               IN THE SUPREME COURT OF IOWA
                               No. 16–0851

                           Filed April 20, 2018


STATE OF IOWA,

      Appellee,

vs.

NOAH RILEY CROOKS,

      Appellant.



      Appeal from the Iowa District Court for Mitchell County, Gregg R.

Rosenbladt and James M. Drew, Judges.



      Defendant convicted of second-degree murder as a youthful

offender for offense he committed at age thirteen challenges his fifty-year

prison sentence imposed at age eighteen. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, and Bridget A. Chambers and

Denise A. Timmins, Assistant Attorneys General, for appellee.
                                      2

WATERMAN, Justice.

      In this appeal, we must decide challenges to Iowa’s youthful

offender laws raised by a defendant who at age thirteen fatally shot his

mother.   The State prosecuted him as a youthful offender in district

court, and a jury found him guilty of second-degree murder. When he

reached   age   eighteen,   the   district   court   sentenced   him   to   an

indeterminate prison term of up to fifty years (with no mandatory

minimum). The defendant raises statutory and constitutional challenges

to his prosecution and sentence, arguing that as a thirteen-year-old

offender, his case should have remained in juvenile court and that at age

eighteen he should have been released on probation or placed in a

transitional facility rather than prison.

      We retained his appeal and, for the reasons explained below, affirm

his conviction as a youthful offender and his fifty-year indeterminate

sentence with immediate parole eligibility. We conclude the district court

properly exercised its discretion based on an individualized assessment

of this defendant under a constitutional statutory scheme.                  We

acknowledge sentencing reform efforts nationwide to raise the minimum

age for prosecution in adult court.          But under our constitutional

separation of powers, those efforts should be directed to the legislature.

      I. Background Facts and Proceedings.

      On the evening of March 24, 2012, Noah Crooks was at home with

his mother, Gretchen Crooks. Noah was thirteen years old and an eighth

grader at Osage Middle School. He had no prior criminal record. The

Crooks lived in rural Osage, in Mitchell County. Gretchen worked as a

nurse at Mercy Hospital in Mason City and was studying to get her

master’s degree at the University of Iowa. Noah’s father, William Crooks,
                                      3

worked at Cargill Kitchen Solutions in Mason City.              William and

Gretchen had been married for seventeen years.

      William was at a work-related party away from home that evening

when Noah loaded a .22 caliber rifle upstairs. Noah took the loaded rifle

downstairs and saw his mother in the kitchen facing away from him.

She was making dinner for him. Noah later told a child psychiatrist that

he could not shoot her at that moment because it would not be

honorable to shoot his mother in the back. Noah returned upstairs until

his mother called up to say his dinner was ready.               He returned

downstairs with the rifle and this time found his mother sitting on the

living room sofa studying her coursework.        Noah shot her twenty-two

times, killing her.

      Noah sent his dad a text message at 7:30 p.m.             The message

stated, “Dad, this is Noah. I killed Mom accidentally. I regret it. Come

home now please.” William thought Noah was joking and replied, “Okay.

Just throw her in the grove. We will take care of her later.”

      Noah called 911 and told the Mitchell County dispatcher, Barbara

Michael, “I killed my mom with my twenty-two.” He admitted he “shot

her . . . with twenty rounds maybe.” Noah also said, “I, I tried to rape

her. . . . I didn’t do it. I tried to rape her, I couldn’t do it.” Noah talked

to the dispatcher about his concerns over his own future, stating,

      I’m never gonna be able to marry. . . . I’m never gonna get,
      be able to get a good job now, ‘cause it’ll be on my
      resume. . . . I mean, I’ll barely be able to get a job like
      McDonald’s. I mean I had plans of going to Michigan State
      University to get an engineering job, making my own car
      company. That’s all down the drain now.

      Deputy Jeff Huftalin was dispatched to the Crooks’s residence and

knocked on the front door. Noah answered the door while he was still on

the phone with the dispatcher. Deputy Huftalin asked Noah where his
                                    4

mother was. Noah told him she was in the living room and that the gun

was on a chair. Deputy Huftalin asked Noah to sit on the porch while he

entered the house.     Deputy Huftalin found Gretchen slouched on the

couch; he could see bullet holes in her chest. Gretchen’s pajama top was

unbuttoned, and she was naked from the waist down. Deputy Huftalin

confirmed that Gretchen was dead. He handcuffed Noah and put him in

the backseat of the patrol car.

      Deputy Huftalin called William to tell him there had been an

accident in his house and that he needed to come home. Upon arrival,

William was told that Gretchen was dead and that Noah had shot her.

      The State filed a delinquency petition four days later, alleging that

Crooks, age thirteen, committed the delinquent acts of first-degree

murder and assault with the intent to commit sexual abuse. The State

requested that the juvenile court waive jurisdiction so that Crooks could

be tried as a youthful offender in adult court, as provided in Iowa Code

section 232.45(7) (2011). Crooks filed a motion to dismiss, challenging

the juvenile court’s statutory authority to waive jurisdiction over a

thirteen-year-old.   The juvenile court denied the motion.    Crooks then

filed a second motion to dismiss, this time asserting the youthful

offender statute was unconstitutional.    The juvenile court denied this

motion, finding Crooks failed to establish that the statute was

unconstitutional.

      At the waiver-of-jurisdiction hearing, the juvenile court made the

three findings required by Iowa Code section 232.45(7)(a) for transfer to

district court: (1) Crooks was fifteen years of age or younger, (2) there

was probable cause that Crooks committed the forcible felonies alleged in

the petition, and (3) the State had established that there were no

reasonable prospects for rehabilitating Crooks prior to his eighteenth
                                     5

birthday if the juvenile court retained jurisdiction.   The juvenile court

waived jurisdiction over Crooks and transferred the case to the district

court for Noah’s prosecution as a youthful offender.

      The State filed a trial information in district court, alleging murder

in the first degree and assault with intent to commit sexual abuse. The

jury trial began on April 30, 2013. Crooks raised the defenses of insanity

and diminished responsibility. On May 13, the jury returned a verdict

finding him guilty of murder in the second degree and not guilty of

assault with the intent to commit sexual abuse. The court placed him on

youthful offender status and transferred his supervision to the juvenile

court for disposition under Iowa Code section 232.52.

      After conducting a dispositional hearing, the juvenile court

transferred guardianship of Crooks to the director of the Department of

Human Services for placement at the State Training School in Eldora.

Crooks was under the supervision of the juvenile court until his

eighteenth birthday.     The juvenile court conducted yearly review

hearings, and Crooks remained at the State Training School.              He

attended school and participated in mental health treatment.             He

graduated from high school on May 29, 2015.

      In April 2016, the juvenile court officer (JCO) filed a youthful

offender report, and the juvenile court reported to the district court as

required by Iowa Code section 232.56. The report noted that throughout

his time at Eldora, Crooks tried to avoid addressing why he killed his

mother. The JCO mentioned that when Crooks’s father confronted him

about his matricide, he responded that “[he] thought we would be better

off without her.” The JCO report elaborated,

      During a recent family meeting on April 14, 2016 with his
      father and counselors, Noah was asked again about why he
      killed his mother. He responded by saying, “I didn’t think of
                                    6
     the consequences. I didn’t think anything would happen. I
     thought I would maybe get grounded.” This question has
     been asked of Noah throughout his therapy time at the State
     Training School. Any answer Noah could give would not be
     an acceptable answer to his father and family members.

The district court ordered a presentence investigation (PSI).    The PSI

report recommended incarceration:

            The defendant was 13 years of age when he shot and
     killed his mother. He will turn 18 on 07/29/16. Prior to his
     arrest on the instant offense he had no criminal history. He
     was involved in counseling with his family and was placed on
     psychotropic medication for a couple of years. There are
     reports he made comments to his peers at school about
     killing his mother and it would appear he bullied other
     children from time to time. It is also noted he was cruel to
     animals and may have burned down his grandmother’s
     home when he was 5–6 years of age. These types of
     behaviors are disturbing for a child of his age. He admitted
     he was “arrogant and stuck up” and didn’t really think
     anything bad was going to happen to him when he killed his
     mother.
           The defendant professes that he came from a good
     home and loved his family, yet he shot and killed his mother
     in their own home. He stated he was not angry at her and
     reported he was close to his mother. His behavior at the
     State Training School has been pretty unremarkable with a
     few minor violations. According to the defendant, he has
     had no major behavioral issues at the training school
     because he knows the rules and doesn’t want to suffer the
     consequences that would come as a result of negative
     choices he might make. He graduated from high school and
     has dreams of attending college.
           The real concern is for public safety and how the
     defendant will conduct himself if allowed to return to society.
     No one can predict the future behavior of an individual with
     any certainty. He has been in institutional settings since the
     age of 13 and has learned to follow rules and modify his
     behavior in a structured setting. The concern is will others
     be placed at risk and will he create more victims in the
     future? If the defendant could offer a plausible explanation
     for why he shot and killed his mother, that might offer some
     insight into his thoughts and actions that day, but he can
     give no explanation for why he did what he did. For the
     protection of society, it is recommended the defendant be
     supervised at a higher level of supervision than what
     community based supervision can provide.
                                          7
             In light of the above it is respectfully recommended
       that the defendant be sentenced to a period of forty-five (45)
       years to the custody of the Director of the Department of
       Corrections. 1

       The district court held a hearing on May 6 to determine Crooks’s

status   after   his    eighteenth     birthday.      The    attorneys     presented

arguments. The State requested a fifty-year indeterminate sentence with

no mandatory minimum. Crooks’s attorney told the court,

       You only have two options under the statute itself. The first
       is to continue the youthful offender status itself or discharge
       him. That’s it. There aren’t — In the event that you
       continue the youthful offender status itself, then you have
       other options. You can place him on probation. You can
       confine him. You can do a number — You can suspend the
       sentence and you can provide all types of restrictions on
       probation, but that’s it. And that’s the position that we’ve
       taken.

His attorney further argued that any confinement or probation could not

exceed five years, with credit provided for time served.                 He did not

specifically request placement in a transitional facility.

