               IN THE SUPREME COURT OF IOWA

                                No. 14–0455

                             Filed May 27, 2016


STATE OF IOWA,

      Appellee,

vs.

ISAIAH RICHARD SWEET,

      Appellant.


      Appeal from the Iowa District Court for Delaware County,

Michael J. Shubatt, Judge.



      A juvenile offender convicted of first-degree murder appeals from

the district court’s order sentencing him to life in prison without the

possibility of parole. DISTRICT COURT SENTENCE REVERSED AND

CASE REMANDED WITH INSTRUCTIONS.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Tyler J. Buller and Denise A.

Timmins, Assistant Attorneys General, and John Bernau, County

Attorney, for appellee.
                                     2

APPEL, Justice.

        In this case, we consider whether a juvenile who committed first-

degree murder may be committed to life in prison without the possibility

of parole, consistent with article I, section 17 of the Iowa Constitution.

After a sentencing hearing, the district court in this case sentenced the

defendant to life in prison without the possibility of parole.      For the

reasons expressed below, we reverse and remand the case to the district

court for resentencing consistent with this opinion.

        I. Factual and Procedural Background.

        A. Overview of the Crime. On May 11, 2012, seventeen-year-old

Isaiah Sweet shot and killed Richard and Janet Sweet.         Richard and

Janet had cared for Sweet since he was four years old, as his biological

mother was unable to do so. Richard was Sweet’s biological grandfather.

Richard and Janet had been married for thirty years.

        Sweet was arrested three days after the murder. After being given

Miranda warnings, Sweet described events leading to the murders, the

details of the murders themselves, and his activities in the days after the

murders.

        According to Sweet, Janet was dying of cancer. His grandfather,

he stated, “called [him] a piece of shit every night of [his] life and every

day.”    Sweet contended, “[Richard] constantly told [him] to just kill

[himself] and fall off the earth” and “they treated [him] like shit.”

According to Sweet,

        [he] tried so hard to help [his] grandma with everything, but
        [his] grandpa made everything so hard because [he was]
        always stressin’ [Sweet] out, would scream at [him] for no
        reason and [he] didn’t know what to do anymore, so [he] just
        snapped.
                                    3

      Sweet described events on the day of the murders. According to

Sweet, he retrieved an assault rifle he had taken from his grandparents’

room and loaded the rifle with hollow-point rounds because he knew that

they would do the most damage, but also because he did not want his

grandparents to go through any pain. He put on earmuffs to protect his

own hearing. He shot his grandfather in the head from behind because

he “hate[d] him [and because he] made [Sweet’s] life a living hell.” He

then shot his grandmother twice in the head.      After he shot them, he

walked over to them and kissed them, told them he was sorry, and

prayed for forgiveness. Sweet stated he knew right away what he did was

wrong and he wanted to take it back.

      After the murders, Sweet picked up a friend, and they went back to

the house. He took a sawed-off shotgun, a knife, the assault rifle, a TV,

some clothes, and nine dollars from his grandparents’ wallets and left the

house. Sweet then left the assault rifle and shotgun with some friends

and drove to Cedar Rapids where he “party hopped to like eight different

apartments” and engaged in drug transactions. Sweet told police that he

told a number of persons about the murders, including his former

girlfriend.

      The next day, May 12, Sweet attended a birthday party for a

friend’s sister and then drove to Iowa City to “some big ass party.” After

the party, the police arrested Sweet for driving with a suspended license,

and the car was impounded. At the police station, Sweet told authorities

his grandparents were at the Mayo Clinic. Police allowed Sweet to call

his counselor, and Sweet was released to the counselor the following day.

Sweet thereafter continued his drug usage and spent the evening in a

tent in the woods. The next day, May 14, authorities arrested him after

spotting him at a Hardee’s restaurant.
                                       4

      B. Initial Legal Proceedings. The State charged Sweet with two

counts of first-degree murder. Sweet pled not guilty, and his case came

to trial in October 2013.   At the conclusion of the State’s case, Sweet

reached a plea agreement with the State. Sweet agreed to plead guilty to

two counts of first-degree murder. The State agreed to recommend that

the sentences run concurrently.            The State and Sweet agreed a

sentencing hearing would occur based on Sweet’s “age and the state of

[the] law.” Upon being informed of the plea agreement, the court engaged

Sweet in a colloquy in which Sweet stated that the witnesses would

truthfully testify to facts stated in the minutes of testimony. The district

court accepted the guilty plea and entered an order for a presentence

investigation (PSI) report to be prepared. In the order, the court noted

that the basis for the request was “the Iowa Supreme Court’s decisions in

Null, Pearson, and Ragland.”

      C. PSI Report. Pursuant to the court’s order, a PSI report was

prepared by the department of correctional services.       The PSI report

outlined the facts surrounding the crimes. The juvenile arrest history in

the PSI report included a curfew violation, possession of illegal drugs,

possession of drug paraphernalia, possession of alcohol under eighteen,

minor using tobacco, assault with intent to commit sexual abuse, and

operating a vehicle without consent.

      With respect to his education, the PSI report indicated Sweet had

dropped out of high school in his junior year with a grade point average

of 1.061. The PSI report noted Sweet claimed he was “really intelligent”

but did not apply himself and was too busy with friends to worry about

grades. According to Sweet, he passed three of the GED pretests. He

planned to move to Pennsylvania when he turned eighteen and live with
                                    5

his mother so he could attend Penn State University.       The PSI report

indicated he had been suspended from school on numerous occasions.

      The PSI report included an extended discussion of Sweet’s family

dynamics.   Sweet’s parents, Stacy Sweet and Christopher Galli, never

married but were together for about five years. Stacy reported both she

and Christopher had histories of substance abuse, with Stacy admitting

to cocaine addiction. After Sweet was born, Stacy gave birth to another

child by Ronald Kempinski. Kempinski at one point left Stacy and took

the two children, thereafter leaving Sweet with Richard; however Stacy

stated she took Sweet back at some point.

      Events leading up to the placement of Sweet with Richard and

Janet are unclear. Sweet reported his parents’ rights were terminated

because he was raped by a neighbor when he was about four.           Stacy

maintained her parental rights were never terminated, but she could not

pursue custody because she was involved in a relationship in which

there was domestic violence. Stacy reported she had been physically and

verbally abused by Richard and Janet when she was a child and wanted

her son placed in foster care instead of with her parents. What is clear is

that Sweet came to live with Richard and Janet when he was

approximately four.

      The PSI report further indicated that Richard and Janet moved to

Iowa when Sweet was seven to attend to Richard’s mother who was in

poor health. Richard and Janet did not allow Sweet to talk to his mother

until he became a teenager, when Stacy gave him a cell phone. When

Stacy moved back to Iowa in 2010, the family fought constantly. Sweet

wanted to live with her but Richard and Janet would not allow it. Stacy

moved back to Pennsylvania in 2012.
                                    6

      The family dynamics between Richard, Janet, and Sweet were

tumultuous, with frequent arguments and screaming. Sweet reported he

was diagnosed with Attention Deficit Disorder (ADD) at the age of four.

Counseling was sought from Families, Inc. in early 2011, which was

unsuccessful.    Sweet reported the family therapist recommended

inpatient committal for drug abuse, which occurred, followed by

outpatient support from the ABBE Center in Manchester. At the ABBE

Center, Sweet was diagnosed with Attention Deficit Hyperactivity

Disorder and Conduct Disorder.      The therapist characterized Sweet’s

insight and judgment as “limited” and noted he “may be experiencing

symptoms of mania and [the] diagnosis may be Bipolar Disorder, as

evidenced by [the] impulsive behaviors displayed and [the] behavior with

risk for consequences.”

      Sweet was first referred to Juvenile Court Services (JCS) in March

2011 and again in December 2011.         His cooperation with JCS was

inconsistent. After being accused of a sexual assault in April 2012, he

again met with JCS. On their way home from the meeting, Sweet jumped

from his grandparents’ moving vehicle.

      Regarding his emotional and personal health, the PSI report

indicated Sweet reported he had attempted suicide several times in the

past, with the most recent attempt being in the tent just prior to his

arrest for the murder of his grandparents.

      The PSI report noted that Richard had legal difficulties with Stacy

and his other daughter, Alysia, arising from the distribution of assets

from his mother’s estate. The dispute led to Richard’s arrest on a theft

charge and the loss of his job as a result of the arrest. Stacy reported

Richard took his anger at his two daughters out on Sweet and was

abusive towards Sweet.
                                     7

      The PSI report also provided information regarding drug abuse in

the Sweet household.     Richard’s daughter told therapists that Richard

was an alcoholic, while Sweet indicated he sold Adderall to Richard.

Beginning at age fourteen, Sweet began using marijuana. At the time of

his arrest, he was using marijuana daily. He also abused “all kinds of

pain killers and prescription drugs” but denied use of methamphetamine

or needle-injected substances. His grandparents had Sweet committed

because of suspected drug abuse in July 2011. Sweet also began using

alcohol at age fifteen and engaged in binge drinking from time to time.

Sweet, however, denied having an alcohol or drug abuse problem.

      Lastly, the PSI report contained information about risk-taking

behavior.   Sweet told a psychiatrist that he enjoyed reckless activities

with friends, such as doing a back flip off a bridge into shallow water or

playing games that involved dropping burning cigarettes between two

friends’ arms. Sweet also recalled drinking to excess and having a friend

burn him fifteen times with cigarettes.

      D. Sentencing Hearing.        A sentencing hearing occurred on

February 26, 2014. The court was provided with the PSI report, which

was admitted into evidence without objection and without correction or

elaboration by either party.   The court also admitted Sweet’s juvenile

records, a video recording of an interview with Sweet following the

murders, a transcript of that interview, a transcript of the State’s case in

chief in the murder trial prior to the plea agreement, and photographs of

the crime scene and the weapon used to commit the crime.

      The court heard victim impact statements from Matthew Camlin,

the son of Janet and stepson of Richard; Amanda Sichra, Jane and

Richard’s granddaughter; and Angie Camlin, daughter of Janet and

stepdaughter of Richard.
                                        8

        The State offered the testimony of John McEnany, a juvenile court

officer.    McEnany      generally   described    information       gleaned   from

approximately ten meetings with Sweet that commenced in December

2011 after Sweet was charged with possession of drug paraphernalia.

McEnany recounted a history of Sweet’s unstable family life, previous

counseling services that Richard and Janet had sought for Sweet’s

behavioral and mental health issues, and his lengthy juvenile record.

        At the close of the State’s evidence, the defense offered and the

court heard a victim impact statement from Stacy, Sweet’s mother, but

also the daughter of one of the deceased, Richard.                Like the victims

providing impact statements in the State’s case, Stacy’s testimony ranged

beyond the impact of the crime on her. Although Stacy testified broadly

about the nature of the crime and the kind of punishment she desired,

the court emphasized that it would consider the victim impact statement

only to the extent it related to the impact of the crime on her and nothing

else.

        Sweet then offered the testimony of Dr. Stephen Hart, a highly

qualified expert witness in the field of clinical psychology with a special

focus on the assessment of violence, risk, and psychopathic personality

disorder.   Dr. Hart reviewed extensive documentation regarding Sweet

and also interviewed Sweet prior to preparing his report.

        Dr. Hart generally summarized advancements in the past twenty to

thirty years regarding the understanding of the development of the

adolescent brain. He noted it is now understood that up until the age of

about twenty-five there is a period of rapid change or development in the

adolescent brain. Regarding the maturation of the adolescent brain, he

noted that when individuals are young they are impulsive, and as people

get older, “[they] learn . . . the skills to inhibit behavior.”
                                        9

        With respect to Sweet, Dr. Hart concluded he had severe

developmental problems, serious problems related to mental health,

serious problems with personal relationships, and serious problems with

educational adjustment.        He asserted Sweet’s decision-making was

destabilized by disturbed attention and also by impulsivity.              Dr. Hart

concluded Sweet was psychologically and socially immature (in terms of

self-concept, empathy, and insight) and impetuous at least in part due to

early   onset,   severe   ADD.     He       testified   that    while   Sweet    was

chronologically seventeen, his psychological or social maturation was

somewhere around twelve, thirteen, or fourteen.                Dr. Hart noted that

although Sweet’s actions appeared highly planned or premeditated, they

were a “pretty bad plan” and not the “well executed plan of a common

criminal.”

        Dr. Hart concluded by noting Sweet’s prospects for rehabilitation

were “mixed.”     According to Dr. Hart, there was some chance Sweet

would experience a spontaneous partial or even full remission of his

symptoms. However, he testified it was simply not possible to determine

whether Sweet would develop a full-blown psychopathic personality

disorder as an adult, and even if he did, psychologists could not say

whether it would be untreatable. According to Dr. Hart, the earliest a

determination     could   be     made       regarding    Sweet’s     potential   for

rehabilitation was age thirty. According to Dr. Hart, “[W]e won’t even be

in a position to make a decision [about whether Sweet will get better or

not] for many years because of his youth.”

        Sweet was last to testify. He expressed remorse and discussed his

tumultuous relationship with his grandparents, which created “trust

issues.” Sweet asked the court to consider his youth and his desire to be

rehabilitated when imposing its sentence.
                                     10

      The district court rendered its sentencing decision on March 11.

After listing the Miller/Ragland factors, the district court sentenced

Sweet to life in prison without the possibility of parole. The district court

noted that Sweet was seventeen years and three months old at the time

of the murder.    While his maturity was debatable, the district court

stressed that the crimes were premeditated. The district court felt that

Dr. Hart’s characterization of Sweet’s possibility of rehabilitation as

mixed was overly optimistic.    Further, the district court found Sweet’s

case was the rare case in which a sentence of life without the possibility

of parole was warranted, as the murders were horrific and showed utter

lack of humanity. The district court concluded that Sweet was currently,

and will continue to be, a threat to society and that the interests of

justice and community safety outweighed mitigating factors.

      II. Standard of Review.

      Our standard of review when a defendant attacks his or her

sentence on constitutional grounds is de novo.         State v. Seats, 865

N.W.2d 545, 553 (Iowa 2015); State v. Lyle, 854 N.W.2d 378, 382 (Iowa

2014); State v. Ragland, 836 N.W.2d 107, 113 (Iowa 2013); State v.

Pearson, 836 N.W.2d 88, 94 (Iowa 2013); State v. Null, 836 N.W.2d 41, 48

(Iowa 2013); State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).

      III. Discussion.

      A. Positions of the Parties.

      1. Sweet. Sweet raises two related but distinct arguments in this

appeal. First, Sweet argues the district court erred in holding that this is

a rare or uncommon case for which life imprisonment without parole

may be imposed on a juvenile. Citing the Roper–Graham–Miller trilogy,

the leading United States Supreme Court cases under the Eighth

Amendment, Sweet asserts his age, his immaturity and impetuousness,
                                         11

his family and home environment, and his prospects for rehabilitation

make a life-without-parole sentence constitutionally impermissible. 1 See

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

(2012); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d

825 (2010); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161

L. Ed. 2d 1 (2005).

        Sweet does not expressly state whether he is proceeding under the

cruel    and     unusual   punishment       provision    of    the   United     States

Constitution or the Iowa Constitution.            Along with citing the Supreme

Court cases, Sweet also cites recent Iowa cases decided under the cruel

and unusual punishment provision of the Iowa Constitution, article I,

section 17. See Lyle, 854 N.W.2d at 378; Ragland, 836 N.W.2d at 107;

Null, 836 N.W.2d at 41.         When a party does not specifically indicate

whether a claim is based under the Iowa or Federal Constitution, both

the state and federal claims are preserved. See State v. Harrington, 805

N.W.2d 391, 393 n.3 (Iowa 2011); King v. State, 797 N.W.2d 565, 571

(Iowa 2011). When a different standard is not presented under the Iowa

Constitution, however, we apply the federal framework, reserving the

right to apply that framework in a fashion different from federal

precedents. See State v. Breuer, 808 N.W.2d 195, 200 (Iowa 2012); State

v. Pals, 805 N.W.2d 767, 771–72 (Iowa 2011).

        Next, Sweet contends life without the possibility of parole should

be   categorically    banned     for   juvenile    offenders    under     the    Iowa

Constitution.      He argues the rationale of Graham, namely, that it is


        1Sweet suggests the standard of review on his Miller-type claim is abuse of
discretion. This is incorrect. Review of Miller-type constitutional claims is de novo.
See, e.g., Seats, 865 N.W.2d at 553 (explaining various standards for challenges to
sentences, including de novo review for constitutional claims).
                                   12

impossible to determine the future behavior of juvenile offenders,

supports a categorical ban on life without the possibility of parole in

homicide cases. He notes the United States is the only country in the

world that imposes life-without-the-possibility-of-parole sentences on

juveniles, see Scott R. Hechinger, Juvenile Life Without Parole: An

Antidote to Congress’s One-Way Criminal Law Ratchet, 35 N.Y.U. Rev. L.

