              IN THE SUPREME COURT OF IOWA
                              No. 14–0175

                          Filed June 26, 2015


STATE OF IOWA,

      Appellant,

vs.

YVETTE MARIE LOUISELL,

      Appellee.


      Appeal from the Iowa District Court for Story County, James C.

Ellefson, Judge.



      The State appeals the sentence imposed on a juvenile convicted of

first-degree murder, contending the district court lacks authority to

impose it.    DISTRICT COURT SENTENCE VACATED AND CASE

REMANDED WITH INSTRUCTIONS.



      Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant
Attorney General, and Stephen H. Holmes, County Attorney, for

appellant.



      Gordon E. Allen, Johnston, and Matthew L. Shimanovsky (until

withdrawal), Urbandale, for appellee.



      Rita Bettis and Randall C. Wilson, Des Moines, and Ezekiel R.

Edwards and Steven M. Watt, New York, New York, for amici curiae

ACLU of Iowa and ACLU Foundation.
                                    2

HECHT, Justice.

      Recent decisions of this court have explored the constitutionality of

criminal sentences for juvenile offenders. See generally State v. Lyle, 854

N.W.2d 378 (Iowa 2014); State v. Ragland, 836 N.W.2d 107 (Iowa 2013);

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

41 (Iowa 2013). Today we consider the nature and extent of a court’s

discretion in resentencing a juvenile offender convicted of a murder

committed in 1987.      Because we conclude the district court lacked

authority to impose a determinate sentence of twenty-five years, but did

have authority to impose a sentence of life in prison with eligibility for

parole, we vacate the sentence and remand with instructions.

      I. Background Facts and Proceedings.

      In 1988, a jury convicted Yvette Louisell of first-degree murder,

stemming from the 1987 stabbing death of Keith Stilwell. At the time

she committed the crime, Louisell was seventeen years and five months

old and was a student at Iowa State University (ISU).

      Louisell’s chaotic family background and home environment

heavily influenced and shaped the seventeen-year-old prior to the

homicide. Louisell’s mother suffered from mental illness, and her father

was often absent from the family home. When he was present, he and

Louisell’s mother were often violent with one another; Louisell’s first

memory is of her parents fighting. At age three, Louisell ingested LSD

she found in the house—not knowing what it was—and experienced

hallucinations. At age four, Louisell’s mother left the home, and soon

after that, Louisell’s parents divorced.    During the next few years,

Louisell moved across state lines several different times and was shuttled

between homes in Michigan, Wisconsin, Illinois, and Ohio. Eventually,

Louisell’s grandmother became her legal guardian and primary parental
                                         3

figure. Louisell attended nine different schools and never attended the

same school for two consecutive years until her junior and senior years

of high school in Michigan.      Yet despite these difficult circumstances,

Louisell participated in programs for gifted students and even skipped a

grade in elementary school.

      Unfortunately,    the   adversity          Louisell    faced   throughout    her

childhood did not dissipate once she reached high school and obtained

some locational stability. Her father remarried, but did not become more

supportive. On one particular occasion, Louisell watched her stepmother

chase her father with a knife and became so afraid of further violence

that she hid all the other knives in the house. Additionally, because she

was younger than her peers and behind them developmentally, Louisell

felt isolated from them.

      Despite this considerable cumulative adversity, Louisell graduated

early from high school at age sixteen.                    She initially contemplated

attending college in Michigan or Indiana, close to home. However, for

financial   reasons,   she    accepted       a     full    tuition   scholarship   and

immediately enrolled in a summer enrichment program at ISU, hundreds

of miles from home. After Louisell arrived at ISU, she found the sudden

independence of a college student overwhelming. She began to struggle

academically and, with her self-confidence near zero, started drinking

heavily and using marijuana to escape from her emotional stress. As the

fall semester continued, Louisell’s grades continued to slip and she felt

hopeless.

      Needing to earn money because she feared ISU would revoke her

scholarship for poor academic performance, Louisell answered an

advertisement seeking a model for art classes at a local art institute. She

initially declined employment because the institute informed her that
                                         4

posing nude was a requirement of the position. However, she eventually

decided she needed the money and agreed to pose nude for one of the

institute’s classes. After she posed for a few sessions at the institute,

Stilwell, one of the students at the institute, befriended Louisell and

hired her to model privately in his home.           See Louisell v. Dir. of Iowa

Dep’t of Corr., 178 F.3d 1019, 1021 (8th Cir. 1999).                  Stilwell was

physically handicapped and could walk only by using canes.                  See id.

Louisell agreed to the private sessions because Stilwell—an older student

twice Louisell’s age—offered to compensate her at four times the hourly

wage the institute paid her.

       After several sessions in Stilwell’s home, Louisell decided she did

not want to continue modeling privately for Stilwell.            Accordingly, she

informed Stilwell an upcoming session would be her last. During that

final session, Louisell contended at trial, Stilwell cornered her with a

knife—despite his handicap—and announced he was going to have sex

with her. Reacting instinctively, she claimed she wrested the knife from

Stilwell and stabbed him in self-defense to prevent him from raping her.

She left Stilwell’s home and took Stilwell’s wallet with her. She was later

apprehended while attempting to use Stilwell’s credit card to make a

purchase at a local mall. A jury rejected Louisell’s version of events and

her justification defense, returning a verdict finding Louisell guilty of

first-degree murder.

       After Louisell’s conviction, she was sentenced to life imprisonment

without parole, 1 the only sentence authorized in Iowa Code section 902.1




       1In this opinion, we use the acronym LWOP when referring to a sentence of life

without parole.
                                          5

(1987) for that crime. 2 She unsuccessfully pursued a direct appeal and

two subsequent applications for postconviction relief in state court. Her

habeas petition filed in federal court was also denied. See Louisell, 178

F.3d at 1021–22, 1024. She has remained in state custody for twenty-

six years since her 1988 conviction and is currently incarcerated at the

Iowa Correctional Institution for Women (ICIW) in Mitchellville, Iowa.

