] supports the sentence.” Seats,

865 N.W.2d at 553.

      However, we agree with a recent decision from a Michigan

appellate court that “the abuse-of-discretion standard requires further

explanation in this context.” See People v. Hyatt, 891 N.W.2d 549, 576

(Mich. Ct. App. 2016). Although the Michigan court was reviewing the

imposition of a sentence of life without parole, we find the special

considerations involved in sentencing a juvenile offender to an adult

sentence similarly mean that, “even under this deferential standard, an

appellate court should view such a sentence as inherently suspect,” and

“cannot merely rubber-stamp the trial court’s sentencing decision.” Id.

at 577–78. We too import this guidance from the Eighth Circuit:

      A discretionary sentencing ruling, similarly, may be [an
      abuse of discretion] if a sentencing court fails to consider a
      relevant factor that should have received significant weight,
      gives significant weight to an improper or irrelevant factor, or
      considers only appropriate factors but nevertheless commits
      a clear error of judgment by arriving at a sentence that lies
      outside the limited range of choice dictated by the facts of
      the case.

Id. at 578 (alteration in original) (quoting United States v. Haack, 403

F.3d 997, 1004 (8th Cir. 2005)). In sum, while the review is for abuse of

discretion, it is not forgiving of a deficiency in the constitutional right to a

reasoned sentencing decision based on a proper hearing.

      III. The Categorical Challenge.

      Like the United States Supreme Court, we address a categorical

constitutional challenge to a sentencing practice by using a two-step

analysis. See Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 2022

(2010); Roper v. Simmons, 543 U.S. 551, 564, 125 S. Ct. 1183, 1192
                                          13

(2005); Sweet, 879 N.W.2d at 835; Lyle, 854 N.W.2d at 386. Under this

analysis, we first “look to whether there is a consensus, or at least an

emerging consensus,” to guide our consideration of the question. Sweet,

879 N.W.2d at 835. “Second, we exercise our independent judgment” to

decide the question. Id. In this case, the question is whether a twenty-

five-year sentence with a minimum period of incarceration of seventeen

and one-half years for a juvenile offender convicted of sexual abuse is

categorically prohibited under the cruel and unusual punishment clause

of the Iowa Constitution. In other words, the question is whether our

constitution requires all juvenile offenders be immediately eligible for

parole.

       A. Evidence of Consensus.                We recognize the presence or

absence of a national consensus is normally indicated by the actions of

legislatures. See, e.g., Graham, 560 U.S. at 61, 130 S. Ct. at 2022 (“The

Court first considers ‘objective indicia of society’s standards, as

expressed in legislative enactments and state practice,’ to determine

whether there is a national consensus against the sentencing practice at

issue.” (quoting Roper, 543 U.S. at 563, 125 S. Ct. at 1191)).

       When we decided Lyle, we noted some states had already “limited

or abolished mandatory minimums for juveniles.” 854 N.W.2d at 386 n.3

(compiling statutes).      Since then, state legislatures have continued to

reform their state’s juvenile justice systems.                For example, many

jurisdictions have reconsidered “the more sweeping question of whether

too many juveniles are being tried in ‘adult’ court.” 1                 Brief of the


       1See, e.g., Cal. Penal Code § 1170.17(b)(2)(A)–(E) (West, Westlaw current through
ch. 9 of 2017 Reg. Sess.); Colo. Rev. Stat. Ann. § 19-2-517(1)–(3), (6)–(10) (West,
Westlaw current through Laws effective April 28, 2017); Ind. Code. Ann. § 31-30-1-4(c)
(West, Westlaw current through 2017 First Reg. Sess.)
                                           14

Charles Hamilton Houston Inst. for Race & Justice and Criminal Justice

Inst. as Amici Curiae in Support of Neither Party, Montgomery, 136 S. Ct.

718 (No. 14–280), 2015 WL 4624172, at *11. Others have shortened the

minimum term of incarceration juveniles must serve before parole

eligibility. 2   Still others are working to improve juvenile justice by

providing safer facilities 3 and greater access to rehabilitative programs.4

All the foregoing tells us juvenile justice is undergoing significant and

comprehensive reform.          However, it also tells us that, in this time of

feverish legislative action, no legislature has chosen to require a Miller-

type hearing before imposing any minimum term of incarceration, and no

legislature has chosen to make all juvenile offenders immediately eligible

for parole.

        Yet, we may broaden our inquiry to consider rapid changes in

constitutional protections. See Lyle, 854 N.W.2d at 387. The State of

Iowa was the first to prohibit sentencing juveniles to statutorily imposed

mandatory        minimums.         See    id.   at   386   (noting    no   court    has

constitutionally prohibited the practice, and most states permit or

require minimum sentences). We are aware of one state supreme court

that has since held similarly. See State v. Houston-Sconiers, 391 P.3d

409, 420 (Wash. 2017) (“In accordance with Miller, we hold that


        2See, e.g., Cal. Penal Code § 3051(b)(1)–(3) (West, Westlaw current through ch. 9
of 2017   Reg. Sess.); Conn. Gen. Stat. Ann. § 54-125a(f)(1) (West, Westlaw current
through   May 31, 2017); Del. Code Ann. tit. 11, § 4204A(d)(1) (West, Westlaw current
through   81 Laws 2017, chs. 1–15); Nev. Rev. Stat. Ann. § 213.12135(1)(a)–(b) (West,
Westlaw   current through 79th Reg. Sess. 2017); W. Va. Code Ann. § 61-11-23(b) (West,
Westlaw   current with 2017 Reg. Sess. through March 14, 2017).
       3See, e.g., Conn. Gen. Stat. Ann. § 17a-22bb(f)–(g) (West, Westlaw current

through May 31, 2017); Kan. Stat. Ann. § 75-7023(d)–(f) (West, Westlaw current
through May 18, 2017).
       4See, e.g., Mich. Comp. Laws Ann. § 791.262d(3)(a)–(b) (West, Westlaw current

through No. 42 of the 2017 Reg. Sess.).
                                   15

sentencing courts must have complete discretion to consider mitigating

circumstances associated with the youth of any juvenile defendant . . . .”

(Emphasis added.)). We also note courts are still in the midst of defining

the new system of individualized hearings, with little uniformity emerging

as to either when the hearing is required and what it should look like.

Compare Landrum v. State, 192 So. 3d 459, 467 (Fla. 2016) (concluding a

Miller-type hearing is required before a sentencing court may impose a

discretionary sentence of life without parole), with Foster v. State, 754

S.E.2d 33, 37 (Ga. 2014) (finding Miller-type hearing inapplicable to

discretionary sentence of life without parole).     Compare Casiano v.

Comm’r of Corr., 115 A.3d 1031, 1044 (Conn. 2015) (concluding Miller

applies to juvenile offenders sentenced to the “functional equivalent” of

life without parole), with State v. Ali, ___ N.W.2d ___, ___, 2017 WL

2152730, at *1 (Minn. 2017) (holding Miller only applies to the specific

sentence of life without parole). Compare State v. Charles, 892 N.W.2d

915, 922–23 (S.D. 2017) (finding a resentencing hearing satisfied the

standard announced in Miller), with People v. Berg, 202 Cal. Rptr. 3d

786, 795 (Cal. Ct. App. 2016) (finding a resentencing hearing failed to

satisfy Miller). The Supreme Court has intervened only to say that parole

eligibility is the simplest way to cure an otherwise constitutionally

impermissible juvenile sentence. See Montgomery, 577 U.S. at ___, 136

S. Ct. at 736. In all, we can foresee these challenges will continue, with

frequency, for some time before the Constitution’s role in sentencing

juveniles is clarified.

      We may also consider changes in professional opinion and

scholarly commentary in finding consensus. See Sweet, 879 N.W.2d at

835–36.    Many academics appear comfortable with the idea of either

individualized sentencing or “a system of minimum sentences for juvenile
                                   16

offenders that are shorter in duration than those imposed on their adult

counterparts.”   Elizabeth Scott et al., Juvenile Sentencing Reform in a

Constitutional Framework, 88 Temp. L. Rev. 675, 708 (2016) [hereinafter

Scott]. But others assert the time has come to refocus on rehabilitative

efforts, with a heavy emphasis on the availability of parole. See Martin

Gardner, Youthful Offenders and the Eighth Amendment Right to

Rehabilitation: Limitations on the Punishment of Juveniles, 83 Tenn. L.

Rev. 455, 495 (2016) (“Rather than either parole release or individualized

presentencing hearings, the best reading of Roper/Graham/Miller

requires both.”). As one commentator explains,

      Given the Court’s acknowledgment of the pre-sentence
      impossibility of precisely distinguishing those juveniles
      whose crimes are one-time products of “transient
      immaturity” and those “rare [offenders] whose crime[s] reflect
      irreparable corruption,” rehabilitation programs within
      prison with parole release are necessary to effectuate a
      youthful offender’s right to a “meaningful opportunity to
      obtain release based on demonstrated maturity and
      rehabilitation.” Moreover, because rehabilitation can occur
      at any time and requires immediate release from prison upon
      its occurrence, it follows that mandatory minimum
      sentences can no longer be imposed on juvenile offenders if
      Graham is followed to its logical conclusions.

