               IN THE SUPREME COURT OF IOWA
                                  No. 13–1960

                           Filed June 26, 2015


STATE OF IOWA,

      Appellee,

vs.

DAMION JOHN SEATS,

      Appellant.



      Appeal from the Iowa District Court for Cerro Gordo County,

Colleen Weiland, Judge.



      A juvenile offender appeals his sentence of life in prison without

the possibility of parole. DISTRICT COURT SENTENCE VACATED AND

CASE REMANDED WITH INSTRUCTIONS.



      F. David Eastman of Eastman Law Office, Clear Lake, for

appellant.



      Thomas J. Miller, Attorney General, and Alexandra Link, Assistant

Attorney General, for appellee.



      Alan Ostergren, Muscatine, for amicus curiae, Iowa Attorney

Association.
                                    2

WIGGINS, Justice.

      A juvenile offender convicted of first-degree murder appeals his

resentencing to life in prison without the possibility of parole.   In this

appeal, we determine the factors a court must use when it sentences a

juvenile offender for first-degree murder. Because the district court did

not have the benefit of this decision when it sentenced the juvenile, we

vacate the sentence and remand for resentencing. We do not reach the

issue as to whether a sentence of life in prison without parole

categorically violates the Iowa Constitution’s prohibition against cruel

and unusual punishment, because we are remanding the case for

resentencing.

      I. Background Facts and Proceedings.

      On August 23, 2008, Damion Seats, who was seventeen years old

at the time, went to a party at a friend’s house in Mason City. While at

the party, Seats’s friend, Andre Wells revealed he had a handgun in his

pocket.   In the early morning hours of August 24, Seats and Wells

convinced another friend, Jamie McFarland, to give them and two

acquaintances a ride from the party to Reuben Ramirez’s house.

      Earlier that month, Seats initiated a fight with Ramirez at

Ramirez’s house. During the fight, Seats hit Ramirez on the head with a

brick. On the evening of the party, Seats was concerned that Ramirez

would report the brick incident to the police. Before leaving for Ramirez’s

house, Seats and Wells placed the loaded gun in the trunk of the car.

      When the vehicle arrived at Ramirez’s house, Seats instructed

McFarland to park in the alley. Seats and Wells then tied t-shirts around

their faces, retrieved the loaded handgun from the trunk, and entered

the residence through a back door. When Seats and Wells entered the

house Ramirez was not home, but Isidoro Cervantes Erreguin, who
                                   3

stayed with Ramirez at times, and Cervantes’s brother were. Both were

in the living room, asleep on different couches. Seats approached the

living room couch where Cervantes was sleeping and shot him five times.

Four of the bullets entered Cervantes’s back and the fifth entered his

chest. After Seats and Wells fled, paramedics arrived at Ramirez’s house

and attempted to perform CPR on Cervantes. The paramedics declared

Cervantes dead at the scene.

      Seats and Wells returned to McFarland’s waiting car.      After the

group left Ramirez’s house, Seats wrapped the handgun in a shirt and

hid it under some bushes near his brother’s apartment.

      On the afternoon of August 24, Seats came to the police

department and asked to speak with investigators. Seats met with the

case agent assigned to lead the murder investigation, Division of

Criminal Investigation Special Agent Chris Callaway.         Seats had

reportedly heard from his friends that the police mentioned his name as

a possible suspect in Cervantes’s murder. Seats stated he had come to

the police station voluntarily in order to clear his name. Special Agent

Callaway interviewed Seats for about two hours.

      Seats recounted being at a friend’s party on the night of the 23rd

and said he stayed there until about 3:00 a.m. on the 24th.        Seats

acknowledged that after the party, he, Wells, and two acquaintances got

a ride from McFarland. However, according to Seats, McFarland took the

two acquaintances home, then dropped off Wells in a Walmart parking

lot where Wells planned to meet up with another acquaintance. Seats

told Special Agent Callaway that McFarland then drove him to another

friend’s house where he stayed the night. Seats stated he arrived at this

friend’s house around 4:00 a.m. on August 24 and slept there until

about 11:00 a.m. He denied any involvement in the murder. The police
                                   4

permitted Seats to leave the station after the interview, but they

continued to conduct surveillance on Seats.

      While Special Agent Callaway was interviewing Seats, Wells came

to the police department and turned over the gun Seats had hidden in

the bushes. Based on Wells’s version of events, the police arrested Seats

that evening. The police brought Seats back to the station for another

interview, this time Special Agent Callaway and Special Agent in Charge

Jeff Jacobson were present and recorded the interview.