       In 2010, the United States Supreme Court held the Eighth

Amendment prohibits LWOP sentences for juveniles who commit

nonhomicide offenses; they must be afforded “some realistic opportunity

to obtain release.” Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct. 2011,

2034, 176 L. Ed. 2d 825, 850 (2010). Seeking to extend Graham’s Eighth

Amendment protections to include juveniles convicted of homicide,

Louisell filed a motion to correct an illegal sentence in 2011. While the

motion was pending, the United States Supreme Court struck down

mandatory sentencing schemes that impose LWOP while failing to afford

juvenile offenders—even those convicted of homicide—an individualized

sentencing determination based on specific factors the Court identified.

Miller v. Alabama, 567 U.S. ___, ___, ___, 132 S. Ct. 2455, 2468, 2475,

183 L. Ed. 2d 407, 423, 430 (2012) (identifying five factors sentencing

courts must consider); Ragland, 836 N.W.2d at 115 n.6 (adopting the

Miller factors).

       Louisell’s mandatory LWOP sentence fell within the category of

sentences Miller made invalid.         Governor Terry Branstad subsequently

commuted Louisell’s LWOP sentence—along with the sentences of thirty-

seven other juvenile offenders—to life imprisonment with the possibility


       2The language from the 1987 version of this statute remains in effect today. See

Iowa Code § 902.1(1) (2015).
                                          6

of parole after sixty years in prison. See Ragland, 836 N.W.2d at 110–12

(reproducing one of the Governor’s commutation orders in its entirety).

Yet, the district court denied Louisell’s motion to correct an illegal

sentence, concluding Miller had only prospective effect.                      Louisell

appealed.

       While Louisell’s appeal was pending, we held that, as applied to

one of the other thirty-seven LWOP sentences imposed on juvenile

offenders, the Governor’s commutation elevated form over substance.

See id. at 121.       We explained that although parole was technically

available to the affected inmates after sixty years in prison, the

commuted sentences were “the functional equivalent of life without

parole” because they provided no meaningful opportunity for release. Id.

at 121–22. We also determined that Miller applies retroactively. Id. at

117.

       Following our Ragland decision, we summarily vacated Louisell’s

sentence    and    remanded       the   case    to   the   district   court   for   an

individualized sentencing hearing.            At the hearing, Louisell presented

testimony and exhibits tending to show she has been rehabilitated

during her twenty-six years in prison. For example, the record shows

Louisell completed numerous educational courses and programs while in

prison, including an associate’s degree in 1998 and a bachelor’s degree—

with magna cum laude honors—in 2009. 3                 She learned at least one

trade—electrician’s helper—and participated in numerous other artistic,

musical, and religious activities at the prison.            Further, Louisell is a

published author who mentors and tutors other incarcerated women.


       3According to one of Louisell’s counselors, Louisell is only the second woman in

ICIW’s history to receive a bachelor’s degree while incarcerated.
                                      7

      Key players in Louisell’s 1988 murder trial weighed in at the

resentencing hearing.     The county attorney who prosecuted Louisell

testified she believes Louisell has served enough time and has been

punished sufficiently. Judge Allan Goode, who presided over Louisell’s

1988 criminal trial, authored a letter in which he opined Louisell could

make positive contributions to the community if she were released from

prison. 4

      Louisell presented other evidence at the resentencing hearing

detailing the circumstances awaiting her should she be released from

prison.     For example, the record includes a letter confirming she has

received an offer of employment as an apprentice electrical trimmer.

Other evidence was presented to the court describing the support system

standing ready to help Louisell reenter society should she be discharged

from prison. Together, the evidence created an overarching theme: By all

accounts, Louisell is a model inmate who has achieved rehabilitation;

grown from a naïve and impulsive youngster to a mature, accomplished,

and intelligent woman; and accepted full responsibility for the crime she

committed as a juvenile in 1987.

      After hearing the testimony and considering the exhibits Louisell

presented, the district court acknowledged significant statutory and

constitutional uncertainty with regard to the court’s sentencing authority

after Miller and Ragland.       The court then carefully considered the

evidence in the record and thoroughly analyzed each of the Miller factors.

After doing so, the court resentenced Louisell to a definite term of

twenty-five years with credit for time served, thereby discharging her

      4Judge  Goode wrote the letter in 2009 to support an application for
commutation Louisell made to then-Governor Chet Culver. Judge Goode passed away
in 2010.
                                      8

from prison immediately and releasing her to correctional supervision, as

if on parole, for no more than two years. Recognizing the possibility an

appellate court might conclude the district court lacked authority to

impose a definite term of years for first-degree murder, the court imposed

an alternative sentence of life in prison with the possibility of parole after

twenty-five years. Under this alternative sentence, the court determined

Louisell is now eligible for parole, but left to the parole board’s discretion

when Louisell should in fact be paroled.

      The State appealed and also requested an immediate stay of the

district court’s resentencing order. We granted the stay and retained the

appeal to clarify the district court’s sentencing authority in this evolving

area of law.

      II. Scope of Review.

      Illegal sentences can be challenged at any time. Iowa R. Crim. P.

2.24(5)(a); State v. Hoeck, 843 N.W.2d 67, 70 (Iowa 2014); Pearson, 836

N.W.2d at 94. A sentence is illegal if it amounts to cruel and unusual

punishment. Hoeck, 843 N.W.2d at 70; Bonilla v. State, 791 N.W.2d 697,

699 (Iowa 2010).       Because appeals asserting cruel and unusual

punishment claims require constitutional analysis, our review is typically

de novo. Hoeck, 843 N.W.2d at 70; Ragland, 836 N.W.2d at 113.