Id. at 495–96 (alterations in original) (footnotes omitted) (quoting
Graham, 560 U.S. at 68, 75, 130 S. Ct. at 2026, 2030). In addition, the

American Law Institute (ALI), in section 6.11A of its Model Penal Code:

Sentencing, proposes the court must always have the “authority to

impose a sentence that deviates from any mandatory-minimum term of

imprisonment under state law,” in keeping with its “categorical

disapproval” of mandatory penalty provisions.     See Model Penal Code:

Sentencing § 6.11A(f) & cmt. f, at 36, 43 (Am. Law. Inst., Tent. Draft

No. 2, 2011). This section was approved in 2011, one year prior to the

Supreme Court’s guidance in Miller. See Model Penal Code: Sentencing
                                     17

at xii (Am. Law. Inst., Tent. Draft No. 4, 2016).     Even then, the ALI

recognized the lessened blameworthiness of juvenile offenders, their

potential for rehabilitation, and the lack of “persuasive empirical support

for the proposition that increased punishment severity acts as an

effective deterrent of criminal acts.”     Model Penal Code: Sentencing

§ 6.11A cmt. c(5), at 41 (Am. Law. Inst., Tent. Draft No. 2). The ALI did

not, however, discuss parole availability, aside from noting the then-

recent Graham case. See id. at 44.

      Finally, we consider the actions of our own legislature in

determining consensus.      See Lyle, 854 N.W.2d at 388.         The Iowa

legislature has recently adopted statutes that permit the sentencing

court to depart from statutory minimums. See 2015 Iowa Acts ch. 65,

§ 1 (now codified at Iowa Code § 902.1(2)(a)(2) (2017)) (authorizing the

court to sentence a juvenile convicted of a class “A” felony to “life with

the possibility of parole after serving a minimum term of confinement as

determined by the court”); 2013 Iowa Acts ch. 42, § 14 (now codified at

Iowa Code § 901.5(14)) (“Notwithstanding any provision . . . prescribing a

mandatory minimum sentence for the offense, if the defendant . . . was

under the age of eighteen at the time the offense was committed, the

court may suspend the sentence in whole or in part, including any

mandatory minimum sentence . . . .”). We give substantial “deference to

the legislature when it expands the discretion of the court in juvenile

sentencing” because it “can be ‘the most reliable objective indicator[] of

community     standards   for   purposes    of   determining   whether   a

punishment is cruel and unusual.’ ” Lyle, 854 N.W.2d at 388 (quoting

State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009)). We find “the Code

in general is replete with provisions vesting considerable discretion in

courts to take action for the best interests of the child.” Id. at 388–89
                                      18

(citing as examples Iowa Code section 92.13; section 232C.3(1), and

section   282.18(5)).     We   can    infer   from   these   latest   legislative

developments that the Iowa legislature has embraced the notion of court

discretion when initially sentencing juveniles. To contrast, there is no

indication the Iowa legislature would forbid the court from imposing a

minimum sentence.

      In all, no national or community consensus readily emerges to

support Roby’s claim. This “gives us pause.” Sweet, 879 N.W.2d at 836.

In Roper, the Court observed “even in the 20 States without a formal

prohibition on executing juveniles, the practice is infrequent.”         Roper,

543 U.S. at 564, 125 S. Ct. at 1192. The rate of legislative change, too,

was significant. Id. at 565, 125 S. Ct. at 1193. Similarly, in Graham, the

Court found the ability to impose life without parole on juveniles existed

widely, but was seldom used except in certain jurisdictions.                 See

Graham, 560 U.S. at 62–64, 130 S. Ct. at 2023–24. After Graham, many

states acted to forbid the practice. See Sweet, 879 N.W.2d at 835. In

contrast apparently every state permits a minimum sentence. Moreover,

the growing body of constitutional challenges and professional criticism

is still being tested. And finally, our legislature has recently reauthorized

minimum sentences at the discretion of the sentencing court. This all

shows us the individualized hearing process is still being defined, and it

will likely not be the last reform.

      B. Independent Judgment. Since consensus is not dispositive of

our inquiry, we turn to our own independent judgment. See id. at 836.

By that, we mean we carefully consider if available information and

evidence would support the categorical elimination of the practice of

sentencing juvenile offenders to a minimum prison term with no

opportunity for parole. It is our duty to use this type of consideration, as
                                    19

“Iowans have generally enjoyed a greater degree of liberty and equality

because we do not rely on a national consensus regarding fundamental

rights without also examining any new understanding.”           Lyle, 854

N.W.2d at 387. To this, we note the “watershed”-like change in juvenile

justice over the last decade is not complete. Id. at 390; Cara H. Drinan,

The Miller Revolution, 101 Iowa L. Rev. 1787, 1825 (2016) [hereinafter

Drinan] (addressing “three areas ripe for reform in the wake of Miller: (1)

juvenile transfer laws; (2) presumptive sentencing guidelines as they

apply to children; and (3) juvenile conditions of confinement”). In many

ways, we are still understanding how brain science can make our

juvenile justice system better. However, the State argues the opportunity

to be eligible for parole provides the needed bulwark against overly harsh

mandatory minimum sentences, and we have reached this particular

watershed’s common outlet. We turn to our body of cases to see if more

can be found to support Roby’s categorical argument.

      In Lyle, we found our constitution prohibited statutorily imposed

mandatory minimums.       See Lyle, 854 N.W.2d at 404.     Our reasoning

began with twin principles: (1) Juveniles have diminished culpability,

and (2) penological justifications are less applicable to them. Id. at 393–

94.   We look to see if these principles also prohibit judicially imposed

minimum sentences.      We find the first is equally applicable to every

juvenile, whether subjected to a statutorily or judicially imposed

minimum sentence.        Juveniles “are not fully equipped to make

‘important, affirmative choices with potentially serious consequences.’ ”

Id. at 397 (quoting Bellotti v. Baird, 443 U.S. 622, 635, 99 S. Ct. 3035,

3044 (1979)).   They lack maturity and the ability to make reasoned

decisions, they are susceptible to outside influence, and they will likely

change. See Roper, 543 U.S. at 569–70, 125 S. Ct. at 1195. As noted in
                                        20

Miller and Lyle, nothing about this is crime or punishment specific.

Miller, 567 U.S. at ___, 132 S. Ct. at 2465; Lyle, 854 N.W.2d at 399.

Therefore, whether the punishment is handed down by the legislature or

the court, a juvenile’s diminished culpability means it risks being

excessive.

      The second principle, diminished penological justifications, is less

compelling when a court is given discretion to impose a minimum

sentence.     For example, statutorily imposed mandatory minimums are

not appropriate retribution because “attempting to mete out a given

punishment to a juvenile for retributive purposes irrespective of an

individualized    analysis   of   the   juvenile’s   categorically   diminished

culpability is an irrational exercise.”      Lyle, 854 N.W.2d at 399.      But

judicially imposed mandatory minimums only follow a hearing on “the

culpability of the offender in addition to the harm the offender caused.”

Id. at 398.    Thus, it may be appropriate retribution to incarcerate a

juvenile for a short time without the possibility of parole. Additionally, a

sentencing judge could properly conclude a short term of guaranteed

incarceration is necessary to protect the public.

      On the other hand, although we used the phrase “statutorily

mandated,” we have recognized incarceration “[a]fter the juvenile’s

transient impetuosity ebbs and the juvenile matures and reforms . . .

becomes ‘nothing more than the purposeless and needless imposition of

pain and suffering.’ ” Id. at 400 (quoting Coker v. Georgia, 433 U.S. 584,

592, 97 S. Ct. 2861, 2866 (1977)). Therefore, even a judicially imposed

minimum may quickly exceed the sentence necessary to punish the

juvenile offender.     Additionally, the justification of deterrence will

normally be irrelevant to all juveniles. See id. at 399 (“If a juvenile will

not engage in the kind of cost-benefit analysis involving the death
                                    21

penalty that may deter them from committing a crime, there is no reason

to believe a comparatively minor sentence of a term of years subject to a

mandatory minimum will do so.”).

      Finally,   we   note all   minimum    sentences   tend   to    obstruct

rehabilitation. Studies show incarcerating juveniles increases the risk of

recidivism by depriving the juvenile of positive influences during a crucial

time for development. See id. at 400 (“Juvenile offenders who are placed

in prison at a formative time in their growth and formation can be

exposed to a life that can increase the likelihood of recidivism.” (Citation

omitted.)).   Perhaps the initial shock of incarceration may scare some

juveniles “straight,” but the damaging effects of the prison environment

on juvenile development are well documented and severe.             See, e.g.,

Katherine Hunt Federle, The Right to Redemption: Juvenile Dispositions

and Sentences, 77 La. L. Rev. 47, 59–64 (2016) (identifying increased

recidivism, higher rates of abuse and health problems, reduced

opportunities, and delayed maturation as collateral consequences of

incarcerating juvenile offenders). This is true of all juveniles held with

minimum sentences and is likely made worse by apparent Iowa

Department of Corrections policy leaving them ineligible for rehabilitative

treatment until they near their discharge date.

      Thus, “[i]f rehabilitation were the sole proper goal, it would follow

that all sentences for juveniles should come with immediate parole

eligibility.” Seats, 865 N.W.2d at 580–81 (Mansfield, J., dissenting). This

has not been the approach since the progressive reformers of the late

nineteenth century.    See Lyle, 854 N.W.2d at 390 (“To ameliorate the

harshness and inequity of trying children in adult courts . . . , reformers

advocated for the establishment of a system less concerned with

ascertaining the child’s guilt or innocence and more concerned with
                                      22

determining what was in the child’s best interests based upon the child’s

unique circumstances.”); see also Null, 836 N.W.2d at 52 (noting juvenile

courts were originally intended to “promote the welfare of juvenile

offenders”).   While many may believe it is time for a complete

restructuring of the juvenile justice system to return us to that

understanding,    we   have   never    indicated   such   a   change    was

constitutionally mandated.

      Instead, we repeatedly limited our holding in Lyle to statutorily

imposed minimums. We stated expressly,

             It is important to be mindful that the holding in this
      case does not prohibit judges from sentencing juveniles to
      prison for the length of time identified by the legislature for
      the crime committed, nor does it prohibit the legislature from
      imposing a minimum time that youthful offenders must
      serve in prison before being eligible for parole. Article I,
      section 17 only prohibits the one-size-fits-all mandatory
      sentencing for juveniles. Our constitution demands that we
      do better for youthful offenders—all youthful offenders, not
      just those who commit the most serious crimes. Some
      juveniles will deserve mandatory minimum imprisonment,
      but others may not. A statute that sends all juvenile
      offenders to prison for a minimum period of time under all
      circumstances simply cannot satisfy the standards of
      decency and fairness embedded in article I, section 17 of the
      Iowa Constitution.