       Crooks read to the court a statement he wrote in which he

described the groups he voluntarily joined at the State Training School

and expressed his regret for taking his mother’s life. He apologized to the

people he hurt through his actions. Several family members gave victim-

impact statements.         His uncle (the victim’s brother) requested the

maximum sentence, and his maternal grandmother emphasized that he

“doesn’t have real empathy.” William, the defendant’s father, spoke last:

       [F]or four years we never talked about Gretchen, not once.
       He never had any remorse about his mom. I’d push him. . . .
       [H]e just wanted her out of his life because he can play video
       games. . . . [F]our years isn’t long enough to pay for a
       wonderful woman who did so much at the hospital, for all of

        1A forty-five-year recommended sentence allowed Crooks five years of sentencing

credit for his time institutionalized at Eldora.
                              8
us, who were all of our rocks that we had to rely on. I — he
needs to pay for his mother’s life.
      And I know that’s hard to say, but it’s just what it is,
kid. It’s time you face the piper, I guess, and letting you out
today would ruin so many more lives. It honestly would.

The court determined that probation was not justified:

      [T]he common theme throughout the documents that
have been submitted, and even comments made here today,
is that there has been a surprising lack of an emotional
response from Noah, something showing appropriate
remorse, empathy, which is understanding the feelings of the
other people who have been affected by your actions. And I
recognize that you are a young person, and there’s a reason
we treat young people differently. It’s because sometimes
emotionally they aren’t developed enough to maybe respond
in the appropriate way; but it is — it is very apparent to me,
in reviewing the evidence, that for one reason or another,
Noah, you just don’t want to deal with this, with what you’ve
done; and at some point in time you’re going to have to, but
it doesn’t appear to me that that’s happened yet. You’ve got
some ground yet to cover and I think that there’s work left to
be done so I don’t believe that a straight discharge at this
time is appropriate.
      ....
       At this point I do not see sufficient evidence to
convince me that Noah has been rehabilitated. The nature
and circumstances of this offense, coupled with the lack of
emotion, remorse, and empathy, indicates that there is a lot
of ground to cover.       There have been some recent
expressions of remorse and attempts to show empathy, and I
hope that those are sincere, but the fact that they are so
recent causes me to wonder. And, Noah, going forward you’ll
have the opportunity to prove to everybody that you mean
what you say. You’ve heard the saying “actions speak louder
than words,” and I suspect that’s what your family is waiting
for, and I know that’s what the rest of us will be looking for
as well.
       I’m also concerned, when we talk about the
appropriateness of street probation, that you have made the
comment that you really don’t think you have any need for
future services. You made a comment, when asked whether
you perhaps would want to return to the Training School to
speak some day after you’ve been rehabilitated, you didn’t
really think so or you hoped not, I think were your words.
You changed your answer after you were pressed on it a little
bit, but those comments are concerning to me, that you still
                                          9
       don’t have a full appreciation for what you’ve done and the
       legitimacy of everyone’s concerns.
              I am hopeful, but I’m not yet convinced, that it is safe
       for you to be free despite your young age. The lack of an
       appropriate emotional response, the lack of empathy, the
       lack of something that even approaches an adequate
       explanation for why this happened could be an indication
       that you just don’t care. We just don’t know yet. That’s the
       point, we don’t know. And I don’t believe it’s appropriate to
       release you on probation until we can be confident that that
       isn’t the situation, but rather that you do care and that we
       don’t have to worry about something like this happening
       down the road. And, in short, we need more time so that we
       can be confident in that determination.
              So I do believe that the imposition of a sentence with
       incarceration is appropriate, and to that end it is necessary
       that I enter conviction.

The court entered judgment for murder in the second degree. The court

sentenced Crooks to an indeterminate term of incarceration not to exceed

fifty years without any mandatory minimum sentence. 2                   Crooks was

therefore immediately eligible for parole.

       Crooks appealed.       On appeal, he argues that Iowa Code section

232.45(7)(a) (2011) does not provide statutory authority to try a thirteen-

year-old as a youthful offender. He also contends sections 232.45(7) and

907.3A violate article I, section 17 of the Iowa Constitution prohibiting

cruel and unusual punishment. Finally, he argues that the sentencing
court abused its discretion by incarcerating him. We retained his appeal.

       II. Standard of Review.

       “[W]e review the juvenile court’s interpretation of statutes for

correction of errors at law.” In re A.M., 856 N.W.2d 365, 370 (Iowa 2014).

Our review of constitutional challenges to a statute is de novo. State v.


       2The court also ordered Noah to pay $150,000 in victim restitution. See State v.
Richardson, 890 N.W.2d 609, 624 (Iowa 2017) (rejecting constitutional challenges to the
$150,000 minimum restitution imposed on juvenile homicide offenders). Noah does not
challenge the restitution on appeal.
                                    10

Thompson, 836 N.W.2d 470, 483 (Iowa 2013).         “We review the district

court’s sentence for an abuse of discretion.” State v. Hill, 878 N.W.2d

269, 272 (Iowa 2016) (quoting State v. Barnes, 791 N.W.2d 817, 827

(Iowa 2010)).

      III. Analysis.

      Crooks raises several challenges to the youthful offender provisions

of the Iowa Code. We begin by providing a brief overview of the statutory

scheme. We then consider whether the statutes permitted the juvenile

court to waive jurisdiction over Crooks at age thirteen for prosecution as

a youthful offender in district court. Because we conclude the juvenile

court was statutorily authorized to do so, we next address his claim that

the youthful offender statutes constitute cruel and unusual punishment

in violation of article I, section 17 of the Iowa Constitution. We conclude

that the waiver provisions do not constitute punishment, and we decline

to impose a categorical bar on prosecuting thirteen-year-olds as youthful

offenders in district court. Finally, we reject his claims that the district

court abused its discretion by imposing a sentence of incarceration with

no mandatory minimum.

      A. Overview of the Youthful Offender Statutes.          The youthful

offender statutes were enacted in 1997 as part of comprehensive

legislation related to juvenile justice.   See generally 1997 Iowa Acts

ch. 126 (entitled Juvenile Justice and Youthful Offenders).      Generally,

“[t]he juvenile court has exclusive original jurisdiction in proceedings

concerning a child who is alleged to have committed a delinquent act

unless otherwise provided by law . . . .”        Iowa Code § 232.8(1)(a).

However, the juvenile court may transfer cases to adult court.

      After the filing of a petition which alleges that a child has
      committed a delinquent act on the basis of an alleged
      commission of a public offense and before an adjudicatory
                                           11
       hearing on the merits of the petition is held, the county
       attorney or the child may file a motion requesting the court
       to waive its jurisdiction over the child for the alleged
       commission of the public offense or for the purpose of
       prosecution of the child as an adult or a youthful offender.

Id. § 232.45(1). Section 232.45(7)(a) sets forth the findings required for

the juvenile court to waive its jurisdiction over a child who then can be

prosecuted as a youthful offender in district court.

       At the conclusion of the waiver hearing and after considering
       the best interests of the child and the best interests of the
       community the court may, in order that the child may be
       prosecuted as a youthful offender, waive its jurisdiction over
       the child if all of the following apply:
               (1) The child is fifteen years of age or younger.
              (2) The court determines . . . that there is probable
       cause to believe that the child has committed a delinquent
       act which would constitute a public offense under section
       232.8, subsection 1, paragraph “c”, notwithstanding the
       application of that paragraph to children aged sixteen or
       older.
             (3) The court determines that the state has
       established that there are not reasonable prospects for
       rehabilitating the child, prior to the child’s eighteenth
       birthday, if the juvenile court retains jurisdiction over the
       child and the child enters into a plea agreement, is a party to
       a consent decree, or is adjudicated to have committed the
       delinquent act.

Id. § 232.45(7)(a) (emphasis added). 3          The juvenile court, however, can
waive its jurisdiction over the child for prosecution as an adult only when

“[t]he child is fourteen years of age or older” and other conditions are

met. Id. § 232.45(6).




       3Subparagraph   (1) was amended in 2013 to require that
       [t]he child is twelve through fifteen years of age or the child is ten or
       eleven years of age and has been charged with a public offense that
       would be classified as a class “A” felony if committed by an adult.
2013 Iowa Acts ch. 42, § 5 (codified at Iowa Code § 232.45(7)(a)(1) (2014)).
                                     12

      B. The Applicability of Iowa Code Section 232.45(7)(a) to

Thirteen-Year-Old Offenders.       Crooks argues that Iowa Code section

232.45(7)(a) does not allow the juvenile court to waive jurisdiction over a

thirteen-year-old child to be tried as a youthful offender in district court.

He contends that, when related statutes are read together as a whole,

section 232.45(7)(a) is ambiguous.        We disagree and conclude the

statutes unambiguously allow prosecution of a thirteen-year-old as a

youthful offender. “[O]ur starting point in statutory interpretation is to

determine if the language has a plain and clear meaning within the

context of the circumstances presented by the dispute.” McGill v. Fish,

790 N.W.2d 113, 118 (Iowa 2010).

      Crooks emphasizes the different language used for the “traditional”

waiver for prosecution as an adult and waiver for prosecution as a

youthful offender. Compare Iowa Code § 232.45(6)(a) (“fourteen years of

age or older” to be prosecuted as an adult (emphasis added)), with id.

§ 232.45(7)(a)(1) (“fifteen years of age or younger” to be prosecuted as a

youthful offender (emphasis added)).      He encourages us to read these

provisions together as setting a lower age limit—a “floor”—of fourteen for

children who can be prosecuted as youthful offenders. Subsections 6(a)

and 7(a) describe waiver processes with quite different consequences,

and we decline to impose the lower age limit for prosecution as an adult

on the subsection regarding prosecution as a youthful offender.          The

legislature used different language in describing age limits throughout

the statute and knows how to set a lower age limit.            See, e.g., id.

§ 232.52(2)(e) (“at least twelve years of age”); id. § 232.54(1)(h)(1) (“age

fourteen or over”).   The legislature chose to include thirteen-year-olds

within the youthful-offender waiver provision.
                                    13

      We see no ambiguity in the phrase “fifteen years of age or younger”

whether read in isolation or in context of the entire statutory scheme.

