              IN THE SUPREME COURT OF IOWA
                              No. 11–1339

                           Filed July 18, 2014


STATE OF IOWA,

      Appellee,

vs.

ANDRE JEROME LYLE JR.,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Robert A.

Hutchison, Judge.



      A juvenile challenges his sentence as cruel and unusual under the

State and Federal Constitutions. DECISION OF COURT OF APPEALS

VACATED;      DISTRICT      COURT     SENTENCE       VACATED;     CASE

REMANDED.



      Mark C. Smith, State Appellate Defender, David A. Adams (until

withdrawal), Vidhya K. Reddy (until withdrawal), and Rachel C.

Regenold, Assistant State Appellate Defenders, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson (until

withdrawal), Benjamin M. Parrott (until withdrawal), and Darrel L.

Mullins, Assistant Attorneys General, John P. Sarcone, County Attorney,
                                   2

Frank Severino Jr. and Jeffrey K. Noble, Assistant County Attorneys, for

appellee.
                                            3

CADY, Chief Justice.

       In this appeal, a prison inmate who committed the crime of

robbery in the second degree as a juvenile and was prosecuted as an

adult challenges the constitutionality of a sentencing statute that

required the imposition of a mandatory seven-year minimum sentence of

imprisonment. The inmate was in high school at the time of the crime,

which involved a brief altercation outside the high school with another

student that ended when the inmate took a small plastic bag containing

marijuana from the student.                He claims the sentencing statute

constitutes cruel and unusual punishment in violation of the State and

Federal Constitutions when applied to all juveniles prosecuted as adults

because the mandatory sentence failed to permit the court to consider

any circumstances based on his attributes of youth or the circumstances

of his conduct in mitigation of punishment. For the reasons expressed

below, we hold a statute mandating a sentence of incarceration in a

prison for juvenile offenders with no opportunity for parole until a

minimum period of time has been served is unconstitutional under

article I, section 17 of the Iowa Constitution.1 Accordingly, we vacate the

sentence and remand the case to the district court for resentencing.
Importantly, we do not hold that juvenile offenders cannot be sentenced

to imprisonment for their criminal acts.                 We do not hold juvenile



       1Throughout    our opinion today, we use both “juvenile” and “child” to describe
youthful offenders. We recognize a statute of the Iowa Code defines “child” as “any
person under the age of fourteen years.” Iowa Code § 702.5 (2011). Nonetheless, we
believe our use of the term “child” today is appropriate. In a different section, the Code
defines “child” as “a person under eighteen years of age.” See id. § 232.2(5). Moreover,
we are hardly the first court to equate juveniles and children for the purposes of
constitutional protection. See Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 2468,
183 L. Ed. 2d 407, 422–23 (2012) (“So Graham and Roper and our individualized
sentencing cases alike teach that in imposing a State’s harshest penalties, a sentencer
misses too much if he treats every child as an adult.”).
                                     4

offenders cannot be sentenced to a minimum term of imprisonment. We

only hold juvenile offenders cannot be mandatorily sentenced under a

mandatory minimum sentencing scheme.

      I. Background Facts and Prior Proceedings.

      Andre Lyle Jr. was convicted following a jury trial of the crime of

robbery in the second degree on June 29, 2011.              See Iowa Code

§§ 711.1–.3 (2011).    He was a seventeen-year-old high school student

when he committed the crime. The conviction resulted from an incident

in October 2010 when Lyle and a companion punched another young

man and took a small bag of marijuana from him.             The altercation

between the boys occurred outside the high school they attended after

the victim failed to deliver marijuana to Lyle and his companion in

exchange for $5 they had given the victim the previous day. Lyle videoed

the confrontation on his cell phone. Prior to trial, Lyle unsuccessfully

sought to transfer jurisdiction of the matter to the juvenile court.

      Lyle grew up in Des Moines with little family support and few

advantages.    His father was in prison, and he was raised by his

grandmother after his mother threatened him with a knife.               His

grandmother permitted him to smoke marijuana, and he was frequently

tardy or absent from school.        Lyle had frequent contact with law

enforcement and first entered the juvenile justice system at twelve years

of age. He was involved in many criminal acts as a teenager, including

assaults and robberies. Lyle was known to record his criminal behavior

with his cell phone and post videos on the Internet.

      Lyle appeared before the district court for sentencing on his

eighteenth birthday.    The district court sentenced him to a term of

incarceration in the state corrections system not to exceed ten years.

See id. § 711.3 (“Robbery in the second degree is a class ‘C’ felony.”); id.
                                         5

§ 902.9(4) (“A class ‘C’ felon, not a habitual offender, shall be confined no

more than ten years . . . .”). Pursuant to Iowa statute, the sentence was

mandatory, and he was required to serve seventy percent of the prison

term before he could be eligible for parole. See id. § 902.12(5) (“A person

serving a sentence for conviction of [robbery in the second degree in

violation of section 711.3] shall be denied parole or work release unless

the person has served at least seven-tenths of the maximum term of the

person’s sentence . . . .”).

      Lyle     objected   to   the   seventy   percent   mandatory   minimum

sentence.      He claimed it was unconstitutional as applied to juvenile

offenders. The district court overruled Lyle’s objection.

      Lyle appealed.       In his initial appellate brief, Lyle disclaimed a

categorical challenge to mandatory minimums and instead argued the

mandatory minimum was unconstitutional as applied to him.                We

transferred the case to the court of appeals.

      During the pendency of the appeal, the United States decided

Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407

(2012). In Miller, the Court held a statutory schema that mandates life

imprisonment without the possibility of parole cannot constitutionally be

applied to a juvenile. 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d

at 424.      Subsequently, we held the rule contemplated by Miller was

retroactive.    State v. Ragland, 836 N.W.2d 107, 117 (Iowa 2013).       We

then applied the reasoning in Miller to sentences that effectively deprived

a juvenile offender of a meaningful opportunity for early release on parole

during the offender’s lifetime based on demonstrated maturity and

rehabilitation. State v. Null, 836 N.W.2d 41, 72 (2013). In a trilogy of

cases, our reasoning applied not just to a de facto life sentence or one

“that is the practical equivalent of a life sentence without parole,” see
                                         6

Ragland, 836 N.W.2d at 121, but also to a “lengthy term-of-years

sentence,” Null, 836 N.W.2d at 72; see also State v. Pearson, 836 N.W.2d

88, 96–97 (Iowa 2013).

          The court of appeals affirmed the sentence.   Lyle sought further

review and asserted the decision of the court of appeals was contrary to

Miller.    We granted his application for further review and ordered Lyle

and the State to submit additional briefing regarding whether the seventy

percent mandatory minimum of his ten-year sentence for second-degree

robbery was constitutional in light of our recent trilogy of cases.     See

generally Ragland, 836 N.W.2d 107, Pearson, 836 N.W.2d 88, Null, 836

N.W.2d 41.

          II. Scope and Standard of Review.

          An unconstitutional sentence is an illegal sentence. See State v.

Bruegger, 773 N.W.2d 862, 872 (Iowa 2009).               Consequently, an

unconstitutional sentence may be corrected at any time.        Id.; see also

Iowa R. Crim. P. 2.24(5)(a). Although challenges to illegal sentences are

ordinarily reviewed for correction of legal errors, we review an allegedly

unconstitutional sentence de novo. Ragland, 836 N.W.2d at 113.

          III. Issue Before the Court.

          As a threshold matter, the State argues Lyle waived a categorical

challenge by failing to raise it in his initial brief. We have consistently

held an issue “may be deemed” waived if a litigant fails to identify the

issue, assign error, and make an argument supported by citation to

authority in their initial brief.   See Bennett v. MC No. 619, Inc., 586

N.W.2d 512, 521 (Iowa 1998); Mueller v. St. Ansgar State Bank, 465

N.W.2d 659, 659 (Iowa 1991); McCleeary v. Wirtz, 222 N.W.2d 409, 415

(Iowa 1974).      This rule, however, like most other rules, is not without

exceptions.     See, e.g., State v. Carroll, 767 N.W.2d 638, 644–45 (Iowa
                                      7

2009) (addressing an issue raised for the first time in the State’s appellee

brief, which the defendant would have been unlikely to be able to

address). But see Sun Valley Iowa Lake Ass’n v. Anderson, 551 N.W.2d

621, 642 (Iowa 1996) (holding a civil litigant may not raise an issue for

the first time in its reply brief).

       Our decision in Bruegger—a case in which the defendant

challenged his sentence as unconstitutional for the first time on appeal—

reveals one exception. 773 N.W.2d at 872 (“[A] claim [that the sentence

itself is inherently illegal] may be brought at any time.”); see also Iowa R.

Crim. P. 2.24(5)(a) (“The court may correct an illegal sentence at any

time.”).    Bruegger recognized that a categorical challenge to the

constitutionality of a sentence under the Eighth Amendment or article I,

section 17 targets “the inherent power of the court to impose a particular

sentence.” Bruegger, 773 N.W.2d at 871. As such, “the ordinary rules of

issue preservation do not apply.” Veal v. State, 779 N.W.2d 63, 65 (Iowa

2010).     Accordingly, a constitutional challenge to an illegal sentence,

even one brought after the initial brief has been filed, could fit within our

holding in Bruegger. See 773 N.W.2d at 871–72.

       On the other hand, we recently recognized the value of a

“ ‘procedurally conservative approach’ ” to error preservation involving

novel issues raised for the first time on appeal for which there is an

inadequate factual record. See State v. Hoeck, 843 N.W.2d 67, 71 (Iowa

2014) (quoting Barry A. Miller, Sua Sponte Appellate Rulings: When

Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L.

Rev. 1253, 1300 (2002)). We expressed skepticism about deciding the

issue under those circumstances: “[W]e are not convinced the claims are

fully briefed or the factual issues necessary to decide the Iowa

constitutional claims are developed.” Id. Accordingly, we remanded the
                                         8

case to the district court to allow the parties to fully develop and argue

the claims. Id. at 72.

         Yet, as in Bruegger and Veal, our decision in Hoeck acknowledges

that the failure to raise an issue in the initial appellate brief does not

waive the issue.      We preserved the issue in Hoeck pending briefing of

legal issues and development of the factual record by the parties and

consideration by the district court. See id. Instead, Hoeck recognized a

commonsense prudential notion that remand is a more practicable

decision than evaluation of an entirely novel constitutional issue upon an

undeveloped record. See id.

         The concerns we identified in Hoeck are not present in this case.

The issue presented by Lyle in this case on further review (and more

thoroughly in response to our order for supplemental briefing) is

fundamentally similar to the one he initially raised on appeal. See Feld

v. Borkowski, 790 N.W.2d 72, 84–85 (Iowa 2010) (Appel, J., concurring in

part and dissenting in part). While disclaiming a categorical challenge,

Lyle’s    initial   brief   suggests    mandatory     minimums    are   grossly

disproportionate      for   most   or   all   juveniles.   This   argument   is

fundamentally similar to the argument he expanded upon in his

application for further review (after the Supreme Court’s decision in

Miller) and that he ultimately articulated in his supplemental brief. The

supplemental briefing we ordered, combined with the categorical nature

of the relief Lyle seeks also obviates in this narrow circumstance the

need for more thorough briefing in the district court.      Accordingly,     we

proceed to consider Lyle’s categorical challenge based on Miller and our

trilogy of cases.
                                           9

       IV. Merits.

       Lyle   contends      the    prohibition     against    cruel    and    unusual

punishment in the Iowa Constitution does not permit a statutory scheme

that mandates a person sentenced for a crime committed as a juvenile to

serve a minimum period of time prior to becoming eligible for parole or

work release. The State argues a mandatory minimum sentence of the

term of years for the crime committed in this case is not cruel and

unusual.

       The Iowa Constitution provides, “Excessive bail shall not be

required; excessive fines shall not be imposed, and cruel and unusual

punishment shall not be inflicted.” Iowa Const. art. I, § 17. The Eighth

Amendment similarly prohibits excessive punishments. See U.S. Const.

amend. VIII (“Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”).2 Lyle does not

offer a substantive standard for cruel and unusual punishment that

differs from the one employed by the United States Supreme Court.

Instead, he asks us to apply the federal framework in a more stringent

       2Similarity  between federal and state constitutional provisions does not require
us to follow federal precedent interpreting the Federal Constitution. Instead, “[a]
decision of this court to depart from federal precedent arises from our independent and
unfettered authority to interpret the Iowa Constitution.” Null, 836 N.W.2d at 70 n.7;
see also State v. Baldon, 829 N.W.2d 785, 790 (Iowa 2013) (“[O]ur right under principles
of federalism to stand as the final word on the Iowa Constitution is settled, long-
standing, and good law.”). Indeed, we have not hesitated to do so when, after applying
the now-familiar Tonn–Ochoa analysis, we have determined the liberty and equality of
Iowans is better served by departing from the federal rule. See, e.g., Null, 836 N.W.2d
at 70–74 & n.7 (extending, under article I, section 17, the rationale of Miller to
sentences that are equivalent to life without parole); State v. Kern, 831 N.W.2d 149,
170–72 (Iowa 2013) (declining to adopt a special-needs exception for searches of the
homes of parolees under article I, section 8); Baldon, 829 N.W.2d at 802–03 (holding a
parole agreement does not establish consent to a warrantless, suspicionless search
under article I, section 8); State v. Ochoa, 792 N.W.2d 260, 291 (Iowa 2010) (holding
parole status does not alone permit a warrantless, suspicionless search under article I,
section 8); State v. Cline, 617 N.W.2d 277, 293 (Iowa 2000) (holding article I, section 8
does not contain a good-faith exception to the exclusionary rule), abrogated on other
grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001).
                                    10

fashion. See Null, 836 N.W.2d at 70 (applying the principles espoused in

Miller in a more stringent fashion under the Iowa Constitution than had

been explicitly adopted by the United States Supreme Court under the

United States Constitution); Bruegger, 773 N.W.2d at 883.         Thus, we

follow the federal analytical framework in deciding this case, but

ultimately use our judgment in giving meaning to our prohibition against

cruel and unusual punishment in reaching our conclusion. See State v.

Kern, 831 N.W.2d 149, 174 (Iowa 2013).

      Article I, section 17 of the Iowa Constitution “embraces a bedrock

rule of law that punishment should fit the crime.” Bruegger, 773 N.W.2d

at 872; see also Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183,

1190, 161 L. Ed. 2d 1, 16 (2005) (“[T]he Eighth Amendment guarantees

individuals the right not to be subjected to excessive sanctions.”); Atkins

v. Virginia, 536 U.S. 304, 311, 122 S. Ct. 2242, 2246, 153 L. Ed. 2d 335,

344 (2002) (“ ‘[I]t is a precept of justice that punishment for crime should

be graduated and proportioned to [the] offense.’ ” (quoting Weems v.

United States, 217 U.S. 349, 367, 30 S. Ct. 544, 549, 54 L. Ed. 793, 798

(1910)).   While “strict proportionality” is neither required nor, frankly,

possible, Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680,

2705, 115 L. Ed. 2d 836, 869 (1991), Bruegger reveals our scrutiny of the

proportionality between the crime and the sentence is not “ ‘toothless,’ ”

773 N.W.2d at 883 (quoting Racing Ass’n of Cent. Iowa v. Fitzgerald, 675

N.W.2d 1, 9 (Iowa 2004)).

      Time and experience have taught us much about the efficacy and

justice of certain punishments. As a consequence, we understand our

concept of cruel and unusual punishment is “not static.” Trop v. Dulles,

356 U.S. 86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958).

Instead, we consider constitutional challenges under the “currently
                                   11

prevail[ing]” standards of whether a punishment is “excessive” or “cruel

and unusual.” Atkins, 536 U.S. at 311, 122 S. Ct. at 2247, 153 L. Ed. 2d

at 344. This approach is followed because the basic concept underlying

the prohibition against cruel and unusual punishment “is nothing less

than the dignity” of humankind. Trop, 356 U.S. at 100, 78 S. Ct. at 597,

2 L. Ed. 2d at 642. This prohibition “must draw its meaning from the

evolving standards of decency that mark the progress of a maturing

society.”   Id. at 101, 78 S. Ct. at 598, 2 L. Ed. 2d at 642.    “This is

because ‘[t]he standard of extreme cruelty is not merely descriptive, but

necessarily embodies a moral judgment. The standard itself remains the

same, but its applicability must change as the basic mores of society

change.’ ” Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S. Ct. 2641,

2649, 171 L. Ed. 2d 525, 538 (2008) (quoting Furman v. Georgia, 408

U.S. 238, 382, 92 S. Ct. 2726, 2800, 33 L. Ed. 2d 346, 432 (1972)

(Burger, C.J., dissenting)). In other words, punishments once thought

just and constitutional may later come to be seen as fundamentally

repugnant to the core values contained in our State and Federal

Constitutions as we grow in our understanding over time. See Roper,

543 U.S. at 574–75, 125 S. Ct. at 1198, 161 L. Ed. at 25 (abrogating

Stanford v. Kentucky, 492 U.S. 361, 380, 109 S. Ct. 2969, 2980, 106

L. Ed. 2d 306, 325 (1989), which held a sixteen-year-old offender could

be sentenced to be executed). As with other rights enumerated under

our constitution, we interpret them in light our understanding of today,

not by our past understanding.