Lyle, 854 N.W.2d at 403.       We expressly authorized our judges to

“sentence those juvenile offenders to the maximum sentence if warranted

and to a lesser sentence providing for parole if warranted.” Id. at 404. In

fact, “[i]f the mandatory minimum period of incarceration is warranted,”

we commanded them to impose the sentence. See id. at 404 n.10.

      In sum, applying the two-step inquiry we use for categorical

challenges, we can conclude, at this time, (1) there is no national or

community consensus against imposing minimum terms of incarceration

without the possibility of parole on juveniles, provided they have the
                                     23

opportunity   to   appear   before   a    neutral     decision-maker    for    an

individualized review; and (2) in our independent judgment article I,

section 17 does not yet require abolition of the practice.

      C. Practical Difficulties.      Notwithstanding, Roby argues the

practical difficulties in applying the Lyle factors are so substantial that

we should abandon the practice in favor of a categorical prohibition that

would require immediate eligibility for parole.         He also points to the

efficacy of the parole board and the procedural difficulties of challenging

the action or inaction of the parole board.

      The linchpin of the constitutional protection provided to juveniles

is individualized sentencing. We have on numerous occasions discussed

the nature of this sentencing and the role of the court in imposing the

sentence. See e.g., Seats, 865 N.W.2d at 555–56 (majority opinion); Lyle,

854 N.W.2d at 404 n.10; Null, 836 N.W.2d at 74–75. We endorse the five

factors identified in Miller as guideposts for courts to follow. Lyle, 854

N.W.2d at 404 n.10. Yet, as this case and others illustrate, difficulties in

applying the factors are obvious. See Sweet, 879 N.W.2d at 838.

      Nevertheless, we are not prepared to conclude that practice has

proven the five factors to be unworkable.           Instead, the difficulties in

applying the factors are a call for clearer guidance to permit them to

supply the required protection demanded by our constitution.                  This

observation is not a criticism in any way, but a recognition that justice

advances in steps.

      The five factors were drawn from the reasons that created the

fundamental constitutional proposition that harsh criminal sentences

are no longer appropriate for juvenile offenders. They are woven from the

growing body of scientific research and represent our current and best

understanding of the distinct features of human development. Our laws
                                    24

have always sought to give special consideration to youth. Our ability to

integrate this consideration into the law simply gets better over time as

our understanding improves.        The change that results from this

understanding is what a justice system gives a democracy when it is

doing its job under the Constitution. It is what the Supreme Court did

fifty years ago in In re Gault when it changed the historic approach to

dealing with juvenile offenders and recognized that youthful offenders are

constitutionally entitled to the same type of procedural protections

provided to other criminal offenders. 387 U.S. 1, 27–28, 87 S. Ct. 1428,

1444 (1967).    It reached this conclusion based in large measure on

research showing procedural fairness promotes rehabilitation and

reform. See id. at 26, 87 S. Ct. at 1443.

      We also recognize that our constitution establishes a baseline, and

courts are not alone in developing new standards to protect juvenile

offenders from overly harsh sentencing.        The legislature is uniquely

suited to identifying and adopting additional substantive and procedural

protections to further the constitutional recognition that “children are

different.” See Seats, 865 N.W.2d at 555 (quoting Miller, 567 U.S. at ___,

132 S. Ct. at 2469). For example, our legislature has already acted to

authorize sentencing courts to suspend or defer the sentences of

juveniles. See Iowa Code § 901.5(14). We would call attention to other

efforts advocated by leading scholars in this area, such as reforming

juvenile transfer laws, establishing appropriate facilities for juvenile

confinement, sealing and expunging juvenile criminal records, and

expanding   access   to   educational    and   treatment   programs   while

incarcerated, to name a few. See Drinan, 101 Iowa L. Rev. at 1825–26,

1828–31; Scott, 88 Temp. L. Rev. at 708–09, 712. Thus, we too now turn
                                      25

back to understand why the factors have led to difficulties and to

consider what can be done to provide greater guidance.

      In doing so, we begin by emphasizing some basic propositions we

have previously described. First, the factors generally serve to mitigate

punishment, not aggravate punishment. Lyle, 854 N.W.2d at 402 n.8.

Second, juvenile sentencing hearings are not entirely adversarial.            The

goal is to craft a “punishment that serves the best interests of the child

and of society.”      Id. at 402.   Third, the default rule in sentencing a

juvenile is that they are not subject to minimum periods of incarceration.

See Null, 836 N.W.2d at 74 (“First, the district court must recognize that

because ‘children are constitutionally different from adults,’ they

ordinarily cannot be held to the same standard of culpability as adults in

criminal sentencing.” (quoting Miller, 567 U.S. at ___, 132 S. Ct. at

2464)).

      Finally,   we    note these    factors   have     unique   challenges   on

resentencing.    Objective indicia of a juvenile’s relevant characteristics

may be difficult or impossible to obtain ten or twenty years later.

However, the factors do not lose relevance. There are baseline “average

developmental characteristics of youth of the age that the prisoner was

when he or she committed the offense,” which the parties can then use

as evidence of the juvenile’s conduct after the offense to show the

juvenile “conformed to or departed from developmental norms.” Scott, 88

Temp. L. Rev. at 702.         Additionally, while objective indicia may be

elusive, it may still be available in the form of contemporaneous medical

records or school and disciplinary reports.       Id.    Interviews of relevant

individuals’ recollection, as opposed to their current perception, may also

be helpful. See id. Applied to this record, we are not prepared to assume

these inquiries were made but returned nothing.
                                    26

      D. The Individualized Hearing. Accordingly, we turn to analyze

each factor to provide greater understanding of its role in juvenile

sentencing.   Properly applied, these factors ensure the constitutional

guarantee against cruel and unusual punishment is satisfied.

      1. Age and features of youthful behavior.     The first factor is the

“age of the offender and the features of youthful behavior.”     Lyle, 854

N.W.2d at 404 n.10 This factor is the basis for the core constitutional

protection extended to juvenile offenders.    See id. at 398 (“First and

foremost, the time when a seventeen-year-old could seriously be

considered to have adult-like culpability has passed.”). The features of

age that give rise to this protection include “immaturity, impetuosity, and

[a] failure to appreciate risks and consequences.”       Id. at 404 n.10

(quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2468). The factor draws

upon the features expected to be exhibited by youthful offenders that

support mitigation and allows for the introduction of evidence at the

sentencing hearing to show the offender had more or less maturity,

deliberation of thought, and appreciation of risk-taking than normally

exhibited by juveniles.   This factor is most meaningfully applied when

based on qualified professional assessments of the offender’s decisional

capacity.   See Scott, 88 Temp. L. Rev. at 696–97 (describing use of

“validated assessment methods,” review of “the youth’s facility under

real-life conditions,” and an expert’s “developmental and clinical

knowledge and experience to integrate [the] information”).

      Additionally, age is not a sliding scale that necessarily weighs

against mitigation the closer the offender is to turning eighteen years old

at the time of the crime. See Elizabeth S. Scott et al., Young Adulthood

as a Transitional Legal Category: Science, Social Change, and Justice

Policy, 85 Fordham L. Rev. 641, 647 (2016) (noting “developmental
                                        27

changes . . . continue into the early twenties”). When the Miller Court

referred to “chronological age” in identifying the need to distinguish the

criminal sentencing of children from adults, it did not suggest that a

seventeen-year-old child is more deserving of adult punishment than a

sixteen-year-old child, or a fifteen-year-old child more deserving than a

fourteen-year-old child. See Miller, 567 U.S. at ___, 132 S. Ct. at 2467

(“[Y]outh is more than a chronological fact.” (quoting Eddings v.

Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 877 (1982))). It referred to

“chronological age” as a unit of age that distinguishes children from

adults. See id. The court recognized that children within this unit have

“signature qualities” of “immaturity, irresponsibility, ‘impetuousness[,]

and recklessness.’ ” Id. (alteration in original) (quoting Johnson v. Texas,

509 U.S. 350, 368, 113 S. Ct. 2658, 2669 (1993)). Thus, minority status

is   the   designated   factor   that    supports   the   special   sentencing

consideration and expert evidence may be used to conclude any

particular juvenile offender possessed features of maturity beyond his or

her years. This is not to say judges cannot and should not be alert to

circumstances that might suggest the age of a particular offender might

not support mitigation.     Yet, categorical age groups do not exist for

children to justify using age alone as a factor against granting eligibility

for parole.

       2. Family and home environment.          The second factor is “the

particular ‘family and home environment’ that surround the youth.”

Lyle, 854 N.W.2d at 404 n.10 (quoting Miller, 567 U.S. at ___, 132 S. Ct.

at 2468).     This factor seeks to identify any familial dependency and

negative influences of family circumstances that can be ingrained on

children. Scott, 88 Temp. L. Rev. at 698. As with the first factor, expert

testimony will best assess how the family and home environment may
                                    28

have affected the functioning of the juvenile offender. Id. (describing the

use of “psychometric measures,” including “ ‘social maturity scales’ . . .

[that] assess the youth’s degree of independence and self-direction in

everyday functioning”). This factor does not rely on general perceptions,

but specific measures of the degree of functioning. Furthermore, it is not

limited to extremely brutal or dysfunctional home environments, but

considers the impact of all circumstances and all income and social

backgrounds.