We conclude the juvenile court could properly waive jurisdiction over

Crooks, who was age thirteen when he killed his mother, to allow his

prosecution in district court as a youthful offender.

      C. The Constitutionality of Iowa Code Sections 232.45(7)(a)

and 907.3A. Crooks argues that Iowa Code sections 232.45(7)(a) and

907.3A—when applied to an offender age thirteen at the time of the

crime—violate article I, section 17 of the Iowa Constitution prohibiting

“cruel and unusual punishment.”           Under our de novo review of

constitutional challenges to legislative enactments,

      we must remember that statutes are cloaked with a
      presumption of constitutionality. The challenger bears a
      heavy burden, because it must prove the unconstitutionality
      beyond a reasonable doubt. Moreover, “the challenger must
      refute every reasonable basis upon which the statute could
      be found to be constitutional.” Furthermore, if the statute is
      capable of being construed in more than one manner, one of
      which is constitutional, we must adopt that construction.

Thompson, 836 N.W.2d at 483 (quoting State v. Seering, 701 N.W.2d 655,

661 (Iowa 2005)).

      We first address Crooks’s claim that the waiver of a child to district

court for prosecution as a youthful offender under section 232.45(7)

constitutes cruel and unusual punishment.           Then we address his

challenge to his fifty-year indeterminate sentence imposed under section

907.3A.

      1. Whether the waiver process of section 232.45(7) constitutes

punishment. Crooks claims the waiver process constitutes punishment

because the decision to waive jurisdiction transfers a child from the

juvenile system, which focuses on rehabilitation, to the adult system,

which emphasizes incapacitation, retribution, and deterrence. See In re
                                          14

M.M.C., 564 N.W.2d 9, 11 (Iowa 1997) (“[T]he primary goal of juvenile

justice in Iowa is rehabilitation, not punishment.”); see also State v.

Oliver, 812 N.W.2d 636, 646 (Iowa 2012) (identifying “four legitimate

penological justifications: retribution, deterrence, incapacitation, and

rehabilitation” (citing Graham v. Florida, 560 U.S. 48, 71, 130 S. Ct.

2011, 2028 (2010))).         The statutory waiver changes the forum from

juvenile court to district court, but with built-in protections for youthful

offenders.

       In order to waive jurisdiction for the child to be tried as a youthful

offender, the juvenile court must make an individualized finding that

“there are not reasonable prospects for rehabilitating the child, prior to

the child’s eighteenth birthday, if the juvenile court retains jurisdiction

over the child.” Iowa Code § 232.45(7)(a)(3) (2011). After jurisdiction is

transferred from the juvenile court, the district court “shall, upon a plea

of guilty or a verdict of guilty, defer sentence of a youthful offender . . .

[and] transfer supervision of the youthful offender to the juvenile court

for disposition in accordance with section 232.52.”                   Id. § 907.3A(1)

(emphasis added). 4 A youthful offender is treated the same as a child

retained in the juvenile system until the child approaches age eighteen.
At that point,


       4The  legislature amended section 907.3A in 2013. See 2013 Iowa Acts ch. 42,
§ 15 (adding language directing court to consider a presentence investigation report, if
ordered, and renumbering the sentencing options for clarity). At the May 6, 2016
sentencing hearing, the court indicated the 2011 Code applied, and the parties agreed.
With regard to the sentencing options, the State noted, “The 2013 Code is clearly
written better than the 2011 Code section, and it’s the State’s opinion that that was the
purpose of amending the statute. We don’t believe that the 2013 [amendment] added
anything different[;] it just is easier to read.” The court agreed that the amendments
“merely clarified the 2011 statute” and concluded that both statutes provided “the same
options to the court.” We rely on the 2011 Code applied by the district court and the
parties but would reach the same conclusions under the 2013 amendment.
                                            15
       [t]he court shall hold a hearing prior to a youthful offender’s
       eighteenth birthday to determine whether the youthful
       offender shall continue on youthful offender status after the
       youthful offender’s eighteenth birthday under the
       supervision of the court or be discharged. . . . The court
       shall make its decision after considering the services
       available to the youthful offender, the evidence presented,
       the juvenile court’s report, the interests of the youthful
       offender, and interests of the community.

Id. § 907.3A(2).        Adult punishment is discretionary with the district

court, which has the options of discharging the youthful offender,

“continu[ing] the youthful offender deferred sentence[,] or enter[ing] a

sentence, which may be a suspended sentence.” 5 Id. § 907.3A(2)–(3). As

a result, the decision to waive jurisdiction over a child for prosecution as

a youthful offender does not automatically subject the child to adult

criminal sanctions. Instead, the youthful offender provisions allow the

courts to wait until the child is nearly eighteen—and to see whether the

rehabilitative services provided in the juvenile system have been

effective—before determining how to proceed.

       Waiver of a child for prosecution as a youthful offender is not a

decision to abandon efforts to rehabilitate the child. To the contrary, the

statutory scheme allows the state to focus on rehabilitating the child

while at the same time giving the state the option to retain supervision of

the child after the child’s eighteenth birthday if the court finds the child

cannot be rehabilitated within that time. The court is required to make


       5Section   907.3A(3) limits the term of probation.
       [I]f the district court either continues the youthful offender deferred
       sentence or enters a sentence, suspends the sentence, and places the
       youthful offender on probation, the term of formal supervision shall
       commence upon entry of the order by the district court and may
       continue for a period not to exceed five years.
Id. § 907.3A(3). The court could decide to impose a sentence of incarceration for a term
of years but does not have to do so. See id.
                                    16

specific findings at each step of the process and has discretion with

regard to the disposition, including when the child reaches age eighteen.

We hold that the waiver process does not constitute punishment for

purposes of article I, section 17 of the Iowa Constitution.

      Other courts have held waiver statutes allowing prosecution of

juveniles in adult court are not “punishment” for constitutional

purposes. See, e.g., State v. Jensen, 385 P.3d 5, 9 (Idaho Ct. App. 2016)

(“Being waived into adult court, whether mandatory or discretionary, is

not a punishment.”); People v. Patterson, 25 N.E.3d 526, 550–51 (Ill.

2014) (concluding that the automatic transfer statute does not impose

punishment for purposes of the Eighth Amendment or the analogous

state constitutional provision); State v. Mays, 18 N.E.3d 850, 861 (Ohio

Ct. App. 2014) (concluding that provisions governing “whether a juvenile

case must be transferred to adult court for adjudication” do not impose

punishment); cf. State v. Rodriguez, 71 P.3d 919, 928 (Ariz. Ct. App.

2003) (concluding that the transfer statute “does not subject th[e]

juvenile to enhanced punished [but instead] subjects the juvenile to the

adult criminal justice system”).

      Crooks cites no case holding that a waiver statute transferring a

juvenile to adult court constitutes punishment under an Eighth

Amendment or comparable state constitutional analysis.        He relies on

language in three cases that tangentially support his claim. In R.H. v.

State, the Alaska Court of Appeals explained,

            Nor can juvenile waiver proceedings realistically be
      said to affect “only the forum where the issue of guilt will be
      adjudicated.”    A juvenile waiver proceeding is the only
      available avenue by which the state may seek to prosecute a
      child as an adult.
                                     17

777 P.2d 204, 210 (Alaska Ct. App. 1989). R.H. involved a claim that

“court-ordered evaluations infringed [R.H.’s] right to be free from

compelled self-incrimination”—not a claim that being tried as an adult

constituted cruel and unusual punishment.        Id. at 208.      The Alaska

court was distinguishing juvenile waiver hearings from competency

proceedings in order to determine whether the court erred in requiring

“R.H. to submit to a psychiatric evaluation for the purpose of

determining his amenability to treatment as a child.” Id. at 210–11.

      Crooks also cites Ramona R. v. Superior Court, in which the

California Supreme Court held that under the California Constitution,

“testimony a minor gives at a fitness hearing . . . may not be used against

him at a subsequent trial of the offense.” 693 P.2d 789, 795 (Cal. 1985)

(en banc).   In support of this holding, the court stated that “the

certification of a juvenile offender to an adult court has been accurately

characterized   as   ‘the   worst   punishment   the   juvenile   system    is

empowered to inflict.’ ” Id. (quoting Note, Separating the Criminal from

the Delinquent: Due Process in Certification Procedure, 40 S. Cal. L. Rev.

158, 162 (1967)). The Ramona R. court was not addressing a claim of

cruel and unusual punishment but was instead considering whether “the

[trial] court erred in refusing to grant [the minor defendant] immunity

from use at trial of any statements she made in the fitness hearing or to

her probation officer.” Id. at 790. Finally, Crooks cites the dissent in

People v. Hana, stating “[t]here can . . . be no question regarding the

punitive nature of the decision to waive juvenile jurisdiction over [Hana].”

504 N.W.2d 166, 181 (Mich. 1993) (Cavanagh, C.J., dissenting).             The

Michigan Supreme Court majority concluded that Fifth and Sixth

Amendment protections do not apply to juvenile waiver hearings to
                                       18

determine whether the defendant should be prosecuted as a juvenile or

as an adult. Id. at 169, 174 (majority opinion). The dissent concluded,

        I would remand this case to the juvenile court for a hearing
        to determine whether the statements and confessions
        introduced and considered at phase II of [Hana]’s juvenile
        waiver hearing were obtained in violation of his Fifth
        Amendment right to remain silent or his Sixth Amendment
        right to counsel.

Id. at 183 (Cavanagh, C.J., dissenting).           The Hana court was not

addressing a claim that the waiver constituted cruel and unusual

punishment.

        Moreover, in all three cases, the child would be tried as an adult

and faced either life imprisonment or a prison sentence with a lengthy

mandatory minimum.         See R.H., 777 P.2d at 210 (ninety-nine year

sentence with a mandatory minimum of twenty years); Ramona R., 693

P.2d at 795 (life imprisonment); Hana, 504 N.W.2d at 181 (mandatory life

sentence without parole). By contrast, Crooks was tried as a youthful

offender rather than as an adult and received a prison sentence with

immediate parole eligibility and no mandatory minimum. None of these

decisions persuade us that Iowa’s waiver provision for youthful offenders

constitutes punishment within the meaning of article I, section 17 of the

Iowa Constitution, much less cruel and unusual punishment.