& Soc. Change 408, 411 (2011), and the abandonment of such sentences

has been supported by professional organizations such as the American

Bar Association, the American Psychological Association, the American

Psychiatric Association, and the National Association of Social Workers.

See Brief for Am. Bar Ass’n as Amicus Curiae Supporting Petitioners,

Miller, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (Nos. 10–9647,

10–9646), 2012 WL 166269 [hereinafter ABA Brief]; Brief for Am.

Psychological Ass’n et al. as Amici Curiae in Supporting Petitioners,

Miller, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (Nos. 10–9646,

10–9647), 2012 WL 174239 [hereinafter APA Brief].

      The United States Supreme Court left this issue open in Miller.

Although Sweet mentions the Eighth Amendment to the United States

Constitution in passing, he does not expressly ground his claim on the

Eighth Amendment in his brief. Sweet explicitly brings his claim under

the Iowa Constitution. Because we decide this case on other grounds, we

need not consider whether Sweet waived any categorical challenge under

the United States Constitution.

      2. The State. The State asserts the district court did not abuse its

discretion, as it appropriately analyzed the Miller factors.   The State

contends Sweet murdered his grandparents in cold blood and that he is

an “uncommon” juvenile offender who warrants a sentence of life without

the possibility of parole. The State notes the murders were premeditated
                                    13

and were heinous in nature. According to the State, nothing in Sweet’s

background, including his chronological age, his family and home

environment, or the incompetencies of youth, support a lesser sentence

than life without the possibility of parole. With respect to rehabilitation,

the State argues there was no evidence the defendant can ever be

rehabilitated.   The State further argues that the Iowa and the United

States Constitutions permit the sentence of life without the possibility of

parole for some juvenile murderers.

      The State further rejects the notion that this court should adopt a

categorical approach to life without the possibility of parole for juvenile

offenders. According to the State, our cases since Miller—Null, Ragland,

Pearson, and Lyle—have all embraced the notion of individualized

hearings   to    determine   whether   a   life-in-prison   sentence   meets

constitutional muster.   The State emphasizes that in Miller the United

States Supreme Court did not embrace a categorical approach banning

life-in-prison sentences for juveniles. The State rejects the reliance on

the fact that the United States is an international outlier, asserting that

American law must be based on American values.

      B. United States Supreme Court Precedents.

      1. Introduction. We begin our consideration of the issues with a

review of United States Supreme Court precedents under the Cruel and

Unusual Punishment Clause of the Eighth Amendment.             In Weems v.

United States, the Supreme Court held that a twelve-year jail term in

irons at hard labor for the crime of falsifying records was excessive,

emphasizing “that it is a precept of justice that punishment for crime

should be graduated and proportioned to [the] offense.” 217 U.S. 349,

367, 30 S. Ct. 544, 549, 54 L. Ed. 793, 798 (1910). Later, in Trop v.

Dulles, the Supreme Court emphasized that the Eighth Amendment
                                       14

“must draw its meaning from the evolving standards of decency that

mark the progress of a maturing society.” 356 U.S. 86, 101, 78 S. Ct.

590, 598, 2 L. Ed. 2d 630, 642 (1958).          The teachings of Weems and

Trop, namely that the Eighth Amendment embraces a proportionality

principle that draws meaning from “the evolving standards of decency,”

have been repeatedly cited in more recent cruel and unusual punishment

cases of the United States Supreme Court.             See, e.g., Montgomery v.

Louisiana, 577 U.S. ___, 136 S. Ct. 718, 742, 193 L. Ed. 2d 599, 629

(2016) (Scalia, J., dissenting); Hall v. Florida, 572 U.S. ___, 134 S. Ct.

1986, 1992, 188 L. Ed. 2d 1007, 1016 (2014); Miller, 567 U.S. at ___, 132

S. Ct. at 2463, 183 L. Ed. 2d at 417; Graham, 560 U.S. at 58–59, 130

S. Ct. at 2021, 176 L. Ed. 2d at 835; Kennedy v. Louisiana, 554 U.S.

407, 419, 128 S. Ct. 2641, 2649, 171 L. Ed. 2d 525, 538 (2008); Roper,

543 U.S. at 560–61, 125 S. Ct. at 1190, 161 L. Ed. 2d at 16; Atkins v.

Virginia, 536 U.S. 304, 311–12, 122 S. Ct. 2242, 2247, 153 L. Ed. 2d

335, 344 (2002).

      2. Developing caselaw regarding the death penalty and vulnerable

classes. Beginning in the 1970s, the Supreme Court began to consider

whether   the   Cruel    and   Unusual Punishment Clause             should   be

interpreted to categorically bar the death penalty generally or, in the

alternative, with respect to certain vulnerable classes of people.          In a

series of cases, the Supreme Court considered the merits of broad

categorical prohibitions as compared to more precise case-by-case

adjudications   where,    at   least   in   theory,   the   law’s   most   severe

punishment was reserved for the most culpable or most deserving. While

this case deals with life in prison without parole rather than the death

penalty, the death-penalty cases provide a backdrop for the Supreme

Court’s later consideration of the implications of the Eighth Amendment
                                        15

on the sentence of life in prison without parole for juvenile offenders. In

particular, the death-penalty cases show the tension between categorical

rules, which prohibit imposition of the death penalty for certain classes

or cases, and a more finely tuned case-by-case approach, which seeks to

identify the most culpable of offenders who might be deserving of severe

punishment.

      The Supreme Court considered the constitutionality of the death

penalty in murder and rape cases in Furman v. Georgia, 408 U.S. 238, 92

S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (per curiam) (plurality opinion). In

Furman, a 5–4 majority of a highly fractured Supreme Court held that

the imposition of the death penalty in the cases before the court would

constitute cruel and unusual punishment in violation of the Eighth

Amendment. Id. at 239–40, 92 S. Ct. at 2727, 33 L. Ed. 2d at 350.

      The crucial opinion in Furman was provided by Justice Stewart,

who declined to reach the question of whether the death penalty was

categorically barred, but found the arbitrary and capricious nature of the

application of the death penalty made it unconstitutional as applied in

the cases before the court. Id. at 306, 309–10, 92 S. Ct. at 2760, 2762–

63, 33 L. Ed. 2d at 388, 389–90. According to Justice Stewart, the rarity

of the death penalty in cases where it might theoretically be imposed

made the sentences under consideration “cruel and unusual in the same

way that being struck by lightning is cruel and unusual.” Id. at 309, 92

S. Ct. at 2762, 33 L. Ed. 2d at 389–90.

      All in all, two justices in Furman found the death penalty

categorically unconstitutional for all purposes, 2 three justices found the

      2Furman,    408 U.S. at 305–06, 92 S. Ct. at 2760, 33 L. Ed. 2d at 387–88
(Brennan, J., concurring); id. at 358–59, 92 S. Ct. at 2787, 33 L. Ed. 2d at 417–18
(Marshall, J., concurring).
                                          16

statutes before the court unconstitutional as applied but declined to

reach the categorical question, 3 and four dissenting justices found the

death penalty not subject to categorical challenge. 4 While the categorical

issue thus remained open in Furman, the Supreme Court majority was

clearly concerned about the arbitrary nature of the imposition of the

death penalty and the need to focus its application on only the most

deserving offenders.

       The Supreme Court next considered whether the death penalty

should be categorically barred under the Cruel and Unusual Punishment

Clause in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d

859 (1976) (plurality opinion).            In Gregg, the statutory provision

authorizing the death penalty bifurcated the question of guilt from

penalty; the jury was instructed regarding aggravating and mitigating

factors; the prosecution had to prove an aggravating factor beyond a

reasonable doubt to support the death penalty; and the district court

was required to complete an extensive report on the trial proceedings. Id.

at 163–66, 96 S. Ct. at 2920–22, 49 L. Ed. 2d at 869–70. In addition, the

statute   provided     detailed    procedures      regarding     appeals    of   death

sentences. Id. at 166–68, 96 S. Ct. at 2922, 49 L. Ed. 2d at 870–71. The

statute provided that the Georgia Supreme Court would automatically

review any death sentence to determine if it was imposed under the


       3Furman,   408 U.S. at 257, 92 S. Ct. at 2735–36, 33 L. Ed. 2d at 359–60
(Douglas, J., concurring); id. at 309–10, 92 S. Ct. at 2762–63, 33 L. Ed. 2d at 390
(Stewart, J., concurring); id. at 312–13, 92 S. Ct. at 2764, 33 L. Ed. 2d at 392 (White,
J., concurring).
       4Furman,   408 U.S. at 375, 92 S. Ct. at 2796–97, 33 L. Ed. 2d at 428 (Burger,
C.J., dissenting); id. at 414, 92 S. Ct. at 2816, 33 L. Ed. 2d at 450–51 (Blackmun, J.,
dissenting); id. at 461–65, 92 S. Ct. at 2840–42, 33 L. Ed. 2d at 478–80 (Powell, J.,
dissenting); id. at 468, 92 S. Ct. at 2843, 33 L. Ed. 2d at 486 (Rehnquist, J.,
dissenting).
                                    17

influence of passion and prejudice, to determine if the evidence

supported statutory aggravating circumstances, and to determine

whether the sentence was disproportionate compared to sentences

imposed in similar cases. Id. at 166–67, 96 S. Ct. at 2922, 49 L. Ed. 2d

at 871.

      In Gregg, Justice Stewart joined the four dissenters in Furman to

uphold the Georgia death-penalty statute and the resulting convictions.

Id. at 168–69, 96 S. Ct. at 2922–23, 49 L. Ed. 2d at 872. In an opinion

joined by Justices Powell and Stevens, Justice Stewart characterized the

Furman decision as holding that the death penalty could not be imposed

“under sentencing procedures that created a substantial risk that it

would be inflicted in an arbitrary and capricious manner.” Id. at 188, 96

S. Ct. at 2932, 49 L. Ed. 2d at 883. As in Furman, the Gregg Supreme

Court plurality was plainly concerned with ensuring that the death

penalty was focused only on the most deserving offenders. Id. at 183, 96

S. Ct. at 2930, 49 L. Ed. 2d at 880.      Justice Stewart found that the

detailed procedures in the Georgia statute rendered the death penalty

constitutional in the case before the court. Id. at 207, 96 S. Ct. at 2941,

49 L. Ed. 2d at 893.

      The same day the Supreme Court decided Gregg, it also handed

down its decision in Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct.

2978, 49 L. Ed. 2d 944 (1976) (plurality opinion). In Woodson, the North

Carolina legislature responded to concerns in Furman about the arbitrary

and capricious nature of the application of the death penalty by enacting

a statute in which the death penalty was mandatory for the crime of first-

degree murder. Id. at 286–87, 96 S. Ct. at 2982–83, 49 L. Ed. 2d at 950–

51. This amounted to categorization in reverse: instead of categorically

barring the death penalty for those found guilty of first-degree murder,
                                    18

the statute categorically imposed the death penalty on all found guilty of

the crime. Id.

      In a plurality opinion by Justice Stewart, the Supreme Court found

the reverse categorical North Carolina statute unconstitutional.     Id. at

305, 96 S. Ct. at 2991–92, 49 L. Ed. 2d at 961–62.          The Woodson

plurality found the statute defective for three reasons. First, in practice

the United States’ evolving standards of decency reject mandatory

imposition of the death penalty for all persons convicted of a particular

offense as “unduly harsh and unworkably rigid.” Id. at 292–93, 96 S. Ct.

at 2985–86, 49 L. Ed. 2d at 953–54.       Second, the Woodson plurality

noted that juries had no standards to guide their exercise of power and

that juries might be willing to act lawlessly to avoid the imposition of a

death sentence. Id. at 302–03, 96 S. Ct. at 2990–91, 49 L. Ed. 2d at

959–60. Finally, the plurality emphasized that the statute failed to allow

“particularized consideration of relevant aspects of the character and

record of each convicted defendant before the imposition upon him of a

sentence of death.” Id. at 303, 96 S. Ct. at 2991, 49 L. Ed. 2d at 960–61.

      Read together, the opinions in Gregg and Woodson stand for the

proposition that a statutory death penalty, if appropriately structured,

could survive a categorical constitutional challenge under the Eighth

Amendment. The emphasis in Woodson on particularized, case-by-case

exploration of mitigation gave rise, however, to an important development

in the law, namely, the development in capital cases of a body of law

related to the proper presentation of a mitigation defense.      See, e.g.,

Lockett v. Ohio, 438 U.S. 586, 604–05, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d

973, 989–90 (1978) (plurality opinion).

      It has long been recognized that those offenders facing severe

penalties are often poorly represented in their underlying criminal trials.
                                        19

See Powell v. Alabama, 287 U.S. 45, 52, 53 S. Ct. 55, 58, 77 L. Ed. 158,

162 (1932).      The American Bar Association (ABA) took the lead in

developing mitigation guidelines for the defense of criminal defendants

facing the death penalty.

         As early as 1970, the ABA developed its generally applicable ABA

Standards Relating to the Prosecution Function and the Defense Function.

In response to the evolving death-penalty jurisprudence, the ABA

developed more specific guidelines relevant to representation in death-

penalty cases in the ABA Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003),

reprinted in 31 Hofstra L. Rev. 913 (2003) [hereinafter ABA Guidelines],

and Supplementary Guidelines for the Mitigation Function of Defense

Teams in Death Penalty Cases, 36 Hofstra L. Rev. 677 (2008) [hereinafter

Supplementary Guidelines].

         The later Supplementary Guidelines require the assembly of a

mitigation specialist to investigate potential mitigation defenses and

present them to the sentencer.          Supp. Guidelines, Guideline 4.1, 36

Hofstra L. Rev. at 680–81.           The guidelines and supplement require,

among other things, the establishment of a relationship of trust between

the defense team and the accused; thorough exploration of a defendant’s

family     and   social   history,    including   extensive   interviews;   the

participation in the defense of a trained mitigation expert experienced in

the psychological and social sciences; and the hiring of other experts to

assist the defense. ABA Guidelines, Guideline 10.5, 31 Hofstra L. Rev. at

1005–06; Supp. Guidelines, Guideline 10.11, 36 Hofstra L. Rev. at 689–

92.      The scope and manner of investigation and the advocacy

contemplated by the guidelines and supplement are at great variance

from the routine sentencing practices often employed in the courts. See
                                  20

ABA Guidelines, 31 Hofstra L. Rev. at 928 (describing the need for the

guidelines due to problems with the quality of defense being “profound

and pervasive” in death-penalty cases).     Under the guidelines and

supplement, the mass-produced, routine Model-A defense of offenders

facing the death penalty was abandoned in favor of a new, highly intense

individualized process that harnessed recent developments in behavioral

and psychological sciences.   See ABA Guidelines, Guideline 10.5, 31

Hofstra L. Rev. at 1005–06; Supp. Guidelines, Guideline 10.11, 36

Hofstra L. Rev. at 689–92.

      Although the Supreme Court has never held that the ABA

Guidelines or Supplementary Guidelines are mandatory, they have

nonetheless served as a guide for determining whether counsel has been

ineffective in death-penalty cases. Even though the federal standard of

ineffective assistance established in Strickland v. Washington, 466 U.S.

668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692–93 (1984), has

often been regarded as a difficult standard to meet, the Supreme Court,

citing ABA Standards and Guidelines, has found ineffective assistance in

a number of death-penalty cases. See, e.g., Rompilla v. Beard, 545 U.S.

374, 387–90, 125 S. Ct. 2456, 2465–67, 162 L. Ed. 2d 360, 375–77

(2005); Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 2536–37,

156 L. Ed. 2d 471, 486 (2003); Williams v. Taylor, 529 U.S. 362, 396,

120 S. Ct. 1495, 1514–15, 146 L. Ed. 2d 389, 420 (2000) (plurality

opinion).

      The upshot of the Supreme Court’s Gregg–Woodson line of cases is

that in states where the death penalty is authorized with an

appropriately detailed statute, a highly specialized “death penalty bar”

has arisen to ensure that death-penalty defendants obtain the kind of

representation necessary to prevent arbitrary and capricious application
                                    21

of the sanction and allow the death penalty to be imposed only on the

most culpable offenders.

      While the Woodson approach has generated a new and substantial

body of law regarding the process of case-by-case determinations in

death-penalty cases, the notion that the death penalty might be

categorically barred in certain types of cases remained viable. In Coker v.

Georgia, the Supreme Court considered the constitutionality of the death

penalty in connection with the rape of an adult woman. 433 U.S. 584,

97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) (plurality opinion). The Supreme

Court, by another 5–4 vote, took a categorical approach, finding that the

death penalty could not constitutionally be imposed for the crime of rape.

Id. at 600, 97 S. Ct. at 2870, 53 L. Ed. 2d at 994.