      Until recently, there were two general classifications of cruel and

unusual sentences. See Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct.

2011, 2021, 176 L. Ed. 2d 825, 836 (2010). “In the first classification

the Court consider[ed] all of the circumstances of the case to determine
                                       12

whether [a term-of-years] sentence is unconstitutionally excessive.” Id.

We recognize this classification under the Iowa Constitution, but refer to

these sentences as “grossly disproportionate.” Bruegger, 773 N.W.2d at

873.    The second classification contemplated categorical bars to

imposition of the death penalty irrespective of idiosyncratic facts.

Graham, 560 U.S. at 60, 130 S. Ct. at 2022, 176 L. Ed. 2d at 836. This

classification of cases has traditionally “consist[ed] of two subsets, one

considering the nature of the offense, the other considering the

characteristics of the offender.” Id. In short, the death penalty simply

cannot be imposed on certain offenders or for certain crimes.         For

instance, no offender can be sentenced to death—regardless of their

personal characteristics—if only convicted of a nonhomicide offense and

they did not intend to cause the death of another. Kennedy, 554 U.S. at

438, 128 S. Ct. at 2660, 171 L. Ed. 2d at 550. Additionally, a death

penalty cannot be imposed, irrespective of the crime, on an intellectually

disabled criminal offender, Atkins, 536 U.S. at 321, 122 S. Ct. at 2252,

153 L. Ed. 2d at 350, or a juvenile offender, Roper, 543 U.S. at 578, 125

S. Ct. at 1200, 161 L. Ed. 2d at 28.

       Graham introduced a third subset of categorical challenges. See

560 U.S. at 70–74, 130 S. Ct. at 2028–30, 176 L. Ed. 2d at 843–45. This

subset involved a categorical challenge to a term-of-years sentence based

on the underlying sentencing practice. See id. at 61–62, 130 S. Ct. at

2022–23, 176 L. Ed. 2d at 837. While the juvenile status of the offender

provided the pivotal point for the reasoning in Graham, the Court also

recognized the offender was being sentenced to life without parole for a

nonhomicide crime, a fact that itself entails categorically lesser

culpability than a homicide crime. See id. at 71, 130 S. Ct. at 2028, 176

L. Ed. 2d at 842; see also Kennedy, 554 U.S. at 438, 128 S. Ct. at 2660,
                                      13

171 L. Ed. 2d at 550 (“[Nonhomicide offenses] may be devastating in

their harm . . . but ‘in terms of moral depravity and of the injury to the

person and to the public,’ they cannot be compared to murder in their

‘severity and irrevocability.’ ” (quoting Coker v. Georgia, 433 U.S. 584,

598, 97 S. Ct. 2861, 2869, 53 L. Ed. 2d 982, 993 (1977)). The Court

thus   blended   its   two   prior   subsets   of   categorical   challenges—

consideration of the nature of the crime and consideration of the

culpability of the offender—to generate a new subset.

       Importantly, Miller added to this jurisprudence by conjoining two

sets of caselaw: outright categorical prohibitions on certain punishments

for certain crimes or against certain offenders, e.g., Graham, 520 U.S. at

75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845–46; Roper, 543 U.S. at 578,

125 S. Ct. at 1200, 161 L. Ed. 2d at 28, with another line of cases

requiring a sentencer have the ability to consider certain characteristics

about the offender as mitigating circumstances in favor of not sentencing

the offender to death, e.g., Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct.

2954, 2964–65, 57 L. Ed. 2d 973, 990 (1978). See Miller, 567 U.S. at

___, 132 S. Ct. at 2463–64, 183 L. Ed. 2d at 418. Although Miller did not

identify its holding as a categorical rule, it essentially articulated a

categorical prohibition on a particular sentencing practice. See id. at ___,

132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (“We therefore hold that the

Eighth Amendment forbids a sentencing scheme that mandates life in

prison without possibility of parole for juvenile offenders.”). Yet, Miller

implemented a categorical prohibition by requiring the sentencing court

to consider the offender’s youth along with a variety of other individual

facts about the offender and the crime to determine whether the sentence

is appropriate. See id. at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423;

see also Ragland, 836 N.W.2d at 115 & n.6.
                                         14

      By importing the line of cases represented by Lockett, Miller

effectively   crafted   a   new   subset      of   categorically   unconstitutional

sentences: sentences in which the legislature has forbidden the

sentencing court from considering important mitigating characteristics of

an offender whose culpability is necessarily and categorically reduced as

a   matter    of   law,     making     the    ultimate    sentence     categorically

inappropriate.      This new subset carries with it the advantage of

simultaneously being more flexible and responsive to the demands of

justice than outright prohibition of a particular penalty while also

providing real and substantial protection for the offender’s right to be

sentenced accurately according to their culpability and prospects for

rehabilitation.    We turn now to consider the merits of Lyle’s challenge

that mandatory minimums cannot be constitutionally applied to

juveniles.

      The analysis of a categorical challenge to a sentence normally

entails a two-step inquiry.          First, we consider “ ‘objective indicia of

society’s standards, as expressed in legislative enactments and state

practice’ to determine whether there is a national consensus against the

sentencing practice at issue.”        Graham, 560 U.S. at 61, 130 S. Ct. at

2022, 176 L. Ed. 2d at 837 (quoting Roper, 543 U.S. at 563, 125 S. Ct. at

1191, 161 L. Ed. 2d at 17). Second, we exercise our own “independent

judgment” “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.’ ” See id. (quoting

Kennedy, 554 U.S. at 421, 128 S. Ct. at 2650, 171 L. Ed. 2d at 540). In

exercising independent judgment, we 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. at 67, 130 S. Ct. at
                                          15

2026, 176 L. Ed. 2d at 841. We also consider if the sentencing practice

being challenged serves the legitimate goals of punishment. Id.

       Beginning with the first prong of the analysis, we recognize no

other court in the nation has held that its constitution or the Federal

Constitution prohibits a statutory schema that prescribes a mandatory

minimum sentence for a juvenile offender. Further, most states permit

or require some or all juvenile offenders to be given mandatory minimum

sentences.3 See Martin Guggenheim, Graham v. Florida and a Juvenile’s

Right to Age-Appropriate Sentencing, 47 Harv. C.R.-C.L. L. Rev. 457, 494

& n.267 (2012) [hereinafter Guggenheim] (collecting state statute

permitting or requiring a mandatory minimum sentences to be imposed

on a juvenile offender tried as an adult). This state of the law arguably

projects a consensus in society in favor of permitting juveniles to be

given mandatory minimum statutory sentences.                     See Alex Dutton,

Comment, The Next Frontier of Juvenile Sentencing Reform: Enforcing

Miller’s Individualized Sentencing Requirement Beyond the JLWOP

Context, 23 Temp. Pol. & Civ. Rts. L. Rev. 173, 195 (2013) [hereinafter

Dutton] (“At this moment, no such national consensus exists against the

imposition of mandatory sentences on juvenile offenders; the practice is

common across jurisdictions.”).




       3Some   states have limited or abolished mandatory minimums for juveniles. See,
e.g., Colo. Rev. Stat. § 19-2-908 (2013) (limiting the availability of mandatory minimum
sentences for juveniles); Del. Code Ann. tit. 11, § 630A(c) (2007) (providing the
mandatory minimum for vehicular homicide shall not apply to a juvenile offender); N.M.
Stat. Ann. § 31-18-13(B) (West, Westlaw current through May 21, 2014) (providing that
juvenile offenders may be sentenced to less than the mandatory minimum); Or. Rev.
Stat. § 161.620 (2003) (providing a juvenile tried as an adult shall not receive a
mandatory minimum sentence except for aggravated murder or felonies committed with
a firearm); Wash. Rev. Code Ann. § 9.94A.540(3)(a) (West 2010) (prohibiting mandatory
minimum sentences for juvenile offenders except for aggravated first-degree murder).
                                   16

      Yet, “[c]onsensus is not dispositive.” Kennedy, 554 U.S. at 421,

128 S. Ct. at 2650, 171 L. Ed. 2d at 539.           Moreover, as Miller

demonstrates, constitutional protection for the rights of juveniles in

sentencing for the most serious crimes is rapidly evolving in the face of

widespread sentencing statutes and practices to the contrary. See 567

U.S. at ___, 132 S. Ct. at 2470–73, 183 L. Ed. 2d at 424–29 (rejecting an

argument by Alabama and Arkansas that widespread use of mandatory-

life-without-parole sentences for juvenile homicide offenders precluded

holding the practice to be unconstitutional). Additionally, the evolution

of society that gives rise to change over time necessarily occurs in the

presence of an existing consensus, as history has repeatedly shown. The

“tough on crime” movement in politics may have made mandatory

minimum sentences for juveniles common in society, see Dutton, Temp.

Pol. & Civ. Rts. L. Rev. at 175 (identifying “conservative, tough-on-crime

political campaigns” as one cause of harsh and longer juvenile

sentences); see also William J. Stuntz, The Pathological Politics of

Criminal Law, 100 Mich. L. Rev. 505, 509 (2001) (describing the

bipartisan “bidding war” to be toughest on crime), but, the shift has also

given rise to the claim that some sentencing laws have gone too far as

applied to youthful offenders, cf. Guggenheim, 47 Harv. C.R.-C.L. L. Rev.

at 495 (arguing the national-consensus analysis is inadequate to protect

juvenile rights).

      We also recognize that we would abdicate our duty to interpret the

Iowa Constitution if we relied exclusively on the presence or absence of a

national consensus regarding a certain punishment.          Iowans have

generally enjoyed a greater degree of liberty and equality because we do

not rely on a national consensus regarding fundamental rights without

also examining any new understanding.
                                          17

        Nevertheless, the absence of caselaw does not necessarily support

the presence of a consensus contrary to the challenge by Lyle in this

case.    Our legislature has already started to signal its independent

concern with mandatory prison sentences for juveniles.                   In 2013, it

expressed this recognition by amending a sentencing statute to remove

mandatory sentencing for juveniles in most cases. This statute provides:

        Notwithstanding any provision in section 907.3 or any other
        provision of law prescribing a mandatory minimum sentence
        for the offense, if the defendant, other than a child being
        prosecuted as a youthful offender, is guilty of a public
        offense other than a class “A” felony, and was under the age
        of eighteen at the time the offense was committed, the court
        may suspend the sentence in whole or in part, including any
        mandatory minimum sentence, or with the consent of the
        defendant, defer judgment or sentence, and place the
        defendant on probation upon such conditions as the court
        may require.

2013 Iowa Acts ch. 42, § 14 (codified at Iowa Code Ann. § 901.5(14)

(West, Westlaw current through 2014 Reg. Sess.)).4 While this statute

does not change the minimum-term requirement for juveniles if a prison

sentence is imposed by the court, it does abolish mandatory prison

sentencing for most crimes committed by juveniles.

        Just as we typically “owe substantial deference to the penalties the
legislature has established for various crimes,” State v. Oliver, 812

N.W.2d 636, 650 (2012), we owe equal deference to the legislature when

it expands the discretion of the court in juvenile sentencing. Legislative

judgments can be “the most reliable objective indicators of community

standards for purposes of determining whether a punishment is cruel

and unusual.”       Bruegger, 773 N.W.2d at 873.              Here, the legislative

decision to back away from mandatory sentencing for most crimes


        4The  State argues, and Lyle does not disagree, that the statute does not apply
retroactively. See Iowa Code § 4.13(1)(c) (2013).
                                     18

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.     See, e.g., Iowa Code § 232.10(2)(a) (2013)

(permitting a transfer of venue for juvenile court proceedings for “the best

interests of the child” among other reasons); id. § 232.38(2) (permitting

the district court to excuse temporarily the presence of the child’s

parents “when the court deems it in the best interests of the child”); id.

§ 232.43(6) (permitting the district court to refuse to accept a guilty plea

by the child if the plea “is not in the child’s best interest”); id.

§ 232.45(6)(c) (permitting the juvenile court to waive jurisdiction over

delinquency proceedings if waiver “would be in the best interests of the

child and the community”); id. § 232.52(2)(e) (permitting the court to

transfer guardianship of the child to the department of human services

for “the best interest of the child” among other reasons); id. § 232.62(2)(a)

(permitting the district court to transfer venue for CINA proceedings for

“the best interests of the child” among other reasons); id. § 232.108(3)

(permitting a court to deny permission for “frequent visitation” by a

sibling if the court determines “it would not be in the child’s best

interest”).

      Moreover, the Code in general is replete with provisions vesting

considerable discretion in courts to take action for the best interests of

the child. See id. § 92.13 (permitting the labor commissioner to refuse to
                                    19

grant a work permit to a minor if “the best interests of the minor would

be served by such refusal”); id. § 232C.3(1) (permitting a court to

emancipate a minor if it is in the best interest of the child); id.

§ 282.18(5) (directing a school board “to achieve just and equitable

results that are in the best interest of the affected child” when

determining whether to permit the child to open enroll). Other statutes

prohibit juveniles from engaging in risky behavior because of the reduced

capacity for decision-making found in juveniles.      See id. § 123.47(2)

(prohibiting persons under twenty-one from purchasing alcohol); id.

§ 135.37(2) (prohibiting persons under eighteen from obtaining tattoos);

id. § 321.180B (prohibiting persons under eighteen from obtaining “a

license or permit to operate a motor vehicle except under the provisions

of this section”); id. § 453A.2(2) (prohibiting persons under eighteen from

purchasing tobacco products); see also Null, 836 N.W.2d at 53 (collecting

statutes).

      All of these statutes reflect a pair of compelling realities.   First,

children lack the risk-calculation skills adults are presumed to possess

and are inherently sensitive, impressionable, and developmentally

malleable.     Second, the best interests of the child generally support

discretion in dealing with all juveniles.     In other words, “the legal

disqualifications placed on children as a class . . . exhibit the settled

understanding that the differentiating characteristics of youth are

universal.” J.D.B. v. North Carolina, 564 U.S. ___, ___, 131 S. Ct. 2394,

2403–04, 180 L. Ed. 2d 310, 324 (2011).

      Overall, it is becoming clear that society is now beginning to

recognize a growing understanding that mandatory sentences of

imprisonment for crimes committed by children are undesirable in

society.     If there is not yet a consensus against mandatory minimum
                                           20

sentencing for juveniles, a consensus is certainly building in Iowa in the

direction of eliminating mandatory minimum sentencing.5

       We next turn to the second step in the analysis of the Cruel and

Unusual Punishment Clause.                We must decide if the mandatory

minimum sentence for a youthful offender violates the Cruel and

Unusual Punishment Clause in light of its text, meaning, purpose, and

history.

       In doing so, we cannot ignore that over the last decade, juvenile

justice has seen remarkable, perhaps watershed, change. This evolution

must be cast in its proper place in the history of juvenile justice.

Although we have recently traced the evolution of juvenile justice, see

Null, 836 N.W.2d at 52, we highlight this history to better understand the

         5We recognize many states are currently wrestling with whether Miller applies

retroactively on collateral review. Compare Jones v. State, 122 So. 3d 698, 702–03
(Miss. 2013) (holding Miller applies retroactively), and State v. Mantich, 842 N.W.2d 716,
731 (Neb. 2014) (same), with State v. Tate, 130 So. 3d 829, 841 (La. 2013) (holding
Miller does not apply retroactively), Chambers v. State, 831 N.W.2d 311, 326 (Minn.
2013) (same), and Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013) (same). Of
course, retroactivity aside, states must continue to find ways to implement Miller, and a
variety of options exist. See Lauren Kinell, Note and Comment, Answering the
Unanswered Questions: How States Can Comport with Miller v. Alabama, 13 Conn. Pub.
Int. L.J. 143, 149–58 (2013) (discussing different approaches taken by states after
Miller); Kelly Scavone, Note, How Long Is Too Long: Conflicting State Responses to De
Facto Life Without Parole Sentences After Graham v. Florida and Miller v. Alabama, 82
Fordham L. Rev. 3439, 3441–42 (2014) (discussing varying state responses to issues
left unresolved by Miller). Even these early days of rapidly evolving juvenile justice
jurisprudence, though, we are hardly alone in our approach. For example, other courts
have similarly held a term-of-years sentence can be so lengthy as to be the “functional
equivalent” of a life sentence. See Moore v. Biter, 725 F.3d 1184, 1194 (9th Cir. 2013)
(holding a 254-year sentence for nonhomicide crimes violated Graham); People v.
Caballero, 282 P.3d 291, 295 (Cal. 2012) (holding a 110-year minimum sentence is the
equivalent of life without parole); see also Commonwealth v. Brown, 1 N.E.3d 259, 270
n.11 (Mass. 2013) (leaving the contours of a new sentencing scheme to the “sound
discretion” of the legislature but cautioning that any sentencing scheme “must take
account of the spirit” of Brown “and avoid imposing on juvenile defendants any term so
lengthy that it could be seen as the functional equivalent of a sentence of life without
parole” and citing Caballero, Ragland, and Null). Indeed, Massachusetts has even gone
a step further than we have had occasion to do, holding all juvenile life without parole
for homicide offenders violates the Massachusetts Constitution. See Diatchenko v. Dist.
Att’y, 1 N.E.3d 270, 284–85 (Mass. 2013).
                                    21

challenge made in this case by Lyle. This history is particularly salient

given the categorical nature of Lyle’s challenge. It reveals children and

juveniles have been viewed as constitutionally different from adults in

this country for more than a century.