      After Mirandizing Seats, the agents informed him they had

recovered the gun and asked for his version of events.      Seats initially

continued to deny any involvement in the murder, but then told

investigators he would tell them anything they wanted to know if he

could speak to his girlfriend. The police allowed Seats to speak to both

his girlfriend and his mother during the interview.      When his mother

asked him why he had shot Cervantes, he stated that he had intended to

kill Ramirez to keep him from pressing charges. He went on to say, “I

wasn’t thinking of anybody this would’ve hurt if I got caught; I didn’t

think I was gonna get caught . . . .” After the phone call to his mother,

Seats drew a diagram of Ramirez’s house and indicated where he entered

the house, where the occupants were sleeping, and where he stood when

he shot Cervantes.    Seats also told investigators he felt remorse for

shooting an innocent man.

      AGENT: When did you realize it wasn’t Reuben?              A.
      Afterwards. Afterwards, like, I shot and I looked and, um, it
      ain’t even him. And that’s really what made me feel bad
      because that night, that dude wasn’t even there. Like, he
      ain’t even had nothing to do with that. So I killed an
      innocent person. That’s what really ate me up, like, I killed
      somebody innocent who didn’t have to die.
                                       5

         On September 9, the county attorney filed a trial information

charging Seats, Wells, and McFarland jointly with first-degree murder

and first-degree burglary. See Iowa Code §§ 707.1, .2; id. §§ 713.1, .3

(2009).

         Notwithstanding his confession, Seats pled not guilty and went to

trial separately from the other defendants. The jury found Seats guilty of

both first-degree murder and first-degree burglary.

         On October 26, 2009, as required by Iowa law, the court sentenced

Seats to life without parole on the murder charge.            See Iowa Code

§ 902.1 (“Upon a . . . verdict of guilty, . . . the court shall enter a

judgment of conviction and shall commit the defendant into the custody

of the director of the Iowa department of corrections for the rest of the

defendant’s life. . . . [A] person convicted of a class ‘A’ felony shall not be

released on parole unless the governor commutes the sentence to a term

of years.”).    It also sentenced Seats concurrently to twenty-five years

imprisonment on the burglary conviction. See id. § 902.9(2). The court

of appeals affirmed his convictions.

         On August 17, 2011, Seats filed a motion to correct an illegal

sentence. At that time, Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455,

183 L. Ed. 2d 407 (2012), was pending before the United States Supreme

Court. The district court continued the hearing on Seats’s motion until

the Supreme Court rendered a decision. Shortly after Miller was decided,

but before the trial court heard Seats’s motion, Iowa’s Governor

commuted the sentences of all juveniles previously convicted of first-

degree murder to a life sentence with the possibility of parole after sixty

years.      Seats requested and the district court granted a further

postponement until we had decided a number of pending cases

concerning this commutation and other aspects of juvenile sentencing.
                                      6

        On August 16, 2013, in State v. Ragland, we held the Governor’s

blanket commutation of the juveniles’ life without parole sentences to life

with eligibility for parole after sixty years did not affect the constitutional

requirement that the district court proceed with an individualized

hearing as required by Miller.     See State v. Ragland, 836 N.W.2d 107,

121–22 (Iowa 2013).       The district court scheduled an individualized

resentencing hearing for Seats after the filing of the Ragland opinion.

        In 2013, the court ordered a new presentence investigation report,

which Barbara Brandt, a Mason City parole officer, prepared and filed.

The report noted Seats had a difficult childhood, including a lack of adult

supervision and exposure to gang violence at a very early age. It also

indicated Seats had a history of homelessness and alcohol and drug

abuse.    The report indicated Seats had not graduated high school or

completed his GED, but he had completed a literacy program while

incarcerated. The report detailed Seats’s juvenile criminal history. Seats

told the parole officer that the majority of the people in his life had been

negative influences, although some friends and associates in Mason City

were positive influences. According to the report, Seats told the parole

officer “[t]he difference between defendant and his co-defendants was

that they had supportive family members and that wasn’t the case for

him.”

        Additionally, the report noted the prison had disciplined Seats ten

times, including for fighting, for possession of intoxicants, and twice for

theft and unauthorized possession. Finally, the report indicated Seats

held a job during his time in prison, but as of October 29, 2013, he was

not employed due to his status.       However, the report stated his case

manager anticipated Seats would be eligible to work again in November
                                     7

2013. The report did not make a sentencing recommendation because

the court had previously sentenced Seats.

      The court held a resentencing hearing on November 22. The court

described the purpose of the proceeding as follows:

      A series of U.S. Supreme Court cases and Iowa Supreme
      Court cases over the past several years have made clear that
      those two courts consider sentences of life without the
      opportunity for parole entered as to offenders who were
      juveniles at the time of the offense [to be] cruel and unusual
      punishment unless there is a consideration of individual
      factors. And so I believe that the parties might be presenting
      evidence on those individual factors today and will be
      arguing their positions as to what the sentence should be.

      Seats testified at the hearing about his childhood. He explained

his father stopped living with the family when Seats was four years old

and Seats had little contact with his father growing up. Seats’s father

was a drug addict and used drugs when he was around Seats and his

siblings. At this time, Seats has no relationship with his father.