      Louisell has not appealed from the new sentence, and we therefore

do not consider whether it is illegal or cruel and unusual. Rather, this

appeal brought by the State requires us to decide whether the district

court had the authority to impose a determinate sentence or a sentence

setting the date when Louisell became eligible for parole.        We review

challenges to the legality of a sentence for correction of legal errors. See

Ragland, 836 N.W.2d at 113.
                                      9

      III. The Parties’ Positions.

      A. The State.       The State concedes Louisell’s original LWOP

sentence was unconstitutional under Miller and Ragland, but asserts her

corrected sentence of a determinate term of twenty-five years in prison

must be vacated because it is not authorized by statute and is therefore

illegal. The State insists that no set of facts authorizes a district court to

impose a sentence not found in the Iowa Code. The only sentence for

first-degree murder, the State contends, is life in prison.

      The State rests its argument on separation of powers principles.

Our state constitution instructs that “[t]he powers of the government of

Iowa shall be divided into three separate departments . . . and no person

charged with the exercise of powers properly belonging to one of these

departments shall exercise any function appertaining to either of the

others.” Iowa Const. art. III, § 1. According to the State, the legislature

has exclusive power to prescribe punishment for criminal convictions,

while judicial power is limited to judgments imposing the prescribed

punishment. In other words, the State contends a court can only “give

effect to the law as written, not . . . rewrite the law in accordance with

the court’s view of the preferred public policy.”     State v. Wagner, 596

N.W.2d 83, 88 (Iowa 1999).        The district court’s determination that

Louisell be sentenced to twenty-five years in prison with credit for time

served—and accordingly, that she should now be discharged from

custody—violates these principles, the State asserts, because the

legislature has not authorized such a sentence.

      The State identifies three dispositional alternatives that would, in

its view, comport with the court’s constitutional role: (1) uphold the

sentence of sixty years under the Governor’s commutation order; (2)

sever parole ineligibility from Iowa Code section 902.1(1) (2015), leaving
                                    10

intact Louisell’s life sentence but making her immediately eligible for

parole and, therefore, affording her release from prison at such time as

the board of parole may determine; or (3) move downward along the

charging scale to a punishment expressly authorized by the legislature

for a different homicide offense.

      As we have already held the commuted sentence offering parole

eligibility after sixty years in prison is unconstitutional because it was

imposed without individualized consideration of the Miller factors,

Ragland, 836 N.W.2d at 122, the State’s first proposed dispositional

option is a nonstarter. The State’s second option is functionally similar

to the district court’s alternative sentence of life in prison with parole

after serving twenty-five years.     In both instances, Louisell would

immediately be eligible for parole because she has served more than

twenty-five years in prison, and the parole board would make the

determination of whether and when she will be released on parole. The

State characterizes its third proposed dispositional alternative as

“invasive,” and it therefore discourages us from implementing that

alternative. See Commonwealth v. Brown, 1 N.E.3d 259, 264–66 (Mass.

2013) (refusing to create “an entirely new penalty scheme ad hoc”).

      B. Louisell. According to Louisell, the court should not defer to

the legislature as the State urges because deference would merely

perpetuate her illegal LWOP sentence. While she would theoretically be

parole-eligible under the State’s preferred disposition and under the

district court’s alternative sentencing option, she contends the likelihood

of ever receiving parole is negligible given the parole board’s steadfast

refusal to grant juvenile offenders release, even after the decisions in

Graham, Miller, and Ragland were filed.       As such, she argues, any

sentence other than the district court’s first alternative leading to
                                       11

immediate discharge would deprive her of a meaningful opportunity to

reenter society and leave her stuck in parole limbo incompatible with the

spirit of Miller, Null, Pearson and Ragland.

      In Ragland, we concluded an individualized sentencing hearing

including consideration of the Miller factors “cures the unconstitutional

aspects of [mandatory LWOP] statutes as applied to juvenile offenders

until amended by the legislature to establish a different constitutional

procedure.”    Ragland, 836 N.W.2d at 119 n.7.          Louisell seizes on the

phrase “until amended by the legislature,” and notes the legislature did

not amend section 902.1 to establish a constitutional sentencing

procedure for juvenile offenders convicted of first-degree murder in the

two legislative sessions held after Miller was decided. 5        Thus, Louisell

asserts, the resentencing court was forced to craft a new sentence

because section 902.1 calls for LWOP and is constitutionally infirm. It

comes down, she asserts, to a choice between judicial discretion or a

punishment we know is cruel and unusual.               Louisell insists judicial

discretion must rule the day, and the district court’s conclusion it had

discretion to depart from the strict letter of the unconstitutional statute

and craft an appropriate determinate sentence under the circumstances
presented here should therefore be affirmed.

      Addressing the State’s separation-of-powers argument, Louisell

notes the judicial function is to apply constitutional principles to decide

controversies—not simply point them out.             And although we must

respect the powers of the legislative and executive departments, Louisell

      5At    the time of Louisell’s resentencing, only one legislative session had
concluded without passage of legislation addressing individualized sentencing of
juvenile offenders convicted of class “A” felonies involving homicides. A second
legislative session without legislative action on this subject ended prior to the
submission of this appeal.
                                    12

contends the judicial department has inherent power to do justice when

the other departments fail to adopt sentencing and parole regimes

compatible with article I, section 17 of our constitution. Deference to the

other departments in this particular context would, in Louisell’s view,

prevent sentencing judges from exercising their discretion and nullify her

right to be free from cruel and unusual punishment.

      IV. Analysis.

      A. Determinate Term of Twenty-five Years in Prison. We begin

by noting the well-established principle that sentences imposed without

statutory authorization are illegal and void. State v. Ross, 729 N.W.2d

806, 809 (Iowa 2007); State v. Freeman, 705 N.W.2d 286, 287 (Iowa

2005). “We have upheld this principle even in cases in which the illegal

sentence was more lenient than that allowed by law and when correction

of the sentence would result in an increase in the sentence.” State v.