      3. The circumstances of the crime. The third factor considers the

circumstances of the crime. Lyle, 854 N.W.2d at 404 n.10. Within these

circumstances, attention must be given to the juvenile offender’s actual

role and the role of various types of external pressure. Thus, this factor

is particularly important in cases of group participation in a crime.

Expert testimony will be helpful to understand the complexity behind the

circumstances of a crime when influences such as peer pressure are not

immediately evident and will aid the court in applying the factor properly.

See Scott, 88 Temp. L. Rev. at 698. Yet, the prominence of peer pressure

in the analysis of this factor does not mean the factor cannot support

mitigation for crimes committed alone. See id. (“[P]eer influence can play

a more subtle role in adolescent behavior, as when teenagers engage in

behavior that they think will win peer approval (‘showing off,’ for

example), or simply encourage one another through group interaction.”).

Likewise, the circumstances of the crime do not necessarily weigh

against mitigation when the crime caused grave harm or involved

especially brutal circumstances. As the Court said in Miller, the special

analysis for juveniles is not “crime-specific.” 567 U.S. at ___, 132 S. Ct.

at 2465. Mitigation normally is warranted in all crimes. The aggravating
                                     29

circumstances of a crime that suggest an adult offender is depraved may

only reveal a juvenile offender to be wildly immature and impetuous.

      4. Legal incompetency. The fourth factor is the legal incompetency

associated with youth.     Lyle, 854 N.W.2d at 404 n.10.         It mitigates

against punishment because juveniles are generally less capable of

navigating through the criminal process than adult offenders. See Scott,

88 Temp. L. Rev. at 699. Thus, the same shortsightedness of thought

tied to juvenile behavior in the commission of a crime can also surface in

their subsequent dealings in the legal process.              These juvenile

deficiencies can play out in general competency to stand trial or relate

more specifically to cognitive or other incapacities to withstand police

interrogation. See id. The relevance of this factor ultimately relates to

the general proposition that youthful offenders are less able to confront

the legal process.   Whether a particular youth would be more capable

than most would normally be a matter for expert testimony.

      5. Rehabilitation. The final factor is the possibility of rehabilitation

and the capacity for change. Lyle, 854 N.W.2d at 404 n.10. This factor

supports mitigation for most juvenile offenders because delinquency is

normally transient, and most juveniles will grow out of it by the time

brain development is complete.      See Scott, 88 Temp. L. Rev. at 700.

Additionally, juveniles are normally more malleable to change and reform

in response to available treatment. Id. at 701. The seriousness of the

crime does not alter these propositions. Id. at 700. Thus, judges cannot

necessarily use the seriousness of a criminal act, such as murder, to

conclude the juvenile falls within the minority of juveniles who will be

future offenders or are not amenable to reform.            Again, any such

conclusion would normally need to be supported by expert testimony. Id.

at 701.
                                      30

      6. Discretion exercised by the district court.    We appreciate the

difficulty judges can often face when called upon to decide if juvenile

offenders should be eligible for parole. Yet, the factors used to apply the

constitutional principle at stake in this decision will best serve their

purpose    if   sentencing   courts   remain   committed   to   several   key

observations.    First, the five factors identify the primary reasons most

juvenile offenders should not be sentenced without parole eligibility. A

sentence of incarceration without parole eligibility will be an uncommon

result.   Second, the factors must not normally be used to impose a

minimum sentence of incarceration without parole unless expert

evidence supports the use of the factors to reach such a result. Third,

the factors cannot be applied detached from the evidence from which

they were created and must not be applied solely through the lens of the

background or culture of the judge charged with the responsibility to

apply them. Perceptions applicable to adult behavior cannot normally be

used to draw conclusions from juvenile behavior.

      In the end, this case shows how the factors can be misused. The

district court in this case misused the first factor—age and the features

of youthful behavior—by considering the evidence at trial that Roby

continued to engage in sexual abuse after he was confronted about his

improper physical contact with the victim. This evidence does not in any

way undermine the recognized failure of juveniles to appreciate risks and

consequences and their tendency to make immature and impetuous

decisions. Thus, the finding by the district court could have only been

based on the court’s own observation that the features of youth are

overcome by the warning Roby received.         No such evidence supported

this finding.
                                    31

      The district court addressed the second factor—family and home

environment—with evidence that Roby sexually abused the victim during

the time the victim’s family was providing him with a home. Again, this

evidence does not undermine what the second factor seeks to convey—

that family and home environment often can affect the functions of a

juvenile. Thus, the finding by the district court was essentially unrelated

to the factor.   The district court seemed to suggest Roby acted with a

sinister disposition by abusing the victim while the victim’s family was

helping provide him with a home.

      The district court addressed the third factor—the circumstances of

the crime—with evidence that the crime was not the result of peer

pressure, Roby exhibited no concern for harm caused to the victim, and

he betrayed the kindness of the victim’s family. The role of peer pressure

in juvenile crime does not make the absence of peer pressure an

aggravating circumstance.     Furthermore, a sentencing judge cannot

normally draw such conclusions from the circumstances of the crime

without expert testimony.

      The district court in this case did not consider the fourth factor—

legal incompetency.    If this factor had been considered, the evidence

showed Roby initially thought or pretended to think he was being

investigated for stealing a video game, confessed to police during an

interrogation that was subsequently suppressed by the court as

involuntary, and may not have been adequately communicating on trial

strategy with his attorney.   All of this could be evidence of the legal

incompetency we normally associate with youth.

      Finally, the court addressed the fifth factor—rehabilitation—with

evidence that Roby never admitted his criminal actions and has

continued to deny committing a crime. It concluded this attitude did not
                                    32

make him amenable to rehabilitation. While this evidence is relevant, no

evidence was presented that Roby ever received any treatment to aid in

rehabilitation.   Overall, the evidence at sentencing was insufficient to

support a conclusion that Roby was within the small group of juvenile

offenders that never aged out of his delinquent conduct or was not

amenable to rehabilitation.

      7. Summary. On our review of the five factors identified in Lyle,

bolstered by the recommendations of leading legal and medical

professionals in this area, we conclude the district court abused its

discretion by imposing a sentence of incarceration without parole

eligibility. The evidence presented at the sentencing hearing could not,

as a matter of law, support the imposition of incarceration without an

opportunity for parole under the five factors that must be observed at

sentencing to ensure that the punishment does not violate article I,

section 17 of the Iowa Constitution.       The district court applied the

factors, but not in the manner required to protect the juvenile offender

from cruel and unusual punishment.

      IV. Conclusion.

      We conclude article I, section 17 of the Iowa Constitution does not

categorically prohibit the imposition of a minimum term of incarceration

without the possibility of parole on a juvenile offender, provided the court

only imposes it after a complete and careful consideration of the relevant

mitigating factors of youth. We recognize the difficulties of individualized

hearings, but decline at this time to hold our constitution requires

abandonment of the practice.       Instead, we take this opportunity to

provide additional guidance to our courts, attorneys, and juveniles on the

use of the factors and the content of a sentencing hearing.       While we

conclude the district court abused its discretion in this case, we are
                                   33

confident the additional direction provided by this case will lead to

sentencing more consistent with our constitutional principles.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT     SENTENCE      VACATED       AND   CASE    REMANDED      WITH

INSTRUCTIONS.

      Wiggins and Appel, JJ., join this opinion.      Hecht, J., files a

concurring opinion.   Appel, J., files a separate concurring opinion in

which Wiggins, J., joins. Zager, J., files a dissenting opinion in which

Waterman, and Mansfield, JJ., join.
                                     34

                                                    #15–0175, State v. Roby

HECHT, Justice (concurring specially).

       I concur in the determination that Christopher Roby’s prison

sentence must be vacated.      I write separately, however, to express my

view that article I, section 17 of the Iowa Constitution prohibits a

mandatory term of incarceration for any offense committed by a juvenile

offender.

       In State v. Lyle, 854 N.W.2d 378 (Iowa 2014), we concluded “a

mandatory minimum sentencing schema . . . violates article I, section 17

of the Iowa Constitution when applied in cases involving conduct

committed by youthful offenders.” 854 N.W.2d at 402. We reasoned that

a statute that “sends all juvenile offenders to prison for a minimum

period of time under all circumstances simply cannot satisfy the

standards of decency and fairness embedded in [our constitution].” Id. at

403.   Our decision in Lyle left room, however, for the possibility that

“[s]ome juveniles will deserve mandatory minimum imprisonment, but

others may not,” id., and left this differentiation to the district court with

due consideration of the Miller factors focusing upon “youth and its

attendant circumstances as a mitigating factor.”        Id. at 402 n.8, 404

(citing Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012)).         We

noted the “keystone of our reasoning is that youth and its attendant

circumstances and attributes make a broad statutory declaration

denying courts this very discretion categorically repugnant to article I,

section 17 of our constitution.” Id. at 402–03.

       In my subsequent concurring opinion in State v. Seats, 865

N.W.2d 545 (Iowa 2015), I expressed “my lack of confidence in [this

court’s] ability to conceive—or in sentencing courts’ ability to apply

consistently—a principled standard for identifying the uncommon or rare
                                     35

circumstances” justifying a denial of an opportunity for parole for

juvenile offenders sentenced to life in prison.       865 N.W.2d at 560

(Hecht, J., concurring). In that opinion, I explained why several of the

Miller factors are not helpful in assessing the relative capacities of

juvenile offenders for maturation and rehabilitation, and I concluded

article I, section 17 mandates prohibition of life-without-parole sentences

for all juveniles convicted of homicide offenses.      Id. at 561–62, 563.

      The infirmities of the Miller factors led me to reject them in Seats

as a framework for identifying the rare juvenile offenders convicted of

homicide who lack the capacity to mature and be rehabilitated. I now

conclude the infirmities are no less profound when applied by judges

sentencing juvenile offenders convicted of lesser offenses.       Like the

Supreme Judicial Court of Massachusetts, I believe the “back end”

parole-board mechanism better accommodates juveniles’ capacity for

change than a “front end” irrevocable determination of eligibility for

parole. See Diatchenko v. Dist. Att’y, 1 N.E.3d 270, 282–85 (Mass. 2013).