        2. Crooks’s categorical challenge to the sentence imposed under

section 907.3A. Crooks claims that sentencing a thirteen-year-old as a

youthful offender under section 907.3A violates article I, section 17 of the

Iowa Constitution. He urges us to adopt a categorical bar on imposing

punishment upon a child under the age of fourteen in adult court. We

begin    our   analysis   with   a   brief   overview   of   federal   and   state

jurisprudence on the prohibition of cruel and unusual punishment as it

relates to juvenile sentencing.
                                    19

      The United States Supreme Court has interpreted the Eighth

Amendment’s Cruel and Unusual Punishment Clause as it relates to

juvenile sentencing in a trilogy of cases, expanding the categorical

challenges available to juvenile offenders challenging the death penalty

or mandatory sentences of life without parole.     See generally Miller v.

Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012); Graham, 560 U.S. 48,

130 S. Ct. 2011; Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183

(2005). In Roper, the Supreme Court addressed the differences between

juveniles and adults, including that juveniles lack maturity and “are

more vulnerable or susceptible to negative influences and outside

pressures.” 543 U.S. at 569–70, 125 S. Ct. at 1195. The Court held that

“[t]he Eighth and Fourteenth Amendments forbid imposition of the death

penalty on offenders who were under the age of 18 when their crimes

were committed.” Id. at 578, 125 S. Ct. at 1200. In Graham, the Court

held a sentence of life without parole for a juvenile offender for a

nonhomicide offense violates the Eighth Amendment.        560 U.S. at 82,

130 S. Ct. at 2034.    In Miller, the Court held that a mandatory life

sentence for homicide without the possibility of parole violates the Eighth

Amendment. 567 U.S. at 479, 132 S. Ct. at 2469.

      We have applied the Roper–Graham–Miller reasoning under the

Iowa Constitution and “built upon it and extended its principles.” State

v. Sweet, 879 N.W.2d 811, 832 (Iowa 2016).        We held that the Iowa

Constitution requires an individualized sentencing hearing before

sentencing a juvenile offender to a lengthy mandatory minimum sentence

of imprisonment. See State v. Pearson, 836 N.W.2d 88, 96 (Iowa 2013)

(reversing thirty-five year mandatory minimum without the possibility of

parole); State v. Null, 836 N.W.2d 41, 71 (Iowa 2013) (reversing 52.5-year

mandatory minimum prison term). Then, in State v. Lyle, we held that
                                           20

any automatic mandatory minimum prison sentences for juvenile

offenders is unconstitutional under the cruel and unusual punishment

clause of article I, section 17.          854 N.W.2d 378, 402–04 (Iowa 2014)

(holding an individualized sentencing hearing applying the Miller factors

is required for the imposition of a minimum sentence before parole

eligibility).   In Sweet, we adopted “a categorical rule that juvenile

offenders may not be sentenced to life without the possibility of parole.”

879 N.W.2d at 839. 6

       Crooks asks us to “take the next logical step and define at what

age a child may be subject to adult prosecution and punishment” by

adopting a categorical bar on sentencing an eighteen-year old in adult

court for a crime committed at age thirteen. In considering whether to

adopt a categorical approach to a class of offenders under the cruel and


       6In   response to Miller and related Iowa caselaw, the Iowa General Assembly in
2015 amended the statutory provisions relating to the sentencing of juveniles who
commit class “A” felonies. See Sweet, 879 N.W.2d at 840 (Cady, C.J., concurring
specially) (explaining that the 2015 amendment, which provided for a hearing and
identified circumstances the court must consider, “addressed the constitutional
deficiency identified in Miller and in our cases that followed”). The previous version of
the statute required a mandatory minimum sentence of twenty-five years for a juvenile
convicted of a class “A” felony that was not first-degree murder and prohibited parole
for juveniles convicted of first-degree murder. Iowa Code § 902.1(2) (2015). Under the
amended statute, a juvenile who commits first-degree murder shall be sentenced to
(1) life without parole unless the governor commutes the sentence to a term of years,
(2) life with the possibility of parole after serving a minimum term of confinement, or
(3) life with the possibility of parole (with no minimum term of confinement). 2015 Iowa
Acts ch. 65, § 1 (codified at Iowa Code § 902.1(2)(a) (2016)). A juvenile who commits a
class “A” felony that is not first-degree murder shall be sentenced to either (1) life with
the possibility of parole after serving a minimum term of confinement or (2) life with the
possibility of parole (with no minimum term of confinement). 2015 Iowa Acts ch. 65,
§ 2 (codified at Iowa Code § 902.1(3)(a) (2016)). Sweet’s categorical prohibition on life-
without-parole sentences for juvenile offenders eliminated that sentencing option in the
2015 enactment. See Sweet, 879 N.W.2d at 840 (“[T]he new statutory scheme adopted
by our legislature for sentencing juvenile offenders convicted of first-degree murder to
life without the possibility of parole violates the cruel and unusual punishment
clause.”). State v. Zarate rejected a facial challenge to the remaining provisions of
section 902.1(2). ___ N.W.2d ___, ___ (Iowa 2018).
                                          21

unusual punishment clause of article I, section 17, we apply the two-step

approach used by the United States Supreme Court under the Eighth

Amendment.       Sweet, 879 N.W.2d at 835 (majority opinion).                 We first

consider whether there is a consensus—or at least an emerging

consensus—to guide our consideration of the question.                   Id.   We then

“exercise our independent judgment to determine whether to follow a

categorical approach.” Id. In exercising our independent judgment, we

are “guided by ‘the standards elaborated by controlling precedents and

by   [our]    own     understanding       and     interpretation      of   the      [Iowa

Constitution’s] text, history, meaning, and purpose.’ ” Lyle, 854 N.W.2d

at 386 (alterations in original) (quoting Graham, 560 U.S. at 61, 130

S. Ct. at 2022).     We also “consider ‘the culpability of the offenders at

issue in light of their crimes and characteristics, along with the severity

of the punishment in question.’ ” Id. (quoting Graham, 560 U.S. at 67,

130 S. Ct. at 2026).

       “Substantial deference is afforded the legislature in setting the

penalty for crimes.” State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000)

(rejecting constitutional challenges to fifty-year indeterminate sentence

for second-degree murder). 7         In Lyle, we discussed in the context of

        7The United States Supreme Court has observed that “the ‘clearest and most

reliable objective evidence of contemporary values is the legislation enacted by the
country’s legislatures.’ ” Atkins v. Virginia, 536 U.S. 304, 312, 122 S. Ct. 2242, 2247
(2002) (quoting Penry v. Lynaugh, 492 U.S. 302, 331, 109 S. Ct. 2934, 2953 (1989),
abrogated on other grounds by Atkins, 536 U.S. at 321, 122 S. Ct. at 2252); see also
Gregg v. Georgia, 428 U.S. 153, 174–76, 96 S. Ct. 2909, 2925–26 (1976) (basing Eighth
Amendment analysis on state legislative judgments as reflecting the moral values of the
American people). Chief Justice Roberts recently noted,
                This Court’s precedents have emphasized the importance of state
       legislative judgments in giving content to the Eighth Amendment ban on
       cruel and unusual punishment. . . . The “clearest and most reliable
       objective evidence of contemporary values” comes from state legislative
       judgments.      Such legislative judgments are critical because in “a
       democratic society legislatures, not courts, are constituted to respond to
                                         22

juvenile sentencing the deference owed to the elected branches under our

separation of powers and reiterated that “[l]egislative judgments can be

‘the most reliable objective indicators of community standards for

purposes of determining whether a punishment is cruel and unusual.’ ”

854 N.W.2d at 388 (quoting State v. Bruegger, 773 N.W.2d 862, 873

(Iowa 2009)). We added, “Just as we typically ‘owe substantial deference

to the penalties the legislature has established for various crimes,’ we

owe equal deference to the legislature when it expands the discretion of

the court in juvenile sentencing.” Id. (quoting Oliver, 812 N.W.2d at 650).

We elaborated on the importance of the discretion afforded our courts

when adjudicating juvenile offenders:

       Here, the legislative decision to back away from mandatory
       sentencing for most crimes committed by juveniles weakens
       the notion of a consensus in favor of the practice of blindly
       sentencing juveniles based on the crime committed. In fact,
       it helps illustrate a building consensus in this state to treat
       juveniles in our courts differently than adults.
             Actually, the statutory recognition of the need for some
       discretion when sentencing juveniles is consistent with our
       overall approach in the past in dealing with juveniles.
       Primarily, the juvenile justice chapter of our Code gives
       courts considerable discretion to take action in the best
       interests of the child.

Id. Iowa’s youthful offender statutes require appropriate factual findings

for discretionary, individualized waiver, and sentencing determinations.

_______________________
       the will and consequently the moral values of the people.” And we have
       focused on state enactments in this realm because of the “deference we
       owe to the decisions of the state legislatures under our federal system
       . . . where the specification of punishments is concerned.” For these
       reasons, we have described state legislative judgments as providing
       “essential instruction” in conducting the Eighth Amendment inquiry.

Moore v. Texas, 581 U.S. ___, ___, 137 S. Ct. 1039, 1056–57 (2017) (Roberts, C.J.,
dissenting) (first quoting Atkins, 536 U.S. at 312, 122 S. Ct. at 2247; then quoting
Gregg, 428 U.S. at 175, 96 S. Ct. at 2926; then quoting id. at 176, 96 S. Ct. at 2926;
then quoting Roper, 543 U.S. at 564, 125 S. Ct. at 1192).
                                             23

See Iowa Code § 232.45(7)(a); id. § 907.3A(2).                    For that reason, we

uphold the legislature’s enactment permitting prosecution of thirteen-

year-old defendants as youthful offenders in district court upon the

requisite judicial findings.