      At common law, children under seven lacked criminal capacity,

and children between seven and fourteen years of age were presumed to

lack criminal capacity, but juveniles over fourteen were presumed to

have the capacity to commit criminal acts. Id.; see also In re Gault, 387

U.S. 1, 16, 87 S. Ct. 1428, 1438, 18 L. Ed. 2d 527, 540 (1967). “For the

first hundred years or so after the founding of the United States,

juveniles, if they were tried at all, were tried in adult courts.” Null, 836

N.W.2d at 52 (citing Barry C. Feld, Unmitigated Punishment: Adolescent

Criminal Responsibility and LWOP Sentences, 10 J.L. & Fam. Stud. 11,

13–14 (2007) [hereinafter Feld]). While these early courts typically did

not have authority to accord the juvenile fewer rights, In re Gault, 387

U.S. at 16–17, 87 S. Ct. at 1438, 18 L. Ed. 2d at 540, courts did not

afford juveniles any greater substantive protection. “Prior to the creation

of juvenile courts, ‘adult crime’ meant ‘adult time,’ therefore states tried

and sentenced children as adults, and imprisoned and executed them for

crimes committed as young as ten, eleven, or twelve years of age.” Feld,

10 J.L. & Fam. Stud. at 14.

      By the end of the nineteenth century, progressive reformers were

“appalled by adult procedures and penalties, and by the fact that

children could be given long prison sentences and mixed in jails with

hardened criminals.” In re Gault, 387 U.S. at 15, 87 S. Ct. at 1437, 18

L. Ed. 2d at 539.   To ameliorate the harshness and inequity of trying

children in adult courts (resulting in adult punishment), reformers

advocated for the establishment of a system less concerned with
                                    22

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

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

unique circumstances. Id. at 15–16, 87 S. Ct. at 1437, 18 L. Ed. 2d at

539.   “The idea of crime and punishment was to be abandoned.          The

child was to be ‘treated’ and ‘rehabilitated’ and the procedures, from

apprehension through institutionalization, were to be ‘clinical’ rather

than punitive.”      Id.   “Accordingly, the highest motives and most

enlightened impulses led to a peculiar system for juveniles, unknown to

our law in any comparable context.”      Id. at 17, 87 S. Ct. at 1438, 18

L. Ed. 2d at 540. Theoretically, youthful offenders would not face any

actual prison time as a result of most juvenile court proceedings. See

Julian W. Mack, The Juvenile Court, 23 Harv. L. Rev. 104, 108 (1909)

[hereinafter Mack] (“[T]he protection is accomplished by suspending

sentence and releasing the child under probation, or, in the case of

removal from the home, sending it to a school instead of to a jail or

penitentiary.”).

       Underlying these early juvenile courts was the fundamental conceit

that the judicial process was not adversarial when dealing with juvenile

offenders. Instead, the state ostensibly acted in parens patriae on the

child’s behalf.    See In re Gault, at 15–17, 87 S. Ct. at 1437–38, 18

L. Ed. 2d at 539–40. In turn, procedural protections for the benefit of

criminal defendants did not apply in juvenile court.     Id. at 15–16, 87

S. Ct. at 1437, 18 L. Ed. 2d at 539. The old law reasoned the child had

no right of liberty with his or her parents, only a right to custody, and

thus, in delinquency proceedings, the state did “not deprive the child of

any rights, because he ha[d] none. It merely provide[d] the ‘custody’ to

which the child [was] entitled.” Id. at 17, 87 S. Ct. at 1438, 18 L. Ed. 2d

at 540. In other words, the state, by prosecuting the child in juvenile
                                    23

court, was stepping in as the child’s caretaker. See Mack, 23 Harv. L.

Rev. at 120.

      Sensing the changing perceptions about liberty and due process in

the middle of the twentieth century, the United States Supreme Court

recognized the basic prevailing underpinning of juvenile courts was

inaccurate and “that the purpose of juvenile court proceedings was no

longer primarily to protect the best interest of the child and was instead

becoming more punitive in nature.” Null, 836 N.W.2d at 52; see In re

Gault, 387 U.S. at 17–19, 87 S. Ct. at 1438–39, 18 L. Ed. 2d at 540–41.

Accordingly, the Court began to require many basic protections provided

to adult offenders to be offered in juvenile courts, see In re Gault, 387

U.S. at 32–58, 87 S. Ct. at 1446–60, 18 L. Ed. 2d at 549–63, and in

proceedings in which the juvenile is waived to adult court, see Kent v.

United States, 383 U.S. 541, 556–57, 86 S. Ct. 1045, 1055, 16 L. Ed. 2d

84, 94–95 (1966).

      Following In re Gault, however, little additional progress was

achieved. See Guggenheim, 47 Harv. C.R.-C.L. L. Rev. at 466–74. State

legislatures generally responded to Kent and In re Gault by amending

their laws to prosecute more juveniles as adults in adult court and to

give more juveniles adult sentences.      See id. at 472–74; Donna M.

Bishop, Juvenile Offenders in the Adult Criminal Justice System, 27 Crime

& Just. 81, 84 (2000). As we have recognized “Kent and In re Gault may

have stimulated a mindset of increased exposure of youth to adult

criminal sentences.” Null, 836 N.W.2d at 52; see Feld, 10 J.L. & Fam.

Stud. at 31 & n.108 (detailing the alarmist, racially charged rhetoric that

fueled ever harsher sentences); see also John J. Dilulio Jr., The Coming

of the Super-Predators, The Weekly Standard, November 27, 1995, at 23)

(predicting an onslaught of “tens of thousands of severely morally
                                        24

impoverished    juvenile    super-predators”).       The   increase   in   harsh

sentencing statutes has led to longer sentences for juveniles.

      Nevertheless, the Court did recognize serious differences in

juveniles that supported differential treatment in a few cases.              See

Johnson v. Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 2668–69, 125

L. Ed. 2d 290, 306 (1993) (holding”sentence in a capital case must be

allowed to consider the mitigating qualities of youth”); Thompson v.

Oklahoma, 487 U.S. 815, 836–38, 108 S. Ct. 2687, 2699–2700, 101

L. Ed. 2d 702, 719–20 (1988) (plurality opinion) (holding death penalty

for offenses committed by persons under sixteen years of age an

“unconstitutional punishment”); Schall v. Martin, 467 U.S. 253, 265–67,

104   S. Ct.   2403,   2410–11,        81    L. Ed. 2d   207,   217–19     (1984)

(subordinating, in appropriate circumstances, juvenile’s liberty interest

to state’s parens patriae interest); Eddings v. Oklahoma, 455 U.S. 104,

115–16, 102 S. Ct. 869, 877, 71 L. Ed. 2d 1, 11–12 (1982) (remanding for

state court to consider mitigating circumstances of death penalty case of

sixteen-year-old youth).         Importantly, the reasoning in Schall, which

permitted pretrial detention of youthful offenders under circumstances

not permissible of adults, was based on the notion that juveniles fail to

appreciate the gravity of the situation of prosecution—presumably

making them likely to reoffend even before trial. See 467 U.S. at 265,

104 S. Ct. at 2410, 81 L. Ed. 2d at 217–18. The Court recognized that

“[c]hildren, by definition, are not assumed to have the capacity to take

care of themselves.”       Id.    It further recognized that “[s]ociety has a

legitimate interest in protecting a juvenile from the consequences of his

criminal activity [including] . . . the downward spiral of criminal activity

in which peer pressure may lead the child.”          Id. at 266, 104 S. Ct. at

2410–11, 81 L. Ed. 2d at 218.                Schall suggested that juveniles
                                    25

necessitate special treatment because the consequences of criminal

conduct impact them differently than adults.

      In the context of capital murder, the Court recognized the

importance of youth as a mitigating factor.     See Eddings, 455 U.S. at

115–17, 102 S. Ct. at 877–78, 71 L. Ed. 2d at 11–12.            The Court

explained:

      [Y]outh is more than a chronological fact. It is a time and
      condition of life when a person may be most susceptible to
      influence and to psychological damage. Our history is
      replete with laws and judicial recognition that minors,
      especially in their earlier years, generally are less mature
      and responsible than adults.

Id. at 115–16, 102 S. Ct. at 877, 71 L. Ed. 2d at 11 (footnote omitted).

Further, the Court found that the presence of evidence of other types of

mitigating factors, such as a “turbulent family history, . . . beatings by a

harsh father, and . . . severe emotional disturbance” was relevant when

the defendant is a juvenile.     See id. at 115, 102 S. Ct. at 877, 71

L. Ed. 2d at 11.

      Indeed, the Court arrived at a similar conclusion in barring

imposition of the death penalty on juvenile offenders who were under the

age of sixteen at the time of the offense. See Thompson, 487 U.S. at 836–

38, 108 S. Ct. at 2699–2700, 101 L. Ed. 2d at 719–20. Justice Stevens,

writing for a plurality of the Court, explained two principal social

purposes justify imposition of the death penalty: retribution and

deterrence.   Id. at 836, 108 S. Ct. at 2699, 101 L. Ed. 2d at 719.

However, neither of these rationales applied to fifteen-year-old offenders.

Id. at 836–38, 108 S. Ct. at 2699–2700, 101 L. Ed. 2d at 719–20.

      The reasoning employed by the plurality was strikingly similar to

the reasoning and language used by the later majority in Roper.

Compare id. at 836–37, 108 S. Ct. at 2699–2700, 101 L. Ed. 2d at 719
                                         26

(“Given the lesser culpability of the juvenile offender, the teenager’s

capacity for growth, and society’s fiduciary obligations to its children,

[the retributive justification for imposing the death penalty] is simply

inapplicable to . . . a 15-year-old offender.”), with Roper, 543 U.S. at 569–

71, 125 S. Ct. at 1195, 161 L. Ed. 2d at 21 (recognizing the “diminished

culpability of juveniles” and their greater capacity for rehabilitation due

to    “transient     immaturity”    made      the    death   penalty    categorically

inappropriate for juvenile offenders generally).             Indeed, the idea that

deterrence—a more relevant rationale for punishing lesser crimes—

applied to juveniles was rejected nearly out of hand by the plurality: “The

likelihood that the teenage offender has made the kind of cost-benefit

analysis that attaches any weight to the possibility of execution is so

remote as to be virtually nonexistent.” Thompson, 487 U.S. at 837, 108

S. Ct. at 2700, 101 L. Ed. 2d at 720.

       Eddings and Thompson demonstrate that while our emerging

knowledge of adolescent neuroscience and the diminished culpability of

juveniles is indeed compelling, see Thompson, 487 U.S. at 836, 108

S. Ct. at 2699–2700, 101 L. Ed. 2d at 719; Eddings, 455 U.S. at 115–16,

102    S. Ct.   at    877,   71    L. Ed. 2d    at    11–12,   our     commonsense

understanding of youth, Miller, 567 U.S. at ___, 132 S. Ct. at 2464, 183

L. Ed. 2d at 418, or what “any parent knows,” Roper, 543 U.S. at 569,

125 S. Ct. at 1195, 161 L. Ed. 2d at 21, has for more than thirty years

supported a fundamental and virtually inexorable difference between

juveniles and adults for the purposes of punishment. The understanding

that it was cruel and unusual punishment to mandate the same

sentences for juveniles as adults first emerged for crimes involving death

sentences.      We simply could no longer see death as an acceptable
                                          27

punishment to impose for a crime committed by a juvenile irrespective of

the offender’s youth.

      Yet, for the bulk of the time after Eddings and Thompson and

before Roper, a different categorical rule prevailed: the notion “that the

penalty     of    death   is    qualitatively   different    from   a   sentence   of

imprisonment, however long.” See Woodson v. North Carolina, 428 U.S.

280, 305, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d 944, 961 (1976) (plurality

opinion).        The “death is different” rule manifested itself in extreme

deference to legislative judgments regarding the appropriate duration of

punishments for juveniles for other crimes.                 So long as the juvenile

would not be executed, virtually any sentence or statutory sentencing

scheme was acceptable.           See Rachel E. Barkow, The Court of Life and

Death: The Two Tracks of Constitutional Sentencing Law and the Case for

Uniformity, 107 Mich. L. Rev. 1145, 1145 (2009) (“The Supreme Court

takes two very different approaches to substantive sentencing law.

Whereas its review of capital sentences is robust, its oversight of

noncapital sentences is virtually nonexistent.”).

      However, ten years ago a new understanding of cruel and unusual

punishment emerged.            In Roper, the Supreme Court held that a state

may not impose the death penalty for a crime committed under the age of

eighteen.    543 U.S. at 578, 125 S. Ct. at 1200, 161 L. Ed. 2d at 28.

Unquestionably, youth and its attendant characteristics were compelling

factors in the Court’s analysis. See id. at 569–74, 125 S. Ct. at 1195–97,

161 L. Ed. 2d at 21–25.           The Court commented on three differences

between youth and adults.             Id. at 569–70, 125 S. Ct. at 1195, 161

L. Ed. 2d at 21–23. As it had before, the Court explained:

      [A]s any parent knows and as the scientific and sociological
      studies . . . tend to confirm, “[a] lack of maturity and an
      underdeveloped sense of responsibility are found in youth
                                     28
      more often than in adults and are more understandable
      among the young. These qualities often result in impetuous
      and ill-considered actions and decisions.”

Id. at 569, 125 S. Ct. at 1195, 161 L. Ed. 2d at 21 (quoting Johnson, 509

U.S. at 367, 113 S. Ct. at 2668–69, 125 L. Ed. 2d at 306). The Court

also noted “that juveniles are more vulnerable or susceptible to negative

influences and outside pressures, including peer pressure.” Id. at 569,

125 S. Ct. at 1195, 161 L. Ed. 2d at 22.       These two factors generally

decrease the culpability of juvenile offenders.       See id.   “Their own

vulnerability and comparative lack of control over their immediate

surroundings mean juveniles have a greater claim than adults to be

forgiven for failing to escape negative influences in their whole

environment.” Id. at 570, 125 S. Ct. at 1195, 161 L. Ed. 2d at 22. “Once

the diminished culpability of juveniles is recognized, it is evident that the

penological justifications for the death penalty apply to them with lesser

force than to adults.” Id. at 571, 125 S. Ct. at 1196, 161 L. Ed. 2d at 23.

      A greater capacity for change and rehabilitation complemented the

juvenile’s diminished culpability. The Court observed: “[T]he character of

a juvenile is not as well formed as that of an adult. The personality traits

of juveniles are more transitory, less fixed.”    Id. at 570, 125 S. Ct. at

1195, 161 L. Ed. 2d at 22.       “From a moral standpoint it would be

misguided to equate the failings of a minor with those of an adult, for

greater possibility exists that a minor’s character deficiencies will be

reformed.”   Id. at 570, 125 S. Ct. at 1195–96, 161 L. Ed. 2d at 22.

“Indeed, ‘[t]he relevance of youth as a mitigating factor derives from the

fact that the signature qualities of youth are transient; as individuals

mature, the impetuousness and recklessness that may dominate in

younger years can subside.’ ”      Id. at 570, 125 S. Ct. at 1196, 161

L. Ed. 2d at 22 (quoting Johnson, 509 U.S. at 368, 113 S. Ct. at 2669,
                                          29

125 L. Ed. 2d at 306).       “It is difficult even for expert psychologists to

differentiate    between    the   juvenile      offender     whose    crime     reflects

unfortunate yet transient immaturity, and the rare juvenile offender

whose crime reflects irreparable corruption.”              Id. at 573, 125 S. Ct. at

1197, 161 L. Ed. 2d at 24. Accordingly, the Court held the death penalty

could not be imposed for a crime committed under eighteen years of age.

Id. at 578, 125 S. Ct. at 1200, 161 L. Ed. 2d at 28.

      Five years later, the Court made a revolutionary advance for

juvenile justice.     In Graham, a seventeen-year-old probationer was

sentenced to life in prison (and had no opportunity for parole because

Florida has abolished its parole system, see Fla. Stat. § 921.002(1)(e)

(2003)), for actively participating in a series of armed home invasion

robberies.      560 U.S. at 54–55, 57, 130 S. Ct. at 2018–19, 2020, 176

L. Ed. 2d at 832–33, 834–35. The Court again reversed the state court

and vacated the sentence.         Although there was a national consensus

against sentencing juvenile offenders to the death penalty, thirty-seven

states and the District of Columbia had statutory schemas permitting a

juvenile   offender    to   receive   a   life-without-parole        sentence    for   a

nonhomicide crime. Id. at 62, 130 S. Ct. at 2023, 176 L. Ed. 2d at 837.