      Seats told the court as a young boy he considered his uncle a role

model, even though his uncle had been in prison for drugs and

attempted murder. Gang members murdered Seats’s uncle in front of

Seats when he was seven years old.

      Seats’s mother has lived in Chicago since 2006, when she returned

to take care of Seats’s brother who was shot in a gang incident. Prior to

her return to Chicago, Seats lived with his mother, moving abruptly

between Virginia, Illinois, Wisconsin, and Iowa.

      After his father left, Seats’s mother began a relationship with Greg,

a gang member in Chicago. Greg physically abused his mother in front

of Seats and his siblings. Seats remembered Greg hitting his mother in

the head with a hammer.
                                       8

      By the time Seats was ten years old, Seats’s mother had a new

boyfriend, Keith, who was abusive to Seats’s mother and all of the

children. Keith was physically, verbally, and emotionally abusive, using

household items to hit the children.       Seats recalled all the children

sleeping under their beds to avoid Keith’s beatings. Further, while she

was with Keith, Seats’s mother also became abusive towards the children

and at one point Seats’s grandmother removed the children from their

home for a few months to keep them safe. Seats reported he stayed out

all night in Chicago to avoid the violence while Keith was in the home.

      Seats has two brothers and one sister. Both of Seats’s brothers

have been imprisoned at one time for drugs and violent crimes. Seats’s

sister also has a history of drug use and criminal charges.

      Seats was involved in gangs since the age of thirteen. When his

mother moved back to Chicago in 2006 Seats stayed in Mason City,

living with his brother who was approximately twenty years old.           His

brother allowed Seats to use cocaine, ecstasy, marijuana, and alcohol.

By fifteen years old Seats was essentially homeless, staying with friends

and gang members. At the age of sixteen, a rival gang shot Seats three

times to get back at Seats’s brother, who was in prison at the time.

Seats also sold drugs as a teenager.

      Seats stated he had received counseling and treatment through the

juvenile court system but continued to commit the offenses noted in his

juvenile record. Seats testified that some time before Cervantes’s murder

he had worked for two weeks at a grocery store but decided he did not

want to do that and quit.      Seats also continued to deny murdering

Cervantes. As he put it, “[I]t didn’t happen.” Seats informed the court he

was taking steps to better himself, such as being more patient and trying

to control his drug and alcohol addictions. He testified he would take full
                                        9

advantage of opportunities to finish his GED and learn a job if they were

made available to him.

          At the sentencing hearing, Seats asked for immediate parole

eligibility and for the court to “rely on the parole board to determine

when [he] or anybody in his position has developed to the point where he

is no longer a threat to society and would be a productive member of

society.”     He also urged the court to impose a term-of-years sentence,

rather than a life term, because it would allow Seats to earn good time on

his sentence and “the good time is an incentive for him to accomplish the

very things that we are talking about right now . . . to get the parole that

he would be seeking.”

          The State argued Seats’s case warranted a sentence of life without

parole. It urged the concern for juvenile brain development is less in a

case where the offender, like Seats, was just months away from his

eighteenth birthday. It maintained that the nature of Seats’s crime and

the surrounding circumstances did not support a finding that it was the

result of youthful incompetency.        Finally, the State pointed to Seats’s

extensive juvenile record, his disciplinary violations in prison, and the

fact that he still denied responsibility for the murder as evidence that he

was not amenable to rehabilitation.

          At the conclusion of the hearing, the district court indicated it

would take the weekend to consider the testimony and evidence before

rendering a decision on Seats’s resentencing. Four days later, the court

issued its decision on the record. The court stated it was conducting a

resentencing based on statutory factors and the factors set forth in

Miller:

          [T]he court is to consider all pertinent information, including
          the presentence investigation report and victim impact
                                     10
      statements. “All pertinent information” includes the nature
      of the offense and the defendant’s character, propensity to
      reoffend, chances for reform, age, family circumstances,
      need for mental health treatment, need for substance abuse
      treatment, history of suffering abuse, employment history,
      criminal history, behavior while on probation or while
      incarcerated, remorse or lack thereof, and concern about the
      victims or lack thereof. . . . In regard to a juvenile defendant,
      the court must also weigh the defendant’s age and age-
      attendant characteristics against the seriousness of the
      crime. . . . It must take into account how children are
      different, and how those differences counsel against
      irrevocably sentencing them to a lifetime in prison.

      Applying these considerations, the court stated this was one of the

“unusual” cases warranting life without parole.       The court addressed

Seats’s personal characteristics and potential for reform, using his

childhood circumstances, the negative family influences in his life, and

his lack of a stable support system as a factor against him:

      When he killed Isidro Cervantes Erreguin, Mr. Seats was
      only months away from being an adult. He already had a
      history of juvenile criminal activity. Previous interventions
      and attempts at rehabilitation had failed. Mr. Seats has
      shown no ability or willingness to maintain employment. He
      has shown little ability to abstain from the use of alcohol and
      controlled substances, and he has no family or other support
      outside of the criminal community.         He has not made
      significant rehabilitative efforts in prison, and has instead
      incurred ten major disciplinary reports.