The   compelling     reasons   counseling   against   mandatory   statutory

deprivations of juvenile offenders’ opportunities for parole should lead us

to conclude there is no constitutionally sound basis for empowering
judges to make calls on eligibility of juvenile offenders for parole based

on unsound predictive criteria.

      Consistent with this conclusion, I concur with the majority’s

conclusion that the sentence rendering Roby ineligible for parole for a

term of seventeen and one-half years violated article I, section 17 of the

Iowa Constitution.
                                     36

                                                   #15–0175, State v. Roby

APPEL, Justice (concurring specially).

      I join in the court’s opinion but write separately to emphasize why.

      The court’s opinion leaves the door ajar, at least in theory, that a

juvenile offender might be sentenced to a lengthy adult minimum

sentence.    But, as we have now repeatedly stated, “children are

constitutionally different” when it comes to sentencing for crimes. State

v. Null, 836 N.W.2d 41, 65 (Iowa 2013) (quoting Miller v. Alabama, 567

U.S. 460, ___, 132 S. Ct. 2455, 2464 (2012)); accord State v. Seats, 865

N.W.2d 545, 556 (Iowa 2015); State v. Lyle, 854 N.W.2d 378, 395 (Iowa

2014). The multifactored Miller test, as shaped by this court, powerfully

drives the analysis toward a finding that children are constitutionally

different and therefore, as a general proposition, juvenile offenders

cannot be sentenced to mandatory adult minimums.

      Although we have not expressly said so, the State in theory may

overcome these factors by presenting what amounts to a case of

psychopathy demonstrating, among other things, resistance to change

and a stunting of the ordinary maturation process.             But so far,

psychopathy measures during adolescence that have been developed by

experts have unacceptable false positive rates when used to make

individualized predictions. See Thomas Grisso & Antoinette Kavanaugh,

Prospects for Developmental Evidence in Juvenile Sentencing Based on

Miller v. Alabama, 22 Psychol., Pub. Pol’y, & L. 235, 240 (2015).

According to a recent comprehensive review of the literature, available

measures of psychopathy in adolescents “have not established a

sufficiently high level of stability . . . to warrant testimony about whether

a youth has a psychopathic personality disorder.” Id. (quoting Gina M.

Vincent et al., Juvenile Psychopathy: Appropriate and Inappropriate Uses
                                     37

in Legal Proceedings in APA Handbook of Psychology and Juvenile Justice

219 (Kirk Heilbrun et al., eds., 2016)).

      As a result, I do not think as a practical matter there is much

difference between the court’s approach and the categorical approach in

State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016). The seventeen and

one-half-year mandatory sentence in this case is less draconian than a

life-without-the-possibility-of-parole sentence in Sweet, but the crimes

are less serious, too. Although the stakes are lower, I think there are

solid reasons to extend the categorical approach of Sweet to this case.

Once again, of course, such an approach would not be an entitlement to

early release, but only to a meaningful opportunity to show rehabilitation

prior to the expiration of a seventeen and one-half-year mandatory

sentence.

      Nonetheless, for now I join the court’s opinion. If implementation

of this decision proves inconsistent, confusing, difficult, or unworkable,

the obvious solution would be to move to the analysis in Sweet and

categorically eliminate the application of adult mandatory minimum

sentences to juvenile offenders.

      Wiggins, J., joins this special concurrence.
                                          38

                                                         #15–0175, State v. Roby
ZAGER, Justice (dissenting).
          The court giveth and the court taketh away. In part III.A–B of its

opinion, the court correctly concludes that the Iowa Constitution does

not categorically prohibit a district judge, after a hearing on all relevant

factors, from sentencing a juvenile who commits a serious felony such as

rape, armed robbery, or murder, to a minimum period of incarceration

before the juvenile is eligible for parole. However, this correct but limited

conclusion in III.A–B is subsequently undermined by other aspects of the

opinion.

          The court introduces a number of statements that go beyond what

this court has decided in its prior juvenile sentencing opinions.               For

example, the court declares that minimum periods of incarceration need

to be “short” and “uncommon.” These statements can, and I expect will,

be seized upon in future cases to strike down any minimum term of

incarceration.

          More directly, in part III.C–D, the court restates the relevant

factors in a way that will make it difficult, if not practically impossible,

for   a    sentencing   judge    to   ever     impose   any   minimum    term    of

incarceration.      These significant, practical implications are another

impediment to our district court judges who expend substantial time and

energy exercising their discretion in sentencing.             Every application of

every factor must weigh in favor of the defendant.              I have repeatedly

cautioned that this approach, in effect, removes any sentencing

discretion from the district court and “bestows upon our appellate courts

the   freedom      to   impose    their      members’    judgments     about    the

appropriateness of a sentence.” State v. Lyle, 854 N.W.2d 378, 412 (Iowa

2014) (Zager, J., dissenting).
                                     39

      Moreover, it is now apparent that expert testimony will be required

on both sides before a juvenile can be sentenced to any minimum period

of incarceration. The court’s opinion thus endorses and perpetuates the

cottage industry that has developed for mitigation experts—a burden not

only for the district court judges and the State, but also for the juvenile

defendants themselves, many of whom are represented by a public

defender or who may otherwise be constrained by costs. In short, while

the court has technically not invalidated all minimum terms of

incarceration for juveniles, today’s opinion will have that effect in the real

world in which our district courts must operate. And the question that

must be asked is: will the sentence of the district court be any more valid

or constitutional? I don’t believe so.

      The majority opinion takes our state even farther away from the

national consensus, but it provides no adequate justification for this

continued extension in juvenile sentencing.         The restatement of the

relevant factors does not make sense, and the court’s continued push to

shift authority from our district court judges to the parole board will not

achieve the outcomes it would like to see.
     I. Today’s Extensions of Lyle Move Us Farther Away from
Other Jurisdictions.

      Today’s decision pulls Iowa farther away from the rest of the

nation. In 2014, this court declared unconstitutional any sentencing law

requiring individuals under the age of eighteen who committed felonies to

be incarcerated for any mandatory minimum period of time. See Lyle,

854 N.W.2d at 400 (majority opinion). This rule applied no matter how

heinous the crime, such as first-degree murder, or how short the period

of incarceration, such as one year.       See id.   All such sentences were

deemed cruel and unusual. To its credit, the majority acknowledged in
                                    40

Lyle the uniqueness of its decision. “[W]e recognize no other court in the

nation has held that its constitution or the Federal Constitution prohibits

a statutory schema that prescribes a mandatory minimum sentence for a

juvenile offender.” Id. at 386.

      Three years have passed since Lyle was decided. Not surprisingly,

criminal defense lawyers in other jurisdictions have urged their states to

follow Lyle. None have accepted the invitation. See, e.g., State v. Imel,

No. 2 CA–CR 2015–0112, 2015 WL 7373800, at *3 (Ariz. Ct. App. Nov.

20, 2015) (“[W]e disagree with Lyle’s characterization of the Court’s

holding in Miller [v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012)].”);

People v. Rigmaden, No. C071533, 2015 WL 5122916, at *18 (Cal. Ct.

App. Sept. 1, 2015) (declining to follow Lyle while observing that “policy

arguments about sentencing juveniles in light of current research on the

developing brains of adolescents (neuroscience)” are “more properly

directed to the Legislature”); People v. Applewhite, 68 N.E.3d 957, 964

(Ill. App. Ct. 2016) (“[W]e are not persuaded by the defendant’s reliance

on an Iowa Supreme Court case finding that all mandatory minimum

juvenile sentences are unconstitutional.”); State v. Anderson, No. 26525,

2016 WL 197122, at *11 (Ohio Ct. App. Jan. 15, 2016) (“The only

authority Anderson cites directly supporting the proposition that all

mandatory minimum sentences imposed on juveniles tried in adult court

constitute cruel and unusual punishment is [Lyle]. . . . Upon review, we

decline to adopt the majority approach in Lyle.”); State v. Barbeau, 883

N.W.2d 520, 533–34 (Wis. Ct. App. 2016) (declining to follow Lyle).

      In fairness, it should be noted the Washington Supreme Court

recently held that under the Eighth Amendment, a trial court sentencing

juveniles in the adult criminal justice system “must be vested with full

discretion to depart from the sentencing guidelines and any otherwise
                                         41

mandatory    sentence   enhancements,         and      to     take   the   particular

circumstances surrounding a defendant’s youth into account.” State v.

Houston-Sconiers, 391 P.3d 409, 426 (Wash. 2017). Yet, the Washington

court did not rely on its state constitution, did not mention Lyle, and did

not hold that the trial court has an affirmative obligation to hold a

hearing covering all the Miller factors in every case (as opposed to simply

receiving and considering such evidence when it was offered). Id. at 419–

20 Also, the Washington court confirmed that the trial court sentencing

juveniles in the adult criminal justice system must be vested with “full

discretion” to depart from prescribed sentences. Id. at 421 I have not

seen such a confirmation of discretion in our sentencing judges in any of

our juvenile sentencing opinions. While the Washington Supreme Court

may have reached a “similar conclusion,” it did not cite to our opinion.

      In light of Lyle’s negative reception in other states, I think a more

cautious approach is appropriate. Instead, today’s opinion extends Lyle.