      In a plurality opinion, Justice White surveyed the attitudes of state

legislatures and sentencing juries and concluded that they weigh against

the death penalty for the crime of rape. Id. at 593–97, 97 S. Ct. at 2866–

68, 53 L. Ed. 2d at 990–92.      Justice White, however, stated that the

attitude of state legislatures and sentencing juries did not wholly resolve

the controversy as the Constitution contemplated that the Court brings

its own independent judgment to bear on the question. Id. at 597, 97

S. Ct. at 2868, 53 L. Ed. 2d at 992. In applying independent judgment,

Justice White concluded that the death penalty for rape was categorically

unconstitutional. Id. at 600, 97 S. Ct. at 2870, 53 L. Ed. 2d at 994. In

reaching this conclusion, he noted that rape was not the equivalent of

murder and yet under Georgia law, a rapist could face the death penalty

while a person who deliberately murdered a victim without aggravating

circumstances would escape a death sentence. Id. at 599–600, 97 S. Ct.

at 2869–70, 53 L. Ed. 2d at 993–94.
                                     22

        The Supreme Court came to a similar categorical conclusion in

Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140

(1982) (plurality opinion). In Enmund, the Supreme Court held that the

death penalty could not constitutionally be applied to persons convicted

on an aiding and abetting theory when the defendant did not kill or

intend to kill the victim. Id. at 801, 102 S. Ct. at 3378, 73 L. Ed. 2d at

1154.    As in the plurality opinion in Coker, the plurality canvassed

objective factors, including legislative judgments and international

opinion, but also noted that the Court was required to apply its

independent judgment in making the ultimate determination. Id. at 797,

102 S. Ct. at 3376, 73 L. Ed. 2d at 1151. In rejecting the death penalty

categorically when the defendant did not kill or intend to kill the victim,

the Enmunds plurality emphasized the role of moral guilt as “critical to

‘the degree of . . . criminal culpability.’ ” Id. at 800, 102 S. Ct. at 3378,

73 L. Ed. 2d at 1153 (quoting Mullaney v. Wilbur, 421 U.S. 684, 698, 95

S. Ct. 1881, 1889, 44 L. Ed. 2d 508, 519 (1975)).

        In sum, the Supreme Court in Furman arguably came close to

abolishing the death penalty categorically in all circumstances, but then

retreated into a bifurcated approach as seen in Gregg, Woodson, Coker,

and Enmund.      In some cases involving certain offenses, the Supreme

Court held that the death penalty was categorically barred as “excessive”

for the crime and therefore contrary to the Eighth Amendment. Enmund,

458 U.S. at 801, 102 S. Ct. at 3378, 73 L. Ed. 2d at 1154; Coker, 433

U.S. at 598, 97 S. Ct. at 2869, 53 L. Ed. 2d at 993. On the other hand,

for the heinous crime of murder, the Supreme Court held that death

penalty is not barred in all circumstances, but instead must be applied

pursuant to specific standards and procedures designed to ensure that

the death penalty is not administered in an arbitrary or capricious
                                     23

manner and to ensure that the harsh penalty is reserved for the most

culpable offenders. Woodson, 428 U.S. at 303, 96 S. Ct. at 2990–91, 49

L. Ed. 2d at 960; Gregg, 428 U.S. at 188, 206–07, 96 S. Ct. at 2932,

2940–41, 49 L. Ed. 2d at 883, 893.        The possibility of individualized

consideration of moral culpability gave rise to the development by the

American Bar Association of detailed and intensive standards for the

representation of persons subject to the death penalty and a new era of

representation in death-penalty cases.

      3. Post-Furman Supreme Court caselaw regarding death penalty

and life in prison for juveniles and vulnerable classes. We now turn our

attention to post-Furman cases of the United States Supreme Court

dealing with the constitutionality under the Eighth Amendment of the

death penalty for juvenile offenders or vulnerable classes. The focus here

is not on the nature of the crime, as in Coker or Enmund, but on the

character or qualities of the defendant that arguably lessen the

culpability of the defendant and make that defendant less deserving of

harsh criminal penalties.

      We begin our discussion with Eddings v. Oklahoma, 455 U.S. 104,

102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). In Eddings, the Supreme Court

considered whether a sixteen-year-old juvenile convicted of murder could

receive the death penalty. Id. at 105, 102 S. Ct. at 872, 71 L. Ed. 2d at

5. In Eddings, the trial court recognized that although Eddings had “a

personality disorder,” he still knew the difference between right and

wrong and therefore his personality disorder could not be considered in

determining his criminal responsibility. Id. at 109–10, 102 S. Ct. at 874,

71 L. Ed. 2d at 7–8. The trial court further held that while his family

history was “useful in explaining” his offense, it did not offer an excuse.

Id. at 110, 102 S. Ct. at 874, 71 L. Ed. 2d at 8.
                                     24

        In a five-member-majority opinion by Justice Powell, the Supreme

Court concluded that the death penalty was not constitutionally applied

to the defendant in this case. Id. at 117, 102 S. Ct. at 878, 71 L. Ed. 2d

at 12. The Court rejected the trial court’s determination that as a matter

of law the mitigating factors of a difficult family history and emotional

disturbance should not be considered by the jury. Id. at 112–15, 102

S. Ct. at 876–77, 71 L. Ed. 2d at 9–11.       Further, the Eddings Court

observed that while “[e]ven the normal 16-year-old customarily lacks the

maturity of an adult,” the evidence suggested that Eddings’ mental and

emotional development were “at a level several years below his

chronological age.” Id. at 116, 102 S. Ct. at 877, 71 L. Ed. 2d at 12. The

Eddings Court noted that not only was the minority of the offender “a

mitigating factor of great weight,” the mental and emotional development

of a youthful defendant must be considered as well in sentencing. Id. at

108, 116, 102 S. Ct. at 873, 877, 71 L. Ed. 2d at 7, 12. Consistent with

Furman, Gregg, and Woodson, the Court emphasized that the state

statutes must ensure that “the sentencing authority is given adequate

information and guidance.” Id. at 111, 102 S. Ct. at 875, 71 L. Ed. 2d at

8–9 (quoting Gregg, 428 U.S. at 195, 96 S. Ct. at 2935, 49 L. Ed. 2d at

887).

        The Supreme Court next considered the death penalty for a fifteen-

year-old offender in Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct.

2687, 101 L. Ed. 2d 702 (1988) (plurality opinion). The defendant urged

the Court to categorically conclude that the death penalty could not be

applied against defendants under the age of sixteen. Id. at 818–19, 108

S. Ct. at 2690, 101 L. Ed. 2d at 708.

        In an opinion by Justice Stevens, a plurality of the Court began by

emphasizing that in many legal contexts, children are treated differently
                                     25

from adults. Id. at 823–25, 108 S. Ct. at 2692–93, 101 L. Ed. 2d at 711–

12. While the age of majority varied among the states, no state set the

age lower than sixteen. Id. at 824, 108 S. Ct. at 2963, 101 L. Ed. 2d at

711. The plurality noted that most states did not expressly establish an

age for the death penalty, but merely provided that certain juveniles

could be waived into adult court. Id. at 826–27, 108 S. Ct. at 2694–95,

101 L. Ed. 2d at 712–14. These statutes, according to the plurality, did

not focus on the question of what chronological age the line should be

drawn. Id. at 827–29, 108 S. Ct. at 2695, 101 L. Ed. 2d at 713–14. The

plurality observed that of all the persons sentenced to death, only five

were less than sixteen years old at the time of the offense. Id. at 832–33,

108 S. Ct. at 2697, 101 L. Ed. 2d at 717. Further, the plurality noted

that less culpability should attach to a crime committed by a juvenile

than to a comparable crime committed by an adult.           Id. at 835, 108

S. Ct. at 2698, 101 L. Ed. 2d at 718. Finally, the plurality found that

retribution did not justify the execution of a less culpable fifteen-year-old

offender and that deterrence did not justify the death penalty as teenage

minds were not likely to engage in the kind of cost-benefit analysis that

attaches any weight to the remote possibility of execution. Id. at 836–37,

108 S. Ct. at 2699–700, 101 L. Ed. 2d at 719–20. While the plurality

categorically would invalidate the death penalty for all fifteen-year-old

offenders, it declined to consider the invitation of the offender and

various amici curiae to draw the line at eighteen. Id. at 838, 108 S. Ct.

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

      The deciding Thompson opinion, however, was written by Justice

O’Connor who concurred in the judgment of the Court. Id. at 848, 108

S. Ct. at 2706, 101 L. Ed. 2d at 728 (O’Connor, J., concurring in

judgment). While concurring in the judgment, Justice O’Connor did not
                                     26

embrace the plurality’s discussion of objective factors or proportionality.

Id. at 848–49, 108 S. Ct. at 2706, 101 L. Ed. 2d at 728–29.              She

concurred in result only because the Oklahoma legislature did not

directly consider whether a fifteen year old should be eligible for the

death penalty. Id. at 857, 108 S. Ct. at 2710–11, 101 L. Ed. 2d at 734.

Justice O’Connor declined to embrace a broader rule that the death

penalty for fifteen year olds was always unconstitutional, but only that

the Oklahoma statute as applied to fifteen year olds was invalid. Id. at

857–58, 108 S. Ct. at 2711, 101 L. Ed. 2d at 734.

      In   Penry   v.   Lynaugh,   the    Supreme   Court   considered   the

constitutionality of the death penalty when the accused was intellectually

disabled. 492 U.S. 302, 307, 109 S. Ct. 2934, 2941, 106 L. Ed. 2d 256,

271 (1989) (plurality opinion), abrogated by Atkins, 536 U.S. at 307, 321,

122 S. Ct. at 2244, 2252, 153 L. Ed. 2d at 341, 350. In Penry, the jury

did not receive an instruction that it could consider and give effect to the

mental characteristics of the offender as a mitigating circumstance. Id.

at 310–11, 109 S. Ct. at 2942–43, 106 L. Ed. 2d at 273.           The jury

convicted Penry of murder, and he was sentenced to death. Id. at 310–

11, 109 S. Ct. at 2942–43, 106 L. Ed. 2d at 272–73.

      Justice O’Connor wrote the main opinion for the Penry Court.

Writing for a five-member majority, she wrote that the Texas sentencing

procedure did not adequately afford the defendant with an individualized

hearing. Id. at 328, 109 S. Ct. at 2952, 106 L. Ed. 2d at 284. Because

punishment “should be directly related to the personal culpability of the

defendant,” the jury must be allowed to consider and give effect to the

defendant’s mental status.     Id. at 327–28, 109 S. Ct. at 2951, 106

L. Ed. 2d at 284. As a result, Justice O’Connor concluded for a majority
                                    27

of the Court that Penry’s sentence must be reversed.           Id. at 328, 109

S. Ct. at 2952, 106 L. Ed. 2d at 284.

       Justice O’Connor further concluded that a categorical bar could

not be adopted “today.” Id. at 340, 109 S. Ct. at 2958, 106 L. Ed. 2d at

292. She emphasized that Penry was found competent to stand trial and

knew the difference between right and wrong. Id. at 333, 109 S. Ct. at

2954–55, 106 L. Ed. 2d at 288.          Further, Justice O’Connor, relying

largely on the fact that only two legislatures had barred the death

penalty for intellectually disabled offenders, found there was no objective

evidence of an emerging national consensus in support of a categorical

ban. Id. at 334–35, 109 S. Ct. at 2955, 106 L. Ed. 2d at 288–89.

       Justices Brennan and Marshall dissented on this point, finding

sufficient basis to support a categorical bar. Justice Brennan wrote that

in order to be classified as intellectually disabled, an individual must

have “significantly subaverage general intellectual functioning existing

concurrently with deficits in adaptive behavior [which manifest] during

the developmental period.” Id. at 344, 109 S. Ct. at 2960, 106 L. Ed. 2d

at 295 (Brennan, J., concurring in part and dissenting in part) (quoting

Am. Ass’n on Mental Retardation, Classification in Mental Retardation 11

(H. Grossman ed. 1983)). As a result, Justice Brennan saw no need for

individualized determination as members of the class necessarily lack a

degree of culpability. Id. at 347–48, 109 S. Ct. at 2962, 106 L. Ed. 2d at

297.     Justice   Brennan   further    doubted   that   the    individualized

consideration afforded at sentencing will ensure that only exceptional

intellectually disabled individuals with near normal capabilities will be

picked to receive the death penalty. Id. at 346, 109 S. Ct. at 2961, 106

L. Ed. 2d at 296.      In particular, Justice Brennan feared that the

heinousness of the crime would overpower any mitigation effect of
                                     28

intellectual disability. Id. at 347, 109 S. Ct. at 2962, 106 L. Ed. 2d at

296–97. Further, Justice Brennan feared that a prosecutor could argue

that an intellectually disabled offender should be more severely punished

than an ordinary defender.         Id.     Because the death penalty for

intellectually disabled individuals, who lack the same degree of

culpability as nondisabled adult offenders, did not advance the penal

goals of deterrence and retribution, Justice Brennan concluded that the

death penalty should be categorically barred for such offenders. Id. at

348–49, 109 S. Ct. at 2962–63, 106 L. Ed. 2d at 297–98.

         Justice Stevens filed a short concurring and dissenting opinion.

He concluded, based upon the medical facts, that executions of the

intellectually disabled are unconstitutional notwithstanding Justice

O’Connor’s analysis of objective indicators showing a lack of national

consensus.     Id. at 350, 109 S. Ct. at 2963, 106 L. Ed. 2d at 298–99

(Stevens, J., concurring in part and dissenting in part).

         The Supreme Court decided Sanford v. Kentucky, 492 U.S. 361,

109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989) (plurality opinion), abrogated

by Roper, 543 U.S. at 574, 125 S. Ct. at 1198, 161 L. Ed. 2d at 25, on

the same day it decided Penry.      In Sanford, the Court considered the

imposition of the death penalty on two youths aged sixteen and

seventeen respectively. Id. at 364–65, 109 S. Ct. at 2972, 106 L. Ed. 2d

at 315. Justice Scalia delivered the opinion for the Court. Justice Scalia

found that a majority of jurisdictions whose laws allowed capital

punishment still permitted execution of sixteen and seventeen year olds

and that, as a result, the offenders had not demonstrated a national

consensus against the death penalty. Id. at 372–73, 109 S. Ct. at 2976–

77, 106 L. Ed. 2d at 320. While noting that the death penalty in fact was

rarely    imposed    upon   juveniles,    Justice   Scalia   regarded   it   as
                                    29

“overwhelmingly probable” that this was a result of prosecutors and

juries exercising discretion to ensure that the death penalty is rarely

imposed upon juvenile defendants. Id. at 374, 109 S. Ct. at 2977, 106

L. Ed. 2d at 321.

      Speaking for four members of the Court, Justice Scalia went on to

indicate that the fact that youth were treated differently for purposes of

driving, drinking alcohol, and voting had no impact on the constitutional

analysis. Id. at 374–75, 109 S. Ct. at 2977–78, 106 L. Ed. 2d at 321. He

also wrote that in determining a national consensus, the only relevant

materials were legislative action; public opinion polls, views of interest

groups, and positions adopted by various professional associations were

irrelevant. Id. at 377, 109 S. Ct. at 2979, 106 L. Ed. 2d at 323.

      On balance, Eddings, Thompson, Penry, and Sanford demonstrate

that the Supreme Court in the immediate aftermath of Furman was

repeatedly sharply divided on issues related to the imposition of capital

punishment.    In the aggregate, however, the majority of the Supreme

Court usually elected a demanding process with particularized showings

of culpability of the individual defendant over categorical rules that

would exclude certain types of defendants from receiving the death

penalty. On the other hand, the Court was receptive to categorical rules

relating to the type of offenses for which the death penalty might be

imposed.

      These cases, however, were often decided by narrow majorities or

plurality opinions with majorities shifting depending upon the peculiar

facts of the case. The cases reflect difficult decision-making when the

Supreme Court was called upon to decide whether to adopt a “bright

line” categorical approach or a “case by case” process that depended

upon the provision of adequate information and an appropriate structure
                                    30

to ensure that the fact finder reserved the death penalty for only truly

culpable defendants.

      4. Supreme Court caselaw revisits the death penalty and explores

life in prison for juveniles and vulnerable classes. Since 2000, however,

the United States Supreme Court has reconsidered the implications,

under the Cruel and Unusual Punishment Clause, of the death penalty

and life without the possibility of parole for juveniles or vulnerable

classes in a number of cases.        As will be seen below, these cases

significantly departed from past precedent and embarked on a new

analysis of cruel and unusual punishment issues in the context of

vulnerable classes, particularly juveniles.