      The court went on to discuss the nature of Seats’s crime.           The

court acknowledged Seats’s troubled youth, but concluded it did not

outweigh the serious nature of Seats’s crime and behavior:

      I have considered the defendant’s unfortunate background
      and the difficulties he faced in his youth.          I am not
      unsympathetic to the bleakness and desperation of that life.
      But I fail to find here the “attendant characteristics” of youth
      that might outweigh the seriousness of the crime or
      otherwise require a less sentence than one that would be
      imposed on an adult.
                                      11

      Ultimately, the court granted Seats’s motion to correct the illegal

sentence “[t]o the extent the previous sentence was imposed without

individualized consideration of the circumstances.” It otherwise denied

the motion and upheld Seats’s sentence of life with parole eligibility after

sixty years as commuted by the governor.

      Seats appealed, and we retained the appeal.

      II. Issues.

      The defendant raises three issues on appeal.         First, whether the

district court’s imposition of life in prison without the possibility of parole

categorically violates article I, section 17 of the Iowa Constitution, which

prohibits cruel and unusual punishment. Next, if it does not, does the

sentence imposed by the court upholding the Governor’s commutation of

his original sentence to sixty years before he is eligible for parole violate

article I, section 17 of the Iowa Constitution.          Third, whether the

sentence of life without the possibility of parole, even after discarding the

Governor’s commutation, as applied to the facts of this case constitute

cruel and unusual punishment.              We can resolve this appeal by

addressing the last issue.

      III. Standard of Review.

      We have expressed three different standards of review when a

defendant challenges his or her sentence on appeal. We use the abuse of

discretion standard if the sentence is within the statutory limits. When

reviewing a sentence for an abuse of discretion, we have said:

            In applying the abuse of discretion standard to
      sentencing decisions, it is important to consider the societal
      goals of sentencing criminal offenders, which focus on
      rehabilitation of the offender and the protection of the
      community from further offenses. It is equally important to
      consider the host of factors that weigh in on the often
      arduous task of sentencing a criminal offender, including the
      nature of the offense, the attending circumstances, the age,
                                       12
       character and propensity of the offender, and the chances of
       reform. . . . The application of these goals and factors to an
       individual case, of course, will not always lead to the same
       sentence.     Yet, this does not mean the choice of one
       particular sentencing option over another constitutes error.
       Instead, it explains the discretionary nature of judging and
       the source of the respect afforded by the appellate process.

              Judicial discretion imparts the power to act within
       legal parameters according to the dictates of a judge’s own
       conscience, uncontrolled by the judgment of others. It is
       essential to judging because judicial decisions frequently are
       not colored in black and white. Instead, they deal in
       differing shades of gray, and discretion is needed to give the
       necessary latitude to the decision-making process. This
       inherent latitude in the process properly limits our review.
       Thus, our task on appeal is not to second guess the decision
       made by the district court, but to determine if it was
       unreasonable or based on untenable grounds.

State v. Formaro, 638 N.W.2d 720, 724–25 (Iowa 2002) (citations

omitted). In other words, a district court did not abuse its discretion if

the evidence supports the sentence. State v. Valin, 724 N.W.2d 440, 445

(Iowa 2006).

       We also review sentences for correction of errors at law. We do so

when    the    defendant   challenges    the    legality   of   a   sentence   on

nonconstitutional grounds.      Id. at 443–44.        We use the correction of

errors at law standard when the statute does not authorize the sentence.

State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005).

       More    recently,   we   have    begun    to    decide   cases   involving

constitutional attacks on the validity of a sentence. See Ragland, 836

N.W.2d at 109–10 (examining whether a defendant’s sentence amounts

to cruel and unusual punishment under the Iowa Constitution); State v.

Pearson, 836 N.W.2d 88, 89 (Iowa 2013) (same); State v. Null, 836

N.W.2d 41, 45 (Iowa 2013) (same); State v. Bruegger, 773 N.W.2d 862,

866, 886 n.9 (Iowa 2009) (same).            When a defendant attacks the
                                    13

constitutionality of a sentence, our review is de novo.       Ragland, 836

N.W.2d at 113; Pearson, 836 N.W.2d at 94; Null, 836 N.W.2d at 48;

Bruegger, 773 N.W.2d at 869.

      Therefore, we apply the de novo standard to this appeal because

Seats is attacking his sentence on constitutional grounds.

      IV. Analysis.

      The United States Supreme Court decided that although a

sentencing court has the discretion to sentence a juvenile offender who

commits murder to the harshest penalty possible—life in prison without

the possibility of parole—such a sentence should be uncommon. Miller,

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

district court sentenced Seats to the harshest sentence.         Seats argues

this is not the uncommon circumstance to do so.           To analyze Seats’s

argument, we review the Supreme Court cases dealing with juvenile

sentencing as well as recent cases under the Iowa Constitution dealing

with cruel and unusual punishment in the juvenile context.