Allen, 601 N.W.2d 689, 690 (Iowa 1999) (per curiam); see State v. Draper,

457 N.W.2d 600, 605–06 (Iowa 1990) (increasing sentences for drug

violations to five years when the district court impermissibly imposed

only three years); State v. Ohnmacht, 342 N.W.2d 838, 842–43, 845 (Iowa

1983) (reinstating prison time because a defendant convicted of first-

degree robbery was not statutorily eligible for the suspended sentence he

received).     Sentencing judges exercise discretion in pursuit of a

statutorily mandated goal: to “provide maximum opportunity for the

rehabilitation of the defendant[] and for the protection of the community

from further offenses by the defendant and others.” Iowa Code § 901.5

(2013).      But in implementing this goal, judges may only impose

punishment      authorized   by   the    legislature   within   constitutional

constraints. “[L]egislative determinations of punishment are entitled to
                                            13

great deference.”        State v. Bruegger, 773 N.W.2d 862, 872–73 (Iowa

2009).

       The Code of Iowa does not currently authorize a term-of-years

sentence for a defendant convicted of first-degree murder, even if that

defendant committed the crime as a juvenile.                  Several sections within

chapter 902 mandate that class “A” felons, and specifically those

convicted of first-degree murder, receive more severe sentences than

persons convicted of lesser crimes.               For example, Iowa Code section

902.1(1) states that a convicted class “A” felon shall be committed into

custody for life. 6 Additionally, section 902.3 excludes class “A” felonies

from indeterminate sentencing, reinforcing the idea that life in prison is

the intended punishment for such crimes. Iowa Code § 902.3. Finally,

section 902.4 excludes class “A” felons from the universe of felons whose

sentences may be reconsidered within one year after their conviction. Id.

§ 902.4.

       Because there was no statutory authority for the determinate

sentence of twenty-five years in prison for Louisell’s first-degree murder

conviction, that part of the district court’s sentencing order must be

vacated.     See Freeman, 705 N.W.2d at 287 (“A sentence is void if the
statute does not authorize [it].”); Draper, 457 N.W.2d at 605 (“Simply

stated, when a sentencing court departs—upward or downward—from

the legislatively authorized sentence for a given offense, the pronounced

sentence is a nullity . . . .”); Ohnmacht, 342 N.W.2d at 842 (“A court has


        6Lesser offenses are notably punished less severely.      For example, a term-of-
years sentence is prescribed for second-degree murder, a class “B” felony. Compare
Iowa Code § 707.2 (defining first-degree murder as a class “A” felony), and id. § 902.1(1)
(indicating all individuals convicted of class “A” felonies receive life sentences), with id.
§ 707.3 (“Murder in the second degree is a class “B” felony. . . . [T]he maximum
sentence for a person convicted under this section shall be a period of confinement of
not more than fifty years.”).
                                      14

no authority to mitigate punishment by providing for a sentence not

authorized by statute.”).

      B. Life with Eligibility for Parole After Twenty-Five Years. We

turn now to the district court’s alternative sentence of life in prison with

parole eligibility after twenty-five years.   To determine whether that

sentence was within the district court’s discretion, we again look to the

relevant statutes.

      Louisell was originally sentenced under the 1987 edition of the

Code of Iowa. At the time, the section establishing sentences for class

“A” felonies read, in its entirety:

            Upon a plea of guilty, a verdict of guilty, or a special
      verdict upon which a judgment of conviction of a class “A”
      felony may be rendered, the court shall enter a judgment of
      conviction and shall commit the defendant into the custody
      of the director of the Iowa department of corrections for the
      rest of the defendant’s life. Nothing in the Iowa corrections
      code pertaining to deferred judgment, deferred sentence,
      suspended sentence, or reconsideration of sentence applies
      to a class “A” felony, and a person convicted of a class “A”
      felony shall not be released on parole unless the governor
      commutes the sentence to a term of years.

Iowa Code § 902.1 (1987).         In 2011—after Graham was decided but

before the decision in Miller was filed—the legislature amended section

902.1, adding language and renumbering the subsections.          2011 Iowa

Acts ch. 131, § 147. After the 2011 amendment, section 902.1 provided:

            1. Upon a plea of guilty, a verdict of guilty, or a
      special verdict upon which a judgment of conviction of a
      class “A” felony may be rendered, the court shall enter a
      judgment of conviction and shall commit the defendant into
      the custody of the director of the Iowa department of
      corrections for the rest of the defendant’s life. Nothing in the
      Iowa corrections code pertaining to deferred judgment,
      deferred sentence, suspended sentence, or reconsideration of
      sentence applies to a class “A” felony, and a person convicted
      of a class “A” felony shall not be released on parole unless
      the governor commutes the sentence to a term of years.
                                     15
              2. a. Notwithstanding subsection 1, a person
       convicted of a class “A” felony, and who was under the age of
       eighteen at the time the offense was committed shall be
       eligible for parole after serving a minimum term of
       confinement of twenty-five years.
             b. If a person is paroled pursuant to this subsection
       the person shall be subject to the same set of procedures set
       out in chapters 901B, 905, 906, and chapter 908, and rules
       adopted under those chapters for persons on parole.
              c. A person convicted of murder in the first degree in
       violation of section 707.2 shall not be eligible for parole
       pursuant to this subsection.

Iowa Code § 902.1 (2013). In sum, the 2011 amendment left the 1987

statutory language fully intact, but renumbered it as section 902.1(1).

The amendment also added subsections providing that all juvenile

offenders convicted of class “A” felonies—except first-degree murder—

shall be eligible for parole after serving twenty-five years.          Id.

§ 902.1(2)(a), (c).

       Sentencing     courts   confronting   unconstitutional   sentencing

statutes may choose the remedy of severance in appropriate cases. Iowa

Code § 4.12; Bonilla, 791 N.W.2d at 701–02. Severing constitutionally

infirm provisions “is appropriate if it does not substantially impair the

legislative purpose, if the enactment remains capable of fulfilling the

apparent legislative intent, and if the remaining portion of the enactment

can be given effect without the invalid provision.”      Am. Dog Owners

Ass’n, Inc. v. City of Des Moines, 469 N.W.2d 416, 418 (Iowa 1991).