      The first case signaling the shift is Atkins. In Atkins, the Supreme

Court revisited the question of whether intellectually disabled persons

may be sentenced to death. 536 U.S. at 306–07, 122 S. Ct. at 2242, 153

L. Ed. 2d at 341.   The Supreme Court had considered the same issue

only thirteen years before in Penry, 492 U.S. at 302, 109 S. Ct. at 2934,

106 L. Ed. 2d at 256.

      In Atkins, however, the Supreme Court reversed course, overruled

Penry, and held that imposition of the death penalty on intellectually

disabled persons violated the Eighth Amendment. Atkins, 536 U.S. at

321, 122 S. Ct. at 2252, 153 L. Ed.2d at 350. In an opinion written by

Justice Stevens, the Court in Atkins emphasized that “the American

public, legislators, scholars, and judges” had deliberated over the

question of the death penalty for the intellectually disabled and had

come to a consensus that it should be prohibited. Id. at 307, 316, 122

S. Ct. at 2244, 2249, 153 L. Ed. 2d at 341, 347. Justice Stevens noted

that while a number of states still imposed the death penalty on

intellectually disabled individuals convicted of heinous crimes, the
                                    31

consistency of the direction of change is more important than simply

tallying the number. Id. at 315, 122 S. Ct. at 2249, 153 L. Ed. 2d at

346–47. Justice Stevens noted further that the practice of executing the

intellectually disabled was “uncommon.” Id. at 316, 122 S. Ct. at 2249,

153 L. Ed. 2d at 347. In any event, Justice Stevens emphasized that

objective evidence of consensus, though important, did not “wholly

determine” the controversy as the Court was required to bring its own

judgment to bear by asking whether there is reason to disagree with the

judgment reached by the citizenry and its legislators. Id. at 312–13, 122

S. Ct. at 2247–48, 153 L. Ed. 2d at 345.

      Justice Stevens wrote that for the intellectually disabled, the case

for retribution was diminished.     Id. at 319, 122 S. Ct. at 2251, 153

L. Ed. 2d at 349.     Further, deterrence is also undermined by the

diminished ability of the intellectually disabled “to understand and

process information, to learn from experience, to engage in logical

reasoning, [and] to control impulses.” Id. at 320, 122 S. Ct. at 2251, 153

L. Ed. 2d at 349.

      Justice   Stevens   also   noted     that   if   left   to   case-by-case

determinations, there was “[t]he risk ‘that the death penalty [would] be

imposed in spite of factors which may call for a less severe penalty.’ ” Id.

at 320, 122 S. Ct. at 2251, 153 L. Ed. 2d at 350 (quoting Lockett, 438

U.S. at 605, 98 S. Ct. at 2965, 57 L. Ed. 2d at 990).          Justice Stevens

further noted that intellectually disabled defendants might be less able to

assist in their defense, thereby undermining the accuracy of the fact-

finding process that would lead to the imposition of the death penalty.

Id. at 320–21, 122 S. Ct. at 2252, 153 L. Ed. 2d at 350.

      The tea leaves in Atkins did not go unnoticed. A few years later in

Roper, the Supreme Court departed from its narrow approach in Eddings
                                       32

and Thompson and held the death penalty unconstitutional as applied to

juveniles in all cases “no matter how heinous the crime.”       Roper, 543

U.S. at 568, 125 S. Ct. at 1195, 161 L. Ed. 2d at 21.

         In Roper, the Supreme Court cited several factors supporting its

conclusion that juveniles are categorically different for purposes of

imposing capital punishment. Id. at 569–70, 125 S. Ct. at 1195–96, 161

L. Ed. 2d at 21–22. First, the Roper Court noted that juveniles have a

“lack of maturity and an underdeveloped sense of responsibility.” Id. at

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

509 U.S. 350, 367, 113 S. Ct. 2658, 2668, 125 L. Ed. 2d 290, 306

(1993)).     Second, the Roper Court emphasized juveniles are more

susceptible than adults to “negative influences and outside pressures”

and juveniles “have less control, or less experience with control, over

their own environment.” Id. at 569, 125 S. Ct. at 1195, 161 L. Ed. 2d at

22.   Third, the Roper Court noted juvenile personality and character

traits are still being formed. Id. at 570, 125 S. Ct. at 1195, 161 L. Ed. 2d

at 22.

         In light of the differences between adults and juveniles, the Roper

Court held that juveniles categorically cannot suffer the death penalty

“no matter how heinous the crime.” Id. at 568, 125 S. Ct. at 1195, 161

L. Ed. 2d at 21. The Roper Court stressed that “[i]t 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.

         Five years after Roper, the Supreme Court decided Graham.       In

Graham, the Supreme Court considered the constitutionality of life in

prison without parole for juvenile offenders who commit nonhomicide
                                    33

offenses.   560 U.S. at 52–53, 130 S. Ct. at 2017–18, 176 L. Ed. 2d at

832. In Graham, the state in effect sought to uphold the life-without-the-

possibility-of-parole sentence on the ground that Roper was a death-

penalty case and “death is different” for purposes of constitutional

analysis. See id. at 69, 130 S. Ct. at 2027, 176 L. Ed. 2d at 842.

      As in Roper, however, the Graham Court developed a categorical

rule, namely, that when nonhomicide offenses are involved, juveniles

may not be sentenced to life without the possibility of parole regardless of

the nature of the underlying crimes. Id. at 82, 130 S. Ct. at 2034, 176

L. Ed. 2d at 850. The Graham Court cited the reasoning of Roper and

prior precedents, noting that because of the lack of maturity, a juvenile

offense “is not as morally reprehensible as that of an adult.” Id. at 68,

130 S. Ct. at 2026, 176 L. Ed. 2d at 841 (quoting Thompson, 487 U.S. at

835, 108 S. Ct. at 2699, 101 L. Ed. 2d at 719).        Reasoning that the

principles articulated in Roper applied fully in the context of juvenile

nonhomicide offenses, the Graham Court categorically declared that life

without the possibility of parole could never be applied to such offenses,

regardless of their nature or heinousness. Id. at 68, 82, 130 S. Ct. at

2026, 2034, 176 L. Ed. 2d at 841, 850. As in Roper, the Graham Court

doubted “that courts taking a case-by-case . . . approach could with

sufficient accuracy distinguish the few incorrigible juvenile offenders

from the many that have the capacity for change.” Id. at 77, 130 S. Ct.

at 2032, 176 L. Ed. 2d at 847.

      The result in Graham was consistent with the position advanced by

the American Medical Association (AMA) in an amicus brief with

extensive citations to scientific and medical authorities.    Brief for Am.

Med. Ass’n et al. as Amici Curiae Supporting Neither Party, Graham, 560

U.S. at 48, 130 S. Ct. at 2011, 176 L. Ed. 2d at 825 (No. 08–7412, 08–
                                       34

7621), 2009 WL 2247127. The AMA noted that “[s]cientists have found

that adolescents as a group, even in the later stages of adolescence, are

more likely than adults to engage in risky, impulsive, and sensation-

seeking behavior.”    Id. at *2.    The AMA asserted that modern science

demonstrated that “the structural and functional immaturities of the

adolescent   brain    provide   a   biological   basis   for   the   behavioral

immaturities exhibited by adolescence” and that “adolescent brains are

structurally immature in areas of the brain associated with enhanced

abilities of executive behavioral control.” Id. at *4, 16.

      The third case in the quartet of recent juvenile cases is Miller. In

Miller, the Supreme Court considered two heinous murder cases

involving juvenile defendants. 567 U.S. at ____, 132 S. Ct. at 2461–62,

183 L. Ed. 2d at 415–17. The defendants, and various amici including

the ABA and the American Psychology Association (APA), urged the court

to adopt the categorical approach of Roper and Graham. See ABA Brief,

2012 WL 166269; APA Brief, 2012 WL 174239.

      The ABA noted that it had long been interested in matters affecting

juvenile justice.   ABA Brief at *2.    As far back as 1980, the ABA had

concluded that when compared to adults, the reduced capacity of

juveniles—“in moral judgment, self-restraint and the ability to resist the

influence of others, among other factors—rendered [juveniles] less

morally culpable than adults.” Id. at *7. Citing the principles enunciated

by the Supreme Court in Roper and Graham, the ABA urged that the

Court adopt a categorical rule barring life in prison without parole for

juveniles. Id. at *6–7.

      The ABA added two additional observations based “on its study,

research and experience of its members.”         Id. at *13.   First, the ABA

stressed that “juveniles are less capable than adults of communicating
                                     35

with and giving meaningful assistance to their counsel.” Id. Second, the

ABA observed that “juveniles convicted of murder in the United States

were more likely to enter prison with a life without parole sentence than

adult murder offenders.” Id. In conclusion, the ABA stressed that it was

not asserting that all juveniles should be entitled to parole, but only that

they should not be denied the opportunity to be considered for parole

before they die in prison. Id. at *23.

      The brief of the APA addressed the inability of professionals to

predict the course of juvenile development. APA Brief at *21. The APA

brief bluntly stated that “[t]he positive predictive power of juvenile

psychotherapy assessments . . . remains poor.”       Id.   The APA cited a

research study that found only sixteen percent of the young adolescents

who scored in the top fifth on a juvenile psychopathy measurement tool

would eventually be assessed as psychopathic at age twenty-four.         Id.

Another study that attempted to use psychological testing to predict

future homicide offenders yielded a very high false positive rate of eighty-

seven percent.    Id. at *22.   According to the APA, “those who have

dedicated their careers to identifying risk factors associated with

persistent criminality” acknowledge the “very imperfect predictions of

which offense trajectory individuals will follow over time” and warn

against the “danger that policy makers will start to use less than good

predictions as a rationale for harsh punishments and severe legal

sanctions.”   Id. (quoting Rolf Loeber et al., Violence and Serious Theft:

Development and Prediction from Childhood to Adulthood 333 (2008)).

      Yet, the Supreme Court in Miller stopped short of a categorical

rule. See Miller, 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424

(“Although we do not foreclose a sentencer’s ability to make [a life-

without-the-possibility-of-parole] judgment in homicide cases, we require
                                     36

it to take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in

prison.”).   In Miller, the Supreme Court recognized the applicability of

Roper–Graham principles to juvenile homicide offenders, noting that the

differences between children and adults “diminish the penological

justifications for imposing the harshest sentences on juvenile offenders,

even when they commit terrible crimes.” Id. at ___, 132 S. Ct. at 2465,

183 L. Ed. 2d at 419. The Miller Court, like the Court in Graham and

Roper, recognized the difficulty in distinguishing “between ‘the juvenile

offender whose crime reflects unfortunate yet transient immaturity, and

the rare juvenile offender whose crime reflects irreparable corruption.’ ”

Id. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (quoting Roper, 543

U.S. at 573, 125 S. Ct. at 1183, 161 L. Ed. 2d at 24).

      Yet, the Miller Court did not reach the question of whether a

categorical ban was required. Id. Instead, the Court reserved judgment

on the categorical approach, noting ambiguously that “appropriate

occasions,” possibly including parole hearings and posttrial proceedings,

“for sentencing juveniles to this harshest possible penalty will be

uncommon.” Id.

      Finally,   the   Supreme    Court   recently   has   provided   further

illumination of the contours of its cruel and unusual punishment

jurisprudence in Montgomery, 577 U.S. at ___, 136 S. Ct. at 718, 193

L. Ed. 2d at 599.      In Montgomery, the Court considered whether the

decision in Miller applied retroactively to cases on collateral review. Id. at

___, 136 S. Ct. at 725, 193 L. Ed. 2d at 610. The Court concluded that

its holding in Miller should be given retroactive effect because Miller

announced a substantive rule of law excluding a category of punishment

from a class of offenders. Id. at ___, 136 S. Ct. at 736, 193 L. Ed. 2d at
                                      37

622.   The Montgomery Court stressed that Miller barred life in prison

without the possibility of parole for “all but the rarest of juvenile

offenders, those whose crimes reflect permanent incorrigibility.”    Id. at

___, 136 S. Ct. at 734, 193 L. Ed. 2d at 620. The Court emphasized that

Miller applied retroactively because it was based upon the risk that “the

vast majority of juvenile offenders” face a punishment that the law

cannot impose upon them, namely, life without possibility of parole. Id.

at ___, 136 S. Ct. at 734, 193 L. Ed. 2d at 620.

       The Court noted that giving retroactive effect to Miller did not

require states to relitigate sentences “in every case where a juvenile

offender received mandatory life without parole.” Id. at ___, 136 S. Ct. at

736, 193 L. Ed. 2d at 622.         Citing a Wyoming statute, the Court

emphasized that a state may remedy Miller violations by permitting

juvenile offenders to be considered for parole. Id. Allowing offenders to

be considered for parole “ensures that juveniles whose crimes reflected

only transient immaturity—and who have since matured—will not be

forced to serve a disproportionate sentence in violation of the Eighth

Amendment.”     Id.     The Court held that extending parole eligibility to

juvenile offenders does not impose an onerous burden on the states. Id.

Those persons who show an “inability to reform will continue to serve life

sentences.”   Id.     But, the Court emphasized, under a life-with-parole

approach “[t]he opportunity for release will be afforded to those who

demonstrate the truth of Miller’s central intuition—that children who

commit even heinous crimes are capable of change.” Id.

       5. Summary of principles of United States Supreme Court cases

involving juveniles facing death or life in prison.    As is apparent, the

United States Supreme Court’s approach to the Eighth Amendment has

evolved substantially in recent years.      The Supreme Court’s current
                                    38

approach to the Eighth Amendment’s Cruel and Unusual Punishment

Clause in the context of juvenile offenders may be summarized as

follows:

      i. Juveniles are constitutionally different than adults for purposes

of sentencing. Miller, 567 U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d

at 418; Graham, 560 U.S. at 68, 130 S. Ct. at 2026, 176 L. Ed. 2d at

841; Roper, 543 U.S. at 569–71, 125 S. Ct. at 1195–96, 161 L. Ed. 2d at

21–22.

      ii. Because of these differences, ordinary criminal culpability is

diminished when the offender is a youth, and the penological objectives

behind harsh sentences are diminished.       Miller, 567 U.S. at ___, 132

S. Ct. at 2465, 183 L. Ed. 2d at 419; Graham, 560 U.S. at 74, 130 S. Ct.

at 2030, 176 L. Ed. 2d at 845; Roper, 543 U.S. at 571, 125 S. Ct. at

1196, 161 L. Ed. 2d at 22; cf. Atkins, 536 U.S. at 316, 122 S. Ct. at

2250, 153 L. Ed. 2d at 348.

      iii. The traits of youth that diminish ordinary criminal culpability

are not crime specific and are present even in juveniles who commit

heinous crimes. Montgomery, 577 U.S. at ___, 136 S. Ct. at 735–36, 193

L. Ed. 2d at 621–22; Miller, 567 U.S. at ___, 132 S. Ct. at 2465, 183 L.

Ed. 2d at 420.

      iv. Imposition of life in prison without parole shares some of the

characteristics with death sentences that are shared by no other

sentences. Life without the possibility of parole is “a forfeiture that is

irrevocable,” depriving the convict of the most basic liberties without

hope of restoration except in the remote possibility of executive clemency.

Life in prison is especially harsh for juveniles, who will almost inevitably

serve more years and a greater percentage of life in prison than adult

offenders. Miller, 567 U.S. at ___, 132 S. Ct. at 2466, 183 L. Ed. 2d at
                                    39

421; Graham, 560 U.S. at 69–70, 130 S. Ct. at 2027, 176 L. Ed. 2d at

842.

       v. The qualities that distinguish juveniles from adults do not

disappear when an individual turns eighteen, but society has generally

drawn the line at eighteen for the purposes of distinguishing juveniles

from adults.   Graham, 560 U.S. at 74–75, 130 S. Ct. at 2030, 176

L. Ed. 2d at 845; Roper, 543 U.S. at 574, 125 S. Ct. at 1197, 161

L. Ed. 2d at 24.

       vi. Because the signature qualities of youth are transient,

incorrigibility is inconsistent with youth.   Miller, 567 U.S. at ___, 132

S. Ct. at 2465, 183 L. Ed. 2d at 419; Graham, 560 U.S. at 73, 130 S. Ct.

at 2029, 176 L. Ed. 2d at 844; Roper, 543 U.S. at 570, 125 S. Ct. at

1195, 161 L. Ed. 2d at 22.

       vii. While juveniles who prove irredeemably corrupt may be

subject to life in prison, “appropriate occasions” for sentencing juveniles

to this harshest possible penalty will be “uncommon” or “rare.”