       Crooks acknowledges that twenty-one states authorize children

under the age of fourteen to be prosecuted and punished as adults. 8 He


       8See   Alaska Stat. Ann. § 47.12.100 (West, Westlaw through 2017 1st Reg. Sess.
& 4th Spec. Sess. of the 30th Leg.) (no lower age limit); Colo. Rev. Stat. Ann. § 19-2-
518(1)(a) (West, Westlaw through ch. 85 of the 2d Reg. Sess. of the 71st Gen. Assemb.
(2018)) (age twelve or older for discretionary waiver for specified offenses); Ga. Code
Ann. §§ 15-11-560 to -561 (West, Westlaw through 2017 Sess. of Gen. Assemb.) (age
thirteen or older for exclusive adult jurisdiction for specified offenses and for
discretionary transfer for specified offenses); Idaho Code Ann. §§ 20-508 to -509 (West,
Westlaw through 2d Reg. Sess. of the 64th Idaho Leg.) (under age fourteen for
discretionary waiver for specified offenses); 705 Ill. Comp. Stat. Ann. 405/5-805(3), -
810 (West, Westlaw through P.A. 100-582 of the 2018 Reg. Sess.) (age thirteen or older
for discretionary wavier and for extended jurisdiction juvenile prosecution); Me. Rev.
Stat. Ann. tit. 15, § 3101(4) (Westlaw through ch. 351 of the 2017 2d Reg. Sess.) (no
lower age limit); Miss. Code Ann. §§ 43-21-151, -157 (West, Westlaw through 2018 Reg.
Sess.) (age thirteen or older for exclusive adult jurisdiction for specified offenses; age
thirteen and older for discretionary waiver); Mo. Ann. Stat. § 211.071 (West, Westlaw
through 2d Extraordinary Sess. of the 99th Gen. Assemb.) (age twelve or older for
discretionary transfer); Mont. Code Ann. § 41-5-206 (West, Westlaw through 2017
Sess.) (age twelve or older for discretionary transfer for specified offenses); Nev. Rev.
Stat. Ann. § 62B.390 (West, Westlaw through 79th Reg. Sess. (2017)) (age thirteen or
older for discretionary transfer for murder or attempted murder); N.H. Rev. Stat. Ann.
§ 628:1(II) (Westlaw through ch. 7 of the 2018 Reg. Sess.) (age thirteen or older for
discretionary waiver for specified offenses); N.Y. Penal Law § 30.00(2) (McKinney,
Westlaw through L.2018, ch. 1 to 3) (age thirteen or older to be criminally responsible
for specified offenses); N.C. Gen. Stat. Ann. § 7B-2200 (West, Westlaw through 2017
Reg. Sess.) (age thirteen or older for transfer for felonies); Okla. Stat. Ann. tit. 10A, § 2-
5-101 (West, Westlaw through ch. 6 & 7 of 2d Extraordinary Sess. of the 56th Leg.)
(child age thirteen or older charged with first-degree murder shall be considered an
adult); 42 Pa. Stat. and Cons. Ann. § 6302 (West, Westlaw through 2018 Reg. Sess. Act
10) (excluding murder from the definition of “delinquent act”); 14 R.I. Gen. Laws Ann. §
14-1-7 to -7.1 (West, Westlaw through ch. 480 of the Jan. 2017 Sess.) (no lower age
limit for discretionary waiver for offense punishable by life imprisonment if committed
by an adult); S.C. Code Ann. § 63-19-1210 (Westlaw through 2018 Act No. 133) (no
lower age limit for discretionary transfer for murder or criminal sexual conduct); S.D.
Codified Laws § 26-8C-2 (Westlaw through 2018 Reg. Sess. effective Mar. 23, 2018 &
Supreme Court Rule 17-12) (age ten or older to be “delinquent child”); id. § 26-11-4
(delinquent child charged with felony may be tried in circuit court); Tenn. Code Ann.
§ 37-1-134 (West, Westlaw through 2018 2d Reg. Sess., effective through Mar. 22,
2018) (no lower age limit for discretionary waiver for specified offenses); Vt. Stat. Ann.
                                          24

also concedes that there appears to be no consensus on the minimum

age to hold children criminally responsible.                   But he notes that

“consensus is not dispositive.”           Lyle, 854 N.W.2d at 387 (alteration

omitted) (quoting Kennedy v. Louisiana, 554 U.S. 407, 421, 128 S. Ct.

2641, 2650 (2008)).

       Crooks relies on a recent study authored by Jeree Thomas, Policy

Director at the Campaign for Youth Justice (CFYJ), entitled Raising the

Bar: State Trends in Keeping Youth Out of Adult Courts (2015-2017),

http://cfyj.org/images/A-StateTrends_Report-Web.pdf. The focus of that

report is on legislative reform efforts. See id. at 38. The report cites no

judicial decisions invalidating enactments allowing or requiring transfer

of youthful offenders to adult court.             Rather, the report urges state

legislatures to raise the minimum age for prosecution as adults. See id.

at 7–8 (noting “[f]our states have passed laws to raise the age of juvenile

court jurisdiction so that 16- and/or 17-year-olds are not automatically

prosecuted as adults”).         The report also advocates restoring judicial

discretion on waiver and transfer decisions lacking in many states. See

id. at 35.     The Iowa youthful offender laws already provide for such

judicial discretion. We agree with the CFYJ that policy-based arguments

for juvenile sentencing reform should be directed to the legislature.

       We next exercise our independent judgment. See Lyle, 854 N.W.2d

at 386.    In doing so, we decline to adopt the categorical bar Crooks

requests because the individualized protections available to youthful

offenders do not offend Lyle or its progeny.              The juvenile court must

_______________________
tit. 33, § 5204 (West, Westlaw through Adjourned Sess. of the 2017–2018 Vt. Gen.
Assemb.) (age twelve to fourteen for discretionary transfer for specified offenses); Wis.
Stat. Ann. § 938.183 (West, Westlaw through 2017 Act 142) (age ten or older for
exclusive adult court jurisdiction for specified offenses).
                                    25

conduct an individualized hearing and consider specified factors before

deciding to waive jurisdiction to permit the defendant to be tried as a

youthful offender. After the youthful offender is found guilty, the district

court must transfer supervision back to the juvenile court for disposition

under section 232.52, which requires the juvenile court to “enter the

least restrictive dispositional order appropriate” in view of additional

factors. Then, the district court, after conducting another individualized

hearing prior to the youthful offender’s eighteenth birthday, has the

discretion to select one of four sentencing options: (1) discharge the

youthful offender from the court’s jurisdiction, (2) continue the deferred

sentence for a term not to exceed five years, (3) impose a suspended

sentence and place the youthful offender on probation for a period not to

exceed five years, or (4) impose an indeterminate sentence with or

without a mandatory minimum.          See Iowa Code § 907.3A.         These

statutorily mandated individualized hearings are consistent with the

constitutional protections we required in Lyle.

      In Miller, the United States Supreme Court explained that “the

discretion available to a judge at the transfer stage cannot substitute for

discretion at post-trial sentencing in adult court—and so cannot satisfy

the Eighth Amendment.” 567 U.S. at 489, 132 S. Ct. at 2475. The Court

elaborated,

             Even when States give transfer-stage discretion to
      judges, it has limited utility.     First, the decisionmaker
      typically will have only partial information at this early,
      pretrial stage about either the child or the circumstances of
      his offense. . . .  The key moment for the exercise of
      discretion is the transfer—and as Miller’s case shows, the
      judge often does not know then what she will learn, about
      the offender or the offense, over the course of the
      proceedings.
            Second and still more important, the question at
      transfer hearings may differ dramatically from the issue at a
                                          26
      post-trial sentencing.      Because many juvenile systems
      require that the offender be released at a particular age or
      after a certain number of years, transfer decisions often
      present a choice between extremes: light punishment as a
      child or standard sentencing as an adult (here, life without
      parole). In many States, for example, a child convicted in
      juvenile court must be released from custody by the age of
      21. Discretionary sentencing in adult court would provide
      different options: There, a judge or jury could choose, rather
      than a life-without-parole sentence, a lifetime prison term
      with the possibility of parole or a lengthy term of years. [I]t
      is easy to imagine a judge deciding that a minor deserves a
      (much) harsher sentence than he would receive in juvenile
      court, while still not thinking life-without-parole appropriate.

Id. at 488–89, 132 S. Ct. at 2474–75 (citations omitted).

      We conclude the Iowa youthful offender statutes provide the

discretionary, individualized posttrial sentencing that Miller requires.

Indeed, the Iowa statutes go beyond what Miller requires: instead of the

district   court    imposing    a     sentence    immediately    after   the   initial

determination of guilt, the district court is required to transfer

supervision of the youthful offender back to the juvenile court until he or
she reaches age eighteen. Only upon the offender’s eighteenth birthday

does the district court select among the sentencing options in section

907.3A. This provides additional time (nearly five years from age thirteen

for   Crooks)      to   track   the    juvenile   offender’s    progress   towards

rehabilitation before imposing any prison sentence. We reject Crooks’s

challenge to section 907.3A under article I, section 17 of the Iowa

Constitution.

      D. The District Court’s Discretion to Impose the Prison

Sentence. Crooks also claims the district court abused its discretion in

imposing a sentence of an indeterminate term of incarceration not to

exceed fifty years. As quoted above, the court explained in great detail

the reasons for its sentence. Crooks argues the district court abused its

discretion in three ways: (1) by overlooking other available options
                                    27

besides incarceration or street probation, (2) by failing to apply the

Miller/Lyle factors, and (3) by imposing incarceration. We address each

of these claims in turn.

      1. Considering the available options.     Crooks claims the district

court failed to recognize the sentencing options available and therefore

failed to properly exercise its discretion.    Cf. Hill, 878 N.W.2d at 272

(“When a sentence is not mandatory, the district court must exercise its

discretion . . . .” (quoting State v. Millsap, 704 N.W.2d 426, 433 (Iowa

2005))).     He specifically points to the judge’s statements, “I’ve got

probation on the one hand or I’ve got an indeterminate term not to

exceed 50 years on the other hand,” and “[s]o, simply stated, I have two

options at this point in time. One is some type of street probation and

the other would be a term of incarceration.”