Consider the following examples. In Lyle, we said “juveniles can still be

sentenced to long terms of imprisonment, but not mandatorily.”                      854

N.W.2d at 401 (emphasis added). Just one year ago, in State v. Sweet,

this court assured everyone that even doing away with the option of life

without parole was only a “marginal” change because juveniles who

committed    murder     would    still    serve   “a        substantial    period    of

incarceration.” 879 N.W.2d 811, 835 (Iowa 2016) (emphasis added). The

majority now takes the opposite approach, walking away from its

previously stated position.     The majority says instead that “it may be

appropriate retribution to incarcerate a juvenile for a short time without

the possibility of parole” and “a sentencing judge could properly conclude

a short term of guaranteed incarceration is necessary to protect the

public.” So “long” and “substantial” have now been replaced by “short.”
                                    42

If we keep changing the standards, how can we expect our district court

judges to reliably apply any sentencing factors?

      In Lyle, we said that “[s]ome juveniles will deserve mandatory

minimum imprisonment, but others may not.” 854 N.W.2d at 403. We

added,

      [Trial] judges will do what they have taken an oath to do.
      They will apply the law fairly and impartially, without fear.
      They will sentence those juvenile offenders to the maximum
      sentence if warranted and to a lesser sentence providing for
      parole, if warranted.

Id. at 404. But today we announce that “[a] sentence of incarceration

without parole will be an uncommon result.” In other words, the district

court’s discretion to do what is warranted by the facts in front of it must

give way to a mandate that, except in rare and yet undefined

circumstances, the juvenile must be immediately parole eligible.         In

reality, the majority’s opinion makes the district court’s sentencing

discretion merely illusory.

      In Lyle, we distinguished between “inane juvenile schoolyard

conduct” and “cold and calculated adult conduct,” recognizing that some

juvenile conduct was subject to deterrence. Id. at 401. Today, though,

the majority concludes that “the justification of deterrence will normally

be irrelevant to all juveniles.” I strongly disagree. Both this court and

the Supreme Court have continuously acknowledged that, while

deterrence has less weight in the analysis of the penological justifications

for juvenile sentencing due to the impetuosity of juvenile decision

making, it still has some weight in every case. Roper v. Simmons, 543

U.S. 551, 570, 125 S. Ct. 1183, 1196 (2005) (“[T]he same characteristics

that render juveniles less culpable than adults suggest as well that

juveniles will be less susceptible to deterrence.”); Lyle, 854 N.W.2d at
                                              43

399 (“We add that a deterrence rationale is actually even less applicable

when the crime . . . is lesser.”); State v. Null, 836 N.W.2d 41, 63 (2013)

(“The [Supreme] Court concluded deterrence has less validity because of

the ‘impetuous and ill-considered’ nature of juvenile decision making.”

(quoting Graham v. Florida, 560 U.S. 48, 72, 130 S. Ct. 2011, 1028–29

(2010))).

        Now, we have again changed the standards and concluded that

instead of simply having less weight in our analysis, deterrence is now

“normally irrelevant to all juveniles.” In practice, what does this mean?

How is “less weight” different from “normally irrelevant,” and how are our

district court judges supposed to realistically apply this penological goal

when the goalposts have shifted yet again?                       I think the court’s

observation on the irrelevance of deterrence would surprise most parents

who believe that deterrence can be effective with their children. Indeed,

there   is       a   sense   in     which    this   court’s   ever-expanding   juvenile

jurisprudence demeans the great majority of youth who do not commit

serious felonies.

        This approach also moves us away from the Model Penal Code:

Sentencing approach to juvenile sentencing. While the Model Penal Code

gives priority to rehabilitation and reintegration into society, it does not

foreclose the use of the penological goal of deterrence. Model Penal Code:

Sentencing § 6.11A(b), at 215 (Am. Law Inst., Proposed Final Draft 2017);

id. cmt. (c)(5), at 220–21. Thus, the Model Penal Code would allow for

“the judge’s ability to find, when supported by the facts, that an offender

under       18       acted   with    an     unusually    high    degree   of   personal

blameworthiness.” Id. at 218. It adds that courts “must also attend to

the ‘gravity of offenses’ and the ‘harms done to crime victims’ when

reaching final judgments of proportionality.                  The seriousness of the
                                      44

victim injuries does not diminish when their assailants were underage.”

Id.   Notably, the Model Penal Code is, as its name states, a model for

adoption by legislatures, not a constitutional minimum. Yet even with

this model, the consensus of the American Law Institute is that other

considerations besides rehabilitation may enter into juvenile sentencing.
     II. There Is No Jurisprudential Basis for the Majority’s
Extensions of Lyle.

       These extensions of Lyle find no support in the text of article I

section 17, which only prohibits “cruel and unusual punishment[s].”

Iowa Const. art. I, § 17. Ordering a sixteen- or seventeen-year-old who

commits a rape, an armed robbery, or a murder to serve some amount of

time before being eligible for parole is neither cruel nor unusual.

       Nor do the majority’s statements find support in established

jurisprudence. For example, Miller indicated that the “harshest possible

penalty,” i.e., life without parole, should be “uncommon” for juvenile

homicide offenders.    567 U.S. at ___, 132 S. Ct. at 2469 (“[W]e think

appropriate occasions for sentencing juveniles to this harshest possible

penalty will be uncommon.” (Emphasis added.)). Today, as noted above,

the court says that minimum prison terms of any length for juveniles

should be uncommon. This twists words to give the impression that the

court is simply following in the tracks of Miller when in reality, it is not.

       To give another example, Miller said that juveniles are “less likely

to consider potential punishment” before committing crimes. Id. at ___,

132 S. Ct. at 2465. As a general statement, that is probably true. But

the majority takes Miller to an extreme by stating that “deterrence will

normally be irrelevant to all juveniles.” There is a big difference between

holding that the less developed brain of juveniles should make it rare

and difficult to give them the most serious punishment, as the Court did
                                     45

in Miller, and holding that it should make it rare and difficult to punish

them at all, which is the gist of today’s decision.

      As before, the majority draws heavily on law review articles as a

basis for today’s decision. In stark contrast to how it has been received

by actual courts, the court’s Lyle decision has been enthusiastically

welcomed by law review writers. See, e.g., Cara H. Drinan, The Miller

Revolution, 101 Iowa L. Rev. 1787, 1817 (2016); Lindsey E. Krause, One

Size Does Not Fit All: The Need for a Complete Abolition of Mandatory

Minimum Sentences for Juveniles in Response to Roper, Graham, and

Miller, 33 Law & Ineq. 481, 493 (2015); Elizabeth Scott et al., Juvenile

Sentencing Reform in a Constitutional Framework, 88 Temp. L. Rev. 675,

707–08 (2016) [hereinafter Scott].

      To be clear, legal scholarship plays a vital and necessary role in

germinating new concepts, fusing other disciplines to law, and knocking

down badly reasoned judicial opinions. But it is one thing to regard a

nonpeer-reviewed law review article as a source of ideas and quite

another to regard it as authority. Unlike a court, which in a meaningful

way must live with its decision, law review writers have no skin in the

game. They can freely expound without bearing the responsibility for an

actual decision that (like Lyle) has real-world consequences.
      III. The Court Has Redefined the Miller Factors in a Way That
Will Make It Practically Very Difficult to Sentence a Juvenile to Any
Minimum Amount of Incarceration, Regardless of the Crime and the
Characteristics of the Person Who Committed It.

      Over the last three years, Lyle has led to hundreds of sentencings

and resentencings.     District judges, prosecutors, and defense lawyers

have worked countless hours to do what we asked them to do.

Furthermore, the court of appeals has undertaken appellate review of

numerous Lyle sentencings and resentencings. See, e.g., State v. White,
                                    46

No. 15–0829, 2016 WL 4801436 (Iowa Ct. App. Sept. 14, 2016); State v.

Null, No. 15–0833, 2016 WL 4384614 (Iowa Ct. App. Aug. 17, 2016);

State v. Zarate, No. 15–0451, 2016 WL 3269569 (Iowa Ct. App. June 15,

2016); State v. Chany, No. 15–0340, 2016 WL 1705160 (Iowa Ct. App.

Apr. 27, 2016); State v. Tuecke, No. 15–0617, 2016 WL 1681524 (Iowa

Ct. App. Apr. 27, 2016); State v. Bullock, No. 15–0077, 2016 WL 1130311

(Iowa Ct. App. Mar. 23, 2016); State v. Wise, No. 15–0192, 2016 WL

894377 (Iowa Ct. App. Mar. 9, 2016); State v. Davis, No. 14–2156, 2016

WL 146528 (Iowa Ct. App. Jan. 13, 2016); State v. Giles, No. 15–0021,

2015 WL 9450810 (Iowa Ct. App. Dec. 23, 2015); State v. Hajtic, No. 15–

0404, 2015 WL 6508691 (Iowa Ct. App. Oct. 28, 2015).

      What our judges need and want from this court is an intelligent

and practical roadmap to guide them in their sentencing decisions—that

is, an illustration of a sentencing or resentencing that complies with this

court’s opinions and allows them the discretion to provide appropriate

juvenile offenders with a minimum period of incarceration. But the court

does not provide such a roadmap. Again, this court simply redefines the

Miller factors in a way that will make it extraordinarily difficult to

sentence a juvenile to any minimum term of imprisonment, regardless of

the individual factors related to the person or any consideration of the

crime he or she committed.      The majority continues to focus on the

defendant’s potential for rehabilitation without giving any weight to

public safety, deterrence, or incapacitation.      Indeed, the majority’s

analysis only uses the word “victim” when quoting the district court.

These newly redefined factors are not only unfair to our district court

judges, but also unworkable.

      A. Chronological Age. The first Miller factor is “the ‘chronological

age’ of the youth and the features of youth, including ‘immaturity,
                                     47

impetuosity, and failure to appreciate risks and consequences.’ ” State v.