The Court opined, however, that “[a]ctual sentencing practices” revealed

it was rare for a juvenile to receive such a sentence. Id. at 62, 130 S. Ct.

at 2023, 176 L. Ed. 2d at 838.                 The Court concluded a national

consensus had developed against the practice of life-without-parole

sentences for juvenile nonhomicide offenders even if a statute remained

on the books in a large number of states. Id. at 67, 130 S. Ct. at 2026,

176 L. Ed. 2d at 841.

      More importantly, despite what appeared to be a national

consensus against giving youthful nonhomicide offenders life-without-
                                   30

parole sentences, the Court proceeded to the second prong of analysis in

a categorical challenge.   See id. at 67–75, 130 S. Ct. at 2026–30, 176

L. Ed. 2d at 841–46.   It reiterated the lessons of Roper that juveniles

generally have decreased culpability, but treated those lessons as

“established.” Id. at 68, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841. After

rejecting penological justifications for life-without-parole sentences for

juvenile nonhomicide offenders, the Court concluded:

            A State is not required to guarantee eventual freedom
       to a juvenile offender convicted of a nonhomicide crime.
       What the State must do, however, is give defendants like
       Graham some meaningful opportunity to obtain release
       based on demonstrated maturity and rehabilitation.

Id. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845–46. This conclusion,

of course, expresses a growing understanding of the meaning of cruel

and unusual punishment. This understanding has continued to reveal

the truth that the protections against cruel and unusual punishment

need to account for the unique differences between juvenile and adult

behaviors.

       Two years later, the Court took an additional stride forward by

holding in Miller that a statutory scheme that mandated a life-without-

parole sentence for juvenile homicide offenders with no opportunity to

take the offender’s youth into account as a mitigating factor violated the

Eighth Amendment.      Miller, 567 U.S. at ___, 132 S. Ct. at 2469, 183

L. Ed. 2d at 424.   A key component of the Court’s reasoning was the

recognition that “children are constitutionally different from adults for

purposes of sentencing.” Id. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at

418.   It arrived at its conclusion not merely by relying on Roper and

Graham but by weaving together “two strands of precedent”—one

involving categorical bans on punishment for certain crimes and
                                    31

offenders and the other requiring sentencing authorities consider

particular characteristics of the crime and the criminal before imposing a

death sentence. Id. at ___, 132 S. Ct. at 2463, 183 L. Ed. 2d at 417–18.

Perhaps more importantly, the Court, recognized that “none of what

[Graham] said about children—about their distinctive (and transitory)

mental traits and environmental vulnerabilities—is crime-specific.” Id. at

___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 420.     The Court added, “By

making youth (and all that accompanies it) irrelevant to imposition of [a

life-without-parole sentence], such a scheme poses too great a risk of

disproportionate punishment.”      Id. at ___, 132 S. Ct. at 2469, 183

L. Ed. 2d at 424. The Court closed, noting:

      Although we do not foreclose a sentencer’s ability to make
      that judgment in homicide cases, we require it to take into
      account how children are different, and how those
      differences counsel against irrevocably sentencing them to a
      lifetime in prison.

Id.

      Last term, we expanded the reach of the Supreme Court’s

reasoning in a trilogy of juvenile justice cases decided under the Iowa

Constitution.   In all three cases, we thoroughly canvassed the Court’s

precedent and examined the contours of Roper, Graham, and Miller. See

Ragland, 836 N.W.2d at 114–22; Pearson, 836 N.W.2d at 95–97; Null,

836 N.W.2d at 60–68. We also held “that the unconstitutional imposition

of a mandatory life-without-parole sentence is not fixed by substituting it

with a sentence with parole that is the practical equivalent of a life

sentence without parole.” Ragland, 836 N.W.2d at 121. In Null, we held

that “[t]he prospect of geriatric release, if one is to be afforded the

opportunity for release at all, does not provide a ‘meaningful opportunity’

to demonstrate the ‘maturity and rehabilitation’ required to obtain
                                     32

release and reenter society as required by Graham.” Null, 836 N.W.2d at

71 (quoting Graham, 560 U.S. at 75, 130 S. Ct. at 2030, 176 L Ed. 2d at

845–46). We recognized there was no meaningful difference between a

mandatory life-without-parole sentence—commanding the juvenile to

spend the entirety of his life in prison and then die there—and a

sentence styled as a mere mandatory term of years that, as a practical

matter, would obtain the same result. See Ragland, 836 N.W.2d at 121;

Null, 836 N.W.2d at 71. We reached even further in Pearson, however,

understanding that two twenty-five year sentences (each subject to a

mandatory minimum of seventeen-and-one-half years for a total of thirty-

five years) “effectively deprived [the defendant] of any chance of an earlier

release and the possibility of leading a more normal adult life.”        836

N.W.2d at 96. A concurrence in Pearson recognized the case was limited

to its bizarre facts and procedural posture, but pointed out that an

authentic application of Miller and Null would correctly apply to all

crimes and require a sentencing judge to have the discretion to depart

from a mandatory minimum before imposing any minimum sentence. Id.

at 98–99 (Cady, C.J., concurring specially).

      To be sure, death conceivably remained different not only after the

Court’s opinion in Roper, but after the Supreme Court’s opinions in

Graham and Miller. After all, Roper was a death penalty case and could

have been viewed as merely correcting the course after Stanford. Miller

similarly concerned a statute that required a person be incarcerated for

the remainder of their life.   Graham itself recognized that “life without

parole is ‘the second most severe penalty permitted by law.’ ” 560 U.S. at

69, 130 S. Ct. at 2027, 176 L. Ed. 2d at 842 (quoting Harmelin, 501 U.S.

at 1001, 111 S. Ct. at 2705, 115 L. Ed. 2d at 869 (Kennedy, J.,

concurring)); see also William W. Berry III, More Different than Life, Less
                                        33

Different than Death, 71 Ohio St. L.J. 1109, 1123–28 (2010) (arguing

Graham treats life without parole as another category that, like the death

penalty, is irreducibly different than other term-of-years sentences).

      Yet, as our recent trilogy of cases illustrate, death has ceased to be

different for the purposes of juvenile justice. While Graham, like Roper,

placed a barrier to one punishment for juveniles, we recognized that

Miller articulated a substantial principle requiring a district court to have

discretion to impose a lesser sentence.      We realized Miller left open a

number of possibilities, including whether life without parole could ever

be imposed for homicide committed by a juvenile and “to what extent a

mandatory minimum sentence for adult crimes can automatically be

imposed on a juvenile tried as an adult.”      Null, 836 N.W.2d at 66–67.

While emerging neuroscience painted a compelling picture of the

juvenile’s diminished culpability “in the context of the death penalty and

life-without-parole sentences, [we recognized] it also applies, perhaps

more so, in the context of lesser penalties as well.” Pearson, 836 N.W.2d

at 98. Our recent procession of cases clearly indicates that death is no

longer irreconcilably different under article I, section 17 of the Iowa

Constitution, at least for juveniles.

      Moreover, death sentences have never truly been the difference

maker with respect to treating juveniles as adults.            As Professor

Guggenheim has pointed out, the Court recognized differences of

constitutional magnitude between adults and children in an array of

nonpunishment contexts. See Guggenheim, 47 Harv. C.R.-C.L. L. Rev. at

474–87. The Court permitted intrusions upon the constitutional rights

of youths that would be starkly impermissible as applied to adults. See,

e.g., New Jersey v. T.L.O., 469 U.S. 325, 341–42, 105 S. Ct. 733, 742–43,

83 L. Ed. 2d 720, 734–35 (1985) (holding a school official may search a
                                           34

child student without a warrant “when there are reasonable grounds for

suspecting that the search will turn up evidence that the student has

violated or is violating either the law or the rules of the school”);6 Bellotti
v. Baird, 443 U.S. 622, 643–44, 99 S. Ct. 3035, 3048, 61 L. Ed. 2d 797,

813–14 (1979) (holding a statute requiring judicial supervision of a

minor’s abortion, which would be unconstitutional as applied to an

adult, could be constitutional under some circumstances); Ginsburg v.

New York, 390 U.S. 629, 641–43, 88 S. Ct. 1274, 1281–82, 20 L. Ed. 2d

195, 204–06 (1968) (holding a state statute prohibiting minors from

purchasing pornographic materials was a valid exercise of state power).

As the Court explained in Ginsburg, “even where there is an invasion of

protected freedoms ‘the power of the state to control the conduct of

children reaches beyond the scope of its authority over adults.’ ”                   390

U.S. at 638, 88 S. Ct. at 1280, 20 L. Ed. 2d at 203 (quoting Prince v.

Massachusetts, 321 U.S. 158, 170, 64 S. Ct. 438, 444, 88 L. Ed. 645,

654 (1944)).

       The nub of at least some of these cases is that juveniles are not

fully equipped to make “important, affirmative choices with potentially

serious consequences.” Baird, 443 U.S. at 635, 99 S. Ct. at 3044, 61

       6We   note that T.L.O. is also a “special needs” search case, perhaps more purely
than it is a children’s rights case. See 469 U.S. at 341–43, 105 S. Ct. at 742–43, 83
L. Ed. 2d at 734–36. In this regard, T.L.O. also prizes the interest of school teachers to
maintain order in schools. See id. at 343, 105 S. Ct. at 743, 83 L. Ed. 2d at 735 (“By
focusing on the question of reasonableness, the standard will spare teachers and school
administrators the necessity of schooling themselves in the niceties of probable cause
and permit them to regulate their conduct according to the dictates of reason and
common sense.”). Balancing the child’s privacy interest—which is not a nullity—
against the school’s interest in maintaining order, the Court concluded a youthful
student may be searched without a warrant when a school official has reasonable
suspicion of wrongdoing by the student. See id. at 342–43, 105 S. Ct. at 742–43, 83
L. Ed. 2d at 735–36. Last term, we were presented with a proffered special need in
Kern, 831 N.W.2d at 165–72. We refused to recognize the special needs doctrine, at
least for the time being. Id. at 170. Our mention of T.L.O. today expresses no opinion
regarding the special needs doctrine or the privacy interest of juveniles.
                                   35

L. Ed. 2d at 808.      “[D]uring the formative years of childhood and

adolescence, minors often lack the experience, perspective, and judgment

to recognize and avoid choices that could be detrimental to them.” Id.

The Court also said:

      We have recognized three reasons justifying the conclusion
      that the constitutional rights of children cannot be equated
      with those of adults: the peculiar vulnerability of children;
      their inability to make critical decisions in an informed,
      mature manner; and the importance of the parental role in
      child rearing.

Id. at 634, 99 S. Ct. at 3043, 61 L. Ed. 2d at 807.     This reasoning is

ancient, dating back to Blackstone, see 1 W. Blackstone, Commentaries

on the Laws of England *464–65 (George Sharswood ed. 1870)

(identifying common law disabilities of children but arguing “their very

disabilities are privileges; in order to secure them from hurting

themselves by their own improvident acts”), but continues to be forceful

today.

      More recently, the United States Supreme Court has recognized a

child’s age is relevant to the analysis of whether the child is in custody

for the purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16

L. Ed. 2d 694 (1966). See J.D.B., 564 U.S. at ___, 131 S. Ct. at 2402–06,

180 L. Ed. 2d at 326–27. The Court there recognized that youth “is a

fact that ‘generates commonsense conclusions about behavior and

perception’ ” that “apply broadly to children as a class” and are “self-

evident to anyone who was a child once.” Id. at ___, 131 S. Ct. at 2403,

180 L. Ed. 2d at 323 (quoting Yarborough v. Alvarado, 541 U.S. 652, 674,

124 S. Ct. 2140, 2155, 158 L. Ed. 2d 938, 958 (2004) (Breyer, J.,

dissenting)).   Moreover, a child’s impressionability continued to be

relevant: the Court noted “that events that ‘would leave a man cold and

unimpressed can overawe and overwhelm a lad in his early teens.’ ” Id.
                                     36

(quoting Haley v. Ohio, 332 U.S. 596, 599, 68 S. Ct. 302, 304, 92 L. Ed.

224, 228 (1948)). In short, because children are categorically different

under the law, the child’s age is “a reality that courts cannot simply

ignore.” Id. at ___, 131 S. Ct. at 2406, 180 L. Ed. 2d at 327.

      Upon exercise of our independent judgment, as we are required to

do under the constitutional test, we conclude that the sentencing of

juveniles according to statutorily required mandatory minimums does

not adequately serve the legitimate penological objectives in light of the

child’s categorically diminished culpability. See Graham, 560 U.S. at 71–

75, 130 S. Ct. at 2028–30, 176 L. Ed. 2d at 842–45. First and foremost,

the time when a seventeen-year-old could seriously be considered to have

adult-like culpability has passed. See Null, 836 N.W.2d at 70; see also

Bruegger, 773 N.W.2d at 885 (recognizing that youth applies broadly to

diminish culpability).   Of course, scientific data and the opinions of

medical experts provide a compelling and increasingly ineluctable case

that from a neurodevelopment standpoint, juvenile culpability does not

rise to the adult-like standard the mandatory minimum provision of

section 902.12(5) presupposes. Thus, this prevailing medical consensus

continues to inform and influence our opinion today under the

constitutional analysis we are required to follow.      As demonstrated by

our prior opinions and the recent opinions of the United States Supreme

Court, however, we can speak of youth in the commonsense terms of

what any parent knows or what any former child knows, and so, surely,

we do not abdicate our constitutional duty to exercise independent

judgment when we determine Lyle does not have adult-like culpability.

Cf. Hall v. Florida, 572 U.S. ___, ___, 134 S. Ct. 1986, 2000, ___ L. Ed. 2d

___, ___ (2014) (“It is the Court’s duty to interpret the Constitution, but it

need not do so in isolation.       The legal determination of intellectual
                                         37

disability is distinct from a medical diagnosis, but it is informed by the

medical community’s diagnostic framework.”). The legal determination of

intellectual disability is distinct from a medical diagnosis, but it is

informed by the medical community’s diagnostic framework.”).                     Of

course, as we have said before, we do not forget that “while youth is a

mitigating factor in sentencing, it is not an excuse.” Null, 836 N.W.2d at

75. The constitutional analysis is not about excusing juvenile behavior,

but imposing punishment in a way that is consistent with our

understanding of humanity today.

      We understand and appreciate that harm to a victim is not diluted

by the age of the offender.        Schall, 467 U.S. at 264–65, 104 S. Ct. at

2410, 81 L. Ed. 2d at 217.          Yet, justice requires us to consider the

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

After all, “[i]t is generally agreed ‘that punishment should be directly

related   to    the   personal   culpability     of   the   criminal   defendant.’ ”

Thompson, 487 U.S. at 834, 108 S. Ct. at 2698, 101 L. Ed. 2d at 717

(quoting California v. Brown, 479 U.S. 538, 545, 107 S. Ct. 837, 841, 93

L. Ed. 2d 934, 942 (1987) (O’Connor, J., concurring)). A constitutional

framework that focused only on the harm the defendant caused would

never have produced Roper, which involved a profoundly heinous crime.

See 543 U.S. at 556–58, 573–74, 125 S. Ct. at 1187–88, 1197, 161

L. Ed. 2d at 13–14, 24–25.

      We       recognize   the   prior   cases    considering    whether    certain

punishments were cruel and unusual all involved harsh, lengthy

sentences, including death sentences. See Miller, 567 U.S. at ___, 132

S. Ct. at 2469, 183 L. Ed. 2d at 424; Graham, 560 U.S. at 75, 130 S. Ct.

at 2030, 176 L. Ed. 2d at 845–46; Roper, 543 U.S. at 578, 125 S. Ct. at

1200, 161 L. Ed. 2d at 28; Johnson, 509 U.S. at 367, 113 S. Ct. at 2668–
                                       38

69, 125 L. Ed. 2d at 305–06; Thompson, 487 U.S. at 836–38, 108 S. Ct.

at 2699–2700, 101 L. Ed. 2d at 719–20; Eddings, 455 U.S. at 115–17,

102 S. Ct. at 877–78, 71 L. Ed. 2d at 11–12; see also Ragland, 836

N.W.2d at 121–22; Pearson, 836 N.W.2d at 96; Null, 836 N.W.2d at 76.

Of course, the Supreme Court has recognized that the denial of even the

opportunity to apply for parole for a portion or the entirety of the

applicable period of incarceration renders the sentence harsher.           See

Graham, 560 U.S. at 70, 130 S. Ct. at 2027, 176 L. Ed. 2d at 842 (“The

Court has recognized the severity of sentences that deny convicts the

possibility of parole.”); Solem v. Helm, 463 U.S. 277, 300–01, 103 S. Ct.

3001, 3015, 77 L. Ed. 2d 637, 656 (1983) (distinguishing commutation

from parole because, while “[p]arole is a regular part of the rehabilitative

process” and a prisoner can normally expect parole “[a]ssuming good

behavior,” commutation is an “ad hoc exercise of executive clemency”);

Rummel v. Estelle, 445 U.S. 263, 280–81, 100 S. Ct. 1133, 1142–43, 63

L. Ed. 2d 382, 395 (1980) (recognizing the opportunity for parole,

“however slim,” mollifies the severity of the convict’s sentence).