Montgomery, 577 U.S. at ___, 136 S. Ct. at 733–34, 193 L. Ed. 2d at 619;

Miller, 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424.

       viii. Even trained and experienced professionals find it very

difficult to predict which youthful offenders might ultimately fit into this

small group of incorrigible offenders. Graham, 560 U.S. at 72–73, 130

S. Ct. at 2029, 176 L. Ed. 2d at 844; Roper, 543 U.S. at 573, 125 S. Ct.

at 1197, 161 L. Ed. 2d at 24.

       ix. An unacceptable likelihood exists that the brutality or cold-

blooded nature of a particular crime will overcome mitigating arguments

based on youth when the objective immaturity, vulnerability, and lack of

true depravity should require a lesser sentence.     Graham, 560 U.S. at
                                      40

77–78, 130 S. Ct. at 2032, 176 L. Ed. 2d at 847; Roper, 543 U.S. at 573,

125 S. Ct. at 1197, 161 L. Ed. 2d at 24.

      x. Juveniles are less able to provide meaningful assistance to their

lawyers than adults, a factor that can impact the development of the

defense and gives rise to a risk of erroneous conclusions regarding

juvenile culpability. Graham, 560 U.S. at 78, 130 S. Ct. at 2032, 176

L. Ed. 2d at 847–48; cf. Atkins, 536 U.S. at 320, 122 S. Ct. at 2252, 153

L. Ed. 2d at 350.

      xi. Because of the transient characteristics of youth that diminish

criminal   culpability,    life-without-the-possibility-of-parole   sentences

“pose[] too great a risk” of disproportionate punishment. Miller, 567 U.S.

at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424.

      xii. Accurate assessment of whether a youth is incorrigible is

particularly important when a sentence of life in prison is involved,

because such sentences share some of the characteristics of death

sentences―characteristics that are shared by no other sentences. Miller,

567 U.S. at ___, 132 S. Ct. at 2466–67, 183 L. Ed. 2d at 421–22;

Graham, 560 U.S. at 69–70, 130 S. Ct. at 2027, 176 L. Ed. 2d at 842.

      xiii. Even if the state’s judgment that a juvenile offender is

incorrigible is later corroborated by prison misbehavior or failure to

mature, the sentence was still disproportionate because that judgment

was made at the outset. Graham, 560 U.S. at 73, 130 S. Ct. at 2029,

176 L. Ed. 2d at 844–45.

      xiv. Even if life in prison without the possibility of parole at the

time of sentence is no longer available, nothing guarantees that a

juvenile offender will be entitled to release. Graham, 560 U.S. at 75, 130

S. Ct. at 2030, 176 L. Ed. 2d at 845–46.
                                          41

       C. Iowa Supreme Court Precedents.

       1. Relationship between state and federal law.                 We, of course,

follow the decisions of the United States Supreme Court interpreting the

Federal Constitution, and they are binding upon us on questions of

federal law. Thus, in Iowa, the United States Constitution as interpreted

by the Supreme Court prevents the state from imposing life without the

possibility of parole in most homicide cases involving juveniles.                 If life

without the possibility of parole may be imposed at all under federal law,

which is unclear at this point, it may be imposed only in cases where

irretrievable corruption has been demonstrated by the “rarest” of juvenile

offenders. Montgomery, 577 U.S. at ___, 136 S. Ct. at 734, 193 L. Ed. 2d

at 620.

       In any event, the rulings of the United States Supreme Court

create a floor, but not a ceiling, when we are called upon to interpret

parallel provisions of the Iowa Constitution. In interpreting provisions of

the Iowa Constitution, we may find federal authority persuasive, but it is

certainly not binding. In the development of our own state constitutional

analysis, we may look to decisions of the United States Supreme Court,

dissenting opinions of the Supreme Court, cases from other states, and

other persuasive authorities. State v. Short, 851 N.W.2d 474, 481 (Iowa

2014); State v. Ochoa, 792 N.W.2d 260, 267 (Iowa 2010).

       2. Recent Iowa caselaw utilizing Roper–Graham–Miller principles.

We now turn to Iowa cases in which we considered the application of

Roper–Graham–Miller reasoning under article I, section 17 of the Iowa

Constitution. 5 See Seats, 865 N.W.2d at 553–57; Lyle, 854 N.W.2d at


       5The  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 to the United States Constitution
                                          42

384–86; Ragland, 836 N.W.2d at 113–17; Pearson, 836 N.W.2d at 95–97;

Null, 836 N.W.2d at 50–51, 60–66.                In these cases, we primarily

embraced the reasoning in the United States Supreme Court’s trilogy

under the Iowa Constitution but also built upon it and extended its

principles. See Seats, 865 N.W.2d at 553–57; Lyle, 854 N.W.2d at 383–

84; Ragland, 836 N.W.2d at 113–17; Pearson, 836 N.W.2d at 95–98; Null,

836 N.W.2d at 70.

       Our Iowa constitutional cases elaborate on the Roper–Graham–

Miller trilogy in several important ways. We emphasized in Pearson and

Null that immaturity, impetuosity, and poor risk assessment are to be

treated as mitigating, not aggravating factors, in sentencing.              Pearson,

836 N.W.2d at 97; Null, 836 N.W.2d at 75.              In Ragland, Pearson, and

Null, we extended the reasoning of the Roper–Graham–Miller trilogy to

require individualized hearings in cases involving long prison sentences

for juvenile defendants short of life in prison without the possibility of

parole. Ragland, 836 N.W.2d at 122; Pearson, 836 N.W.2d at 97; Null,

836 N.W.2d at 76–77.           In Lyle, we noted that death is no longer

irreconcilably different for juveniles and extended the requirement of an

individualized hearing when sentencing juveniles for lesser crimes for

which the legislature has prescribed mandatory adult sentences.                   854

N.W.2d at 396–98; see also Bruegger, 773 N.W.2d at 883–84 (applying

Roper concepts outside the death-penalty context).

       Last term we decided Seats. In Seats, we reviewed the developing

jurisprudence regarding life sentences for juvenile homicide offenders.

865 N.W.2d at 553–57. As in Miller and our prior cases, we reserved the


provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U.S. Const. amend. VIII.
                                     43

question of whether life sentences without the possibility of parole should

be categorically barred.    Id. at 558.    Instead, we noted that if a life

sentence without parole could ever be imposed on a juvenile offender, the

burden was on the state to show that an individual offender manifested

“irreparable corruption.” Id. at 556 (quoting Miller, 567 U.S. at ___, 132

S. Ct. at 2469, 183 L. Ed. 2d at 424). In making such a determination,

we noted that findings of such irreparable corruption should be “rare and

uncommon.” Id. at 555. We thus concluded the presumption for any

sentencing judge is that a juvenile should be sentenced to life with the

possibility of parole even for homicide offenses.       Id.     In considering

whether the state had overcome the presumption, we observed that the

district court was required to recognize that “children are constitutionally

different from adults.” Id. at 556 (quoting Miller, 567 U.S. at ___, 132

S. Ct. at 2464, 183 L. Ed. 2d at 418).       Specifically, the district court

must consider “the family and home environment that surrounds” the

juvenile, including “childhood abuse, parental neglect, personal and

family drug or alcohol abuse, prior exposure to violence, lack of parental

supervision,   lack   of   an   adequate   education,   and     the   juvenile’s

susceptibility to psychological or emotional damage.”         Id. (first quoting

Miller, 567 U.S. at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423).

      In addition, the district court must consider the nature of the

offense “including the extent of [the juvenile’s] participation in the

conduct and the way the familial and peer pressures may have affected

[the juvenile],” and whether “substance abuse played a role in the

juvenile’s commission of the crime.” Id. (first quoting Miller, 567 U.S. at

___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423). Finally, we stressed the

district court must recognize that “ ‘[j]uveniles are more capable of

change than are adults’ and that as a result, ‘their actions are less likely
                                     44

to be evidence of “irretrievably depraved character.” ’ ”       Id. (quoting

Graham, 560 U.S. at 68, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841). We

cited Null for the proposition that because “incorrigibility is inconsistent

with youth, care should be taken to avoid irrevocable judgment about [an

offender’s] place in society.” Id. (quoting Null, 836 N.W.2d at 75).

      3. Summary      of   Iowa   cases   applying    Roper–Graham–Miller

principles. Based on our recent cases, we distill the following principles:

      i. We have generally accepted the principles enunciated by the

United States Supreme Court in the Roper–Graham–Miller trilogy in our

interpretation of article I, section 17 of the Iowa Constitution. See Seats,

865 N.W.2d at 555–57; Null, 836 N.W.2d at 70–76.

      ii. We have regarded the constitutional holding in Miller as applied

by this court under article I, section 17 as broadly substantive and not

narrowly procedural, a view subsequently adopted by the United States

Supreme Court under the Eighth Amendment in Montgomery. See State

v. Louisell, 865 N.W.2d 590, 594 (Iowa 2015); Ragland, 836 N.W.2d at

114–16.

      iii. Using our independent judgment under article I, section 17,

we have applied the principles of the Roper–Graham–Miller trilogy outside

the narrow factual confines of those cases, including cases involving de

facto life sentences, very long sentences, and relatively short sentences.

See Lyle, 854 N.W.2d at 402–03; Ragland, 836 N.W.2d at 122; Null, 836

N.W.2d at 71–72.

      D. Application.

      1. Categorical rules vs. case-by-case basis. Sweet asks us to adopt

a categorical rule, namely, that juvenile offenders may never be

sentenced to life without the possibility of parole. See Graham, 560 U.S.

at 77, 139 S. Ct. 2032, 176 L. Ed. 2d at 847 (doubting “that courts
                                        45

taking a case-by-case . . . approach could with sufficient accuracy

distinguish the few incorrigible juvenile offenders from the many that

have the capacity for change”); Roper, 543 U.S. at 573, 125 S. Ct. at

1197, 161 L. Ed. 2d at 24 (“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.”).           In our earlier cases,

however, we found it unnecessary to address this larger proposition. See

Seats, 865 N.W.2d at 558; Ragland, 836 N.W.2d at 122; Null, 836 N.W.2d

at 76.

         We could continue to opt for the narrower, more incremental

approach, by simply addressing the question of whether the State proved

in this case that Sweet is one of the “extremely rare” juveniles who is

“irredeemably corrupt.” Such a minimalist approach would allow for the

development of additional caselaw before the larger categorical issue is

confronted. Based on our experience and the caselaw developments, we

think there is little to be gained by allowing further caselaw development

on the question of whether a juvenile may ever receive a sentence of life

without the possibility of parole.

         The Supreme Court in Roper and its progeny has declared that for

juvenile offenders the opportunity for parole can be denied, if at all, only

to “irretrievably depraved” 6 or irreparably corrupt juvenile offenders. See

Roper, 543 U.S. at 570, 125 S. Ct. at 1195, 161 L. Ed. 2d at 22. The

Court further narrowed the window of potential situations involving life

in prison without the possibility of parole in Montgomery, 577 U.S. at ___,

         6Thephrase “irretrievably depraved” debuted in Roper, 543 U.S. at 570, 125
S. Ct. at 1195, 161 L. Ed. 2d at 22, and reappeared in Graham, 560 U.S. at 68, 130
S. Ct. at 2026, 176 L. Ed. 2d at 841.
                                       46

136 S. Ct. at 736, 193 L. Ed.2d at 622. In light of Miller, as elaborated

by Montgomery, the United States Constitution allows life without the

possibility of parole for juveniles, if at all, only in “the rarest” of cases.

Id. at ___, 136 S. Ct. at 726, 193 L. Ed. 2d at 726.       Thus, the United

States Supreme Court, under the Federal Constitution, has preserved life

without the possibility of parole for juveniles, even those who commit

heinous crime, only for a very small category of cases.             And, the

suggestion in Montgomery that the states could avoid constitutional

questions by adopting statutes that do not impose life without the

possibility of parole for juvenile offenders indicates that this narrow

exception may be rapidly closing under federal law. See id. at ___, 136

S. Ct. at 736, 193 L. Ed. 2d at 622.

      So, the Supreme Court has already established that except in very

rare cases, life without the possibility of parole is not available under the

Federal Constitution even for heinous crimes committed by juvenile

offenders.    The only marginal issue remaining under the Iowa

Constitution is whether we should continue to reserve the possibility that

a juvenile offender may be identified as “irretrievable” at the time of

sentencing, or whether that determination must be made by the parole

board at a later time after the offender’s juvenile brain has been fully

developed and a behavior pattern established by a substantial period of

incarceration. If the death-penalty jurisprudence developed after Furman

has any application to cases involving life in prison without parole, the

process for making the determination of which offenders are most

culpable would be resource intensive, require expert testimony, and

would not be a matter left to the unguided discretion of the sentencer.

      2. Consideration of categorical approach. In considering whether

to adopt a categorical approach to the class of offenders or offenses
                                       47

under    the   cruel   and   unusual    punishment    clause   of   the   Iowa

Constitution, we have referred to the two-step process found in the cases

of the United States Supreme Court.         Applying this test, we look to

whether there is a consensus, or at least an emerging consensus, to

guide the court’s consideration of the question. Second, we exercise our

independent judgment to determine whether to follow a categorical

approach. Lyle, 854 N.W.2d at 386.

        In considering the question of consensus, we note the United

States Supreme Court has emphasized that its decisions impose a

nationwide standard on all the states and that its decisions limit the

range of options available for states in a federalist system. In considering

its cruel and unusual punishment jurisprudence, the Court has

emphasized this federalism consideration. See Gregg, 428 U.S. at 186–

87, 96 S. Ct. at 2931, 49 L. Ed. 2d at 882.          For us, however, these

federalism concerns are entirely absent.

        In any event, there is an argument that a consensus does, in fact,

exist even under the standards of the United States Supreme Court. For

example, an amicus brief in Montgomery noted that after Miller was

decided, nine states have abolished life-without-the-possibility-of-parole

sentences for juveniles, thereby establishing a clear direction toward

abolition of the life-in-prison death penalty for juveniles.        Brief for

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

Inst. as Amici Curiae Supporting Neither Party, Montgomery, 577 U.S.

___, 136 S. Ct. 718, 193 L. Ed. 2d 599 (No. 14–280), 2015 WL 4624172,

at *4–5 [hereinafter Charles Hamilton Houstin Brief]. Further, many of

the states that do allow life in prison for juveniles do so only through

statutes that allow the transfer of juveniles to adult court. See Graham,

560 U.S. at 67, 130 S. Ct. at 2025–26, 176 L. Ed. 2d at 840–41. The
                                    48

amicus brief noted that since Miller, the number of juveniles actually

sentenced to life without the possibility of parole has dramatically

decreased—describing thirteen additional states as having functionally

barred the practice. Charles Hamilton Houston Brief, at *7–10.

      In addition, various professional groups urge that we categorically

bar life-in-prison-without-parole sentences for juveniles.   The Supreme

Court has recognized the role of such groups in evaluating cruel and

unusual punishment claims. See Graham, 560 U.S. at 68, 130 S. Ct. at

2026–27, 176 L. Ed. 2d at 841–42; Roper, 543 U.S. at 573, 125 S. Ct. at

1197, 161 L. Ed. 2d at 24. Finally, as noted by the ABA in its amicus

brief for Miller, the United States is the only country in the world to

impose life in prison without the possibility of parole on its juvenile

offenders. ABA Brief at *24.

      Yet, many states have sanctioned life in prison without parole for

juvenile murder offenders.     And, while one post-Miller state supreme

court categorically barred life in prison without possibility of parole for

juveniles under its state constitution, Diatchenko v. District Attorney, 1

N.E.3d 270, 276 (Mass. 2013), several other state supreme courts, over

strong dissents, have come to the opposite conclusion. See, e.g., Bun v.

State, 769 S.E.2d 381, 383–84 (Ga. 2015), disapproved on other grounds

by Veal v. State, ___ S.E.2d ___, ___, 2016 WL 1085360, at *9 (Ga.

Mar. 21, 2016); Conley v. State, 972 N.E.2d 864, 879–80 (Ind. 2012);

State v. Houston, 353 P.3d 55, 76–77 (Utah 2015).

      All this gives us pause. Yet, while we regard evidence of consensus

on the general proposition that “youth are different” is not subject to

dispute, we do not find a consensus today on the very narrow question

before us: whether the small number of juvenile offenders convicted of

murder may be sentenced at time of trial to life in prison without the
                                    49

possibility of parole or whether such a determination must be made at a

later date by a parole board.

      The fact that we have not found a consensus, however, does not

end the inquiry. Although examination of statutes, sentencing practices,

professional opinion, and other sources may inform our analysis, in the

end we must make an independent judgment. See, e.g., Graham, 560

U.S. at 61, 130 S. Ct. at 2022, 176 L. Ed. 2d at 837 (“[T]he Court must

determine in the exercise of its own independent judgment whether the

punishment in question violates the Constitution.”); Kennedy, 554 U.S.

at 421, 128 S. Ct. at 2650, 171 L. Ed. 2d at 539–40 (“Consensus is not

dispositive” but the outcome “depends on the standards elaborated by

controlling precedents, and on the Court’s own understanding and

interpretation of the Eighth Amendment’s text, history, meaning, and

purpose.”); Roper, 543 U.S. at 564, 125 S. Ct. at 1192, 161 L. Ed. 2d at

18 (“We then must determine, in the exercise of our own independent

judgment, whether the death penalty is a disproportionate punishment

for juveniles.”); Atkins, 536 U.S. at 321, 122 S. Ct. at 2252, 153 L. Ed. 2d

at 350 (independently evaluating whether death is a suitable punishment

for an intellectually disabled criminal).     In Miller, for instance, the

Supreme Court did not believe a demonstration of community consensus

was necessary but simply demonstrated that there was no consensus

contrary to the result advanced by the Court. Miller, 567 U.S. at ___, 132

S. Ct. at 2471–73, 183 L. Ed. 2d at 425–29.

      We find our approach in Lyle instructive. In that case, we made it

clear that the existence or nonexistence of a consensus did not relieve

this court of its duty to exercise independent judgment.         Lyle, 854

N.W.2d at 387. In Lyle, we extended application of the Roper–Graham–
                                   50

Miller principles to mandatory minimum adult prison terms imposed on

juveniles. Id. at 402.