Because Louisell could not be sentenced to mandatory LWOP, Miller,

Ragland, Null, and Pearson mandate the final clause of section 902.1(1)—

“and a person convicted of a class “A” felony shall not be released on

parole unless the governor commutes the sentence to a term of years”—

be severed. See Bonilla, 791 N.W.2d at 702 (severing the same clause of

section 902.1 on review of a juvenile offender’s LWOP sentence for a class
                                     16

“A” felony kidnapping offense). The district court took this approach in

resentencing Louisell, correctly noting that the clause within section

902.1 purporting categorically to preclude parole for juvenile offenders

convicted of class “A” felonies must be severed.

      The district court also correctly concluded subsection 902.1(2)(c)

must be severed in resentencing Louisell. That subsection providing “[a]

person convicted of murder in the first degree . . . shall not be eligible for

parole pursuant to this subsection,” must be severed because it too

would categorically exclude Louisell from the universe of juvenile

offenders entitled to a meaningful opportunity for parole. See Miller, 567

U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (holding the Eighth

Amendment prohibited “a sentencing scheme that mandates life in

prison without possibility of parole for juvenile offenders.”).

      After severing from section 902.1 the two provisions discussed

above, we now confront section 902.1(2)(a).         This subsection makes

juvenile offenders convicted of class “A” felonies eligible for parole after a

minimum term of confinement of twenty-five years.                 Iowa Code

§ 902.1(2)(a).   The problem here, of course, is that all mandatory

minimum sentences for juveniles violate article I, section 17 of the Iowa

Constitution. Lyle, 854 N.W.2d at 400; see also Richard A. Bierschbach

& Stephanos Bibas, Constitutionally Tailoring Punishment, 112 Mich. L.

Rev. 397, 439–40 (2013) (noting mandatory minimum sentences are

“crude sledgehammers” that do not “tailor punishments to moral

blameworthiness”).    Accordingly, Lyle requires that the final clause of

subsection 902.1(2)(a) providing for a mandatory minimum term of

confinement also be severed for purposes of sentencing Louisell. With

strikethrough added to illustrate the severed parts, that subsection

would provide: “Notwithstanding subsection 1, a person convicted of a
                                         17

class “A” felony, and who was under the age of eighteen at the time the

offense was committed shall be eligible for parole after serving a

minimum term of confinement of twenty-five years.”                See Iowa Code

§ 902.1(2)(a).

       As we have noted, we employ the remedy of severing statutory

provisions in this context if the excised statute (1) does not substantially

impair the legislative purpose, (2) remains capable of fulfilling the

apparent legislative intent, and (3) can be given effect without the excised

language. See Am. Dog Owners Ass’n, 469 N.W.2d at 418. We conclude

the leaner section 902.1 remaining after severance of the constitutionally

infirm provisions comports with these criteria. The legislative purpose of

prescribing the most severe sentences for offenders convicted of murder

in the first degree—including juveniles—is maintained.                    Although

sentencing courts must have the discretion to decide juvenile offenders

convicted of the most serious of offenses shall be eligible for parole, the

legislature’s power to prescribe the sentence of life in prison is preserved.

Similarly, the severance remedy respects the legislature’s intent in

establishing the most substantial penalty available under Iowa law and

consistent with prevailing constitutional principles for first-degree

murder. The third criterion affecting our determination of whether the

severance remedy should be employed also augurs in favor of its

application here.      After constitutionally infirm provisions are severed

from section 902.1, the statute can be given effect.                In sentencing

Louisell, the court had discretion to impose a life sentence with eligibility

for parole. 7


       7As the Court noted in Miller, however, “given all [the Court] said in Roper,
Graham, and [Miller] about children’s diminished culpability and heightened capacity
for change, we think appropriate occasions for sentencing juveniles to [LWOP] will be
                                             18

       Having severed the provisions of section 902.1 affected by the

constitutional infirmity, we conclude the district court had discretion,

after considering the Miller factors, to sentence Louisell to life in prison

with    eligibility   for   parole.       Although       under     the    district    court’s

resentencing order Louisell would effectively be eligible for parole

immediately because she has already served more than twenty-five years,

we conclude the court’s sentencing discretion under the circumstances

presented here was limited to the question of whether Louisell is eligible

for parole. The district court had discretion to conclude Louisell should

be eligible for parole immediately, but after excising the unconstitutional

statutory provisions detailed above, we conclude the district court did

not have discretion under the remaining sentencing framework to decide

Louisell’s eligibility for parole commenced after serving a specific term of

twenty-five years in prison. 8 See Bonilla, 791 N.W.2d at 702 (severing

from a mandatory LWOP sentence only that which was necessary to

ensure a constitutionally permissible punishment). Accordingly, we also


___________________
uncommon.” Miller, 567 U.S. at ____, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. The
State does not contend the district court erred in exercising discretion to impose a
sentence making Louisell eligible for parole.
         8While this appeal was pending, the legislature passed Senate File 448, and the

governor signed the bill into law. See Governor’s Transmission of Approval (April 24,
2015), available at http://coolice.legis.iowa.gov/linc/86/external/govbills/SF448.pdf.
Senate File 448 authorizes sentencing judges to consider a list of sentencing factors and
select, as the district court did in this case, a minimum term of confinement before
making juveniles convicted of first-degree murder eligible for parole. 2015 Iowa Legis.
Serv. S.F. 448, § 1 (West 2015). The bill applies to any person “who was convicted of a
class ‘A’ felony prior to, on, or after the [bill’s immediate] effective date . . . and who was
under the age of eighteen at the time the offense was committed.” Id. § 5. However,
although the new statute would appear to authorize a sentence of life with parole after
twenty-five years if Louisell were resentenced today, we conclude the subsequent
legislation does not affect our consideration of whether that sentence was authorized at
the time the district court imposed it. Furthermore, we express no opinion as to the
constitutionality of this new statute.
                                          19

vacate this aspect of the sentence and remand for entry of a sentence of

life in prison with eligibility for parole. 9

       C. Meaningful Opportunity for Parole. Our conclusion that the

district court’s discretion allowed it to conclude Louisell should be

parole-eligible does not end our analysis.            As we have noted, Louisell

asserts the district court’s choice of a determinate sentence and

discharge from prison should be upheld because, in reality, her eligibility

for parole is illusory, not real.           She emphasizes that, since Miller,

Ragland, Null, and Pearson were decided, only one of Iowa’s thirty-eight

juvenile offenders originally sentenced to LWOP has been granted parole.