      More importantly, the Supreme Court has emphasized that

nothing   it   has   said   is   “crime-specific,”   suggesting   the   natural

concomitant that what it said is not punishment-specific either.           See

Miller, 567 U.S. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 420.          We

recognized as much last term. See Null, 836 N.W.2d at 71 (“[T]he notions

in Roper, Graham, and Miller that ‘children are different’ and that they

are categorically less culpable than adult offenders apply as fully in this

case as in any other.” (Emphasis added.)); see also Pearson, 836 N.W.2d

at 99 (Cady, C.J., concurring specially) (recognizing the gravity of the

offense does not affect the applicability of the juvenile’s rights under

article I, section 17).     Simply put, attempting to mete out a given
                                        39

punishment to a juvenile for retributive purposes irrespective of an

individualized   analysis   of    the   juvenile’s   categorically   diminished

culpability is an irrational exercise.         Pearson, 836 N.W.2d at 98

(“[L]imiting the teachings and protections of these recent cases to only

the harshest penalties known to law is as illogical as it is unjust.”).

      The   United   States      Supreme     Court   has   opined    “the   same

characteristics that render juveniles less culpable than adults suggest as

well that juveniles will be less susceptible to deterrence.”         Roper, 543

U.S. at 571, 125 S. Ct. at 1196, 161 L. Ed. 2d at 23. Punishment simply

plays out differently with juveniles.        Even in the context of capital

punishment, the Court has sagaciously recognized that “[t]he likelihood

that the teenage offender has made the kind of cost-benefit analysis that

attaches any weight to the possibility of execution is so remote as to be

virtually nonexistent.” Thompson, 487 U.S. at 837, 108 S. Ct. at 2700,

101 L. Ed. 2d at 720. We add that a deterrence rationale is actually even

less applicable when the crime (and concordantly the punishment) is

lesser. If a juvenile will not engage in the kind of cost-benefit analysis

involving the death penalty that may deter them from committing a

crime, there is no reason to believe a comparatively minor sentence of a

term of years subject to a mandatory minimum will do so. See Pearson,

836 N.W.2d at 98–99.        “[A] juvenile’s impetuosity can lead them to

commit not only serious crimes, but considerably pettier crimes as well.”

Id.

      Rehabilitation and incapacitation can justify criminally punishing

juveniles, but mandatory minimums do not further these objectives in a

way that adequately protects the rights of juveniles within the context of

the constitutional protection from the imposition of cruel and unusual

punishment for a juvenile. See Graham, 560 U.S. at 72, 130 S. Ct. at
                                        40

2029, 176 L. Ed. 2d at 844 (“Even if the punishment has some

connection to a valid penological goal, it must be shown that the

punishment is not grossly disproportionate in light of the justification

offered.”).    As much as youthful immaturity has sharpened our

understanding to use care in the imposition of punishment of juveniles,

it also reveals an equal understanding that reform can come easier for

juveniles without the need to impose harsh measures.           Sometimes a

youthful offender merely needs time to grow.           As with the lack of

maturity in youth, this too is something most parents know.

        The greater likelihood of reform for juveniles also substantially

undermines an incapacitation rationale. See id. at 72–73, 130 S. Ct. at

2029, 176 L. Ed. 2d at 844–45. The juvenile justice jurisprudence of the

United States Supreme Court—like our own—is beginning to regard the

incapacitation rationale with a healthy skepticism.      See id. at 73, 130

S. Ct. at 2029, 176 L. Ed. 2d at 845 (“Incapacitation cannot override all

other    considerations,   lest   the   Eighth   Amendment’s   rule   against

disproportionate sentences be a nullity.”).      A close reading of Graham

demonstrates the Supreme Court views the incapacitation rationale even

more limitedly: the Court recognized Florida needed to incapacitate the

youthful offender to the extent he “posed an immediate risk” of

“escalating [his] pattern of criminal conduct.” Graham, 560 U.S. at 73,

130 S. Ct. at 2029, 176 L. Ed. 2d at 844 (internal quotation marks

omitted).

        Given the juvenile’s greater capacity for growth and reform, it is

likely a juvenile can rehabilitate faster if given the appropriate

opportunity.    “Because ‘incorrigibility is inconsistent with youth,’ care

should be taken to avoid ‘an irrevocable judgment about [an offender’s]

value and place in society.’ ” Null, 836 N.W.2d at 75 (quoting Miller, 567
                                    41

U.S. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 419). After the juvenile’s

transient impetuosity ebbs and the juvenile matures and reforms, the

incapacitation objective can no longer seriously be served, and the

statutorily mandated delay of parole becomes “nothing more than the

purposeless and needless imposition of pain and suffering.” Coker, 433

U.S. at 592, 97 S. Ct. at 2866, 53 L. Ed. 2d at 989.

      If the undeveloped thought processes of juveniles are not properly

considered, the rehabilitative objective can be inhibited by mandatory

minimum sentences. After all, mandatory minimum sentences foreswear

(though admittedly not altogether) the rehabilitative ideal.       Juvenile

offenders who are placed in prison at a formative time in their growth

and formation, see Null, 836 N.W.2d at 55, can be exposed to a life that

can increase the likelihood of recidivism. See Ioana Tchoukleva, Note,

Children Are Different: Bridging the Gap Between Rhetoric and Reality

Post Miller v. Alabama, 4 Cal. L. Rev. Circuit 92, 104 (Aug. 2013).

      In the end, we conclude all mandatory minimum sentences of

imprisonment for youthful offenders are unconstitutional under the cruel

and unusual punishment clause in article I, section 17 of our

constitution. Mandatory minimum sentences for juveniles are simply too

punitive for what we know about juveniles.       Furthermore, we do not

believe this conclusion is inconsistent with the consensus of Iowans.

Although most parents fortunately will never find themselves in a

position to be in court to see their teenage child sentenced to a

mandatory minimum term of imprisonment for committing a forcible

felony, we think most parents would be stunned to learn this state had a

sentencing schema for juvenile offenders that required courts to imprison

all youthful offenders for conduct that constituted a forcible felony

without looking behind the label of the crime into the details of the
                                    42

particular offense and the individual circumstances of the child.

Additionally, we think the jolt would be compounded once parents would

further discover that their child must serve at least seventy percent of

the term of the mandatory sentence before becoming eligible for parole.

This shock would only intensify when it is remembered how some serious

crimes can at times be committed by conduct that appears less serious

when the result of juvenile behavior. This case could be an illustration.

      A forcible felony can be the product of inane juvenile schoolyard

conduct just as it can be the product of the cold and calculated adult

conduct most people typically associate with a forcible felony, such as

robbery. Yet, our laws have been shaped over the years to eliminate any

distinction. Juveniles over sixteen years of age or older who commit any

form of forcible felony are now excluded under our law from the

jurisdictional arm of juvenile courts and are prosecuted as adults. Iowa

Code § 232.8(1)(c).   Consequently, the mandatory minimum sentences

applicable to adult offenders apply, with no exceptions, to juvenile

offenders, including those who engage in inane juvenile schoolyard

conduct. At least for those juveniles, our collective sense of humanity

preserved in our constitutional prohibition against cruel and unusual

punishment and stirred by what we all know about child development

demands some assurance that imprisonment is actually appropriate and

necessary. There is no other area of the law in which our laws write off

children based only on a category of conduct without considering all

background facts and circumstances.

      Overall, no other logical result can be reached under article I,

section 17, a result that is also embedded within the most recent cases

from the United States Supreme Court.        The Supreme Court banned

mandatory life-without-parole sentences for juveniles in Miller, but it did
                                          43

not ban nonmandatory life-without-parole sentences if the sentencing

court is given the opportunity to consider the attributes of youth in

mitigation of punishment. See Miller, 567 U.S. at ___, 132 S. Ct. at 2469,

183 L. Ed. 2d at 424; see also Ragland, 836 N.W.2d at 121.                       Thus,

juveniles can still be sentenced to long terms of imprisonment, but not

mandatorily.7 Accordingly, the heart of the constitutional infirmity with

the punishment imposed in Miller was its mandatory imposition, not the

length of the sentence.          The mandatory nature of the punishment

establishes the constitutional violation. Yet, article I, section 17 requires

the punishment for all crimes “be graduated and proportioned to [the]

offense.” Cf. Weems, 217 U.S. at 367, 30 S. Ct. at 549, 54 L. Ed. at 798.

In other words, the protection of article I, section 17 applies across the

board to all crimes. Thus, if mandatory sentencing for the most serious

crimes that impose the most serious punishment of life in prison without

parole violates article I, section 17, so would mandatory sentences for

less serious crimes imposing the less serious punishment of a minimum

period of time in prison without parole. All children are protected by the

Iowa Constitution.        The constitutional prohibition against cruel and

unusual punishment does not protect all children if the constitutional

infirmity identified in mandatory imprisonment for those juveniles who

commit     the    most     serious    crimes     is   overlooked     in    mandatory

imprisonment for those juveniles who commit less serious crimes. Miller

is properly read to support a new sentencing framework that reconsiders


       7Because   our holding focuses exclusively on a statutory schema that requires a
district court to impose a sentence containing a minimum period of time a juvenile
must serve before becoming eligible for parole and that denies a district court the
discretion to impose a lesser sentence, we do not consider the situation in which a
district court imposes a sentence that denies the juvenile the opportunity for parole in
the absence of a statute requiring such a result. Accordingly, we do not determine
whether such a sentence would be constitutional.
                                         44

mandatory sentencing for all children. Mandatory minimum sentencing

results in cruel and unusual punishment due to the differences between

children and adults.        This rationale applies to all crimes, and no

principled basis exists to cabin the protection only for the most serious

crimes.

       Additionally, the analysis needed to properly apply article I, section

17 to the absence of a sentencing procedure does not bear on the

disparity between the crime and the length of the sentence. Cf. Graham,

560 U.S. at 60, 130 S. Ct. at 2022, 176 L. Ed. 2d at 836–37.                   As a

categorical challenge, the length of the sentence relative to the crime

does not advance the analysis to reach an answer. See id. at 61, 130

S. Ct. at 2022, 176 L. Ed 2d at 836–37. Instead, the analysis turns to

the procedure to see if it results in disproportionate punishment for

youthful offenders. Mandatory sentencing for adults does not result in

cruel and unusual punishment but for children it fails to account for too

much of what we know is child behavior.

       Ultimately, we hold a mandatory minimum sentencing schema,

like the one contained in section 902.12, violates article I, section 17 of

the Iowa Constitution when applied in cases involving conduct

committed by youthful offenders.           We agree categorical rules can be

imperfect, “but one is necessary here.” Id. at 75, 130 S. Ct. at 2030, 176

L. Ed. 2d at 846.     We must comply with the spirit of Miller, Null, and

Pearson, and to do so requires us to conclude their reasoning applies to

even a short sentence that deprives the district court of discretion in

crafting a punishment that serves the best interests of the child and of

society.8 The keystone of our reasoning is that youth and its attendant


        8We do not ignore the legislature’s passage of a statute vesting considerable

discretion in district courts to depart from any part of a sentence, including any
                                           45

circumstances and attributes make a broad statutory declaration

denying courts this very discretion categorically repugnant to article I,

section 17 of our constitution.9
       It is important to be mindful that the holding in this case does not

prohibit judges from sentencing juveniles to prison for the length of time

identified by the legislature for the crime committed, nor does it prohibit

the legislature from imposing a minimum time that youthful offenders

_____________________
mandatory minimum. Iowa Code Ann. § 901.5(14) (West, Westlaw current through
2014 Reg. Sess.). However, the mere theoretical availability of unguided sentencing
discretion, no matter how explicitly codified, is not a panacea. As we said in Null, Miller
requires “more than a generalized notion of taking age into consideration as a factor in
sentencing.” Null, 836 N.W.2d at 74. Null provides a district court must expressly
recognize certain concepts and “should make findings why the general rule [that
children are constitutionally different from adults] does not apply.” Id. In Ragland, we
noted the sentencing court “must consider” several factors at the sentencing hearing,
including:
       (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 . . . 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.”
836 N.W.2d at 115 n.6 (emphasis added) (quoting Miller, 567 U.S. at ___, 132 S. Ct. at
2468, 183 L. Ed. 2d at 423). Clearly, these are all mitigating factors, and they cannot be
used to justify a harsher sentence. See id. at 115 & n.6; see also Null, 836 N.W.2d at
74–75. In Pearson, for instance, we found the district court’s consideration of youth as
an aggravating factor in favor a harsher sentence to be error. 836 N.W.2d at 97.
       9We  recognize we have held a mandatory minimum sentence constitutional. See
State v. Lara, 580 N.W.2d 783, 785 (Iowa 1998); State v. Horn, 282 N.W.2d 717, 732
(Iowa 1979); State v. Holmes, 276 N.W.2d 823, 829 (Iowa 1979); State v. Fitz, 265
N.W.2d 896, 899 (Iowa 1978); State v. Hall, 227 N.W.2d 192, 194–95 (Iowa 1975); see
also State v. Fuhrmann, 261 N.W.2d 475, 479–80 (Iowa 1978) (holding mandatory life
imprisonment for first-degree murder was constitutional). None of these cases involved
challenges brought under article I, section 17 of our constitution, nor did any of these
cases involve challenges brought by youthful offenders. Furthermore, given that the
most recent of these cases is sixteen years old and antedates Roper by seven years, we
do not find them persuasive on the outcome of our decision. We thus express no
opinion regarding the continuing vitality of these cases.
                                    46

must serve in prison before being eligible for parole. Article I, section 17

only prohibits the one-size-fits-all mandatory sentencing for juveniles.

Our constitution demands that we do better for youthful offenders—all

youthful offenders, not just those who commit the most serious crimes.

Some juveniles will deserve imprisonment, but others may not. A statute

that sends all juvenile offenders to prison for a minimum period of time

under all circumstances simply cannot satisfy the standards of decency

and fairness embedded in article I, section 17 of the Iowa Constitution.

      We also recognize the remedy in this case is to resentence Lyle so a

judge can at least consider a sentencing option other than imprisonment.

We also recognize our decision will apply to all juveniles currently serving

a mandatory sentence of imprisonment. Thus, this case will require all

juvenile offenders who are in prison under a mandatory sentence to be

returned to court for resentencing.      This process will likely impose

administrative and other burdens, but burdens our legal system is

required to assume.     Individual rights are not just recognized when

convenient. Our court history has been one that stands up to preserve

and protect individual rights regardless of the consequences.           The

burden now imposed on our district judges to preserve and protect the

prohibition against cruel and unusual punishment is part of the price

paid by many judges over the years that, in many ways, has helped write

the proud history Iowans enjoy today. Even if the resentencing does not

alter the sentence for most juveniles, or any juvenile, the action taken by

our district judges in each case will honor the decency and humanity

embedded within article I, section 17 of the Iowa Constitution and, in

turn, within every Iowan. The youth of this state will be better served

when judges have been permitted to carefully consider all of the

circumstances of each case to craft an appropriate sentence and give
                                     47

each juvenile the individual sentencing attention they deserve and our

constitution demands. The State will be better served as well.

      Furthermore, our holding today has no application to sentencing

laws affecting adult offenders. Lines are drawn in our law by necessity

and are incorporated into the jurisprudence we have developed to usher

the Iowa Constitution through time. This case does not move any of the

lines that currently exist in the sentencing of adult offenders.

      On remand, judges will do what they have taken an oath to do.

They will apply the law fairly and impartially, without fear.      They will

sentence those juvenile offenders to the maximum sentence if warranted

and to a lesser sentence if warranted.

      Accordingly, article I, section 17 of the Iowa Constitution forbids a

sentencing schema for juvenile offenders that deprives the district court

the discretion to consider youth and its attendant circumstances as a

mitigating factor and to impose a lighter punishment, including one that

suspends all or part of the sentence, including any mandatory minimum.

      V. Conclusion.

      For the above reasons, we vacate Lyle’s sentence and remand the

case to the district court for further proceedings.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT SENTENCE VACATED; CASE REMANDED.

      All justices concur except Waterman, Mansfield, and Zager, JJ.

Waterman and Zager, JJ., write separate dissents. Waterman, J., joins

Zager, J., and Mansfield, J., joins both Waterman, J., and Zager, J.
                                   48
                                                    #11–1339, State v. Lyle

WATERMAN, Justice (dissenting).

      I respectfully dissent for the reasons set forth in Justice Zager’s

dissent, which I join. I write separately because I would go further to

overrule as plainly erroneous our court’s juvenile sentencing decisions in

Pearson and Null for the reasons explained in the dissents in those cases.

See State v. Pearson, 836 N.W.2d 88, 99–107 (Iowa 2013) (Mansfield, J.,

dissenting); State v. Null, 836 N.W.2d 41, 77–84 (Iowa 2013) (Mansfield,

J., concurring in part and dissenting in part). And, I would follow Eighth

Amendment decisions of our nation’s highest court when applying the

cruel-and-unusual-punishment      provision   of   the   Iowa   Constitution

because our state’s founders intended those provisions to have the same

meaning.   See State v. Bruegger, 773 N.W.2d 862, 882 (Iowa 2009)

(“Article I, section 17 of the Iowa Constitution prohibits cruel and

unusual punishment in language materially identical to its federal

counterpart. Our past cases have generally assumed that the standards

for assessing whether a sentence amounts to cruel and unusual

punishment under the Iowa Constitution are identical to the Federal

Constitution.”); see also State v. Short, ___ N.W.2d ___, ___ (Iowa 2014)

(Waterman, J., dissenting) (advocating for a return to our court’s long-

standing practice of following federal precedent when construing the

same language in the Iowa Constitution).