      In reviewing the caselaw development, we believe, in the exercise of

our independent judgment, that the enterprise of identifying which

juvenile offenders are irretrievable at the time of trial is simply too

speculative and likely impossible given what we now know about the

timeline of brain development and related prospects for self-regulation

and rehabilitation. We agree with the observation in Graham that the

sentencing task is undertaken by trial judges “who seek with diligence

and professionalism to take into account the human existence of the

offender and the just demands of a wronged society.” Graham, 560 U.S.

at 77, 130 S. Ct. at 2031, 176 L. Ed. 2d at 847. But a district court at

the time of trial cannot apply the Miller factors in any principled way to

identify with assurance those very few adolescent offenders that might

later be proven to be irretrievably depraved. In short, we are asking the

sentencer to do the impossible, namely, to determine whether the

offender is “irretrievably corrupt” at a time when even trained

professionals with years of clinical experience would not attempt to make

such a determination.

      No structural or procedural approach, including a provision of a

death-penalty-type legal defense, will cure this fundamental problem. As

can be seen in the caselaw, the United States Supreme Court has

struggled between categorical and case-by-case approaches involving the

death-penalty and life-without-the-possibility-of-parole sentences.

Generally, a case-by-case approach is only permitted in death-penalty

cases when the sentencer has adequate information and the risk of an

arbitrary application is minimized by substantive and procedural

standards. But here, in imposing a sanction akin to the death penalty in
                                          51

some respects, the trial court simply will not have adequate information

and the risk of error is unacceptably high, even if we were to require an

intensive, highly structured inquiry similar to that required by the ABA

guidelines for the defense of death-penalty cases.

       The Court’s reasoning in Roper, foreshadowed the fallacy of the

predictive enterprise later narrowly reserved in Miller.              In Roper, the

Court concluded the death penalty is cruel and unusual for juvenile

offenders     under    the   Eighth    Amendment—without            regard    to    the

heinousness of their crimes—because an emerging consensus in

neuroscience has revealed the human brain is not fully developed until

the early to mid-twenties.        Roper, 543 U.S. at 568–74, 125 S. Ct. at

1194–98, 161 L. Ed. 2d at 21–25; see also Laurence Steinberg, Age of

Opportunity: Lessons from the New Science of Adolescence 71 (2014)

[hereinafter Steinberg] (suggesting the brain’s prefrontal cortex and the

limbic system become more interconnected during the third and final

phase of brain development).           In the third and final phase of brain

development extending into the early twenties, humans “get better at

controlling their impulses, thinking about the long-term consequences of

their decisions, and resisting peer pressure.”            Steinberg at 71.         This

phenomenon of brain development explains why adolescents can

demonstrate intellectual promise 7 and utilize a robust vocabulary while

lacking sound judgment and exhibiting poor self-regulation. Put another



       7The    sentencing court observed that Sweet recited his rights during an
interrogation and showed signs of average to above average intelligence. The ability to
recite one’s rights, however, does not necessarily establish one’s mature understanding
of them or demonstrate maturity of judgment. Steinberg provides a reminder of this
distinction by rhetorically asking, “If adolescents are so smart, why do they do such
stupid things?” Steinberg at 69. The answer, Steinberg tells us, “has to do with how
their brains develop.” Id.
                                     52

way, the timeline of brain development explains why smart adolescents

sometimes do really stupid things. Id. at 69.

      While not without some value, we think the fact that an offender is

approaching the age of eighteen is not a very helpful factor in

determining who fits the narrow group of irretrievably depraved

defenders. We have noted that “the fact . . . a defendant is nearing the

age of eighteen does not undermine the teachings of Miller.” Seats, 865

N.W.2d at 557. The features of youth identified in Roper and Graham

simply do not magically disappear at age seventeen—or eighteen for that

matter. See Elizabeth S. Scott & Laurence Steinberg, Rethinking Juvenile

Justice 60 (2008) (“[S]ubstantial psychological maturation takes place in

middle and late adolescence and even into early adulthood.”); see also

Null, 836 N.W.2d at 55 (“[T]he human brain continues to mature into the

early twenties.”).   While older teenagers may show greater intellectual

development, that is not the same as the maturity of judgment necessary

for imposing adult culpability.       As Steinberg asks rhetorically, “If

adolescents are so smart, why do they do such stupid things?” Steinberg

at 69. We thus do not find chronological age is a reliable factor that can

be applied by the district court to identify those uncommon juveniles

that may merit life without the possibility of parole.

      Another factor suggested in Miller—the offender’s family and home

environment—is also fraught with risks. For example, what significance

should a sentencing court attach to a juvenile offender’s stable home

environment?     Would the fact that the adolescent offender failed to

benefit from a comparatively positive home environment suggest he or

she is irreparable and an unlikely candidate for rehabilitation?       Or

conversely, would the offender’s experience with a stable home

environment suggest that his or her character and personality have not
                                     53

been irreparably damaged and prospects for rehabilitation are therefore

greater?   See Seats, 865 N.W.2d at 561–62 (Hecht, J., concurring

specially) (suggesting a sentencing court cannot predict the answers to

these extremely challenging questions with reasonable certainty).

      A similar quandary faces courts sentencing juvenile offenders who

have experienced horrendous abuse and neglect or otherwise have been

deprived of a stable home environment. Should the offenders’ resulting

profound character deficits and deep-seated wounds count against the

prospects for rehabilitation and in favor of life-without-the-possibility-of-

parole sentences under the Miller framework?           Or should sentencing

courts view the deprivation of a stable home environment as a

contraindication for life without the possibility of parole because only

time will tell whether maturation will come with age and treatment in a

structured environment? See Louisell, 865 N.W.2d at 592–95 (describing

an inmate with a difficult and chaotic childhood who committed first-

degree murder at age seventeen but made remarkable progress toward

maturity and rehabilitation during twenty-six years in prison).

      Social science suggests reliable answers to these questions come

only with the benefit of time and completion of brain development. Why,

then, should we empower sentencing courts to make final decisions on

opportunities for parole before the juvenile offenders’ prospects for

rehabilitation are reliably known? There is, after all, plenty of time to

make such determinations later for juvenile offenders like Sweet who are

sentenced to life in prison for first-degree murder.

      Because of the difficulty of applying the individual Miller factors,

the likelihood that the multifactor test can be consistently applied by our

district courts is doubtful at best. The APA in Miller in an amicus brief

emphasized that professional psychologists could not predict who was
                                        54

irretrievable.    APA Brief at *21.    We should not ask our district court

judges to predict future prospects for maturation and rehabilitation when

highly trained professionals say such predictions are impossible.

         In sum, we conclude that sentencing courts should not be required

to make speculative up-front decisions on juvenile offenders’ prospects

for rehabilitation because they lack adequate predictive information

supporting such a decision.         The parole board will be better able to

discern whether the offender is irreparably corrupt after time has passed,

after opportunities for maturation and rehabilitation have been provided,

and after a record of success or failure in the rehabilitative process is

available. See Seats, 865 N.W.2d at 557 (“Even if the judge sentences

the juvenile to life in prison with parole, it does not mean the parole

board will release the juvenile from prison.”); see also State v. Andrews,

329 S.W.3d 369, 379 (Mo. 2010) (Wolff, J., dissenting) (noting an

offender sentenced to life with parole may nonetheless “spend the rest of

his life in prison if the parole board does not determine that he is

suitable for parole release”).     Steinberg has poignantly made this very

point:

                It’s not only adolescents’ immature judgment that
         demands that we treat them differently when they break the
         law. If the plasticity of the adolescent brain makes juveniles
         more amenable to rehabilitation, this argues against
         mandatory life sentences that don’t allow courts to consider
         whether an impulsive or impressionable teenager might grow
         into a law-abiding adult who can control his impulses and
         stand up to peer pressure. Of course, a teenager who kills
         another person deliberately should be punished—no one is
         arguing otherwise. But should he be incarcerated for the
         rest of his life, with no chance to prove that he has matured?

Steinberg at 188. Thus, juvenile offenders’ prospects for rehabilitation

augur      forcefully   against   speculative,   up-front   determinations   of

opportunities for parole and leads inexorably to the categorical
                                      55

elimination of life-without-the-possibility-of-parole sentences for juvenile

offenders.

      For the above reasons, we adopt a categorical rule that juvenile

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

under article I, section 17 of the Iowa Constitution.        As a result, the

sentence of the district court in this case is vacated and the matter

remanded to the district court for resentencing.

      Nothing in this opinion, of course, suggests that a juvenile offender

is entitled to parole. The State is not required to make such a guarantee,

and those who over time show irredeemable corruption will no doubt

spend their lives in prison.          The determination of irredeemable

corruption, however, must be made when the information is available to

make that determination and not at a time when the juvenile character is

a work in progress.

      IV. Conclusion.

      For the above reasons, we conclude a sentence of life without the

possibility of parole for a juvenile offender violates article I, section 17 of

the Iowa Constitution.     The sentence imposed by the district court is

reversed, and the case is remanded for resentencing consistent with this

opinion.

      DISTRICT        COURT     SENTENCE        REVERSED        AND     CASE

REMANDED WITH INSTRUCTIONS.

      Cady, C.J., and Wiggins and Hecht, JJ., join this opinion. Cady,

C.J., and Wiggins, J., file separate concurring opinions. Mansfield, J.,

files a dissenting opinion in which Waterman and Zager, JJ., join. Zager,

J., files a separate dissenting opinion in which Waterman and Mansfield,

JJ., join.
                                    56
                                                 #14–0455, State v. Sweet

CADY, Chief Justice (concurring specially).
      I concur in the opinion of the court.    I agree the new statutory

scheme adopted by our legislature for sentencing juvenile offenders

convicted of first-degree murder to life without the possibility of parole

violates the cruel and unusual punishment clause. See Iowa Const. art.

I, § 17.    However, I write separately to express my opinion that the

statutory scheme is unconstitutional only because it does not permit the

sentencing court to retain jurisdiction to reconsider a sentencing

decision that denies eligibility for parole once full brain development had

occurred.

      The constitutional deficiencies in mandatory life-without-parole

sentences for juvenile offenders first observed in Miller v. Alabama, 567

U.S. ___, ___, 132 S. Ct. 2455, 2471, 183 L. Ed. 2d 407, 426 (2012), are

not removed when the hearing provided to overcome those deficiencies

occurs long before one of the most critical characteristics of youth has

unfolded to enable courts to fully assess and consider that characteristic.

A constitutionally mandated hearing must be meaningful. A hearing to

determine whether a juvenile offender should spend his or her entire life

in prison is not meaningful as a final decision when it occurs before

brain development is completed and before the court is able to best

understand and assess the possibility of rehabilitation.

      The problem we identify today with the current sentencing scheme

was not observed when the constitutional necessity for a hearing first

surfaced in Miller. Instead, we initially addressed the excessive nature of

lengthy mandatory sentences in the context of diminished juvenile

capacity.   See State v. Ragland, 836 N.W.2d 107, 121–22 (Iowa 2013)

(finding a sixty-year mandatory minimum as part of a life sentence to be
                                     57

the functional equivalent of life without parole); see also State v. Pearson,

836 N.W.2d 88, 96 (Iowa 2013) (holding a thirty-five-year minimum

ignored the diminished culpability of juveniles); State v. Null, 836 N.W.2d

41, 70–71 (Iowa 2013) (finding a mandatory fifty-two and a half year

minimum on a term of years sentence to violate the Miller principles). In

the process, we established the requirements for a resentencing hearing

using the Supreme Court guidance from Miller.            See Ragland, 836

N.W.2d at 115 & n.6. The legislature promptly responded by amending

the statute to provide for a hearing and a detailed list of circumstances

for the court to consider. See 2015 Iowa Acts ch. 65, §§ 1–2 (codified at

Iowa Code § 902.1(2)–(3)). The amendment addressed the constitutional

deficiency identified in Miller and in our cases that followed.

       Yet, we now observe an inherent deficiency in the information

available when sentencing juvenile offenders in the first instance.         In

particular, a juvenile offender who is resentenced based on evidence of

rehabilitation acquired after full brain development has occurred may

present a far better case for parole than an offender who has not

completed brain development.      Compare State v. Louisell, 865 N.W.2d

590,   594–95     (Iowa   2015)    (describing   numerous         achievements

accomplished over twenty-six years in prison to show she was

rehabilitated at age forty six), with Null, 836 N.W.2d at 45–46, 76–77

(resentencing occurring at age twenty, three years into his sentence).

       Judicial review tends to develop the law incrementally, and in

taking this next step now, our obligation is to again apply the

constitutional standard of cruel and unusual punishment to the

circumstances we face. These circumstances disclose that it is cruel to

sentence a youthful offender to life without the possibility of parole at a

time when the juvenile has not even had the time to finish maturing.
                                     58

While we strive to uphold the constitutionality of a statute when possible,

we do not follow this approach by lowering our expectations for justice or

accepting the imperfections we discover as an inevitable part of justice.

We must embrace each discovery in each step as an opportunity to bring

our law closer to our constitutional values, not find ways to avoid doing

so.

      It is also important to keep in mind that speculation is inevitably

injected into judicial decision-making when judges are asked to make

decisions before all the necessary information has accumulated. In turn,

speculation only enhances the likelihood of inconsistent sentencing

decisions for those who have committed the same crime. This can lead

over time to patterns and outcomes that are often inconsistent with the

most basic notions of justice. These outcomes need to be curtailed to

better ensure fairness in our system of justice. Certainly, this fairness

could not be more important when dealing with the imposition of the

most severe punishment allowed by society on a child. Close enough can

never be good enough.

      The   decision   by   the   court   today   is   consistent   with   our

constitutional values and a positive step forward. It advances Iowa in an

important area of the law. Yet, the parole board does not need to be the

only entity standing between a juvenile offender and a lifetime of

imprisonment.     The entire sentencing process will best consider the

interests of all in society when the final decision as to the eligibility of

parole is considered by a court after all relevant information is available.

      Accordingly, if a juvenile offender is to be sentenced to life without

the possibility of parole the sentencing court must be given continuing

jurisdiction to consider a single subsequent request by the juvenile

offender for rehearing once brain development is completed.                This
                                    59

approach allows the juvenile offender a full and fair opportunity to show

rehabilitation potential and provides the court with a more complete

picture in weighing all the interests involved and determining whether

the offender is “incorrigible.” See Null, 836 N.W.2d at 63.

      This approach mirrors the approach taken under the current

statute that allows courts to reconsider a sentence.          See Iowa Code

§ 902.4 (2015) (allowing the court to reconsider a felony sentence within

the first year of conviction, excluding mandatory minimum sentences

and class “A” felonies).   It would give the courts the information they

need for a fair evaluation and juvenile offenders the constitutional

protection they deserve. Of course, it should not be overlooked that the

decision of the court today also provides meaningful protection for the

youth of our state.
                                    60

                                                  #14–0455, State v. Sweet

WIGGINS, Justice (concurring specially).

      I firmly agree with and join the majority opinion. I write separately

to address points made in Justice Mansfield’s dissent.

      The dissent contends our decision today means the parole board

will release every juvenile from prison at some point in the future. That

contention is nothing more than fearmongering.        The Iowa Code sets

forth the standard the parole board must use in determining whether to

grant a parole. Iowa Code § 906.4(1) (2015). It provides,

      A parole or work release shall be ordered only for the best
      interest of society and the offender, not as an award of
      clemency. The board shall release on parole or work release
      any person whom it has the power to so release, when in its
      opinion there is reasonable probability that the person can
      be released without detriment to the community or to the
      person.      A person’s release is not a detriment to the
      community or the person if the person is able and willing to
      fulfill the obligations of a law-abiding citizen, in the board’s
      determination.

Id.   Not all juveniles, if any, will meet this standard.      As we have

previously stated,

      Even if the judge sentences the juvenile to life in prison with
      parole, it does not mean the parole board will release the
      juvenile from prison. Once the court sentences a juvenile to
      life in prison with the possibility of parole, the decision to
      release the juvenile is up to the parole board. If the parole
      board does not find the juvenile is a candidate for release,
      the juvenile may well end up serving his or her entire life in
      prison.
State v. Seats, 865 N.W.2d 545, 557 (Iowa 2015) (citation omitted).
                                       61
                                                      #14–0455, State v. Sweet
MANSFIELD, Justice (dissenting).

         Recognizing that our legislature and our trial courts have the

primary role in determining criminal sentences, I would affirm the life-

without-parole (LWOP) sentence for this seventeen year old who

murdered his grandparents who had raised him.

         Today, the court breaks new ground in finding that the Iowa

Constitution categorically forbids such sentences.           As I will explain

below, I believe the justification offered by the majority for its ruling is

insufficient.    More is needed before we strike down a legislatively

authorized sentence—especially one the general assembly reauthorized

by large majorities in both houses just last year.