      A.   United States Supreme Court Jurisprudence. Miller is the

most recent Supreme Court opinion dealing with the sentencing of

juvenile offenders to life in prison without parole when the juvenile

commits a murder. Before Miller, the Court decided Roper v. Simmons,

543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) and Graham v.

Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

      In Roper, the Supreme Court held executing juveniles who had

committed    capital   crimes   violated   the   Eighth    and    Fourteenth

Amendments of the United States Constitution. 543 U.S. at 578, 125

S. Ct. at 1200, 161 L. Ed. 2d at 28. The seventeen-year-old defendant in

Roper took a woman from her home, tied her up—with duct tape covering
                                    14

her head and wire binding her extremities—and threw her into a river to

drown. Id. at 556–57, 125 S. Ct. at 1187–88, 161 L. Ed. 2d at 13.

      In support of its holding, the Court recognized three general

differences between juveniles and adults that “render suspect any

conclusion that a juvenile falls among the worst offenders.” Id. at 569–

70, 125 S. Ct. at 1195, 161 L. Ed. 2d at 21–22. First, 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)).   The Court recognized these characteristics “ ‘often result in

impetuous and ill-considered actions and decisions.’ ”         Id. (quoting

Johnson, 509 U.S. at 367, 113 S. Ct. at 2668, 125 L. Ed. 2d at 306).

Second, juveniles are more susceptible than adults are 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, a juvenile’s personality

and character traits are still forming, and are not as fixed as an adult’s

personality and character traits are. Id. at 570, 125 S. Ct. at 1195, 161

L. Ed. 2d at 22.    As a result of these differences, there is a greater

possibility “that a minor’s character deficiencies will be reformed” and

“ ‘the impetuousness and recklessness that may dominate in younger

years can subside.’ ” Id. at 570, 125 S. Ct. at 1195–96, 161 L. Ed. 2d at

22 (quoting Johnson, 509 U.S. at 368, 113 S. Ct. at 2668, 125 L. Ed. 2d

at 306).

      Next, in Graham, the Court held the Eighth Amendment prohibits

states from sentencing juveniles who did not commit homicide to life in

prison without parole, and the states sentencing these juveniles to a life

sentence must provide a “realistic opportunity to obtain release before
                                     15

the end of that term.” 560 U.S. at 82, 130 S. Ct. at 2034, 176 L. Ed. 2d

at 850.   The defendant in Graham committed a number of criminal

offenses including armed burglary, armed robbery, and fleeing from

police. Id. at 53–55, 130 S. Ct. at 2018–19, 176 L. Ed. 2d at 832–33.

      The Court relied upon the reasoning articulated in Roper regarding

juveniles’ underdeveloped sense of responsibility and lack of maturity to

demonstrate that “[a] juvenile is not absolved of responsibility for his

actions, but his transgression ‘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 v. Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687, 2699, 101

L. Ed. 2d 702, 719 (1988) (plurality opinion)).      The Court went on to

recognize “developments in psychology and brain science continue to

show fundamental differences between juvenile and adult minds . . . [and

the] parts of the brain involved in behavior control continue to mature

through late adolescence.” Id. The Court also identified that juveniles

are more capable of changing their character and reforming than adults

are. Id. at 68, 130 S. Ct. at 2026–27, 176 L. Ed. 2d at 841–42. The

Court noted for juveniles a life sentence without parole

      means denial of hope; it means that good behavior and
      character improvement are immaterial; it means that
      whatever the future might hold in store for the mind and
      spirit of [the convict], he will remain in prison for the rest of
      his days.

Id. at 70, 130 S. Ct. at 2027, 176 L. Ed. 2d at 842 (internal quotation

marks omitted).      Further, the Court in both Graham and Roper

determined none of the penological justifications for sentencing—

retribution, deterrence, incapacitation, or rehabilitation—are served

when imposing either of these sentences on juveniles. Graham, 560 U.S.
                                     16

at 71–74, 130 S. Ct. at 2028–30, 176 L. Ed. 2d at 843–45; Roper, 543

U.S. at 571–72, 125 S. Ct. at 1196–97, 161 L. Ed. 2d at 23.

      In Miller, the Court decided it did not have to reach a categorical

challenge to a sentence of life in prison without parole for a juvenile who

commits murder as it did in Roper and Graham. Miller, 567 U.S. at ___,

132 S. Ct. at 2469, 183 L. Ed. at 424.       The Court did not reach the

categorical challenge because its holding was sufficient to decide the

cases before the Court in Miller. Id. In not addressing the categorical

challenge, the Court made it clear that the “appropriate occasions for

sentencing juveniles to this harshest possible penalty, [life in prison

without the possibility of parole,] will be uncommon.”       Id.   The Miller

Court required judges or juries “must have the opportunity to consider

mitigating circumstances before imposing the harshest possible penalty

for juveniles.” Id. at ___, 132 S. Ct. at 2475, 183 L. Ed. 2d at 430.