      The trial judge found Lyle, then nearly age eighteen, “poses a

serious danger to the community at present.” In denying Lyle’s motion

for transfer to juvenile court, the trial judge noted Lyle’s “cell phone

contained numerous videos which showed [him] engaging in unprovoked,

cowardly and vicious attacks against several different individuals” on or

near school property. The trial judge personally observed Lyle’s defiant
                                    49

demeanor in open court.      I have no reason to disagree with the trial

judge’s firsthand assessment of Lyle. But, even if we accept Lyle as a

merely misguided, immature schoolyard bully, the mandatory sentence

he received falls well short of being unconstitutionally cruel and unusual

punishment. More importantly, the majority’s sweeping, unprecedented

holding today precludes mandatory minimum sentences for any violent

felon who was under age eighteen at the time of the offense.

      By holding Lyle’s seven-year mandatory minimum sentence for his

violent felony is cruel and unusual punishment and unconstitutional

under article I, section 17 of the Iowa Constitution, rather than under

the Eighth Amendment, the majority evades review by the United States

Supreme Court. As Justice Zager observes, no other appellate court in

the country has gone this far. Our court stands alone in taking away the

power of our elected legislators to require even a seven-year mandatory

sentence for a violent felony committed by a seventeen-year-old.

      Will the majority stop here? Under the majority’s reasoning, if the

teen brain is still evolving, what about nineteen-year olds? If the brain is

still maturing into the mid-20s, why not prohibit mandatory minimum

sentences for any offender under age 26? As judges, we do not have a

monopoly on wisdom.       Our legislators raise teenagers too.      Courts

traditionally give broad deference to legislative sentencing policy

judgments. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“We

give the legislature deference because ‘[l]egislative judgments are

generally regarded as the most reliable objective indicators of community

standards for purposes of determining whether a punishment is cruel

and unusual.’ ” (quoting Bruegger, 773 N.W.2d at 873)). Why not defer

today?
                                           50

       Our     trial   judges     have     day-to-day     experience      adjudicating

thousands of juvenile cases. Why not continue to trust the trial judges

to make the right individualized judgments in deciding whether a

youthful offender should be adjudicated in juvenile court or adult

court?10      Why make today’s categorical decision invalidating any

mandatory minimum sentence for juveniles when no other appellate

court has gone that far? We are not writing on a clean slate. Courts

across the country are appropriately concluding that only mandatory life

without parole or its de facto equivalent constitute cruel and unusual

punishment for juveniles who commit violent felonies.                   See People v.

Pacheco, 991 N.E.2d 896, 907 (Ill. App. Ct. 2013) (reading state

“proportionate      penalties    clause”     as   “coextensive     with    the    eighth

amendment” and holding automatic transfer to adult court did not

violate State or Federal Constitution; upholding twenty-year mandatory

minimum sentence); State v. Vang, ___N.W.2d ___, ___, 2014 WL

1805320, at *9–10 (Minn. May 7, 2014) (holding thirty-year sentence

does not violate State or Federal Constitution); see also State v. Lyle, ___

N.W.2d ___, ___ (Iowa 2014) (Zager, J., dissenting) (collecting additional

cases).    None have followed Null or Pearson to extend constitutional

prohibitions to shorter sentences.




       10The trial judge, applying the factors in Iowa Code section 232.45(7) (2011),

denied Lyle’s motion to transfer jurisdiction to juvenile court. The court reviewed Lyle’s
criminal history and juvenile court services dating back to age thirteen. The court
found
       [Lyle] has obviously not benefited from any of the juvenile court services
       provided to date. He has chosen to remain involved with drugs and a
       gang, and has instigated numerous violent attacks on unsuspecting
       victims. His demeanor during the reverse waiver hearing demonstrated
       his complete disdain for the court system and his lack of interest in any
       remedial program.
                                           51

       This is much more than an interesting intellectual debate over

jurisprudential philosophies and the proper role for independent state

constitutional adjudication.         Today’s decision will have dramatic real-

world consequences. Justice Zager has identified the burdens imposed

on the judicial system by the scores of resentencing hearings and has

noted the trauma to victims who must testify and relive what the

defendant did to them. These hearings will reopen the wounds of the

victims and their families. And, some of the offenders will gain release

from prison earlier than under the mandatory minimum sentences.

Some of those violent felons will commit new crimes. I would instead

trust the legislative judgment of our elected branches that required a

seven-year mandatory minimum prison term for second-degree robbery,

a class “C” felony.11 A seventeen-year-old offender would still be eligible

for release by age twenty-five. But, that offender would be incarcerated

during the late teens and early twenties—the ages when violent crimes

are most likely to be committed.                See Jeffery T. Ulmer & Darrell

Steffensmeier, The Age and Crime Relationship: Social Variation, Social


       11Two    years after Lyle’s conviction, the legislature prospectively granted
sentencing courts discretion to waive mandatory minimums if the defendant was under
age eighteen at the time he committed the crime. See 2013 Iowa Acts ch. 42, § 14
(codified at Iowa Code Ann. § 901.5(14) (West, Westlaw current through 2014 Reg.
Sess.)). Significantly, however, the legislature chose not to make this amendment
retroactive. See Iowa Code § 4.5 (2013) (“A statute is presumed to be prospective in its
operation unless expressly made retrospective.”). The majority notes only two other
states that have limited or abolished mandatory minimum sentences for juveniles. That
presumably means forty-seven states continue to allow mandatory minimum sentences
for juvenile felons. It certainly is a reasonable policy choice for our legislature in 2013
to grant trial courts discretion in place of mandatory minimums sentences for juvenile
felons. But, today’s decision precludes future legislatures from returning to the former,
reasonable policy choice of requiring a minimum prison term for certain violent felonies.
What if there is a wave of violent crimes committed by gang members under age
eighteen? I would not take the mandatory minimum sentencing option away from the
elected branches by holding any mandatory minimum sentence is cruel and unusual
punishment under our state constitution. We do not need to go that far and should not
do so.
                                     52

Explanations, in The Nurture Versus Biosocial Debate in Criminology 377,

377–78 (Kevin M. Beaver, Brian B. Boutwell & J.C. Barnes eds., 2014).

      The majority opines that the resentencing hearings to be required

of our district court judges “will honor the decency and humanity

embedded within article I, section 17 of the Iowa Constitution and, in

turn, within every Iowan.” I believe our elected representatives—not the

members of this court—are best equipped to decide what values are

embedded within every Iowan.

      I do not wish to take issue today with the court’s earlier decision in

Bruegger. However, it is worth repeating the dissenter’s apt observation

from that case:

             While some constitutional principles might be
      receptive to defendant’s plight, the Cruel and Unusual
      Punishment Clause is not among them. Courts must adhere
      to the constitutional framework, even when the result is
      difficult to swallow. Furthermore, we must not forget that
      we are not the only guardians of justice in our government.
      For example, prosecutors must use sound judgment in
      charging and prosecuting defendants who may be swept up
      by broad legislative policies that were not likely intended to
      capture them. The governor, too, is empowered to commute
      a sentence viewed to be unjust. Finally, consistent with the
      one true strength of our democracy, the legislature can
      repair mistakes.

Bruegger, 773 N.W.2d at 888 (Cady, J., dissenting).        As the Bruegger

dissent reminds us, we are not the only repositories of fairness.       It is

certainly possible to “rely upon the other components of government to

mete out justice.” Id.

      It is easy in the abstract to say we do not put constitutional rights

to a vote. It is the role of the courts to say where constitutional lines are

drawn. But, we must remember rights, by definition, are restrictions on

governmental power—the government elected by the people. If our court

misinterprets a statute, the legislature can amend the statute the next
                                         53

session.   But, if we misinterpret our state constitution, the people are

stuck with the decision unless the decision is overruled or the

constitution is amended.         That is why judges must be extraordinarily

careful with constitutional interpretation. Adherence to settled Federal

Eighth Amendment precedent would avoid today’s aberrational judicial

decision-making on sentencing policy.12

       I therefore dissent for the reasons set forth above and in Justice

Zager’s dissent.

       Mansfield, J., joins this dissent.




       12The   amendment process is a check on judicial power. Indeed, the people of
Florida amended that state’s constitution to require conformity with Supreme Court
interpretations of the Eighth Amendment. See Fla. Const. art. I, § 17 (“The prohibition
. . . against cruel and unusual punishment[] shall be construed in conformity with
decisions of the United States Supreme Court which interpret the prohibition against
cruel and unusual punishment provided in the Eighth Amendment to the United States
Constitution.”).
                                      54

                                                      #11–1339, State v. Lyle

ZAGER, Justice (dissenting).

      I respectfully dissent.     I do not believe a seven-year mandatory

minimum sentence imposed on an individual who was a juvenile at the

time the offense was committed is cruel and unusual punishment under

either the Federal or our Iowa Constitution. This mandatory minimum

sentence is not grossly disproportional, and there is no recognized

categorical     challenge   for   a   juvenile’s   “categorically   diminished

culpability.”   There is no authority for holding such.        By holding all

mandatory minimum sentences imposed on juveniles constitutes cruel

and unusual punishment, the majority abandons any semblance of our

previous constitutional analysis of cruel and unusual punishment and

creates a new category for the sentencing of juveniles to achieve a

perceived “best practice” in sentencing. The majority expands article I,

section 17 of the Iowa Constitution to a point supported by neither our

own caselaw nor by any caselaw of the United States Supreme Court.

Neither does such an expansive interpretation find support in the

caselaw of any other appellate court in the nation.           Contrary to the

majority’s reasoning, the United States Supreme Court’s interpretation of

the Federal Constitution does not support this expansive interpretation.

I would apply the reasoning of Miller v. Alabama, 567 U.S. ___, 132 S. Ct.

2455, 183 L. Ed. 2d 407 (2012), State v. Null, 836 N.W.2d 41 (Iowa

2013), and State v. Pearson, 836 N.W.2d 88 (Iowa 2013), to the facts of

this case and hold this mandatory minimum sentence is not cruel or

unusual under the Iowa Constitution.

      In both Pearson and Null, we reversed the mandatory minimum

sentences imposed on those juvenile offenders based on an application of

the “principles in Miller as developed by the Supreme Court in its Eighth
                                     55

Amendment jurisprudence.” Pearson, 836 N.W.2d at 96; see Null, 836

N.W.2d at 70 (stating “we are persuaded that Miller’s principles are

sound and should be applied in this case”).               The majority here

dramatically departs from the analysis we applied in both those cases.

Instead, the majority applies the two-prong test applied by the Supreme

Court in Graham v. Florida to justify its radical departure from our own

precedents. See 560 U.S. 48, 61, 130 S. Ct. 2011, 2022, 176 L. Ed. 2d

825, 837 (2010) (explaining the approach applied in “cases adopting

categorical rules”). One must ask, if the majority felt that all mandatory

minimum sentences for juveniles should be considered under this new

categorical analysis, why was it not applied in Null and Pearson? Likely

because it did not fit then, and it does not fit now.

      It must first be recognized that Lyle did not urge this approach in

his appeal. Indeed, in his supplemental brief he “ask[ed] this court to

vacate his sentence and remand to the district court for resentencing

with consideration given to his youth, immaturity, and chance for

rehabilitation, as discussed in Miller, Null, and Pearson.” As explained

more fully below, Miller, Null, and Pearson rested on a legal concept

completely different from Graham. The Graham Court found the issue to

be decided on appeal was whether the Eighth Amendment permitted a

juvenile offender to be sentenced to life imprisonment without the

possibility for parole for a nonhomicide crime.         See id. at 52–53, 130

S. Ct. at 2017–18, 176 L. Ed. 2d. at 832.      The Court’s categorical ban

was only on life without the possibility of parole in nonhomicide cases.

See id. at 82, 130 S. Ct. at 2034, 176 L. Ed. 2d at 850 (“The Constitution

prohibits the imposition of a life without parole sentence on a juvenile

offender who did not commit homicide.”).        Interestingly, the Court in

Miller only began its analysis of Graham’s two-prong test after it had
                                    56

already expressly held mandatory life-without-parole sentences for

juveniles were unconstitutional. See Miller, 567 U.S. at ___, 132 S. Ct. at

2470, 183 L. Ed. 2d at 424. While Null alludes to the two-prong test in

discussing Graham, see Null, 836 N.W.2d at 62–63, Pearson did not

mention the two-prong test utilized in Graham at all. Nevertheless, the

majority bypasses our caselaw from less than a year ago, attempts to

apply the Graham analysis, and strikes down all mandatory minimum

sentences for juveniles.

      The majority’s reason for applying Graham is that juveniles are

categorically less culpable, and so a categorical analysis and categorical

rules are appropriate here. On its own, the majority now creates a new

constitutional category under our Iowa Constitution, but we need to be

clear that there is no judicial authority for creating this new

constitutional category.   Up to this point, in most cases, the fact of a

juvenile’s diminished culpability only required the sentencing court “to

take into account how children are different, and how those differences

counsel against irrevocably sentencing them to a lifetime in prison.” See

Miller, 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. Were a

categorical rule appropriate based solely on a juvenile’s diminished

culpability, the Supreme Court in Miller would have imposed a

categorical rule. Instead, it expressly declined to consider the “argument

that the Eighth Amendment requires a categorical bar on life without

parole for juveniles, or at least for those 14 and younger.” Id. at ___, 132

S. Ct. at 2469, 183 L. Ed. 2d at 424. Nevertheless, the majority in this

case deems the juvenile’s diminished culpability alone is of sufficient

constitutional magnitude to impose a categorical rule against mandatory

minimum sentences and holds the sentence cruel and unusual.
                                     57

      Though the majority attempts to justify its divergence in its

analysis of cruel and unusual punishment, there is a substantial

difference between Graham’s categorical approach and the approach

applied in Miller, Null, and Pearson. In fact, the Court in Miller labored to

make clear its decision did “not categorically bar a penalty for a class of

offenders or type of crime—as, for example, [it] did in Roper [v. Simmons,

543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)], or Graham.” See

id. at ___, 132 S. Ct. at 2471, 183 L. Ed. 2d at 426.          The decision

“mandate[d] only that a sentencer follow a certain process—considering

an offender’s youth and attendant characteristics—before imposing a

particular penalty.” Id. The Court further noted its decision retained the

distinction between homicide and nonhomicide offenses: “Graham

established one rule (a flat ban) for nonhomicide offenses, while we set

out a different one (individualized sentencing) for homicide offenses.” Id.

at ___ n.6, 132 S. Ct. at 2466 n.6, 183 L. Ed. 2d at 420 n.6. In extending

Miller’s rule to the shorter terms of imprisonment in Pearson and Null, we

heeded the Supreme Court’s words, retaining the distinction between

Graham and Miller.     Now, the majority does what we did not do in

Pearson and Null and what the Supreme Court did not do in Miller. The

majority flatly bans a “penalty for a class of offenders.” See id. at ___,

132 S. Ct. at 2471, 183 L. Ed. 2d at 426. So much for the spirit of Miller,

Pearson, and Null.

      Without success, the majority starts its analysis by attempting to

apply the first prong of the two-prong test in Graham. In searching for

“ ‘objective indicia of society’s standards,’ ” Graham, 560 U.S. at 61, 130

S. Ct. at 2022, 176 L. Ed. 2d at 837 (quoting Roper, 543 U.S. at 563, 125

S. Ct. at 1191, 161 L. Ed. 2d at 17), the majority first turns to other

states’ juvenile sentencing jurisprudence.      That search for authority
                                      58

striking down all mandatory minimum sentences imposed on juveniles,

as the majority acknowledges, turns up no support for invalidating all

juvenile mandatory minimum sentences.             In fact, no other state court

has held its state constitution, nor has any federal court held the Federal

Constitution, forbids imposing mandatory minimum sentences on

juveniles. In fact all authority, except in the life-without-parole context,

is to the contrary. See, e.g., Hobbs v. Turner, ___ S.W.3d ___, ___, 2014

WL 257378, at *9–11 (Ark. 2014) (upholding a term of imprisonment of

fifty-five years for crimes committed at seventeen years of age as not

prohibited by the Eighth Amendment or Miller and Graham); People v.

Perez, 154 Cal. Rptr. 3d 114, 120–21 (Ct. App. 2013) (concluding that

imposing a mandatory sentence on a juvenile that allowed for parole

eligibility at age forty-seven was not severe enough to implicate Miller or

Graham); James v. United States, 59 A.3d 1233, 1238 (D.C. 2013)

(upholding a thirty-year mandatory minimum sentence imposed on a

juvenile homicide offender); People v. Pacheco, 991 N.E.2d 896, 906–07

(Ill.   App.   Ct.   2013)   (upholding   under    the   Federal   and   Illinois

Constitutions, a twenty-year mandatory minimum sentence imposed on

a juvenile); Diatchenko v. Dist. Att’y, 1 N.E.3d 270, 285, 286 (Mass. 2013)

(striking down life-without-parole sentence imposed on juvenile homicide

offender but upholding fifteen-year mandatory minimum); State v. Vang,

___ N.W.2d ___, ___, 2014 WL 1805320, at *8–9 (Minn. 2014) (holding

mandatory life sentence with possibility of parole after thirty years for

first-degree felony murder committed when defendant was fourteen years

old did not violate either the Eighth Amendment or the Minnesota

Constitution’s prohibition against cruel and unusual punishment);

People v. Aponte, 981 N.Y.S.2d 902, 905–06 (Sup. Ct. 2013) (concluding a

life sentence with mandatory minimum of twenty-five years for conviction
                                      59

of second-degree murder committed by a seventeen year old was not

cruel and unusual under Miller or Graham, or under any Eighth

Amendment theory); see also United States v. Reingold, 731 F.3d 204,

214 (2d Cir. 2013) (“Nothing in Graham or Miller suggests that a five-year

prison term is the sort of inherently harsh sentence that—like the death

penalty or its deferred equivalent, life imprisonment without parole—

requires categorical rules to ensure constitutional proportionality . . . .”).