Ragland, 836 N.W.2d 107, 115 n.6 (Iowa 2013) (quoting Miller, 567 U.S.

at ___, 132 S. Ct. at 2468).     Yet, today’s opinion provides a subtle

change. The word “chronological” has been dropped. So, whereas Miller

specifically distinguished between the seventeen-year-old and the

fourteen-year-old, and emphasized that the cases before it involved

fourteen-year-olds, according to today’s opinion all ages under eighteen

are a mitigating factor unless the State introduces “expert evidence [that

the] offender possessed features of maturity beyond his or her years.”

This renders the age factor meaningless.     We do not live in a fictional

world where all children are above average. If all juveniles receive the

same    mitigation,   unless   the   State   offers   expert   evidence   of

superannuated wisdom, then in a real sense no one receives mitigation.

The fourteen-year-old cannot be treated more leniently than the

seventeen-and-a-half year-old who commits the same crime.

       B. Family and Home Environment. The second Miller factor is

the juvenile’s “family and home environment.”         567 U.S. at ___, 132

S. Ct. at 2468. Miller asked the court to consider the juvenile’s “family

and home environment . . . no matter how brutal or dysfunctional.” Id.

Now, instead of analyzing the extent a brutal or dysfunctional family

situation “from which [a juvenile] cannot usually extricate himself [or

herself],” id., the majority seeks to impose the requirement of expert

testimony to “assess how the family and home environment may have

affected the functioning of the offender.”      Rather than allowing the

district court to exercise its intellect and discretion in determining the

mitigating weight of a particular juvenile’s home environment, the

majority now requires expert testimony based on “social maturity

scales . . . [that] assess the degree of independence and self-direction in
                                   48

everyday functioning” in every juvenile sentencing—even if the juvenile

may come from a seemingly well-functioning family background. Scott,

88 Temp. L. Rev. at 698. The Supreme Court’s decision in Miller focused

on the extreme—a brutal or dysfunctional family environment from

which a juvenile cannot extricate themselves. See Miller, 567 U.S. at ___,

132 S. Ct. at 2468. As mitigating evidence, the Court found relevant that

Evan Miller’s stepfather abused him, that his mother was an alcoholic

and a drug addict, and that he spent years in and out of the foster care

system.   Id. at ___, 132 S. Ct. at 2469.   The majority takes away the

district court’s ability to make an informed decision based on its own

observations and perceptions. Instead of allowing a dysfunctional home

environment to serve as a mitigating factor, every juvenile’s home

environment must be analyzed by an expert to offer an opinion on the

degree of dysfunction.     Why must a juvenile’s home and family

environment always count as a mitigating factor? What about the case of

“affluenza” where a juvenile raised by a loving family in a wealthy

neighborhood commits a heinous crime?

      C. The Circumstances of the Crime and Family or Peer

Pressures.   The third Miller factor asks the court to consider “the

circumstances of the homicide offense, including the extent of [the

youth’s] participation in the conduct and the way familial and peer

pressures may have affected [the youth].” Id. at ___, 132 S. Ct. at 2468.

From this, we have applied the factor across the board to any crime

committed by a juvenile. In the cases the Supreme Court considered in

Miller, neither of the juveniles acted alone when they committed their

crime, which illustrated the extent to which peer pressure can affect a

juvenile in the moment. Id. at ___, 132 S. Ct. at 2468–69. However, the

majority now asks our district court judges to analyze the extent to
                                     49

which peer or family pressure affected a juvenile, even when the juvenile

acted alone. Scott, 88 Temp. L. Rev. at 698 (“[P]eer influence can play a

more subtle role in adolescent behavior, as when teenagers engage in

behavior that they think will win peer approval . . . .”). How is a district

court judge to do this?    This court offers no guidance on a principled

application.

      The court concludes with the observation that “[m]itigation

normally is warranted in all crimes.” So, as with the age factor, every

circumstance apparently serves as mitigation.         Again, this has the

unfortunate side effect of treating the juvenile who was truly pressured

into committing his or her crime the same as the juvenile who committed

a solo, cold-blooded offense.

      D. Incompetence of Youth as It Affects the Legal Process. The

fourth Miller factor considers the ways a juvenile’s age may affect his or

her ability to deal with police officers, prosecutors, or their own attorney.

Miller, 567 U.S. at ___, 132 S. Ct. at 2468.        Here, too, rather than

focusing on the facts of the case before it and the juvenile’s actual

experience with police, prosecutors, and his attorney, the majority

imposes the requirement of expert testimony to determine whether “a

particular youth would be more capable than most” in navigating the

legal process. While I can certainly see the benefit of expert testimony in

limited circumstances, I think our sentencing judges can often look at

the facts and circumstances involving the juvenile, and make an

informed determination of this issue in the exercise of their full

discretion, without the necessity of expert testimony.

      Additionally, how is this factor to be applied when we are dealing

with an initial sentencing rather than a resentencing? Once a juvenile

has been convicted of, for example, a forcible felony, does trial counsel
                                         50

then need to present expert testimony on how the youth navigated the

just-completed trial in front of the district court judge? If so, doesn’t trial

counsel need to withdraw so there can be new counsel for sentencing?

      E. Rehabilitation.       The last Miller factor is the juvenile’s

“possibility of rehabilitation.”   Id.   This factor takes into consideration

whether a juvenile’s actions demonstrate the transient immaturity of

youth rather than “irreparable corruption.” Id. at ___, 132 S. Ct. at 2469

(quoting Roper, 543 U.S. at 573, 125 S. Ct. at 1197).            Notably, the

concept of “irreparable corruption” originated in Roper in the context of

capital punishment and continued with life-without-parole sentences at

issue in Miller.   It really has no bearing on cases where the juvenile

offender will be released after a period of years.       The issue is simply

whether the sentencing judge can prescribe some amount of time the

juvenile must serve before being parole eligible.

      Again, however, the majority cushions its language to make the

district court’s job nearly impossible—it “cannot necessarily use the

seriousness of a criminal act, such as murder, to conclude the juvenile

falls within the minority of juveniles who will be future offenders.” This

leaves the question open as to when, if ever, a district court can use the

seriousness of a criminal act as anything other than a mitigating factor.

      From the above review of the Miller factors, and the new

restrictions and guidance provided by the majority, it seems abundantly

clear that the district court still has no sensible direction as to how to

effectively apply the Miller factors in its sentencing decisions. In effect,

the majority is imposing a de facto, categorical ban on any minimum

prison sentence for a juvenile offender, whether the underlying sentence

required any mandatory sentence or not.             As I and several of my

colleagues have repeatedly argued, if this is the direction the court wants
                                    51

to take, then be direct enough to just say it. Let’s stop wasting all the

time, resources, and money on a sentencing approach that is impractical

and unworkable. It is a burden on our court system and a burden on

our district court judges who look to our opinions for guidance.

      F. Model Penal Code: Sentencing.            The Model Penal Code:

Sentencing has recently been drafted to submit to the American Law

Institute. It specifically addresses some of the factors discussed above.

      As it pertains to an offender’s age, it notes that “age shall be a

mitigating factor, to be assigned greater weight for offenders of younger

ages.” Model Penal Code: Sentencing § 6.11A(a), at 215. This is more in

line with the mandates of Miller than today’s ruling. In Miller, the court

noted that both of the defendants were fourteen years old—a different

situation than if both had been seventeen. Miller, 567 U.S. at ___, 132

S. Ct. at 2468. The Model Penal Code approach preserves this common-

sense approach, that the fourteen-year-old offender is different from the

seventeen-year-old offender.    It still, however, preserves the idea that

juveniles of all ages are still less blameworthy than adults. Model Penal

Code: Sentencing § 6.11A, cmt. c, at 217 (“[O]ffenders under 18 should

be judged less blameworthy for their criminal acts than older offenders—

and age-based mitigation should increase in correspondence with the

youthfulness of individual defendants.”). Age alone, however, need not

always be a mitigating factor. Id. cmt. c, at 218. “[A] sentencing judge

might find an offender unusually culpable—despite his [or her] youth—if

guilty of a violent offense committed only for a thrill, or for sadistic

purposes, or out of racial animus.” Id.

      The Model Penal Code acknowledges that peer pressure is a

concern that should be weighed, but not a mitigating factor in every case.

Id. at 219.
                                      52
         While normally developing human beings possess a moral
         sense of morality from their early years, important capacities
         of abstract moral judgment, impulse control, and self-
         direction in the face of peer pressure, continue to solidify
         into early adulthood. The developmental literature suggests
         that offenders under 18 may be held morally accountable for
         their criminal actions in most cases, but assessments of the
         degree of personal culpability should be different for older
         offenders.

Id. at 219–20. In other words, if peer pressure is an issue in the case, it

should certainly be weighed as a mitigating factor. We saw this in Miller,

where both defendants acted with peers when they committed their

crimes. However, the majority takes it one step too far by proposing that

peer pressure is at issue in every case, even when the defendant acted

alone.

         The Model Penal Code also places a premium on the goal of

rehabilitation for juvenile offenders. Id. at 219–21. However, it does so

without foreclosing the possibility that rehabilitation will not work in

every case, for every offender. Id. at 220.

         Many believe that adolescents are more responsive to
         rehabilitative sanctions than adult offenders. While the
         evidence for this proposition is mixed, it is clear that some
         rehabilitative programs are effective for some juvenile
         offenders. Success rates are at least comparable to those
         among programs tailored to adults.

Id.   While society has a “greater moral obligation” to attempt to

rehabilitate juvenile offenders, common sense tells us that rehabilitation

will not work for every offender.

      IV. Replacing Trial Judge Discretion with Parole                Board
Discretion Does Not Necessarily Mean Fairer Sentences.

         Lyle eliminated legislative control over how long a juvenile who

committed a serious felony could be incarcerated.          Today’s decision

effectively eliminates judicial control over juvenile sentences by making it

essentially impossible to send a juvenile who commits a crime to prison
                                        53

for any minimum amount of time. Now, control is vested exclusively in

the parole board.