      Sentencing decisions of the district court are cloaked with a strong

presumption in their favor. State v. Hopkins, 860 N.W.2d 550, 553 (Iowa

2015).     “A defendant therefore has the burden to provide a record

showing that the court abused its discretion.”        State v. Ayers, 590

N.W.2d 25, 29 (Iowa 1999). Crooks has failed to meet this burden. The

record shows that the district court was aware of the options available to

it. The court knew that discharge was an option and explicitly rejected

that option: “I don’t believe that a straight discharge at this time is

appropriate.”     The court also acknowledged the five-year limit on

probation and stated, “I’m also concerned, when we talk about the

appropriateness of street probation, that you have made the comment

that you really don’t think you have any need for future services.” This

shows the court understood that it could impose conditions on

probation.
                                     28

      Additionally, “a sentencing court need only explain its reasons for

selecting the sentence imposed and need not explain its reasons for

rejecting a particular sentencing option.” Id. at 28. The court explained

why it was imposing incarceration:

             I am hopeful, but I’m not yet convinced, that it is safe
      for you to be free despite your young age. The lack of an
      appropriate emotional response, the lack of empathy, the
      lack of something that even approaches an adequate
      explanation for why this happened could be an indication
      that you just don’t care. We just don’t know yet. That’s the
      point, we don’t know. And I don’t believe it’s appropriate to
      release you on probation until we can be confident that that
      isn’t the situation, but rather that you do care and that we
      don’t have to worry about something like this happening
      down the road. And, in short, we need more time so that we
      can be confident in that determination.
             So I do believe that the imposition of a sentence with
      incarceration is appropriate, and to that end it is necessary
      that I enter conviction.

The court did not fail to consider the available options and explained why

it selected the sentence it imposed. The court therefore did not abuse its

discretion.

      2. Failing to consider the Miller/Lyle factors. Crooks also claims

that the district court abused its discretion by failing to consider the

Miller factors.   He cites Null for the proposition that, in sentencing a

juvenile as an adult when a mandatory minimum sentence is an option,

the district court must also “undertake an analysis of ‘[e]verything . . .

said in Roper and Graham’ about youth.”         Null, 836 N.W.2d at 74

(alteration in original) (quoting Miller, 567 U.S. at 476, 132 S. Ct. at

2467).   Under Miller, the United States Supreme Court held that the

Eighth Amendment prohibits mandatory life sentences without the

possibility of parole for offenders under eighteen at the time of their

crimes. Miller, 567 U.S. at 465, 132 S. Ct. at 2460. These factors are
                                     29
      (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.

Lyle, 854 N.W.2d at 404 n.10 (quoting Miller, 567 U.S. at 477–78, 132

S. Ct. at 2468). In Lyle, we extended the holding of Miller to require the

district court to expressly consider the Miller/Lyle factors before

imposing any mandatory minimum sentence on a juvenile offender. Id.

(“[T]he portion of the statutory schema requiring a juvenile to serve

seventy percent of the period of incarceration before parole eligibility may

not be imposed without a prior determination by the district court that

the minimum period of incarceration without parole is warranted under

the factors identified in Miller and further explained in Null.”). In State v.

Roby, we required the district court to consider “the relevant mitigating

factors of youth” before imposing a minimum term of incarceration before

the juvenile offender is eligible for parole. 897 N.W.2d 127, 148 (Iowa

2017).   In State v. White, we emphasized the importance of expert

testimony to support a minimum period of incarceration. 903 N.W.2d

331, 333 (Iowa 2017).

      Crooks argues on appeal that, because a minimum period of

incarceration before parole eligibility was an available option, the district

court was required to consider the Miller/Lyle factors “on the record.”

The State responds that the court is only required to consider the

Miller/Lyle factors if it contemplates imposing a mandatory minimum

sentence.   In State v. Propps, we expressly “decline[d] to extend the

requirement of a Miller individualized sentencing hearing to juvenile
                                     30

defendants who are not subject to a mandatory minimum period of

incarceration.” 897 N.W.2d 91, 104 (Iowa 2017). We explained,

       Because an indeterminate sentence allows for immediate
       eligibility for parole, a juvenile is able to demonstrate to the
       parole board whether he or she appreciated the harm done
       and utilized the options available for reform. If rehabilitation
       has not yet occurred, the parole board may make the
       decision to continue incarceration until the juvenile has
       demonstrated through his or her own actions the ability to
       appreciate the severity of the crime. This is consistent with
       the approach of our prior holdings in the area of juvenile
       sentencing, because it allows for a realistic and meaningful
       opportunity for parole upon the juvenile’s demonstration of
       maturity and rehabilitation.

Id. at 102.    We therefore held that “a meaningful, reasonable, and

immediate opportunity for parole . . . is all that is required under our

decision in Lyle and the United States and Iowa Constitutions.” Id. at

104.     As   the   concurring   opinion   observed,   “[t]he   constitutional

protections we have recognized do not target mandatory incarceration of

juvenile offenders, but [their] mandatory incarceration . . . with no

opportunity during the period of incarceration to show the greater

likelihood of rehabilitation and reform has occurred.” Id. at 105 (Cady,

C.J., specially concurring); cf. State v. Richardson, 890 N.W.2d 609, 622,

626 (Iowa 2017) (declining to require consideration of Miller/Lyle factors

before imposing $150,000 restitution award on a juvenile homicide

offender).

       When sentencing Crooks, the district court expressly declined to

consider imposing a mandatory minimum.

       [I]f incarceration is ordered there’s no mandatory minimum.
       The State is not seeking that. . . . And so when I sentence
       someone to incarceration I don’t say, “I sentence you to 50
       years,” I say, “I sentence you to an indeterminate term not to
       exceed 50 years,” and at that point in time the Board of
       Parole takes over and makes a determination as to when a
       person should be released from prison. And so it’s important
                                     31
      to keep in mind that even though people throw around 50
      years, it doesn’t mean 50 years, at least not necessarily.

Under Propps, no hearing on the Miller/Lyle factors was required to
sentence Crooks to prison with immediate eligibility for parole.         897

N.W.2d at 102, 104.

      Nevertheless, we reiterate that “[a] sentencing court is to consider

any mitigating circumstances relating to a defendant.” State v. Witham,

583 N.W.2d 677, 678 (Iowa 1998). These include the circumstances of

youth and, specifically, any applicable Miller/Lyle factors. See State v.

Zarate, ___ N.W.2d ___, ___ (Iowa 2018) (“We also hold that the district

court’s consideration of any potential aggravating factors . . . shall align

with our juvenile sentencing jurisprudence so as not to overwhelm the

mitigating factors associated with youth, especially the five factors of

youth set forth in Lyle.”). Once the sentencing court declines to impose a

minimum period of incarceration without parole, the Miller/Lyle factors

remain relevant in considering the remaining sentencing options, along

with all other mitigating and aggravating circumstances. Yet the court is

not required to specifically examine and apply each factor on the record

at this point but considers all relevant factors in exercising its discretion

to select the proper sentencing option.        We may find an abuse of

discretion “[i]f a sentencing court fails to consider a relevant factor that

should have received significant weight.”       Zarate, ___ N.W.2d at ___

(alteration in original) (quoting Roby, 897 N.W.2d at 138).

      The record reveals the sentencing court addressed a variety of

factors in response to the evidence and argument presented by Crooks,

including those Miller/Lyle factors identified by Crooks.       We find no

abuse of discretion. As a result, we turn to address the final argument
                                   32

by Crooks that the sentencing court abused its discretion by imposing

incarceration.

      3. Imposing sentence of incarceration. Crooks additionally claims

the district court abused its discretion by imposing incarceration.    He

asserts that the court imposed incarceration based on “the belief that

Crooks is not rehabilitated and poses a potential danger to society” and

that the evidence presented at the sentencing hearing does not support

this conclusion. We disagree.

      The court was required to “make its decision after considering the

services available to the youthful offender, the evidence presented, the

juvenile court’s report, the interests of the youthful offender, and

interests of the community.”    Iowa Code § 907.3A(2).     “[O]ur task on

appeal is not to second guess the decision made by the district court, but

to determine if it was unreasonable or based on untenable grounds.”

State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015) (quoting State v.

Formaro, 638 N.W.2d 720, 725 (Iowa 2002)).       A district court has not

abused its discretion if the evidence supports the sentence. Id.

      We conclude the district court did not abuse its discretion in

imposing a sentence of incarceration. Dr. Michael Taylor, who evaluated

Crooks in 2012, emphasized in his August 12, 2012 report,

            With a strong degree of medical certainty, I can state
      that the prospects for rehabilitating Noah Crooks prior to his
      eighteenth birthday are nil. He has no psychiatric illness
      (which had any impact on his actions) which might be
      treated—absent a brain transplant. He appears to not be
      capable of experiencing guilt and/or remorse. He is not
      capable of considering the impact that his actions might
      have on others—except himself. His actions vis-à-vis the
      murder of his mother were part and parcel of deeply-
      ingrained personality traits which have been present for
      years, despite his relative youth, and will continue to be
      present for the foreseeable future. There is no treatment
      known to man that can change these personality traits as
      Noah grows older. It is highly probable, however, that Noah
                                      33
      will become more skilled at “saying the right things” to cover
      up his severe psychopathology until he is no longer in a
      secure facility.

Dr. Augspurger, a psychiatrist who evaluated Crooks both in 2013 and

in 2016, concluded after the 2016 evaluation that Crooks does not have

a diagnosable mental disorder.       Dr. Augspurger stated that “it cannot

still be said that [Crooks] is developing an Antisocial Personality Disorder

since he has not outwardly displayed evidence for the behavior required

to substantiate such a diagnostic development since admission [at the

State Training School].” But Dr. Augspurger concluded,

      This could all be illusion, but it could just as well be reality
      and I would certainly rather have him being productive and
      behaving in a prosocial manner compared with the opposite.
      If one believes in the purpose of having a separate juvenile
      judicial system, that it is possible and desirable to educate
      and train young people in the hopes of changing them, then
      one must be hopeful that he is a successful product of that
      system. However, I have no ability to predict the future and
      cannot offer assurances one way or the other.