      In reaching this decision, the Court built on its jurisprudence

espoused in Roper and Graham. In Miller, the court reiterated there is a

significant constitutional difference between children and adults that

“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. This is

      especially so because of the great difficulty we noted in Roper
      and Graham of distinguishing at this early age between “the
      juvenile offender whose crime reflects unfortunate yet
      transient immaturity, and the rare juvenile offender whose
      crime reflects irreparable corruption.” Although we do not
      foreclose a sentencer’s ability to make that judgment in
      homicide cases, we require it to take into account how
      children are different, and how those differences counsel
      against irrevocably sentencing them to a lifetime in prison.

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

U.S. at 573, 125 S. Ct. at 1197, 161 L. Ed. 2d at 24).
                                     17

      B. Application of Supreme Court Jurisprudence to Juveniles

in Iowa.   We have previously discussed the role Roper, Graham, and

Miller play in sentencing a juvenile subject to a mandatory minimum

sentence for a nonhomicide crime. Null, 836 N.W.2d at 74–75. In a case

in which the court has discretion to sentence a juvenile to life in prison

without the possibility of parole, Miller and Null require the sentencing

judge to consider the following factors before sentencing a juvenile to life

in prison without the possibility of parole.

      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. Miller, 567 U.S. at

___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424; Null, 836 N.W.2d at 75.

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.” Miller, 567 U.S. at ___, 132 S. Ct.

at 2464, 183 L. Ed. 2d at 418. 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.” Null, 836 N.W.2d at 74; see also Miller, 567

U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418.

      In sentencing the juvenile offender, the court must take in 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.”         Miller, 567

U.S. at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423. In examining the

“family and home environment,” the judge shall consider any information
                                    18

regarding 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. People v. Gutierrez, 324 P.3d 245,

268–69 (Cal. 2014). The sentencing judge should consider these family

and home environment vulnerabilities together with the juvenile’s lack of

maturity, underdeveloped sense of responsibility, vulnerability to peer

pressure as mitigating, not aggravating factors. Miller, 567 U.S. at ___,

132 S. Ct. at 2467–69, 183 L. Ed. 2d at 422–24; Null, 836 N.W.2d at 74–

75.

      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.” Miller, 567 U.S. at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d

at 423. One of the circumstances the sentencing judge needs to consider

is whether substance abuse played a role in the juvenile’s commission of

the crime. Id. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 423.

      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.’ ” Graham, 560 U.S. at 68, 130 S. Ct. at 2026, 176

L. Ed. 2d at 841 (quoting Roper, 543 U.S. at 570, 125 S. Ct. at 1195, 161

L. Ed. 2d at 22). “[M]ost juveniles who engage in criminal activity are not

destined to become lifelong criminals.” Null, 836 N.W.2d at 75; see also

Graham, 560 U.S. at 68, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841; Roper,

543 U.S. at 570, 125 S. Ct. at 1195–96, 161 L. Ed. 2d at 22. As we said

in Null, a case decided under the Iowa Constitution, “incorrigibility is

inconsistent with youth, care should be taken to avoid an irrevocable
                                    19

judgment about [an offender’s] value and place in society.”        Null, 836

N.W.2d at 75 (internal quotation marks omitted). It is very difficult for a

judge to distinguish between “ ‘the juvenile offender whose crime reflects

unfortunate yet transient immaturity, and the rare juvenile offender

whose crime reflects irreparable corruption.’ ”   Miller, 567 U.S. at ___,

132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (quoting Roper, 543 U.S. at 573,

125 S. Ct. at 1193, 161 L. Ed. 2d at 24). The sentencing judge should

only sentence those juveniles to life in prison without the possibility of

parole whose crime reflects irreparable corruption.

      We note the district court emphasized that Seats was a seventeen-

year-old at the time the crime was committed.         We recognize that in

Roper, the line between being a juvenile and an adult was drawn for

cruel and unusual punishment purposes at eighteen years of age. See

Roper, 543 U.S. at 574, 125 S. Ct. at 1197–98, 161 L. Ed. 2d at 24–25.

Yet, as we stated in Null, current science demonstrates that the human

brain continues to develop into the early twenties. 836 N.W.2d at 55. As

stated by two leading scholars in adolescent development and the law,

“[t]he research clarifies that substantial psychological maturation takes

place in middle and late adolescence and even into early adulthood.”