The only one of these prisoners granted parole was conditionally released

to hospice care for cancer treatment, and the parole board reserved the

right to revisit its decision if her health improved. Grant Rodgers, Dying

Inmate Kristina Fetters Granted Hospice-Only Parole, Des Moines Reg.

(Dec. 3,     2013),     http://blogs.desmoinesregister.com/dmr/index.php/

2013/12/03/board-grants-fetters-parole-to-hospice-only/article. 10

       This historical data, Louisell contends, should give us little

confidence that the existing parole system establishes a meaningful

opportunity for parole for juvenile offenders serving life sentences.                 In
other words, Louisell posits if juveniles who committed class “A” felonies

less   serious     than   murder—such          as   kidnapping      or   robbery—are

       9We  emphasize our holding today addresses only the scope of the district court’s
discretion to impose an individualized sentence after considering the Miller factors. The
question whether the sentence of life in prison with eligibility for parole is in this
particular case disproportionate, illegal, or cruel and unusual under either the Eighth
Amendment or article I, section 17 of the Iowa Constitution is neither raised nor
decided in this appeal.
       10Fetterspassed away while in hospice care. Daniel P. Finney & Linh Ta, Freed
Inmate Kristina Fetters, Convicted as Juvenile, Dies, Des Moines Reg. (July 28, 2014),
available at http://www.desmoinesregister.com/story/news/crime-and-courts/2014/
07/27/kristina-fetters-dies/13238853/.
                                          20

repeatedly denied parole based on offense severity, there is no realistic

opportunity for her to receive parole, no matter how extensively she has

been rehabilitated.      Without a realistic and meaningful opportunity, a

scholar has suggested, “the fact that a teen who was impulsive, reckless,

and without moral grounding[] becomes an adult who has none of these

traits” is wholly (and wrongly) ignored.           Samuel H. Pillsbury, Talking

About Cruelty: The Eighth Amendment and Juvenile Offenders After Miller

v. Alabama, 46 Loy. L.A. L. Rev. 885, 926 (2013). The question whether

Louisell—although now eligible for parole—has been denied it in violation

of law is not before us in this appeal. 11

       Although the question whether Louisell has been wrongfully denied

parole is not ripe for our decision at this juncture, we reaffirm that under

both the United States Constitution and the Iowa Constitution, juveniles

convicted of crimes must be afforded a “meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation”—if a

sentencing judge, exercising discretion, determines parole should be

available. See Graham, 560 U.S. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d

at 845–46; see also Miller, 567 U.S. at ___, 132 S. Ct. at 2475, 183 L. Ed.

2d at 430 (concluding judges sentencing juveniles convicted of murder
must be able to consider mitigating factors and determine whether parole

should be available); Null, 836 N.W.2d at 67–68.                        In Null, we

acknowledged

       it is unclear what the Supreme Court precisely meant in
       Graham by requiring the state to provide “some meaningful
       opportunity to obtain release based on demonstrated


       11We  note, however, that our parole statutes and administrative rules currently
provide the board of parole shall parole an inmate when “there is reasonable probability
that the person can be released without detriment to the community” or to themselves.
Iowa Code § 906.4 (2015) (emphasis added); see also Iowa Admin. Code r. 205–8.1.
                                     21
      maturity and rehabilitation.” 560 U.S. at 74, 130 S. Ct. at
      2030, 176 L. Ed. 2d at 845–46. It did not indicate when
      such an opportunity must be provided or provide guidance
      regarding the nature or structure of such a second-look or
      back-end opportunity. Instead, the Court left it to the
      states “to explore the means and mechanisms for
      compliance.” Id. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d at
      846.

Null, 836 N.W.2d at 67–68 (footnote omitted). Since Null, we have not

had occasion to explore more fully the meaning of the phrase

“meaningful opportunity” in this context.       To be sure, a meaningful

opportunity must be realistic.     Graham, 560 U.S. at 82, 130 S. Ct. at

2034, 176 L. Ed. 2d at 850.       But we must leave for another day the

question whether repeated cursory denials of parole deprive juvenile

offenders who have shown demonstrable rehabilitation and maturity of a

meaningful or realistic opportunity for release.

      As presently codified, the Iowa Code and the Iowa Administrative

Code enumerate factors the parole board considers when making parole

decisions.     Iowa Code § 906.5(3) (2015); Iowa Admin. Code r. 205—

8.10(1).     These codified factors do not closely track the Miller factors

pertinent to the parole eligibility of juvenile offenders, nor do they

account for the mitigating attributes of youth that are constitutionally

required sentencing considerations.        One scholar has opined that

“[w]ithout . . . particularized assessment, youth sentenced to long prison

terms, even with the possibility of parole, will continue to be denied the

‘meaningful opportunity to obtain release’ promised by Graham and

Miller.” Laura Cohen, Freedom’s Road: Youth, Parole, and the Promise of

Miller v. Alabama and Graham v. Florida, 35 Cardozo L. Rev. 1031,

1055–56 (2014) (emphasis added). “And, if the possibility of parole does

not afford an inmate a true expectation of release, why should it render

valid an otherwise invalid sentence?” Id. at 1059; see also Richard A.
                                          22

Bierschbach, Proportionality and Parole, 160 U. Pa. L. Rev. 1745, 1761–

62 (2012) (asserting that, just as the possibility of commutation or

clemency does not provide a meaningful opportunity for release, a

possibility of parole that is only remote is not meaningful).