         The facts of this case, accompanied by the district court’s careful

exercise of its sentencing discretion, allow the LWOP sentence in this

particular case to be upheld. Regardless of my personal views on how

this defendant should be sentenced, I do not believe the sentence here is

unconstitutional because it violates the cruel and unusual punishment

clause of the United States or Iowa Constitutions.

         I. No Categorical Bar Exists to LWOP Sentences.

         To save time and pages, I will not repeat what I previously said in

my dissent in State v. Seats, 865 N.W.2d 545, 574–84 (Iowa 2015)

(Mansfield, J., dissenting). In that case, I discussed why I do not believe

either    the   United   States   Constitution   or   the   Iowa   Constitution

categorically prohibits the legislature from authorizing LWOP sentences

for juveniles who commit murder. Contrary to the court’s views today, I

do not believe this is a “marginal issue.” It matters to offenders, victims,

and communities. And it goes directly to the relationship between this

court and the elected branches of government.            So without restating
                                   62

what I said in Seats, let me explain my disagreement with the majority’s

analysis.

      A. The United States Constitution.       In Miller v. Alabama, the

United States Supreme Court decided that the Eighth Amendment to the

United States Constitution prohibits mandatory LWOP sentences for

juveniles who commit murder. 567 U.S. ___, ___, 132 S. Ct. 2455, 2469,

183 L. Ed. 2d 407, 424 (2012). However, it said that its decision “does

not categorically bar a penalty . . . . [I]t mandates only that a sentence

follow a certain process—considering an offender’s youth and attendant

characteristics—before imposing a particular penalty.”    Id. at ___, 132

S. Ct. at 2471, 183 L. Ed. 2d at 426.

      A few months ago, in Montgomery v. Louisiana, the United States

Supreme Court reiterated that LWOP sentences for juveniles were still

available in “rare” cases under the United States Constitution. 577 U.S.

___, ___, 136 S. Ct. 718, 733–34, 193 L. Ed. 2d 599, 619 (2016). To my

knowledge, no reported decision in this nation since Miller has held that

LWOP sentences for juvenile homicide offenders categorically violate the

United States Constitution.      See Seats, 865 N.W.2d at 574 n.10

(gathering cases). In State v. Ragland, we concluded unanimously that

Miller “would seemingly permit life-without-parole sentences that are not

mandated by statute if the sentencing court has the power to consider

the attributes of youth in the mitigation of punishment.”    836 N.W.2d

107, 115 (Iowa 2013).

      Nonetheless, today the court claims that Miller was “ambiguous[]”

as to whether it enacts a categorical bar on LWOP sentences for juvenile

murderers. This is based on the court’s novel reading of the following

clause in Miller: “[W]e think appropriate occasions for sentencing

juveniles to this harshest possible penalty will be uncommon.” See 567
                                           63

U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. According to my

colleagues, Miller’s reference to “appropriate occasions” may actually be a

reference to “parole hearings or posttrial proceedings.” I must confess I

do not follow what the majority is saying here. It seems quite clear that

LWOP sentences for juvenile homicide offenders are permissible under

the United States Constitution so long the standards set forth in Miller

are complied with.

      That was exactly the point of last year’s legislation enacted by a

vote of forty-seven to three in the Iowa Senate and eighty to eighteen in

the Iowa House. See 2015 Iowa Acts ch. 65 (to be codified at Iowa Code

§ 902.1(2)–(3)). Under that law, LWOP has ceased to be mandatory for

juveniles who commit first-degree murder.             Id.   However, it remains a

discretionary sentencing option following a consideration of relevant

factors. Id.

      B. The Iowa Constitution.                 This leads me to the cruel and

unusual punishment clause in the Iowa Constitution, which has the

same wording as the Cruel and Unusual Punishment Clause in the

United States Constitution.          Several sources of state constitutional

interpretation are relevant.         For the most part, the majority either

disregards or gives short shrift to them.

      As I pointed out in Seats, Iowa constitutional history does not

support the conclusion that an LWOP sentence for a juvenile murderer is

unconstitutional regardless of the circumstances. See Seats, 865 N.W.2d

at 575–77. Despite the length of its opinion, the court today does not

discuss the Iowa historical record at all.

      This silence is significant because this court has invoked our

state’s   constitutional   history    in    other    recent   state   constitutional

decisions.     See, e.g., State v. Young, 863 N.W.2d 249, 277–79 (Iowa
                                          64

2015); State v. Short, 851 N.W.2d 474, 482–85 (Iowa 2014).                  As was

stated in Chiodo v. Section 43.24 Panel, “We seek to interpret our

constitution consistent with the object sought to be obtained at the time

of adoption as disclosed by the circumstances.” 846 N.W.2d 845, 851

(Iowa 2014) (plurality opinion).

      Another relevant consideration is how other states have interpreted

their own constitutions. See Young, 863 N.W.2d at 272 (“[I]n interpreting

our   state   constitution,       the   precedents    of   other   states   can   be

instructive.”); City of Sioux City v. Jacobsma, 862 N.W.2d 335, 350–51

(Iowa 2015).    Thus, post-Miller appellate decisions from other states

should be viewed as a helpful frame of reference.

      Here the trend is one-sided:             All but one out-of-state appellate

decisions have rejected the categorical challenge. See Seats, 865 N.W.2d

at 577–79. Notably, appellate courts from California, Georgia, Louisiana,

Indiana, Michigan, Minnesota, Pennsylvania, and Utah have all held

their states’ constitutions do not forbid LWOP sentences for juveniles

who commit murder.          Id.    An Illinois court and a New Jersey court

recently joined this list of state appellate courts that have rejected the

state constitutional challenge. See People v. Walker, ___ N.E.3d ___, ___,

2016 WL 1670178, at *5 (Ill. App. Ct. Apr. 25, 2016) (concluding that the

defendant “was sentenced at the discretion of the trial court” and his

LWOP sentence “does not violate the proportionate penalties clause [in

the Illinois Constitution]”); State v. Usry, Nos. 00–01–0166, 93–03–1078,

2016 WL 1092654, at *5 (N.J. Super. Ct. App. Div. Mar. 22, 2016)

(“[D]efendants’ argument that the New Jersey Constitution requires a

categorical ban on life-without-parole sentences for juvenile homicide

offenders is rejected.”).     Only Massachusetts has reached a different
                                    65

result. See Diatchenko v. Dist. Att’y, 1 N.E.3d 270, 276, 282–85 (Mass.

2013).

      I discussed this caselaw in Seats. See 865 N.W.2d at 577–80. In

fairness, the court does give out-of-state caselaw one paragraph of

discussion today, although the court does not mention seven of the ten

jurisdictions that have rejected the categorical challenge.

      Yet another relevant consideration, the majority acknowledges, is

whether there is a statewide or national consensus against LWOP

sentences for juveniles who commit murder.         Significantly, the court

concedes there is no consensus against this punishment. However, the

court understates the matter.       The reality is that there remains a

consensus in favor of continuing to make LWOP sentences available for

juvenile murderers.    This is exemplified by the actions of our elected

representatives last year and by the similar actions of twenty-two other

states that have enacted post-Miller legislation continuing LWOP as a

sentencing option for juvenile homicide offenders.            See Seats, 865

N.W.2d at 572 n.8. By contrast, only nine legislatures have made the

choice since Miller to eliminate LWOP. See id. n.6; 2016 S.D. Sess. Laws

ch. 121, § 2 (to be codified at S.D. Codified Laws § 22–6–1); 2016 Utah

Laws ch. 277, § 6 (to be codified at Utah Code § 76–3–209).              So

consensus does not support the majority’s position.

      What then are the court’s reasons for deciding that article I,

section 17 forbids LWOP sentences for juveniles who commit murder?

There is really just one reason. At the end of its opinion, the court says

that district courts “cannot apply the Miller factors in any principled way

to identify with assurance those very few adolescent offenders that might

later be proven to be irretrievably depraved.” With part of this statement,

I agree. In truth, one cannot predict with full assurance which juvenile
                                             66

offenders can and cannot be rehabilitated. The Massachusetts Supreme

Judicial Court said the same thing in Diatchenko. See 1 N.E.3d at 283–

84. However, for several reasons, I do not believe this rather self-evident

point is enough for us to overturn the legislature’s own judgment in 2015

that LWOP should remain one sentencing option in the exercise of a trial

court’s discretion.

       First, if LWOP sentences cannot be constitutionally imposed

whenever there is a possibility of rehabilitation, why is this principle

limited   to    juveniles?        Why     aren’t    LWOP      sentences      categorically

unconstitutional for everyone? The court acknowledges, “The features of

youth . . . simply do not magically disappear at age . . . eighteen.”

       Second, if the Miller factors are “not . . . very helpful,” “fraught with

risks,” or cannot be “consistently applied” by district courts, as the court

says today, why has this court previously expanded their use to other

contexts besides LWOP?             Before today, we had embraced the Miller–

Ragland 8 factors for sentencing juvenile offenders whenever the law

provided for any mandatory minimum period of incarceration. See State

v. Lyle, 854 N.W.2d 378, 403 (Iowa 2014) (“The youth of this state will be

       8We   distilled five factors from Miller in Ragland, where we said the following:
               In Miller, the Court described the factors that the sentencing
       court must consider at the 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 homicide offense, including the extent of [the
       youth’s] participation in the conduct and the way familial and peer
       pressures may have affected [the youth]”; (4) the “incompetencies
       associated with youth—for example, [the youth’s] inability to deal with
       police officers or prosecutors (including on a plea agreement) or [the
       youth’s] incapacity to assist [the youth’s] own attorneys”; and (5) “the
       possibility of rehabilitation.”
836 N.W.2d at 115 n.6 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2468, 183 L. Ed.
2d at 423).
                                     67

better served when judges have been permitted to carefully consider all

the circumstances of each case to craft an appropriate sentence and give

each juvenile the individual sentencing attention they deserve . . . .”).

Now, however, the recently mandated factors are deemed to be of

“doubtful” value.   Under the majority’s reasoning, we should abandon

any minimum periods of imprisonment and require instant parole

eligibility for every juvenile who commits a serious felony.

      Third, and most important, I think the inherent uncertainty

regarding future prospects for rehabilitation is simply an insufficient

basis for supplanting the judgment of our elected representatives and

declaring our existing legislative scheme unconstitutional. I respect the

view that the Iowa Constitution has zero tolerance for error, but justice is

never perfect.   Errors can be made—both in incarcerating individuals

who should not be incarcerated and in releasing individuals who should

not be released.    And rehabilitation is not the only goal in criminal

sentencing. If it were, all sentences would have no mandatory periods of

incarceration.

      As I noted in Seats, both Miller and our cases indicate that factors

other than rehabilitation can be taken into account in sentencing

juveniles. See Miller, 567 U.S. at ___, 132 S. Ct. at 2475, 183 L. Ed. 2d

at 430 (stating that the sentencer may consider “the nature of the[]

crimes,” not just “age and age-related characteristics”); Lyle, 854 N.W.2d

at 398 (stating that the sentencing may consider “the harm the offender

caused”). In Ragland, we said “the possibility of rehabilitation” was one

of five sentencing factors—not the only one.      836 N.W.2d at 115 n.6

(quoting Miller, 567 U.S. ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423).

In Miller, the Supreme Court appeared to indicate that LWOP should be

reserved for juvenile murderers “whose crime reflects irreparable
                                          68

corruption.” See Miller, 567 U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed.

2d at 424 (quoting Roper v. Simmons, 543 U.S. 551, 573, 125 S. Ct.

1183, 1197, 161 L. Ed. 2d 1, 24 (2005)). It used this same formulation

several times in Montgomery, stating that LWOP can be imposed on

juvenile murderers “whose crimes reflect irreparable corruption” as

opposed to “transient immaturity.” 577 U.S. at ___, 136 S. Ct. at 734,

193 L. Ed. 2d at 620–21. This standard was reiterated at the very end of

the case: “[P]risoners like Montgomery must be given the opportunity to

show their crime did not reflect irreparable corruption . . . .” Id. at ___,

136 S. Ct. at 736, 193 L. Ed. 2d at 623. But saying that a crime reflects

irreparable corruption is not the same thing as saying that the offender

can never be rehabilitated. It is a broader concept that gives weight to all

the Miller–Ragland factors. 9

       Society may want to punish a horrendous murder beyond the time

necessary to rehabilitate the murderer.              Parole, however, means the

release of the offender occurs as soon as he or she is able and willing to

be a law-abiding citizen. Cf. Iowa Code § 906.4(1) (2015) (“The board [of

parole] shall release on parole or work release any person whom it has

the power to so release, when in its opinion there is reasonable
probability that the person can be released without detriment to the

community or to the person. A person’s release is not a detriment to the




       9I  acknowledge that one sentence in Montgomery focuses more narrowly on
rehabilitability of the offender: “The [Miller] Court recognized that a sentencer might
encounter the rare juvenile offender who exhibits such irretrievable depravity that
rehabilitation is impossible and life without parole is justified.” 577 U.S. at ___, 136
S. Ct. at 733, 193 L. Ed. 2d at 619. I think this sentence needs to be read in the
context of other, more prevalent language that is crime-based. See id. at ___, 136 S. Ct.
at 734–36, 193 L. Ed. 2d at 619–22.
                                        69

community or the person if the person is able and willing to fulfill the

obligations of a law-abiding citizen, in the board’s determination.”).

      When it enacted Senate File 448 last year, our legislature surely

understood this court’s basic observation about the difficulty of

predicting a juvenile’s prospects for rehabilitation. See 2015 Iowa Acts

ch. 65. One doesn’t have to read law review articles to grasp this point.

Yet the legislature decided to leave LWOP on the table for some first-

degree murders committed by juveniles. I do not see a constitutionally

adequate basis for setting aside that legislative judgment.

     II. The Sentence in This Case Satisfies the Constitutional
Standards Set Forth in Miller and Ragland.

      I now turn to how I would actually decide this case. In addition to

a categorical challenge, Sweet has raised an as-applied challenge to his

sentence. As I previously explained in Seats, when confronted with such

a challenge, I believe we are required to perform a substantive, not

merely a procedural, review of the juvenile LWOP sentence.                See 865

N.W.2d at 588–89. Thus, it is not enough for me that the five Miller–

Ragland factors were covered in the sentencing hearing and in the

district court’s sentencing order. We also need to make an independent

determination whether the case is sufficiently uncommon that a district

court, if it so chose, could impose an LWOP sentence. 10 In making this

determination, I would conduct an independent de novo review of the

overall application of the Miller–Ragland factors, while accepting specific

underlying fact findings if they are supported by substantial evidence.


      10Montgomery  confirms this point. It concluded that Miller imposes both
substantive and procedural limits on when a juvenile homicide offender can be
sentenced to LWOP. See Montgomery, 577 U.S. at ___, 136 S. Ct. at 734–35, 193 L. Ed.
2d at 620.
                                   70

Id. at 588.     In this review, no single Miller–Ragland factor is

determinative. Instead, we should consider “whether there are sufficient

indicia the case is out of the mainstream of juvenile homicide cases that

an LWOP sentences is a constitutional option.” Id. at 589.

      Under this approach, district courts are not deprived of sentencing

discretion. To put it another way, this approach does not turn appellate

courts into sentencing courts. Yet it provides some check on the kinds of

cases where LWOP sentences are imposed, a check which I believe is

required by Miller and our precedents. What I have described resembles

what several other state appellate courts have done post-Miller. See id.

at 587–88 (discussing cases from California, Louisiana, and North

Carolina).

      Here is what the district court found after quoting all the Miller–

Ragland factors. See Ragland, 836 N.W.2d at 115 n.6.

              The Court has analyzed this case based on the above
      factors. Defendant’s chronological age in and of itself is not
      a significant mitigating factor. Defendant was 17 years and
      three months old at the time of the murders. Had he been
      nine months older, the law would have required him to serve
      life in prison without the possibility of parole.

            While Defendant’s maturity level at the time of the
      crimes is debatable, these were not crimes of impetuosity,
      nor were they crimes that Defendant committed because he
      failed to appreciate the risks and consequences of his
      actions. Defendant planned these murders. He researched
      various methods of killing and consulted with others. When
      the time came, he took the measured step of wearing ear
      muffs so as not to damage his own hearing when he fired the
      assault rifle he used to kill the Sweets.

             Defendant’s early home environment left something to
      be desired. He reported being sexually abused by a neighbor
      and apparently never received treatment for any issues that
      abuse may have caused. Defendant’s mother was unable to
      care for him and left him with the Sweets. The Sweets raised
      Defendant as most parents would—including him in family
      events and holidays, marking milestones with pictures and
      keepsakes, etc. It is undisputed that Defendant behaved
                              71
badly and was often angry with the Sweets, but the Court
heard nothing that leads it to believe that Defendant’s
behavior and anger was caused by anything the Sweets did
or the quality of home life they provided. By most accounts,
the Sweet household was a stable home; the fact that
Defendant rebelled against the authority they tried to
exercise, sometimes violently, does not change that fact.

      The circumstances of the offenses do not militate in
favor of mitigation. As noted above, these were not crimes of
passion, nor did they occur in the heat of the moment.
Defendant did not murder Richard and Janet Sweet because
of familial or peer pressures.