Dr. Augspurger’s equivocal opinions did not compel the district court to

discharge Crooks or release him on probation. The district court acted

within   its   discretion   by   imposing   an   indeterminate   sentence   of

incarceration not to exceed fifty years, with immediate eligibility for

parole and no mandatory minimum term.

      IV. Disposition.

      For these reasons, we affirm Crooks’s judgment of conviction and

sentence.

      AFFIRMED.

      All justices concur except Appel, Wiggins, and Hecht, JJ., who

concur in part and dissent in part.
                                     34

                                                  #16–0851, State v. Crooks

APPEL, Justice (concurring in part and dissenting in part).

      I concur with the majority’s disposition with respect to some

aspects of this case, but would vacate the decision of the district court

and remand the case for consideration of the Lyle factors before

convicting and sentencing Crooks. See State v. Lyle, 854 N.W.2d 378,

404 n.10 (Iowa 2014); see also Miller v. Alabama, 567 U.S. 460, 477–78,

132 S. Ct. 2455, 2468 (2012).

      I. Statutory Interpretation Regarding Age Floor.

      On the question of statutory interpretation, I agree with the

majority that the legislature did not establish a floor for the age of a child

who might be treated as a youthful offender. Iowa Code section 232.45

(2011) sets out two paths for waiving children into district court. Under

section 232.45(6), a child who is fourteen years of age or older may be

tried as an adult. Under section 232.45(7)(a), a child who is fifteen years

of age or younger may be tried as a youthful offender. The notion that a

juvenile transfer statute has no lower limit is not a stranger to the law.

See Miller, 567 U.S. at 486 & n.14, 132 S. Ct. at 2473 & n.14 (citing

statutes). We should be hesitant to read language into a statute absent a

compelling reason to do so. See State v. Nicoletto, 862 N.W.2d 621, 625

(Iowa 2015); State v. Romer, 832 N.W.2d 169, 177–78 & n.6 (Iowa 2013);

see also State v. Coleman, 907 N.W.2d 124, 150 (Iowa 2018) (Appel, J.,

concurring in part and dissenting in part).

      II. Categorical Constitutional Attack on Trying Thirteen-Year-
Olds as Youthful Offenders.

      The notion that juvenile offenders should be subject to transfer

with adult criminal sanction regimes has been subject to attack in the

literature. One prominent authority has argued that juvenile offenders
                                         35

should never be integrated with adult offenders and should not be

incarcerated beyond the age of twenty-five.           See Christopher Slobogin,

Treating Juveniles Like Juveniles: Getting Rid of Transfer and Expanded

Adult Court Jurisdiction, 46 Tex. Tech. L. Rev. 103, 104–05, 131 (2013).

Other attacks on transfer of children to adult court focus on automatic

transfers, transfers arising out of the exercise of prosecutorial discretion,

and the imposition of mandatory sentencing schemes applicable to

adults upon transfer. See Ioana Tchoukleva, Note, Children Are Different:

Bridging the Gap Between Rhetoric and Reality Post Miller v. Alabama, 4

Cal. L. Rev. Cir. 92, 102–03 (2013).

       The lack of an age floor in a statute that may lead to transfer is

potentially problematic as certainly at some point very young children

simply cannot be held criminally culpable consistent with the cruel and

unusual punishment clause of article I, section 17 of the Iowa

Constitution. The Iowa statute, however, allows district courts to make

the question of whether a thirteen-year-old child is potentially exposed to

criminal sanctions on a case-by-case basis. See Iowa Code § 232.45(9). 9

       Sometimes, however, case-by-case evaluations under multifactor

tests are so arbitrary that a categorical rule is preferable and even
constitutionally required. This is particularly true when we attempt to

predict future behavior. In State v. Sweet, for instance, we announced a

categorical rule that life without the possibility of parole for juvenile

offenders would not be permitted in large part because it was simply

impossible to determine with any accuracy which juvenile offender is so

       9The  common law set a rebuttable presumption of incapacity to commit any
felony at the age of fourteen. Craig S. Lerner, Juvenile Criminal Responsibility: Can
Malice Supply the Want of Years?, 86 Tulane L. Rev. 309, 317 (2011). The common law
allowed the presumption to be rebutted by strong and clear evidence that the juvenile
possessed the necessary understanding and judgment to form criminal intent. Id.
                                    36

incorrigible that no “second look” should be permitted. 879 N.W.2d 811,

838–39 (Iowa 2016). Given the very high stakes, we declined to allow life

without the possibility of parole to be imposed by a trial court through

what would necessarily be a highly inaccurate and unreliable case-by-

case assessment. Id. at 839.

      The question in this case for the purpose of the relatively narrow

constitutional question presented is whether a district court can, with

any degree of reliability, determine which offending children who are

thirteen years of age are not likely to be rehabilitated by age eighteen.

While Sweet teaches us to exercise great caution before making broad

declarations about future behavior, the issue in this case is different

from Sweet in three critical respects.

      First, the nature of the prediction required under the statute,

though difficult, is less problematic than in Sweet.      The question of

determining which child will need rehabilitative services after five years

of juvenile rehabilitation is at least arguably less troublesome than

predicting who will ultimately be found to be incorrigible or irredeemably

corrupt after full character development and maturity. While there is a

professional consensus among psychiatrists that accurate, long-term

assessment of juveniles is impossible, there is no such consensus on the

inability to assess those who need relatively short-term rehabilitative

services.   See id. at 838–39 (noting that professional psychologists

disclaim the ability to accurately predict which juveniles will be

incapable of rehabilitation).

      Second, the statute contains a look-back provision.       Iowa Code

§ 907.3A(2).   As a result, the consequences of an initial determination

that a child will be treated as a youthful offender does not eliminate a

timely second look but, in fact, embraces it. Prior to the second look, the
                                   37

child will be in the hands of juvenile authorities charged with providing

appropriate services and not in the hands of adult correctional officials

meting out punishment. Id. § 907.3A(1). The second-look feature of the

statute thus provides a critical check on the potential of arbitrary and

irrational imposition of incarceration on a child. The statute thus does

not provide for automatic transfer into adult court, an approach that

would be constitutionally suspect because of the absence of an

individualized determination under Miller and Lyle principles.

      Third, the consequence of the determination that a child is a

youthful offender is less consequential than in Sweet.     In Sweet, the

consequence was incarceration for life with no meaningful opportunity to

show rehabilitation and maturity.       879 N.W.2d at 840 (Cady, C.J.,

concurring specially).   Here, a youthful offender, even if ultimately

subject to a criminal sentence, is not exposed to a mandatory minimum

adult sentence because of our ruling in Lyle barring the mandatory

imposition of minimum sentences for children.          As a result, the

consequence of being found to be a youthful offender and ultimately

subject to a criminal penalty does not lead to an arbitrary and irrational

imposition of an adult mandatory minimum sentence on a child.

      Yet, it must be recognized that transfer statutes may ultimately

pose certain risks. For instance, a youth who is ultimately incarcerated

may lack access to resources sufficient to provide a reasonable means to

achieve maturity and rehabilitation.    See Holt v. Sarver, 309 F. Supp.

362, 379 (E.D. Ark. 1970) (“The absence of an affirmative program of

training and rehabilitation may have constitutional significance where in

the absence of such a program conditions and practices exist which

actually militate against reform and rehabilitation.”), aff’d 442 F.2d 304

(8th Cir. 1971); Beth Caldwell, Creating Meaningful Opportunities for
                                    38

Release: Graham, Miller and California’s Youth Offender Parole Hearings,

40 N.Y.U. Rev. L. & Soc. Change 245, 286 (2016) (emphasizing that

access to rehabilitative programs are essential to providing juvenile

offenders a meaningful opportunity for release); Sally Terry Green,

Realistic Opportunity for Release Equals Rehabilitation: How the States

Must Provide Meaningful Opportunities for Release, 16 Berkeley J. Crim.

L. 1, 26 (2011) (providing education and treatment programs “comply

with Graham’s mandate for meaningful opportunity for release”);

Elizabeth Scott et al., Juvenile Sentencing Reform in a Constitutional

Framework, 88 Temp. L. Rev. 675, 712 (2016) [hereinafter Scott] (“[A]

meaningful opportunity to reform requires a correctional setting that

promotes healthy psychological development.”). That, however, is not so

much a categorical challenge to the Iowa transfer statute as it is a fact-

based challenge to conditions of incarceration.

      Although the statute approaches the border of constitutionality, in

light of its limiting features, I am not prepared to say, at least at this

time, that the statute is categorically infirm in this case under article I,

section 17 of the Iowa Constitution at least as applied to thirteen-year-

old children. The lower the age of the child, of course, the greater the

risk of crossing the constitutional line, and it may well be that at age

thirteen we are very close to it. Nonetheless, at present, I am inclined

not to strike it down on the grounds that the implementation of the

statute with respect to thirteen-year-olds is so irrational as to

categorically amount to cruel and unusual punishment under article I,

section 17 of the Iowa Constitution.      Instead of categorically striking

down the statute, I think the better course is to permit challenges on an

as-applied basis. No as-applied challenge is raised in this case. I would

revisit the issue, however, if in practice, application of Miller and Lyle
                                      39

principles on discretionary decisions under the statute prove arbitrary,

inconsistent, or unworkable.

      III. Challenges to District Court Sentencing.

      A. Awareness of Sentencing Options. The first issue is whether

the district court recognized the breadth of its discretion under the

applicable statute. If the district court did not recognize the scope of its

discretion, a remand for resentencing is required. State v. Thomas, 547

N.W.2d 223, 226 (Iowa 1996) (per curiam); State v. Sandifer, 570 N.W.2d

256, 257 (Iowa Ct. App. 1997).        The defendant bears the burden of

showing that the district court was unaware of its discretion to impose a

particular sentence. State v. Ayers, 590 N.W.2d 25, 29 (Iowa 1999).