      V. Conclusion.

      The district court did not have authority to sentence Louisell to a

determinate term of twenty-five years in prison for murder in the first

degree.     Although     the   district    court   did   have   authority   upon

consideration of the Miller factors to resentence Louisell to life in prison

with eligibility for parole, the court did not have authority at the time of

resentencing to order commencement of Louisell’s eligibility for parole to

begin after serving twenty-five years in prison. Accordingly, we vacate

the sentencing order and remand for entry of the sentence of life in

prison with eligibility for parole.

      DISTRICT        COURT       SENTENCE          VACATED       AND       CASE

REMANDED WITH INSTRUCTIONS.

      All justices concur except Mansfield, Waterman, and Zager, JJ.,

who concur in part and dissent in part.
                                           23

                                                         #14–0175, State v. Louisell

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

       I join the court’s well-reasoned opinion with the exception of part

IV.B, where I respectfully dissent. In part IV.A, the court recognizes the

legislature’s right to determine appropriate sentences, subject to

constitutional constraints. However, in part IV.B, the court disregards

the lesson of part IV.A and resentences Louisell itself, instead of giving

effect to current law. I believe it is wrong not to give the 2015 legislation

its intended effect, and wrong not to apply it to Yvette Louisell’s case.12

As noted by the majority in a footnote, our general assembly recently

amended the law relating to sentencing of juveniles convicted of first

degree murder. The law now provides:

       [A] defendant convicted of murder in the first degree in
       violation of section 707.2, and who was under the age of
       eighteen at the time the offense was committed shall receive
       one of the following sentences:

             (1) Commitment to the director of the department of
       corrections for the rest of the defendant’s life with no
       possibility of parole unless the governor commutes the
       sentence to a term of years.

             (2) Commitment to the custody of the director of the
       department of corrections for the rest of the defendant’s life
       with the possibility of parole after serving a minimum term of
       confinement as determined by the court.

             (3) Commitment to the custody of the director of the
       department of corrections for the rest of the defendant’s life
       with the possibility of parole.


       12One    initial comment: While my review of the record for most part confirms the
court’s statement of background facts, the court has largely presented Louisell’s version
of the 1987 stabbing death of Stilwell. The jury rejected this version in finding her
guilty of first-degree murder. We do not have the trial transcript in the present record,
but the court of appeals opinion affirming her conviction presents additional facts that
support Louisell’s guilt. See State v. Louisell, No. 88–1601 (Iowa Ct. App. Apr. 24,
1990). This is not to deny Louisell’s difficult upbringing, or her achievements in prison.
                                     24

2015 Iowa Legis. Serv. no. 76 (S.F. 448) (West 2015) (to be codified at

Iowa Code § 902.1).

      Thus, the legislature has now established three sentencing

options—life without parole, life with parole, and life with parole

eligibility after service of a term of years. Id. § 1. This law applies to “a

person who was convicted of a class ‘A’ felony prior to, on, or after the

effective date of this Act and who was under the age of eighteen at the

time the offense was committed.” Id. § 5. Hence, by its terms, the law

applies to Louisell.

      Generally, of course, criminal defendants are sentenced based on

the law that was in effect at the time the crime was committed. However,

Iowa Code section 4.13(2) provides that if the punishment for an offense

is reduced, then punishment “if not already imposed shall be imposed

according to the statute as amended.” Iowa Code § 4.13(2) (2015); see

State v. Chrisman, 514 N.W.2d 57, 61, 63 (Iowa 1994) (holding that

where legislation reducing the punishment became effective after the

crime was committed but before sentencing, the new legislation applied).

The legislature’s 2015 amendment amounts to a reduction in the prior

mandatory life-without-parole (LWOP) sentence.       Thus, with respect to

any juvenile homicide defendant who has not yet been sentenced, or

whose LWOP sentence has been vacated and has not yet been

resentenced, section 4.13(2) would apply—not to mention the fact

(already noted) that the 2015 legislation itself says that it applies

retroactively. See 2015 Iowa Legis. Serv. no. 76 (S.F. 448) § 5.

      Our colleagues in Nebraska recently had to sort through similar

issues.   In 2013, responding to the United States Supreme Court’s

decision in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed.

2d 407 (2012), the Nebraska legislature eliminated mandatory LWOP for
                                      25

juveniles who commit first-degree murder and provided a sentencing

range of forty years to life. See State v. Castaneda, 842 N.W.2d 740, 759

(Neb. 2014). The Nebraska Supreme Court then had to address the case

of a defendant who had been sentenced to LWOP before Miller but whose

appeal was still pending at the time of the 2013 amendment. Id. at 760.

The defendant argued his LWOP sentence should be struck down and he

should be given the sentence for second-degree murder as it existed

when he committed the offense. Id. at 760–61. The state maintained the

defendant should be resentenced under the 2013 legislation. Id. at 760.

       The court agreed with the state. Id. at 761–62. The court found

no ex post facto violation because the new law was ameliorative—it

reduced the sentence for first-degree murder. Id. And the court found

that application of the new law was supported by a Nebraska principle of

legal interpretation similar to Iowa Code section 4.13(2), which provided

that   “[w]here   a   criminal   statute   is   amended   by   mitigating   the

punishment, after the commission of a prohibited act but before final

judgment, the punishment is that provided by the amendatory act unless

the Legislature has specifically provided otherwise.” Id. at 762 (internal

quotation marks omitted). Thus, the court directed that the defendant

be resentenced for first-degree felony murder under the 2013 sentencing

legislation. Id.; see also State v. Taylor, 842 N.W.2d 771, 780–81 (Neb.