To be clear, the majority cannot cite to any case of any court that used

the Graham–Miller line of jurisprudence to strike down as cruel and

unusual punishment any sentence imposed on anyone under the age of

eighteen when the individual still had a substantial life expectancy left at

the time of eligibility for parole.

      Finding no support in a national survey on mandatory minimum

sentences for juveniles, apart from legislation limiting the use of

mandatory sentences to certain circumstances, the majority elects to give

little weight to the strong national consensus approving juvenile

mandatory minimum sentences. But see State v. Bousman, 278 N.W.2d

15, 18 (Iowa 1979) (concluding in a challenge to a sentence’s claimed

disproportionality that “[d]eference” is “appropriate” to the “collective

judgment” of “a substantial number of states” that “have determined that

the punishment rendered here is not grossly out of proportion to the

severity of the crime”). Instead, the majority turns to this state’s body of

unrelated statutory law concerning juveniles.      The majority notes that

the legislature recently passed a statute granting sentencing judges the

discretion to impose shorter terms of imprisonment for juveniles.         See

2013 Iowa Acts ch. 42, § 14 (codified at Iowa Code Ann. § 901.5(14)

(West, Westlaw current through 2014 Reg. Sess.)).          According to the

majority, we owe deference to this legislative judgment because it is a
                                         60

reliable indicator of current community standards.                    See State v.

Bruegger, 773 N.W.2d 862, 873 (Iowa 2009) (“Legislative judgments are

generally regarded as the most reliable objective indicators of community

standards for purposes of determining whether a punishment is cruel

and unusual.”).      But, we should not forget, “a reviewing court is not

authorized to generally blue pencil criminal sentences to advance judicial

perceptions of fairness.” Id.

       It is true we owe deference to the legislature’s judgments

concerning the sentences imposed for commission of various crimes. See

State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“[W]e owe substantial

deference to the penalties the legislature has established for various

crimes.”); see also Graham, 560 U.S. at 71, 130 S. Ct. at 2028, 176

L. Ed. 2d at 843 (“Criminal punishment can have different goals, and

choosing among them is within a legislature’s discretion.”); Solem v.

Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d 637, 649

(1983) (“Reviewing courts, of course, should grant substantial deference

to   the   broad   authority     that   legislatures    necessarily    possess    in

determining the types and limits of punishments for crimes . . . .”). But,

if this court is to give deference to legislative judgments concerning

punishment enacted after an offender is sentenced, then surely this

court must also give deference to legislative judgments that were in effect

when the offender was sentenced. The statute in effect at that time of

sentencing is at least as good an objective indicium of society’s standards

as a statute enacted two years later.13

       13The majority seems to take the enactment of the new statute as an implicit

concession by the legislature that the previous sentencing scheme was
unconstitutional. I disagree. In Bousman, an offender, Bousman, received a one-year
sentence for resisting execution of process. 278 N.W.2d at 15–16. Two days before
Bousman’s trial began, the new criminal code became effective. See id. at 16. The new
criminal code provided a maximum punishment of thirty days in jail for the offense of
                                         61

       The statute in effect when Lyle was sentenced mandated he serve

seventy percent of his ten-year sentence.            See Iowa Code § 902.12(5)

(2011).    Assuming both the new sentencing statute and the older

sentencing statute should be considered as indicators of society’s

standards, they are entitled to equal amounts of deference. Nonetheless,

the majority analysis discounts one legislative judgment, because they

apparently don’t agree with it, by elevating the other with which they do

agree. This is not the role of an appellate court.

       Having decided substantial deference is owed to a statute not in

effect when Lyle was sentenced, the majority identifies other statutes

that likewise grant courts discretion when dealing with juveniles.                  In

addition to citing various civil statutes concerning juveniles, the majority

cites numerous provisions from the juvenile justice chapter of the Iowa

Code that grant courts discretion to consider the best interests of the

child when making decisions.              See, e.g., Iowa Code § 232.10(2)(a)

(allowing transfer of delinquency proceedings when transfer would serve,

among other interests, “the best interests of the child”); id. § 232.62(2)(a)

(permitting a court to transfer child-in-need-of-assistance proceeding


_____________________
which Bousman was convicted. See id. Based on this disparity, Bousman argued the
one-year sentence he received was cruel and unusual. See id. at 17.
        We rejected Bousman’s argument, finding that the change in the length of the
sentence did not reflect a legislative judgment about the harshness of the previous
sentencing scheme. See id. at 17–18. Though “the subsequent action of the Iowa
Legislature in decreasing the penalty” was “relevant,” we found “its weight [was]
considerably decreased by the fact that that same legislature provided” district courts
the authority “to select the prior, more severe, punishment.” Id. at 17. Like the Code
section at issue in Bousman, the newly enacted juvenile sentencing statute does not
preclude the sentencing judge from selecting a similarly severe punishment. See 2013
Iowa Acts ch. 42, § 14 (providing “the court may suspend the sentence, in whole or in
part, including any mandatory minimum sentence” (emphasis added)). Thus, as we did
in Bousman, we can safely conclude here the new sentencing statute “demonstrates
that the legislature did not necessarily reject prior penalties as excessively harsh.”
Bousman, 278 N.W.2d at 17.
                                     62

when transfer would serve “the best interests of the child”). According to

the majority, these statutes reflect the legislature’s recognition that

juveniles and adults are different.       Giving effect to these differences

requires that courts have discretion when dealing with juveniles.

      I think the majority makes too much of the legislature’s grant of

discretion to juvenile courts in these other, noncriminal contexts. The

legislature’s grant of discretion in some contexts may well reflect our

society’s judgment that juveniles are different for purposes of these

contexts.   It does not follow, however, that juveniles must be treated

differently in all contexts.   Surely the legislature’s discretion to select

among different penal sanctions contemplates the authority to narrow or

expand judicial discretion across varying juvenile contexts.              The

prerogative for making such policy decisions typically belongs to “our

legislature, as representatives of the people.” See Bruegger, 773 N.W.2d

at 887 (Cady, J., dissenting).     The legislature, having made a policy

distinction it is entitled to make, limits this court’s authority to alter it.

“Courts do not intervene to alter [sentencing] policies except when the

resulting legislative scheme runs contrary to constitutional mandates.”

Id.   Nothing in the majority’s survey of the objective indicia of our

society’s standards suggests our society believes violent juvenile

offenders are constitutionally different for purposes of sentencing, except

for life without parole and its functional equivalent.      Thus, this court

should not interfere with the legislature’s selected sentencing scheme.

      Of course this newly conferred sentencing discretion for juveniles,

as provided for by the new statute, holds the prospect of being illusory.

That is, the majority purports to favor a sentencing scheme in which

district courts are able to craft appropriate sentences according to the

unique circumstances of each juvenile.           In reality, the majority’s
                                     63

approach bestows upon our appellate courts the freedom to impose their

members’ judgments about the appropriateness of a sentence. After all,

sentences are subject to review for abuse of discretion. See State v. Loyd,

530 N.W.2d 708, 711 (Iowa 1995). I have serious concerns that in future

juvenile sentencing cases appellate courts are likely to remember “our

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.”   See State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002)

(explaining the role of appellate courts in reviewing a district court’s

sentencing decision).

      But, it is in the application of the second prong of the Graham test

that the majority most clearly departs from our previous cruel and

unusual analysis and our precedent. Though in Pearson and Null we no

doubt had the authority to independently interpret our own constitution,

nothing we said in those two cases indicated that independence was the

foundation of our analysis.      Rather, we relied on and expanded on

Miller’s principles in invalidating the two juvenile sentences.          See

Pearson, 836 N.W.2d at 96 (“Though Miller involved sentences of life

without parole for juvenile homicide offenders, its reasoning applies

equally to Pearson’s sentence of thirty-five years without the possibility of

parole for these offenses.”); Null, 836 N.W.2d at 72 (concluding that

“Miller’s principles are fully applicable to a lengthy term-of-years

sentence”). I believe we should adhere to our precedents developed just

one year ago in Pearson and Null.         As will be explained below, if the

majority was true to the principles espoused in Pearson, Null and Miller,

it must hold Lyle’s sentence does not violate the cruel and unusual

punishment clause of the Iowa Constitution.
                                           64

          In rejecting the mandatory sentences in Pearson and Null, we

applied the principles espoused by the United States Supreme Court in

Miller.     Pearson, 836 N.W.2d at 96 (requiring Miller’s individualized

hearing); Null, 836 N.W.2d at 72 (“We conclude that Miller’s principles are

fully applicable to a lengthy term-of-years sentence as was imposed in

this case . . . .”).       The Court’s holding in Miller depended on a

convergence of three factors: the offender’s age, the harsh sentence, and

the mandatory sentencing scheme. See Miller, 567 U.S. at ___, 132 S. Ct.

at 2460, 183 L. Ed. 2d at 414 (describing the facts of the case).                 This

convergence created the risk of a disproportionate sentence. See id. at

___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (holding unconstitutional

sentencing schemes that impose mandatory life-without-parole sentences

on   juvenile        homicide    offenders).    To      mitigate   the    risk    that

disproportionate sentences will be imposed on juveniles convicted of

homicide,      the    Court     declared   sentencing    courts    must    hold    an

individualized hearing before imposing a harsh, mandatory life-without-

parole sentence on a juvenile, a procedure similar to one that courts

must perform before imposing the death penalty.               See id. at ___, 132

S. Ct. at 2468, 183 L. Ed. 2d at 422 (explaining that the death penalty

may not be imposed without an individualized hearing and concluding “a

similar rule should apply when a juvenile confronts a sentence of life
(and death) in prison”). Reaching this outcome, however, required the

Court in Miller to connect the three converging factors to death-penalty

sentencing.

          The Court began by explaining the differences between children

and adults as established in its precedents.             Id. at ___, 132 S. Ct. at

2464, 183 L. Ed. 2d at 418.           First, juveniles are immature and their

sense of responsibility is underdeveloped, which leads to “recklessness,
                                      65

impulsivity, and heedless risk-taking.”       Id.   Juveniles are also more

vulnerable than adults to negative influences and pressures, less able to

control their environment, and unable to escape “horrific, crime-

producing settings.” Id. A juvenile’s “character is not as well formed,” his

traits “less fixed,” and “his actions less likely be evidence of irretrievabl[e]

deprav[ity].” Id at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418 (internal

quotation marks omitted).

       Psychological research confirmed differences in the brains of

adults and children. See id. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at

419.    Those differences contribute to juveniles’ “transient rashness,

proclivity for risk, and inability to assess consequences.” See id. at ___,

132 S. Ct. at 2465, 183 L. Ed. 2d at 419.               These developmental

deficiencies, the Court reasoned, diminished the juvenile’s culpability

and “enhanced the prospect that, as the years go by and neurological

development occurs, his deficiencies will be reformed.”           Id. (internal

quotation marks omitted).

       Juveniles’ attributes undermine the four “penological justifications

for imposing the harshest sentences on juvenile offenders, even when

they commit terrible crimes.” Id. First, juveniles are less blameworthy

than adults, so the case for retribution is weak. Id. Second, deterrence

does not justify the harshest sentences; juveniles are immature, reckless,

and impetuous, and so “less likely to consider potential punishment.” Id.

at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 419.            Third, to justify

incapacitating a juvenile for life, it would need to be found that the

juvenile was incorrigible. Id. Incorrigibility, however, is not consistent

with youth. Id. Finally, rehabilitation does not justify a life sentence. Id.

In fact, such a long sentence “is at odds with a child’s capacity for

change.” Id. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 420. The Court
                                          66

found imposing a sentence on a juvenile that “alters the remainder of his

life” advances none of these penological justifications. See id. at ___, 132

S. Ct. at 2465, 2466, 183 L. Ed. 2d at 420, 421. No one can reasonably

argue that a seven-year mandatory minimum sentence imposed on Lyle

will “alter the remainder of his life” or that it serves no penological

purpose.

      While relying heavily on the other two factors, the Court’s holding

in Miller primarily focused on the mandatory nature of the juvenile’s life

without parole sentence.          Mandatory life without parole sentencing

schemes prevent judges and juries from considering the juvenile’s

diminished culpability, the juvenile’s capacity for change, and the

justifications for a particular sentence. See id. at ___, 132 S. Ct. at 2466,

183   L. Ed. 2d     at   420    (explaining    mandatory   life   without   parole

sentencing schemes prevent sentencers “from taking account of these

central considerations”). Indeed, by subjecting teens and children to the

same sentences as adults, mandatory life without parole sentencing laws

“prohibit a sentencing authority from assessing whether the law’s

harshest term of imprisonment proportionately punishes a juvenile

offender.”   Id. at ___, 132 S. Ct. at 2466, 183 L. Ed. 2d at 420–21.

Mandatory    life    without     parole    sentencing   risks     disproportionate

sentencing. But, again, we are not talking about our law’s harshest term

of imprisonment, nor does the majority opinion now base its decision on

a disproportionality analysis.

      Nevertheless,       the     Eighth       Amendment     allows     seemingly

disproportionate mandatory life-without-parole sentences for adults.

See, e.g., Harmelin v. Michigan, 501 U.S. 957, 961, 996, 111 S. Ct. 2680,

2683, 2702, 115 L. Ed. 2d 836, 843, 865 (1991) (upholding an adult’s

sentence of life in prison without parole for possessing more than 650
                                    67

grams of cocaine). The Court reasoned that for a juvenile, however, a

life-without-parole sentence is like a death sentence. See Miller, 567 U.S.

at ___, 132 S. Ct. at 2466, 183 L. Ed. 2d at 421.        Like the offender

condemned to death, the juvenile imprisoned for life irrevocably forfeits

the balance of his life. See id. Moreover, the juvenile imprisoned for life

is often confined for a larger proportion of his life than his adult

counterpart. Id. “The penalty when imposed on a teenager, as compared

with an older person, is therefore ‘the same . . . in name only.’ ”     Id.

(quoting Graham, 560 U.S. at 70, 130 S. Ct. at 2028, 176 L. Ed. 2d at

843).    In short, there is a “correspondence” between adult death

sentences and juvenile life sentences. Id. at ___, 132 S. Ct. at 2467, 183

L. Ed. 2d at 421. This is the lesson in Miller, Null, and Pearson.

        Mandatory death sentences for adults are prohibited.           See

Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991, 49

L. Ed. 2d 944, 961–62 (1976) (concluding “that the death sentences

imposed . . . under North Carolina’s mandatory death sentence statute

violated the Eighth and Fourteenth Amendments”).              The risk in

mandatory imposition of the death penalty is, of course, that the penalty

is disproportionate. See Miller, 567 U.S. at ___, 132 S. Ct. at 2467, 183

L. Ed. 2d at 421 (explaining that in Woodson the Court found the

mandatory-death-penalty scheme flawed because it did not permit

considering mitigating factors). Thus, in light of Graham and the Court’s

death-penalty jurisprudence, the Court in Miller drew another connection

between death sentences and juvenile life sentences. See id. at ___, 132

S. Ct. at 2467, 183 L. Ed. 2d at 422 (explaining the death-penalty cases

“show the flaws of imposing mandatory life-without-parole sentences on

juvenile homicide offenders”).    Mandatorily imposing either sentence

poses the same risk: disproportionate sentences.
                                    68

      To mitigate this risk in death-penalty cases, sentencing courts

must give the defendant an individualized hearing. See id. at ___, 132

S. Ct. at 2467, 183 L. Ed. 2d at 421. In Woodson and its offspring, the

Court underscored the importance of considering individual factors

before imposing death. See id. at ___, 132 S. Ct. at 2467, 183 L. Ed. 2d

at 421–22 (explaining the Court’s evolving death-penalty jurisprudence).

Considering mitigating factors ensures “the death-penalty is reserved

only for the most culpable defendants committing the most serious

offenses.” Id. at ___, 132 S. Ct. at 2467, 183 L. Ed. 2d at 421. On the

other hand, failing to consider mitigating circumstances, especially the

“signature qualities” of youth, risks sentencing to death an offender who

is not deserving of this irrevocable penalty. See id. at ___, 132 S. Ct. at

2467, 183 L. Ed. 2d at 422 (internal quotation marks omitted).