      Under the statute, the district court has several options for

disposition of a youthful offender—

      [T]he court may continue the youthful offender deferred
      sentence or enter a sentence, which may be a suspended
      sentence. . . . [I]f the district court either continues the
      youthful offender deferred sentence or enters a sentence,
      suspends the sentence, and places the youthful offender on
      probation, the term of formal supervision shall commence
      upon entry of the order by the district court and may
      continue for a period not to exceed five years. If the district
      court enters a sentence of confinement, and the youthful
      offender was previously placed in secure confinement by the
      juvenile court under the terms of the initial disposition order
      or any modification to the initial disposition order, the
      person shall receive credit for any time spent in secure
      confinement.

Iowa Code § 907.3A(3).

      At the hearing on sentencing, the district court made extensive

comments.    The commentary twice affirmatively stated that the court

believed the choice was between incarceration and some type of street

probation. The district court said,
                                     40
      So, simply stated, I have two options at this point in time.
      One is some type of street probation and the other would be
      a term of incarceration . . . .

Then, after observing the statute was “not particularly well drafted,” the

district court declared, “I’ve got probation on the one hand or I’ve got an

indeterminate term not to exceed 50 years on the other hand.” There is

nothing in the record to show that these affirmative statements regarding

limited options were based on anything other than the district court’s

view of the statute.

      The statute, however, authorized the district court to defer or

suspend the sentence and place the defendant on probation, with the

level of supervision to be determined under section 901B.1 by the district

department of corrections. Id. § 907.3A(3); id. § 901B.1. Section 901B.1

provides for a corrections continuum of varying levels of restrictiveness,

including community-based and residential treatment facilities.         Id.

§ 901B.1(1)(c)(1). Similarly, section 907.3A(3) provides that the district

court could have deferred or suspended the sentence and placed Crooks

on probation with such terms and conditions that it chose, including

commitment to an alternate jail facility or a community-based correction

residential treatment facility. Id. § 907.3A(3).

      The district court, twice, stated on the record that the choices were

“street probation” or incarceration.      Nothing in the transcript of the

sentencing or dispositional hearing indicates that the district court

understood it had the possibility of confining Crooks under the

corrections continuum of Iowa Code section 901B.1 and that such

confinement could include a residential treatment facility or community-

based correction facility.   Indeed, the entire discussion of the district

court on sentencing suggests that it considered only two options, street

probation or incarceration.    For instance, the district court stated, “I
                                       41

don’t believe it’s appropriate to release you on probation” as driving the

court into a sentencing option without considering other dispositions.

        It may be, of course, that the district court was, in fact,

subjectively aware of the other options, but we can only proceed by

analyzing the affirmative statements made on the record in this case.

The record suggests the district court believed it had two stark choices

and not a continuum of choices. I would thus remand for resentencing.

See Thomas, 547 N.W.2d at 225 (noting it would be an abuse of

discretion in sentencing if the district court was unaware of its discretion

in imposing sentencing options); Sandifer, 570 N.W.2d at 257 (explaining

the record must reveal the sentencing court in fact exercised discretion

in regard to the range of sentencing options).

        B. Consideration of Lyle Factors. The next question is whether

the court abused its discretion in sentencing Crooks.              Under our

caselaw, the district court must consider any mitigating factors.       See,

e.g., State v. Propps, 897 N.W.2d 91, 102 (Iowa 2017); State v. Witham,

583 N.W.2d 677, 678 (Iowa 1998) (per curiam); State v. Draper, 457

N.W.2d 600, 605 (Iowa 1990).

        We have repeatedly said “children are constitutionally different

from adults for purposes of sentencing.”          Lyle, 854 N.W.2d at 395

(quoting Miller, 567 U.S. at 471, 132 S. Ct. at 2464); see also Propps, 897

N.W.2d at 99; State v. Ragland, 836 N.W.2d 107, 119 (Iowa 2013). The

differences include “distinctive (and transitory) mental traits and

environmental vulnerabilities,” Miller, 567 U.S. at 473, 132 S. Ct. at

2465,    including   a   “lack   of   maturity,   underdeveloped    sense   of

responsibility, vulnerability to peer pressure, and the less fixed nature of

the juvenile’s character,” State v. Null, 836 N.W.2d 41, 74 (Iowa 2013);

see also Sweet, 879 N.W.2d at 832–33; Ragland, 836 N.W.2d at 115 n.6.
                                          42

We have emphasized that the constitutionally significant distinction

between adults and children is applicable to all crimes, not just some

crimes. Sweet, 879 N.W.2d at 831; Lyle, 854 N.W.2d at 399; Null, 836

N.W.2d at 71. 10

       As noted by the leading recognized authorities in the field, the

developmental principle that children are constitutionally different has

broad application. See Scott, 88 Temp. L. Rev. at 707–12 (urging broad

application of developmental principle that children are different and

citing Lyle as example).        The principle is applicable to other sanctions

and not just the severe sanctions discussed in the cases of the United

States Supreme Court. Id. at 707. Indeed, the principle that children

are different should inform “policies regulating the sentencing of

juveniles whenever they are dealt with in the adult system.” Id. It makes

no sense at all to say, for instance, that the mitigating characteristics of

youth apply only for minimum sentencing and not, for instance, for

discretionary sentencing for a term of years.              See Barry C. Feld, The

Youth Discount: Old Enough to Do the Crime, Too Young to Do the Time, 11

Ohio St. J. Crim. L. 107, 147 (2013). The majority correctly finds that

the features of children described in Lyle and our other juvenile cases are

mitigating factors that must be considered in any and all contexts

involving discretionary sentencing of defendants who committed crimes




       10We   have repeatedly applied the principle that children are constitutionally
different in factual settings beyond Roper, Graham, and Miller. In Null, we applied the
children-are-different principle in the context of aggregate sentencing. 836 N.W.2d at
73. In Lyle, we applied the children-are-different principle to categorically strike down
mandatory minimums. 854 N.W.2d at 400. In Sweet, we applied the children-are-
different principle to categorically strike down life-without-the-possibility-of-parole
sentences. 879 N.W.2d at 839.
                                          43

as children.      This makes sense in a criminal justice system where

culpability is a cornerstone of proportional punishment. 11

       The remaining question is whether we should require a district

court to make specific findings regarding consideration of the mitigating

factors of youth when sentencing children in adult court.                     We have

required such specific findings in the context of the case-by-case

determination of whether a sentencing court should impose an adult

minimum sentence on a child offender. State v. Seats, 865 N.W.2d 545,

557 (Iowa 2015); Null, 836 N.W.2d at 71, 74. We have stated that Miller

requires “more than a generalized notion of taking age into consideration

as a factor in sentencing.” Lyle, 854 N.W.2d at 402 n.8 (quoting Null,

836 N.W.2d at 74). We require consideration of

       (1) the “chronological age” of the youth and the features of
       youth, including “immaturity, impetuosity, and failure to
       appreciate risks and consequences”; (2) the “family and
       home environment” that surrounded the youth; (3) “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]”;
       (4) the “incompetencies associated with youth—for example,
       [the youth’s] inability to deal with police officers or
       prosecutors (including on a plea agreement) or [the youth’s]
       incapacity to assist [the youth’s] own attorneys”; and (5) “the
       possibility of rehabilitation.”




       11At the district court, Crooks argued that the imposition of a fifty-year prison
term went against the common law tradition that young children could not form intent
and that the sentence “would run counter to the recent scholarly literature on the
subject of juvenile punishment, and which literature the Iowa Supreme Court relied
upon in its recent cruel and unusual punishment cases dealing with juvenile
offenders.” Crooks further cited Graham v. Florida as outlining the features of youth to
be considered in sentencing, namely their lack of maturity, social development, and risk
analysis ability, as well as their susceptibility to familial and peer pressure. 560 U.S.
48, 68, 130 S. Ct. 2011, 2026 (2010).
                                      44

Seats, 865 N.W.2d at 570 (alterations in original) (quoting Ragland, 836

N.W.2d at 115 n.6); see also Miller, 567 U.S. at 477–78, 132 S. Ct. at

2468.

        The requirement of specific findings on mitigating factors in the

minimum-sentencing context serves three purposes. It ensures that the

mitigating Lyle and Miller factors of youth have been considered, that the

Lyle and Miller factors are treated as mitigating and not aggravating

factors, and that the heinous character of the crimes has not, as the

United States Supreme Court has cautioned, overwhelmed the Lyle and

Miller factors. Roper v. Simmons, 543 U.S. 551, 573, 125 S. Ct. 1183,

1197 (2005).

        It is true that the context of this case is not identical to that faced

by courts considering minimum sentences. A minimum sentence is an

all-or-nothing proposition—either the adult minimum sentence applies or

it does not. Further, when an adult minimum sentence is imposed on a

child offender, there is no possibility of revisiting the issue if the

predictions of future character development prove wrong.

        Yet, in this case, the district court faced a wide range of options

with dramatically different consequences on the child offender. As the

district court correctly pointed out at the sentencing hearing, the child

offender in this case will have the possibility of parole. In that sense, the

sentence in this case does not have the highly inflexible character of an

adult minimum sentence.         But the differences between the available

options in this case are truly dramatic and are not less consequential

than the imposition of an adult minimum sentence on a child.

        Although the context is different, I think the three purposes of

requiring specific findings apply here. I do not think it is too much to

ask that in these invariably difficult cases, district courts provide a
                                   45

specific explanation of how the plastic characteristics of youth played

into the sentencing in this case. We will thus not be required, on appeal,

to peer into an empty box in evaluating how the district court

approached this key sentencing consideration. Although it is true that

we have said in a pre-Lyle case that a sentencing court generally is not

required to give reasons for rejecting particular sentencing options, see

State v. Loyd, 530 N.W.2d 708, 713–14 (Iowa 1995), we have announced

an exception to that rule in our juvenile cases to ensure that sentencing

of child offenders occurs within constitutional guardrails, see Seats, 865

N.W.2d at 557; Null, 836 N.W.2d at 71, 74. I would apply that concept

here as well.

      IV. Conclusion.

      For the above reasons, I would vacate the sentence of the district

court and remand the case to the district court for further proceedings.

      Wiggins and Hecht, JJ., join this concurrence in part and dissent

in part.