      Defendant had no incompetencies that made him
unable to deal with police officers, prosecutors or assist in
his own defense. He understood his rights when he was
apprehended and was able to recite those rights before they
were recited to him. Defendant was, at all relevant times, of
average to above-average intelligence, and there is nothing in
the record that leads the Court to believe that he was unable
to assist his attorneys in his own defense.

       The last factor the Court must assess is the possibility
of rehabilitation. The Court considered the testimony and
report of Dr. Stephen Hart [the psychologist called by Sweet
as a witness]. In Dr. Hart’s view, Defendant’s prospects for
rehabilitation are “mixed.”        He did not know whether
Defendant was treatable, let alone what treatment might be
appropriate. Dr. Hart offered the statistic that 75% of people
who engage in “serious delinquency” as adolescents
spontaneously desist offending by age 25. The Court was
not provided with the actual study, thus leaving it with
questions regarding the reliability or even applicability of the
data. The Court certainly did not take this data as an
indication that a 17-year-old who murdered his
grandparents in the fashion Defendant did has a 75%
chance of “spontaneously” changing his behavior by age 25.
Considering the manner in which Defendant murdered his
victims and his demeanor following the murders, the Court
believes that “mixed” is an overly-optimistic characterization
of the possibility of rehabilitation.

       It should be an uncommon, if not rare, case where a
juvenile offender is committed to life in prison without the
possibility of parole, but if this is not such a case, it is
frightening to imagine what might classify as such. After
giving due weight to the constitutional considerations, the
Court deems this to be a rare case in which such a
punishment is warranted.
                                        72
              In the eyes of the law, Defendant was almost an adult
      when he murdered his grandparents. He planned the crimes
      and acted with cool deliberation and an utter lack of
      humanity.       The crimes were horrific—two helpless and
      unsuspecting victims shot as they sat in their living room,
      left to be discovered by other family members. Why? Simply
      because Defendant did not like the parental authority they
      tried to exercise over him. If Defendant’s cold-bloodedness
      wasn’t evident from the crimes themselves, it certainly
      became so immediately thereafter, when he began to sell his
      victims’ belongings, going so far as to bring a friend into the
      house to show him a flat screen t.v. just a few feet from the
      Sweets’ bodies.

             Defendant may be young, but that has not stopped
      him from showing the world who he is. He is extremely
      dangerous. He is now and will continue to be a threat to
      society. In this case, the interests of justice and community
      safety outweigh any mitigating factors under Miller. For
      these reasons, the Court imposes the maximum sentence of
      life imprisonment without the possibility of parole.

      The record fully supports this fact-finding.           Unfortunately, the

court today determines its own facts, drawing largely on unverified

statements made by Sweet or his natural mother to the probation officer.

The   probation    officer   appropriately    distanced    herself   from   those

unverified statements when she prepared the presentence investigation

report (PSI). 11   Thus, the probation officer said those matters were

“reported” to her without vouching for their accuracy. Regrettably, the
majority treats them as conclusively proven, noting that the PSI was

“admitted into evidence without objection and without correction or

elaboration by either party.”       I disagree with this approach, which I

believe gives insufficient deference to the sentencing judge’s first-hand

factual determinations.

      Starting from this questionable premise, the majority concludes

Sweet had an “unstable family life.” But the district court found, and the

       11It should be noted the natural mother was not an unbiased observer in that

her parental rights were terminated when Sweet was four.
                                    73

record supports, that although Sweet’s early home environment was

poor, Sweet did not suffer from a lack of family stability once he moved in

with his grandparents at the age of four. One can fairly say that Sweet

murdered the two people who rescued him.

      Furthermore, Sweet’s juvenile court officer testified that both

grandparents were very involved in Sweet’s supervision and repeatedly

tried to get help for him. Sweet’s psychologist was careful to say that

although Sweet had complained about his grandfather being abusive, “I

just want to make clear I’m not saying that’s a fact.”

      In addition to giving considerable weight to unverified statements

made to the PSI preparer, the majority downplays the testimony of

Sweet’s psychologist, much of what was quite unfavorable to Sweet.

Here are excerpts from the psychologist’s cross-examination testimony:

            Q. You’ve said that the Defendant is quick to anger;
      correct? A. Yes.

            Q. That he is deceitful, defiant? A. Yes.

            Q. Aggressive? A. Yes.

            Q. And he has a lack of attachment to people. A. Yes.

            Q. That he lacks trust in people. A. Yes.

            Q. That he is emotionally disconnected. A. Yes.

           Q. That he has no strong feelings of empathy or
      remorse. A. Correct, yes.

            Q. He has an attitude of superiority. A. Yes.

           Q. And even today you don’t think he begins to
      appreciate what he’s done; correct? A. Correct.

             Q. Someone with those types of behavior traits that
      we just went through, what do you call that when they’re an
      adult? A. If those things persisted past the age of 25, if I
      had an adult who’d shown those things consistently, then
      that’s the kind of thing we often would call psychopathic or
      antisocial personality disorder.
                                    74
             Q. And I’m correct in saying that you can’t say if he is
      going to be a psychopath; correct? A. That’s exactly right. I
      can’t tell you that he will or he won’t.

            Q. And you have said in your report that he has not
      responded to treatment, to any type of treatment, to this
      point; correct? A. Correct. There’s some cognitive aspects
      of his behaviors.     Some of his simple attention has
      responded to medications but this doesn’t—hasn’t had a big
      impact on the other parts of his behavior.

            Q. And so it could be just in-born personality traits;
      correct? A. It could be.

             Q. And you also cannot recommend any type of
      treatment that’s likely to improve him. A. That’s correct.
      The ADHD, I would imagine, will continue to be treated by
      medications, but that’s actually only one part of his
      problems as I’ve outlined them. I think the attachment
      issues and the personality issues require other forms of
      treatment, but we don’t have any reliably effective treatment
      for those things.

      Let me now detail what in my view makes this case unusual and

authorized the district court, in its discretion, to impose an LWOP

sentence.   In doing so, I will review the Miller–Ragland factors while
accepting specific factual findings of the district court if supported by

substantial evidence.

      First, as noted by the district court, Sweet was over seventeen

years old when he killed his grandparents, just nine months short of the

age when Miller–Ragland would no longer even apply.         While there is

certainly evidence the defendant often acted impetuously, he did not

commit these murders impetuously.        Noteworthy is the district court’s

observation that the defendant “took the measured step of wearing ear

muffs so as not to damage his own hearing when he fired the assault rifle

he used to kill the Sweets.”

      Second, as found by the district court, Sweet had the benefit of a

stable home once he moved in with his grandparents at the age of four.

The district court is right: We should not confuse Sweet’s violent
                                     75

rebellion against his grandparents, which culminated in his decision to

murder them, with a poor home environment.

      Third, the crime was accurately summarized by the district court

as “horrific.” The defendant not only murdered his grandfather in cold

blood, with whom he did not get along, but his grandmother, with whom

he did get along. Sweet had no accomplices. No one encouraged him to

do what he did.

      Fourth, the defendant’s youth did not impair his defense. As the

district court found, he was of average to above average intelligence.

Some of the vocabulary he used in his allocution supports this finding

(e.g., “emotionally,” “sociologically,” “comprehend,” “condolences”). Sweet

knew his rights before the police recited them to him. He knew the exact

penalty provided by the law for his crimes.

      Finally, while no one can say for sure whether this defendant can

be rehabilitated, it bodes ill for him that he has traits of an antisocial

personality disorder, for which no treatment is available.     In fairness,

Sweet’s psychologist testified that Sweet’s prospects for rehabilitation are

“mixed” because seventy-five percent of delinquents with antisocial

personality   characteristics   do   not   develop   “life-course-persistent

antisocial behavior”; only twenty-five percent do. However, as the district

court pointed out, these were overall numbers, not numbers specific to

persons who commit a crime like a premeditated double murder of one’s

grandparents.

      To my mind, sharp differences exist between this case and three

cases we have recently reviewed—Ragland, State v. Louisell, 865 N.W.2d
                                          76

590 (Iowa 2015), and State v. Querrey, 871 N.W.2d 126 (Iowa 2015). 12

For all these reasons, I believe an LWOP sentence was a constitutional

sentencing option here, and the district court’s sentence should be

affirmed.

       For the reasons stated, I respectfully dissent.

       Waterman and Zager, JJ., join this dissent.




       12A  quick review of the court of appeals’ docket indicates that other juveniles
who committed first-degree murder have received non-LWOP sentences post-Miller. See
State v. Harris, No. 14–0394, 2015 WL 576020, at *1 (Iowa Ct. App. Feb. 11, 2015) (life
with immediate parole eligibility); State v. Winfrey, No. 13–1837, 2014 WL 3940136, at
*6 (Iowa Ct. App. Aug. 13, 2014) (life with immediate parole eligibility).
                                    77
                                                 #14–0455, State v. Sweet
ZAGER, Justice (dissenting).

       I join in the well-written dissent authored by Justice Mansfield. I

would affirm the district court sentence of life without the possibility of

parole (LWOP) for Sweet. I write separately to voice my ongoing objection

to this court’s lack of confidence in our district court judges’ ability to

make difficult sentencing decisions in the area of juvenile sentencing

involving life without parole.

       We have now had several opportunities to review the sentencing

decisions of our district court judges regarding juvenile homicide

offenders and LWOP. See, e.g., State v. Louisell, 865 N.W.2d 590, 598–

603 (Iowa 2015); State v. Seats, 865 N.W.2d 545, 555–57 (Iowa 2015). In

each case, our court has refused to uphold the decision of the district

court that the juvenile homicide offender was the rare and uncommon

case warranting the imposition of LWOP. See, e.g., Seats, 865 N.W.2d at

557.

       This court has repeatedly demonstrated that, in practice, it is

unwilling to uphold any sentence of life without parole for juvenile

offenders—indeed, we are not even willing to uphold sentences that are

merely the functional equivalent of life without parole. See, e.g., Seats,

865 N.W.2d at 555–57 (expanding on the factors that district court

judges must weigh in a juvenile homicide offender’s sentencing hearing,

vacating the sentence of LWOP imposed by the district court, and

remanding for resentencing); State v. Ragland, 836 N.W.2d 107, 122

(Iowa 2013) (requiring individualized sentencing proceedings per Miller v.

Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), not

only for juveniles serving LWOP sentences but also for those serving the

“functional equivalent” of LWOP sentences).         After establishing in
                                           78

Ragland and State v. Null that Miller would apply retroactively and

require individualized sentencing hearings, and later expanding on the

factors the district court must consider in Seats, this court is still in this

case unwilling to uphold an LWOP sentence that resulted from a

thorough individualized sentencing hearing. See Seats, 865 N.W.2d at

555–57    (outlining     the    factors   the district      court   must     weigh   in

determining which juveniles should be subject to the “rare and

uncommon” sentence of life without parole); Ragland, 836 N.W.2d at

117; State v. Null, 836 N.W.2d 41, 74 (Iowa 2013) (“[W]e conclude article

I, section 17 requires that a district court recognize and apply the core

teachings of Roper [v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161

L. Ed. 2d 1 (2005)], Graham [v. Florida, 560 U.S. 48, 130 S. Ct. 2011,

176 L. Ed. 2d 825 (2010)], and Miller in making sentencing decisions for

long prison terms involving juveniles.”).

      Unfortunately, as highlighted by the dissent in this case, even after

a thorough sentencing hearing, and after a thorough and well-reasoned

decision by the district court, this court will not support the conclusion

that this may be that rare and uncommon circumstance warranting a

sentence of LWOP. We have certainly provided sufficient guidance as to

what would warrant a sentence of LWOP for juvenile offenders. 13                     Of

      13We   have instructed our judges to weigh certain factors:
              First, the court must start with the Supreme Court’s
      pronouncement that sentencing a juvenile to life in prison without the
      possibility of parole should be rare and uncommon.                Thus, the
      presumption for any sentencing judge is that the judge should sentence
      juveniles to life in prison with the possibility of parole for murder unless
      the other factors require a different sentence.
             Second, the sentencing judge must recognize that “children are
      constitutionally different from adults.”       We have explained, “The
      constitutional difference arises from a juvenile’s lack of maturity,
      underdeveloped sense of responsibility, vulnerability to peer pressure,
      and the less fixed nature of the juvenile’s character.”
                                           79

course, the procedural safeguards of an individualized sentencing

hearing have been utilized in all cases.             However, in our substantive

analysis, it now appears that the factors we previously established are so

vague, subjective, and uncertain that this court cannot expect the

district court to do the impossible—make a judgement as to whether the

offender is “irretrievably corrupt” or to find a true “rare and uncommon”

case sufficient to justify the imposition of a sentence of life without

parole. The answer, of course, is to take away all sentencing discretion

from the district court and adopt a categorical rule that juvenile

offenders may never be sentenced to life without the possibility of parole

under article I, section 17 of the Iowa Constitution. I find the basis for

this conclusion troubling on many levels.




               In sentencing the juvenile offender, the court must take into
       account any information in the record regarding “the family and home
       environment that surrounds him—and from which he cannot usually
       extricate himself—no matter how brutal or dysfunctional.” . . . The
       sentencing judge should consider these family and home environment
       vulnerabilities together with the juvenile’s lack of maturity,
       underdeveloped sense of responsibility, and vulnerability to peer
       pressure as mitigating, not aggravating, factors.
               Third, the sentencing judge must consider “the circumstances of
       the homicide offense, including the extent of [the juvenile’s] participation
       in the conduct and the way familial and peer pressures may have
       affected him.” . . .
               Finally, the sentencing judge must take into consideration that
       “[j]uveniles are more capable of change than are adults” and that as a
       result, “their actions are less likely to be evidence of ‘irretrievably
       depraved character.’ ” . . . The sentencing judge should only sentence
       those juveniles to life in prison without the possibility of parole whose
       crime reflects irreparable corruption.
Seats, 865 N.W.2d at 555–56 (citations omitted) (first quoting Miller, 567 U.S. at ___,
132 S. Ct. at 2464, 183 L. Ed. 2d at 418; then quoting Null, 836 N.W.2d at 74; then
quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423; then quoting
id.; and then quoting Graham, 560 U.S. at 68, 130 S. Ct. at 2026, 176 L. Ed. 2d at
841).
                                      80

      First, we are not asking our district court judges to do the

impossible. These are the difficult decisions we expect of our judges and

are the type of decisions that they make with distinction on a daily basis.

I also agree that it is not enough that the Miller–Ragland–Null factors

were considered in Sweet’s sentencing hearing and that the district court

sentencing order discussed and analyzed these factors. We also need to

make an independent judgment as to whether the case is sufficiently

uncommon that the district court judge, in the exercise of his or her own

judgment, could impose an LWOP sentence.                This is the function of

appellate review.        The adoption of this categorical rule not only

eliminates the role of the district court in its sentencing obligation, but

eliminates any effective appellate review. This sea change in sentencing

requires greater analysis than simply relieving district court judges of

this “impossible” duty. Mere expediency in sentencing juvenile offenders

should not be the standard.

      I also do not find persuasive the argument that, since highly

trained psychologists cannot predict when a juvenile offender is

irreparably   corrupt,    the   decisions    of   our   sentencing   courts   are

speculative because they lack adequate predictive information. It is not

for these trained professionals to offer an ultimate opinion on this. And

frankly, the district court is free to accept it or reject it in any case. It is

just one of the multiple factors that we expect our judges to evaluate

when determining an appropriate sentence for a juvenile offender.

      Last, with all due respect, I question whether the board of parole is

better able to discern whether the juvenile offender is irreparably corrupt

after time has passed, and after opportunities for maturation and

rehabilitation have been provided.          I am not an expert in the parole

system, nor do I claim to be. But what I have discerned is that the board
                                     81

of parole has an extremely busy schedule handling literally hundreds of

cases a month.      Also, parole decisions may be made for a variety of

reasons.   Some parole decisions may be the result of a change in the

rules or overcrowding. The point is, many parole decisions may be made

based on factors unrelated to a consideration of maturity and

rehabilitation.    Likewise, I am not confident that the department of

corrections has or will have the resources available to hire highly trained

professionals to provide all of the psychological testing and treatment

necessary to offer an informed opinion on whether the offender is now

irreparably corrupt. And of course, even if those opinions were offered,

the board of parole has the ability to reject the opinions as well.

Ultimately, I think the adoption of a categorical rule is an improper

delegation of the sentencing duties and responsibilities vested in the

judicial branch.

      The district court provided Sweet with an appropriate Miller-type

hearing.   After the sentencing hearing, the district court applied the

unique facts of this case to the multiple factors we have set out in our

caselaw.    In a thorough, well-reasoned decision, the district court

concluded this was the rare case where an LWOP sentence was

appropriate. Having done exactly what we expect of our district court

judges, and looking at the entire record independently as we are required

to do, I would affirm the sentence of the district court.

      Waterman and Mansfield, JJ., join this dissent.