2014) (going through the same analysis for another defendant who had

been convicted and sentenced to life without parole pre-Miller for a first-

degree murder committed as a juvenile); State v. Ramirez, 842 N.W.2d

694, 711–13 (Neb. 2014) (same).

       Florida has similarly determined that its new sentencing law for

juveniles, passed in response to Miller, should apply to defendants whose

sentences became unconstitutional as a result of Miller. See Horsley v.
                                      26

State, 160 So. 3d 393, 405, 408 (Fla. 2015). In Horsley, the defendant

had been sentenced pre-Miller to life in prison without the possibility of

parole for first-degree felony murder under a mandatory sentencing

scheme. Id. at 395–96. In 2014, the Florida legislature enacted curative

legislation in response to Miller with an effective date of July 1, 2014. Id.

at 394–95.     Horsley filed a motion to correct his sentence, which had

become unconstitutional following Miller.         See id. at 396.        The

intermediate appellate court certified the question of how it should

resentence Horsley to the Florida Supreme Court. Id. at 397.

        The Florida Supreme Court determined that rather than reviving

and partially rewriting a previous version of the law, the sentencing court

should resentence Horsley under the 2014 legislation. See id. at 405–08.

It decided that reviving the prior statute was not consistent with

legislative intent in light of the new law.     See id. at 405–06.    It also

rejected the idea that application of the 2014 legislation would violate the

state    constitution’s   savings   clause,   which   precludes   retroactive

application of criminal statutes. Id. at 406. It noted that the savings

clause was meant to “require the statute in effect at the time of the crime

to govern the sentence an offender receives.” Id. Yet, in the case of the

juvenile sentencing law, “the statute in effect at the time of the crime is

unconstitutional under Miller and the federal constitution, so it cannot,

in any event, be enforced.” Id. The court concluded that “[o]n remand,

the trial court should hold an individualized sentencing hearing

pursuant to [the 2014 law].” Id. at 408; see also Falcon v. State, ___ So.

3d ___, ___, 2015 WL 1239365, at *8–9 (Fla. Mar. 19, 2015) (concluding

Miller should apply retroactively and any defendant whose sentence is

invalidated by the retroactive application of Miller should be resentenced

under the 2014 Florida legislation pursuant to Horsley); Cruz v. State,
                                        27

___ So. 3d ___, ___ , 2015 WL 2137783, at *1 (Fla. Dist. Ct. App. May 8,

2015) (applying the Horsley analysis to a defendant who had been

sentenced      to   life   without   parole   pre-Miller   and   remanding   for

resentencing consistent with the 2014 Florida legislation); Mares v. State,

___ So. 3d ___, ___, 2015 WL 2078179, at *1 (Fla. Dist. Ct. App. May 6,

2015) (same); Maize v. State, ___ So. 3d ___, ___, 2015 WL 2078212, at *1

(Fla. Dist. Ct. App. May 6, 2015) (same); Davis v. State, ___ So. 3d ___,

___, 2015 WL 2078277, at *1 (Fla. Dist. Ct. App. May 6, 2015) (same);

Moran v. State, ___ So. 3d ___, ___, 2015 WL 2078374, at *1 (Fla. Dist. Ct.

App. May 6, 2015) (same).

      Washington has reached the same conclusion. Following Miller, its

legislature enacted a “Miller fix” that “explicitly applies retrospectively to

acts that occurred before its enactment.”          In re McNeil, 334 P.3d 548,

588–91 (Wash. 2014) (en banc). The fix authorized a sentencing range of

twenty-five years to life without parole. Id. at 589. Petitioners who had

been convicted and sentenced before Miller argued that they could only

receive a sentence that was both on the books and constitutional at the

time of their crimes, which was a determinate twenty-year sentence. Id.

at 591.   The Washington Supreme Court unanimously disagreed and

found the new law applied.           Id. at 593; id. at 596–97 (McCloud, J.,

concurring).

      The same analysis utilized by the Nebraska, Florida, and

Washington supreme courts applies here. If Louisell’s existing sentence

is invalid and she must be resentenced, the resentencing should take

place under the 2015 legislation.

      The majority engages in no analysis on these points. Instead, it

simply says in a conclusory way, without providing authority or

reasoning:
                                    28
      [A]lthough the new statute would appear to authorize a
      sentence of life with parole after twenty-five years if Louisell
      were resentenced today, we conclude the subsequent
      legislation does not affect our consideration of whether that
      sentence was authorized at the time the district court
      imposed it.

      This sentence contradicts itself. If Louisell’s 2014 sentence wasn’t

authorized at the time the district court imposed it, then she is being

resentenced today. And this means the 2015 law applies. We should not

be performing surgery on the unconstitutional 1987 sentencing law now

that the legislature has spoken. Instead, we should follow the range of

sentencing options provided by the 2015 sentencing law.

      The close question for me is not whether we can sentence Louisell

on our own to life with parole. Clearly, we cannot do this. We are not a

sentencing court. The close question for me is whether we should affirm

the district court’s backup sentence of life with parole eligibility after

twenty-five years, or remand for resentencing in accordance with the

2015 law.   I can see reasonable arguments for both approaches.          The

district court’s alternative sentence of life with parole eligibility after

twenty-five years is authorized under the 2015 legislation.          So, by

affirming that backup sentence, we would be upholding a sentence that

the legislature has approved.

      However, the district court did not have the benefit of the 2015 law

when it imposed Louisell’s sentence. Normally, the prudent and fairer

course of action would be to remand the case to the district court for

resentencing under the 2015 legislation. At that point, the district court

would have a number of options, but would presumably select one that

makes Louisell available for parole now. In summary, I do not think we

can simply resentence Louisell ourselves based on our edits to a

superseded law.
                               29

      Waterman and Zager, JJ., join this concurrence in part and

dissent in part.