      The parole board has a statutory duty to release a person under

the following circumstances:

      The board shall release on parole or work release any person
      whom it has the power to so release, when in its opinion
      there is reasonable probability that the person can be
      released without detriment to the community or to the
      person.      A person’s release is not a detriment to the
      community or the person if the person is able and willing to
      fulfill the obligations of a law-abiding citizen, in the board’s
      determination.

Iowa Code § 906.4(1) (2017). In other words, the board is obligated to

release an individual as soon as the individual is rehabilitated.          This

explains the court’s preference for parole board discretion: whereas

district court judges can and do consider all the traditional goals of

sentencing—including punishment and deterrence—the parole board

may only consider whether the individual has been rehabilitated.

      On paper, this should work in the juvenile’s favor. In practice, I

am not so sure. The parole board has five members; only two of them

work full-time.     See id. § 904A.1.    These members are responsible for

making all parole decisions in Iowa.         Id. § 904A.4(1).   Collectively, in

FY2016, they completed 11,468 deliberations resulting in 3767 paroles

and 1611 work releases. See Iowa Bd. of Parole, Annual Report Fiscal

Year 2016, https://www.legis.iowa.gov/docs/publications/DF/804753.

pdf, at 2. It is simply unfair and unrealistic to expect the parole board to

devote the same time and attention, on average, to a particular offender

that a district court judge does in its consideration of an appropriate

sentence for a juvenile offender.

      Furthermore, the parole board’s determination will be influenced

heavily by the defendant’s behavior in prison, as reported by the
                                          54

department of corrections. See Iowa Code § 906.5(3); Iowa Admin. Code

r. 205—8.6.      One of the main points the court makes today is that a

juvenile’s conduct as a juvenile has limited value in predicting the

person’s capacity for future law-abiding behavior.                 According to the

court, we need to see the person as an adult—i.e., how the person acts in

prison. This focus on an offender’s behavior in a prison environment will

benefit some defendants, but hurt others.

       Additionally, there is no right to counsel at parole hearings as

there was at sentencing. See Iowa R. Crim. P. 2.28(1). So the former

juvenile will not have the benefit of a lawyer to help them make his or her

case, as he or she did at sentencing.

       Also, given this court’s view that juveniles who commit serious

crimes should not face societal punishment, but only be detained until

rehabilitation is demonstrated to the parole board, it makes little sense

for district court judges to be concerned about the maximum time to be

served.     Thus, while the legislature has given courts discretion to

suspend that maximum sentence in whole or in part, why make that

difficult decision if the person can be released anyway as soon as the

parole board deems him or her rehabilitated?

       While I respect the herculean efforts of the parole board, I continue

to doubt that it is a more appropriate body to determine whether a

juvenile warrants incarceration rather than our district court judges.5

Most significantly, the parole board considers a number of other factors

in making its decision to release someone. Some of these factors include


       5Sweet, 879 N.W.2d at 852–53 (Zager, J., dissenting) (“Last, with all due respect,
I question whether the board of parole is better able to discern whether the juvenile
offender is irreparably corrupt after time has passed, and after opportunities for
maturation and rehabilitation have been provided.”).
                                      55

rule changes or overcrowding.       There may be political or budgetary

considerations that may affect release decisions.         Therefore, these

decisions may be made based on factors completely unrelated to Miller,

which this court has spent considerable time and effort attempting to

define—and redefine.     Ultimately, I continue to believe the majority

improperly delegates sentencing duties and responsibilities to the parole

board, when this is a duty that is properly vested with the district court.

     V. Juveniles Who Commit Serious Crimes Should Be Subject
to Punishment for Those Crimes.
      Throughout all of our cases on juvenile sentencing reform, we have

never sought to excuse the behavior of a juveniles’ criminal act, but

rather to impose punishment in a way that takes into account the lesser

culpability and greater capacity for change of juvenile offenders.      See,

e.g., Null, 836 N.W.2d at 75 (“[W]hile youth is a mitigating factor in

sentencing, it is not an excuse.”).    “The constitutional analysis is not

about excusing juvenile behavior, but imposing punishment in a way

that is consistent with our understanding of humanity today.” Lyle, 854

N.W.2d at 398. In other words, this analysis requires that we consider

both the crime and the punishment. Tying the district court’s hands by

making the factors nearly impossible to apply in a principled manner

disproportionately weighs the analysis so the district court is only able to

consider the juvenile’s age and lessened culpability. Completely lost is

any consideration of the harm the juvenile offender caused to his or her

victim.   Another downside to immediate parole eligibility in place of a

discretionary minimum prison term is that many victims and their family

members will feel compelled to attend the parole hearings to urge

continued incarceration. Each hearing will reopen the wounds scarred
                                        56

over from the defendant’s crime and thereby revictimize the victims and

their families.

      There are a number of objectives that must be weighed when

sentencing    an   offender     under    the   age   of   eighteen:   “offender

rehabilitation, general deterrence, incapacitation of dangerous offenders,

restitution to crime victims, preservation of families, and reintegration of

offenders into the law-aiding community.” Model Penal Code: Sentencing

§ 6.11A, cmt. (c), at 218.      Proportionality does not require that these

objectives be ranked in any particular hierarchy; rather, the district

court must analyze the circumstances before it and weigh the gravity of

the offense and the harm done to the victim before reaching a final

judgment of sentence.         Id.   Generally, however, rehabilitation and

reintegration will have priority over the other goals. Id. at 218–19. An

exception remains for dangerous or unusual criminal offenses.            Id. at

219. This is consistent with the approach we have taken in the past,

where we have noted that the lessened culpability of juvenile offenders

must be taken into account during sentencing, but the harm caused to a

victim should not be left out of the equation. See, e.g., Lyle, 854 N.W.2d

at 398. What the majority’s opinion fails to appropriately acknowledge is

that “[t]he seriousness of victim injuries does not diminish when their

assailants were underage.” Model Penal Code: Sentencing § 6.11A, cmt.

c, at 218.

      As applied to the resentencing of Christopher Roby, the district

court weighed each of the Miller factors. The district court noted that

Roby committed the sexual abuse against his victim when he was sixteen

and seventeen years of age. Additionally, he had been caught improperly

touching his victim and even banned from the victim’s house for a period
                                        57

of time. These factors weigh against the impetuosity and immaturity of

youth.

         The district court also considered Roby’s family and home

environment.         The district court noted that his family and home

environment were “not the best,” but the victim’s family stepped in and

attempted to provide a stable home for him. Despite this support, Roby

chose to repeatedly take advantage of his victim in her home.

         The district court considered peer pressure in its sentencing

decision.        Roby acted alone—indeed, Roby continued to pressure his

victim to keep his abuse secret. Additionally, Roby was living with the

family of the victim and keeping his abuse quiet, which is the opposite of

acting under peer or family pressure.

         The district court did not consider Roby’s ability to deal with

police, prosecutors, or his attorney on resentencing. However, his victim

did not report the abuse until after Roby had turned eighteen. Because

of his age, Roby’s contact with the legal system and his communication

with his own attorney did not occur until he was an adult.

         Last, the district court noted that Roby displayed a concerning lack

of rehabilitation.       Although the sexual abuse perpetrated by Roby

occurred at ages sixteen and seventeen, the district court found he

expressed no remorse for his actions as an adult. Pertinently, even after

ten years of incarceration, Roby maintains that the court is only

punishing him and that he deserves to “get on with his life,” with no

remorse or empathy for his victim.

         A good indicator of Roby’s prospects for rehabilitation is his

behavior in prison.        He received twenty-eight disciplinary infractions

before     his    resentencing   hearing.    Most   troubling   is his   sexual

misbehavior in prison after turning age twenty-five, when his brain was
                                    58

fully developed according to the social science relied on in State v.

Bruegger, 773 N.W.2d 862, 879 n.5 (Iowa 2009). He acted out sexually

by inappropriately touching a female prison guard.         His inability to

behave in a controlled environment, even at age twenty-five, foretells an

inability to behave if he is released into society.   The majority opinion

does not require the sentencing court to turn a blind eye to Roby’s

postsentencing behavior.    In the next resentencing hearing, the State

should supplement the record with Roby’s prison disciplinary history

since the last hearing.    The State should also update the court as to

whether Roby has remained ineligible for the sex offender treatment

program based on his continuing refusal to admit guilt.

      On resentencing Roby, the district court imposed the identical

sentence originally imposed. The court weighed the Miller factors while

also recognizing the significant impact on the victim. After weighing all

of the necessary factors, and noting Roby’s complete lack of remorse, the

district court concluded the original sentence, including the mandatory

minimum sentence, was appropriate. The district court did exactly what

we asked of it.     No amount of redefinition by this court, or the

requirement of expert testimony on each issue, will dissuade me that the

district court, in its broad discretion, entered an appropriate sentence. I

would affirm the district court resentencing.

      VI. Conclusion.

      I am no admirer of our state’s existing mandatory minimum

sentencing laws.   In my view, some of the minimums are far too long

and, as a result, they treat many offenders unfairly. I would like to see

our legislature revise these laws beyond the limited reforms to date. An

important next step would be to reduce the mandatory minimum for
                                    59

most class “B” felonies to something less than the existing seventeen and

one-half years—the sentence Roby has been serving.

      But my criticism of these laws is not age-specific.               These

sentencing laws are unfair for all ages.    Amendment of these laws for

everyone would be preferable to today’s decision which effectively

invalidates   all   minimum   prison   terms   of   any   juvenile   offender.

Unfortunately, today’s decision (1) isolates Iowa even further in this area

of the law; (2) redefines the Miller factors in a way that will likely deter

our district court judges from trying to impose any kind of minimum

prison term on a juvenile, no matter how horrific the crime; yet (3) may

have unintended consequences that actually harm juveniles.            For all

these reasons, I dissent.

      Waterman and Mansfield, JJ., join this dissent.