Elizabeth S. Scott & Lawrence Steinberg, Rethinking Juvenile Justice 60

(2008). Thus, Scott and Steinberg emphasize that “adolescents, even at

age sixteen and seventeen, are immature in their psychosocial and

emotional development, and this likely affects their decisions about

involvement in crime in ways that distinguish them from adults.” Id. at

131. In light of the science, the fact that a defendant is nearing the age

of eighteen does not undermine the teachings of Miller and Null.
                                      20

      We must be cognizant of the fact that a sentence of life in prison

without the possibility of parole for a juvenile is the equivalent of the

death penalty for juveniles. As Graham so aptly observed,

      Life in prison without the possibility of parole gives no
      chance for fulfillment outside prison walls, no chance for
      reconciliation with society, no hope. Maturity can lead to
      that considered reflection which is the foundation for
      remorse, renewal, and rehabilitation.

Graham, 560 U.S. at 79, 130 S. Ct. at 2032, 176 L. Ed. 2d at 848.

      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. Iowa Code § 904A.4 (2015). 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.

      In Null, we found when a judge sentences a juvenile to a

mandatory minimum sentence, the judge must state his or her reasons

on the record for imposing such a sentence. Null, 836 N.W.2d at 71, 74.

Likewise, if the sentencing judge believes the information in the record

rebuts the presumption to sentence a juvenile to life in prison with the

possibility of parole and the case is the rare and uncommon case

requiring the judge to sentence the juvenile to life in prison without the

possibility of parole, the judge must make specific findings of fact

discussing why the record rebuts the presumption.       “In making such

findings, the district court must go beyond a mere recitation of the

nature of the crime, which the Supreme Court has cautioned cannot

overwhelm the analysis in the context of juvenile sentencing.” Id. at 74–

75.
                                      21

       C. Application of Supreme Court Jurisprudence to Seats. On

our de novo review, we note the district did not consider the factors a

court must consider before sentencing a juvenile to life in prison without

the possibility of parole.    Factually, the district court appeared to use

Seats’s family and home environment vulnerabilities together with his

lack     of   maturity,   underdeveloped   sense   of   responsibility,   and

vulnerability to peer pressure as aggravating, not mitigating factors.

       At the time of sentencing, the district court did not have the benefit

of this decision setting forth the factors the court must use and the

requirements the court needs to sentence a juvenile convicted of first-

degree murder. When this happens, the proper remedy is to remand the

case back to the district court to consider the matter consistent with our

holding in this opinion. State v. Hildebrand, 280 N.W.2d 393, 397 (Iowa

1979).

       Additionally, we need not reach the issue as to whether sentencing

a juvenile to life in prison without the possibility of parole categorically

violates the Iowa Constitution’s prohibition on cruel and unusual

punishment because we are sending this case back to the district court

for resentencing. Upon resentencing, if the district court finds this is the

rare and uncommon case requiring it to sentence Seats to life in prison

without the possibility of parole, Seats can appeal his sentence as

contrary to Miller. In that appeal, he can make the additional claim that

his sentence of life in prison without the possibility of parole categorically

violates the Iowa Constitution’s prohibition on cruel and unusual

punishment.

       V. Summary and Disposition.

       There is no question that juveniles who commit vicious murders

deserve severe punishment. However, we cannot lose sight of the fact
                                         22

that juveniles are different from adults due to a juvenile’s lack of

maturity, underdeveloped sense of responsibility, vulnerability to peer

pressure, and the less fixed nature of the juvenile’s character.                  The

question the court must answer at the time of sentencing is whether the

juvenile is irreparably corrupt, beyond rehabilitation, and thus unfit ever

to   reenter     society,     notwithstanding        the     juvenile’s    diminished

responsibility    and       greater   capacity     for     reform   that    ordinarily

distinguishes juveniles from adults.          Therefore, we must remand this

case for resentencing consistent with this opinion.

      DISTRICT          COURT         SENTENCE           VACATED          AND   CASE

REMANDED WITH INSTRUCTIONS.

      Cady, C.J., and Hecht and Appel, JJ., join this opinion. Hecht, J.,

files a separate concurring opinion.             Mansfield, J., files a dissenting

opinion in which Waterman and Zager, JJ., join.
                                     23

                                                    #13–1960, State v. Seats

HECHT, Justice (concurring specially).

      “[C]hildren are constitutionally different from adults . . . .” Miller v.

Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2464, 183 L. Ed. 2d 407,

418 (2012); see also State v. Lyle, 854 N.W.2d 378, 390, 402 & n.8 (Iowa

2014); State v. Ragland, 836 N.W.2d 107, 119, 121 (Iowa 2013);

Laurence Steinberg, Adolescent Development and Juvenile Justice, 5 Ann.

Rev. Clinical Psychol. 459, 481 (2009) [hereinafter Steinberg] (“[A]s a

class, adolescents are inherently less blameworthy than adults.”). I join

today’s opinion because it recognizes this principle. However, I also write

separately because in my view, children are so different that article I,

section 17 of the Iowa Constitution categorically prohibits sentencing

them to life without parole.

      As the United States Supreme Court recognized in Roper v.