      Similarly, the Court found imposing a mandatory sentence of life

without parole on a juvenile “misses too much.” Id. at ___, 132 S. Ct. at

2468, 183 L. Ed. 2d at 422.       And likewise, to mitigate the risk of

disproportionality in these cases, the Court held a sentencer must “take

into account how children are different, and how those differences

counsel against irrevocably sentencing them to a lifetime in prison.” Id.

at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424.       Stopping short of

barring life sentences without parole for all juvenile offenders, the Court

nonetheless opined that “appropriate occasions” for imposing the

harshest penalties on juveniles after an individualized hearing “will be

uncommon.” Id.

      In rejecting the mandatory minimum sentences imposed in

Pearson and Null, this court relied on the convergence of the same three

factors and the need to mitigate the risk of disproportionality.       See

Pearson, 836 N.W.2d at 96 (finding Miller’s “reasoning applies equally to”
                                    69

a “sentence of thirty-five years without the possibility of parole”); Null,

836 N.W.2d at 72 (concluding “Miller’s principles are fully applicable to a

lengthy term-of-years sentence”). First, as in Miller, Graham, and Roper,

the offenders in Pearson and Null were juveniles.       See Pearson, 836

N.W.2d at 94 (noting Pearson was seventeen at the time she committed

her crimes); Null, 836 N.W.2d at 45 (noting Null was sixteen at the time

he committed his crimes). Next, like the juvenile in Miller, both juveniles

in Pearson and Null were subject to mandatory minimum sentences.

Pearson, 836 N.W.2d at 95 (describing Pearson’s challenge to the seventy

percent mandatory minimum sentence); Null, 836 N.W.2d at 45–46

(noting Null’s crimes subjected him to seventy percent mandatory

minimums). Finally, though neither Pearson nor Null was sentenced to

life without parole, we found both sentences “effectively deprived” both

teens of “the possibility of leading a more normal adult life.” Pearson,

836 N.W.2d at 96–97 (invalidating Pearson’s minimum sentence of thirty-

five years without parole); Null, 836 N.W.2d at 71 (concluding Null’s

52.5-year minimum sentence triggered an individualized hearing).

Approving these harsh, lengthy sentences, we reasoned, would have

ignored   juveniles’   diminished    culpability,   their   potential   for

rehabilitation, and the difficulty courts have in identifying irredeemable

juveniles. See Pearson, 836 N.W.2d at 95–96. These are the principles of

our proportionality analysis.

      This court, like the United States Supreme Court, signaled fear of

the disjunction between lengthy sentences for juveniles and penological

justifications for imprisonment. See Null, 836 N.W.2d at 65 (explaining

the Supreme Court’s discussion of penological goals of imprisonment);

see also Miller, 567 U.S. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 419–

20 (discussing Roper, Graham, and the weakness of penological
                                    70

justifications for imposing lengthy sentences on juveniles).     The lesser

culpability of Pearson sapped the strength of the retribution rationale,

and the qualities of youth that diminish teens’ culpability also meant the

teen was more likely to disregard the consequences of criminal

misconduct, as the Court found in Miller. See Pearson, 836 N.W.2d at

95–96 (noting juveniles’ lesser culpability in relation to adults); see also

Miller, 567 U.S. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 419.

Moreover, we held that to lock away Null until old age and Pearson until

its cusp, would have required a finding that they were incapable of

change, which is not consistent with youth. See Pearson, 836 N.W.2d at

96 (noting the inconsistency between incorrigibility and youth); Null, 836

N.W.2d at 75, see also Miller, 567 U.S. at ___, 132 S. Ct. at 2465, 183

L. Ed. 2d at 419.

      Finally, even though neither Null nor Pearson was sentenced to life

without parole, we held that in neither case did rehabilitation justify the

lengthy sentence. In Null, we rejected the idea that a “juvenile’s potential

future release in his or her late sixties after a half century of

incarceration” would “provide a ‘meaningful opportunity’ to demonstrate

the ‘maturity and rehabilitation’ required to obtain release and reenter

society.” 836 N.W.2d at 71 (quoting Graham, 560 U.S. at 75, 130 S. Ct.

at 2030, 176 L. Ed. 2d at 845–46). Nor could Pearson demonstrate she

had been rehabilitated before reentering society in her sixth decade of life

having spent almost four decades behind bars. See Pearson, 836 N.W.2d

at 96 (rejecting Pearson’s thirty-five-year minimum sentence and noting

juveniles’ potential for rehabilitation). We reasoned we could reasonably

expect both teens to have been rehabilitated long before they had served

their minimum sentences.
                                     71

      Like Null and Pearson, Andre Lyle was a juvenile at the time he

committed his crime, but he was subject to the same mandatory

minimum sentence as an adult. In this case, however, the sentence is

not harsh, it is not cruel, and it is not unusual. Lyle was sentenced to a

maximum prison term of ten years, and he is required to serve seventy

percent of that term, or seven years, before being eligible for parole. That

minimum is only twenty percent of Pearson’s minimum and about

thirteen percent of Null’s.     There is clearly no reasonable correlation

between adult death sentences, juvenile life sentences without the

possibility of parole, or even the sentences imposed in Null and Pearson,

and this seven-year mandatory minimum sentence. See Miller, 567 U.S.

at ___, 132 S. Ct. at 2467, 183 L. Ed. 2d at 421. As a chronological fact,

Lyle’s sentence is significantly shorter than all the sentences with which

this court or the United States Supreme Court has previously dealt.

      Lyle will also reenter society much earlier than either Null or

Pearson.   Lyle’s maximum prison term is far shorter than Pearson’s

thirty-five-year minimum term. If Lyle served the maximum of ten years,

he would be released in his late twenties, about twenty-five years

younger than Pearson would have been if she been released when she

first became parole eligible.    If released when he first becomes parole

eligible, Lyle will be in his mid-twenties, which would leave him ample

time for hitting major life milestones. Lyle’s minimum sentence, unlike

the sentences of Null or Pearson, does offer him the chance at “a more

normal adult life.” Pearson, 836 N.W.2d at 96.

      Lyle’s sentence, unlike that of Pearson or Null, is also justified

under penological theories.     As in the case of any juvenile, deterrence

and retribution offer little support for Lyle’s sentence because of his

immaturity and diminished culpability. See Miller, 567 U.S. at ___, 132
                                     72

S. Ct. at 2465, 183 L. Ed. 2d at 419. Despite Lyle’s youth, however, one

cannot dispute that he poses a risk to public safety. Incapacitating him,

therefore, protects the public. See Graham, 560 U.S. at 72, 130 S. Ct. at

2029, 176 L. Ed. 2d at 844 (explaining incapacitation is an important

goal because of the risk recidivism poses to public safety). As with Null

or Pearson, Lyle “deserve[s] to be separated from society for some time in

order to prevent” him from committing more violent crimes.          Id.   But

unlike Miller’s life-without-parole sentence, or the lengthy mandatory

minimum sentences in Null and Pearson, mandating Lyle spend seven

years in prison does not require the grave judgment “that he would be a

risk to society for the rest of his life.”   Id.   Incapacitation is thus an

appropriate justification for Lyle’s sentence.

      So too with rehabilitation; it is the “penological goal that forms the

basis of parole systems.” Id. at 73, 130 S. Ct. at 2029, 176 L. Ed. 2d at

845. Lyle’s sentence does not deny him the right to reenter society, as

was the case in Graham and Miller, and it does not leave him so few

years upon his exit from prison that he cannot demonstrate he has been

rehabilitated, as in Pearson and Null. Imprisoning Lyle until his middle

or late twenties does not forswear the “rehabilitative ideal.” Id. at 74, 130

S. Ct. at 2030, 176 L. Ed. 2d at 845. Lyle’s comparatively short sentence

does not, unlike the life without parole sentence meted out to the

juvenile in Graham, deny Lyle “the right to reenter the community.” Id.

And it does not reflect “an irrevocable judgment about [Lyle’s] value and

place in society.”   See id.   Rehabilitation therefore also justifies Lyle’s

sentence.

      Though Lyle was a juvenile when he committed his crime and is

mandated to serve seventy percent of his sentence, any similarity

between his sentence and the sentences imposed in Null or Pearson ends
                                           73

there.    Here, Lyle does not face the prospect of geriatric release after

decades of incarceration.        In fact, Lyle faces at most a single decade

behind bars. Lyle will be provided a “meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation” and reenter

society as required by Graham, 560 U.S. at 75, 130 S. Ct. at 2030, 176

L. Ed. 2d at 845–46, Pearson, 836 N.W.2d at 96, and Null, 836 N.W.2d at

71. The three factors that converged in Miller, Null, and Pearson do not

converge in this case.         Therefore, there is no unacceptable risk of

disproportionality.      I would apply the rationale of Miller, Null, and

Pearson and hold the sentence imposed on Lyle is not cruel and unusual

under our Iowa Constitution, and thus no individualized sentencing

hearing is required.

         I also strenuously disagree with the majority’s conclusion, in the

exercise of its independent judgment, that sentencing juveniles according

to a statutorily required mandatory minimum, regardless of the length of

the sentence, does not adequately serve legitimate penological objectives

in light of the child’s categorically diminished culpability.          As stated

previously, a short-term period of incarceration clearly serves penological

goals of rehabilitation and incapacitation, both goals considered

important in Graham and all of the later cases. See Miller, 567 U.S. at

___,     132   S. Ct.   at   2465,   183    L. Ed. 2d   at   419–20   (discussing

incapacitation and rehabilitation in relation to juveniles); Graham, 560

U.S. at 72–74, 130 S. Ct. 2029–30, 176 L. Ed. 2d at 844–45 (discussing

penological goals of incapacitation and rehabilitation); Pearson, 836

N.W.2d at 96 (explaining juveniles are less culpable than adults); Null,

836 N.W.2d at 63 (reviewing Graham’s discussion of penological goals in

relation to juveniles).       There is simply no authority for this blanket

proposition.      Equally important is that this conclusion appears to
                                    74

squarely contravene the role of the legislature in devising an appropriate

sentencing scheme.

      But, perhaps most troubling to me is the majority’s recognition

that every case so far employing this principle of a child’s categorically

diminished culpability involved harsh, lengthy sentences—even death.

In fact, there is no authority cited by the majority, nor did my research

disclose any authority, that would extend the principle employed by the

majority to all mandatory minimum sentences for juveniles. Undeterred,

the majority then emphasizes that nothing the Supreme Court has said

is “crime-specific.” The majority then extrapolates from this language,

“suggesting   the   natural   concomitant   that   what   is   said   is   not

punishment-specific either.” The majority then cites to our Pearson and

Null opinions from last term to support this proposition. But, neither of

these cases was decided on this categorical basis. The language in Null

is that juveniles are “categorically less culpable than adult offenders

apply as fully in this case as in any other.” 836 N.W.2d at 71 (emphasis

added). This general comment is accurate as to the fifty-two and one-

half year mandatory minimum sentence for Null in relation to a life-

without-parole sentence utilizing the principles in Miller.    Miller is the

basis on which the case was decided. The same logic applies to the quote

from the special concurrence in Pearson, which recognized the gravity of

the offense does not affect the applicability of the juvenile’s rights under

article I, section 17 of the Iowa Constitution. See Pearson, 836 N.W.2d at

99 (Cady, J., concurring specially) (stating “the juvenile offender’s

decreased culpability plays a role in the commission of both grievous and

petty crimes”). This general statement is also accurate in the context of

the case in which the length of the sentence itself is being scrutinized as

being cruel and unusual. In Pearson and Null, it was the length of the
                                     75

mandatory minimum sentences, which we held were the equivalent of life

without parole, that failed our constitutional analysis.      These general

comments, taken out of the context in which the cases were decided, are

hardly an endorsement for the proposition that all mandatory juvenile

sentences are constitutionally invalid because juveniles are “categorically

less culpable.”    The majority now holds that, in order to meet our

constitutional prohibition against cruel and unusual punishment, every

juvenile facing a mandatory minimum sentence of any length must have

an individualized sentencing hearing utilizing the Miller factors. This is

wrong and has no constitutional support in federal jurisprudence or our

own jurisprudence.

      Finally, several observations need to be made in this area of

juvenile sentencing. First, no court in the land has followed our opinions

in Pearson and Null, which dramatically extended the circumstances

under which a Miller-type sentencing hearing was constitutionally

required.    In my opinion, such an extension was far beyond that

contemplated by the United States Supreme Court, and clearly, no other

federal court or state supreme court has felt it constitutionally required

to extend it either. Second, no federal court, no state supreme court, nor

any court for that matter has used a categorical analysis employed by

the majority in this case to strike down all mandatory minimum

sentences for a juvenile.     In reaching this conclusion, the majority

contorts    our   constitutional   jurisprudence    under   the   guise    of

independently analyzing our Iowa Constitution.

      Third, the majority justifies its decision in this case by declaring

that its decision is based on its desire to return to the district courts its

rightful discretion in sentencing juveniles.    What the majority fails to

comprehend is that these constitutionally unnecessary resentencings
                                      76

come paired with significant practical difficulties for the district courts.

According to statistics obtained from the Iowa Justice Data Warehouse,

as of May 31, 2013, I would estimate that more than 100 juveniles were

serving mandatory sentences under the previous sentencing scheme.

See Iowa Dep’t of Human Rights, Div. of Criminal & Juvenile Justice

Planning, Current Inmates Under 18 at Time of Offense (May 31, 2013),

available at http://www.humanrights.iowa.gov/cjjp/images/pdf/Prison_

Population_Juvenile_05312013.pdf; see also Iowa Code § 902.12(1)–(6)

(providing mandatory minimum terms of imprisonment for specific

enumerated felonies).      Under the previous scheme, the legislature, by

mandating minimum sentence lengths for certain crimes, had provided

for an efficient, constitutional sentencing proceeding.    See Iowa Code

§ 902.12. Based on the majority’s opinion, all of those juveniles must be

resentenced and have an individualized sentencing hearing. It will take

hundreds, if not thousands, of hours to perform this task.          And, of

course, there will be expert witnesses: social workers, psychologists,

psychiatrists, substance-abuse counselors, and any number of related

social scientists.   And, other witnesses: mothers, fathers, sisters, and

brothers. Finally, and most importantly, victims will again have to testify

and relive the trauma they experienced at the hands of the juvenile

offender.   I agree that time and expense should be irrelevant if

constitutional rights are affected.    However, these should be primary

considerations when deciding to impose on the courts and the

corrections systems a new sentencing practice that has no basis in this

state’s constitution. I also question whether the ultimate decisions by

our district courts will be qualitatively better given this unnecessary

time, money, and effort.
                                        77

      After the parade of witnesses ends, the district court must then

produce for each juvenile offender a detailed, reasoned sentencing

decision. District courts must consider the “juvenile’s lack of maturity,

underdeveloped sense of responsibility, vulnerability to peer pressure,

and the less fixed nature of the juvenile’s character,” keeping in mind

that these are “mitigating, not aggravating factors” in the decision to

impose a sentence. Null, 836 N.W.2d at 74–75. It does not end there.

District courts must recognize juveniles’ capacity for change and “that

most juveniles who engage in criminal activity are not destined to

become lifelong criminals.”        Id. at 75.   If tempted to impose a harsh

sentence on even a particularly deserving offender, “the district court

should recognize that a lengthy prison sentence . . . is appropriate, if at

all, only in rare or uncommon cases.”             Id.   To impose that harsh

sentence, “the district court should make findings discussing why the”

harsh sentence should be imposed. Id. at 74. And these are just the

factors enumerated by this court in Null.

      For the district court that is particularly fearful of having a

sentencing decision overturned, there are yet more factors that might be

considered. See, e.g., Bear Cloud v. State, 294 P.3d 36, 47 (Wyo. 2013)

(listing factors for sentencing courts to consider, including the juvenile’s

background and emotional development).            For instance, the California

Supreme Court has advised that sentencing courts must consider

evidence   of   the   juvenile’s     home    environment,   evidence   of   the

circumstances of the offense, and evidence of the possibility the

prosecutor could have charged the juvenile with some lesser offense.

People v. Gutierrez, 324 P.3d 245, ___ (Cal. 2014).         In sum, “the trial

court must consider all relevant evidence” of the distinctive youthful

attributes of the juvenile offender. See id. at ___. The possibilities are
                                     78

nearly endless. But, even if the district court were to consider additional

factors, there can be no assurance the district court weighed any

particular factor the same way the appellate court would. And, so more

time and money will be spent trying to determine the appropriate

sentence for a juvenile offender. According to the majority, this is what

our constitution requires of any juvenile offender.

      I understand that the majority believes that an individualized

sentencing hearing is the “best practice” for the sentencing of juveniles:

“[A]pplying the teachings of Miller irrespective of the crime or sentence is

simply the right thing to do, whether or not required by our

Constitution.”    Pearson, 836 N.W.2d at 99 (Cady, J., concurring

specially). I do not necessarily disagree. But, we are not following the

teachings of Miller, Null, or Pearson; instead, the majority is deciding this

case on a categorical basis and elevating this new “category” to a

constitutional right without any cogent, legitimate jurisprudence to

support it. I would hold that the mandatory minimum sentence imposed

under Iowa Code section 902.12(5), under these facts, does not

constitute cruel and unusual punishment and accordingly does not

violate article I, section 17 of the Iowa Constitution. I would affirm the

sentence imposed by the district court.

      Waterman and Mansfield, JJ., join this dissent.