Simmons, there are significant differences between juveniles and adults

that “render suspect any conclusion that a juvenile falls among the worst

offenders.” Roper v. Simmons, 543 U.S. 551, 570, 125 S. Ct. 1183, 1195,

161 L. Ed. 2d 1, 22 (2005). Juveniles are impetuous; they lack maturity;

and they possess an underdeveloped sense of responsibility. See id. at

569, 125 S. Ct. at 1195, 161 L. Ed. 2d at 22.               Their incomplete

maturation makes juveniles especially vulnerable to “negative influences

and outside pressures.” Id. This vulnerability is attributable in part to

juveniles’ character and personality traits which “are more transitory

[and] less fixed” than those of adults. Id. at 570, 125 S. Ct. at 1195, 161

L. Ed. 2d at 22. “[Y]outh is more than a chronological fact.” Eddings v.

Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 877, 71 L. Ed. 2d 1, 11

(1982). “It is a time of immaturity, irresponsibility, ‘impetuousness[,] and

recklessness.’ ” Miller, 567 U.S. at ___, 132 S. Ct. at 2467, 183 L. Ed. 2d
                                      24

at 422 (alteration in original) (quoting Johnson v. Texas, 509 U.S. 350,

368, 113 S. Ct. 2658, 2669, 125 L. Ed. 2d 290, 306 (1993)).

      For these reasons and others, we recognize that children are

constitutionally different because it is impossible to know when they are

beyond rehabilitation. See Roper, 543 U.S. at 570, 125 S. Ct. at 1195,

161 L. Ed. 2d at 22 (“The reality that juveniles . . . struggle to define their

identity means it is less supportable to conclude that even a heinous

crime committed by a juvenile is evidence of irretrievably depraved

character.”); see also Miller, 567 U.S. at ___, 132 S. Ct. at 2465, 183 L.

Ed. 2d at 419 (“[T]he distinctive attributes of youth diminish the

penological justifications for imposing the harshest sentences on juvenile

offenders, even when they commit terrible crimes.”). “[W]e cannot claim

that adolescents ‘ought to know better’ if, in fact, the evidence indicates

that they do not know better, or more accurately, cannot know better,

because they lack the abilities needed to exercise mature judgment.”

Steinberg, 5 Ann. Rev. Clinical Psychol. at 471.

      Although the Supreme Court initially considered these differences

in deciding a case involving the death penalty, it later noted their

significance in reviewing sentences of life without parole (LWOP)

challenged under the Eighth Amendment. See Graham v. Florida, 560

U.S. 48, 68, 130 S. Ct. 2011, 2026, 176 L. Ed. 2d 825, 841 (2010)

(“[D]evelopments in psychology and brain science continue to show

fundamental differences between juvenile and adult minds. For example,

parts of the brain involved in behavior control continue to mature

through late adolescence.”).     More recently, the Court considered the

importance of the characteristics of youth in reviewing an LWOP

sentence imposed on a juvenile offender convicted of homicide.             See

Miller, 567 U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418–19. In
                                       25

Miller, the court struck down as unconstitutional under the Eighth

Amendment a mandatory LWOP sentence that was imposed without

consideration of the defendant’s “chronological age and its hallmark

features—among        them,     immaturity,   impetuosity,     and   failure    to

appreciate risks and consequences.” Id. at ___, 132 S. Ct. at 2468, 183

L. Ed. 2d at 423. The Court also struck down the sentence because it

failed to take account of “the family and home environment that

surround[ed the defendant] . . . no matter how brutal or dysfunctional.”

Id. “And finally, th[e] mandatory punishment disregards the possibility

of rehabilitation even when the circumstances most suggest it.” Id.

      We have concluded juvenile offenders are also different for

purposes of sentencing under article I, section 17 of the Iowa

Constitution. See State v. Null, 836 N.W.2d 41, 54–56, 70 (Iowa 2013).

The majority recognizes as much, but stops short of concluding an LWOP

sentence is categorically unconstitutional for offenses committed by

juvenile offenders.    I am prepared to go there now because I do not

believe we can develop or identify a principled standard for predicting

which juvenile offenders are capable of maturation and rehabilitation

and which ones are not.

      My conclusion that article I, section 17 mandates a categorical ban

of   LWOP   sentences     for    juvenile   offenders   is   based   on   several

considerations. I first note that an LWOP sentence for a juvenile offender

is tantamount to a death penalty in the sense that both sentences are

based on a conclusive determination that the offender will never be

rehabilitated and able to contribute meaningfully to society.                  See

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

either type of sentence “alters the offender’s life by a forfeiture that is

irrevocable”); Diatchenko v. Dist. Att’y, 1 N.E.3d 270, 284 (Mass. 2013)
                                           26

(“When considered in the context of the offender’s age and the wholesale

forfeiture of all liberties, the imposition of [LWOP] on a juvenile homicide

offender is strikingly similar, in many respects, to the death penalty

. . . .”).    Any sentencing scheme that permits such a conclusive

determination      before    the    juvenile’s   potential     for   maturation        and

rehabilitation can be reliably known or predicted is in my view

intrinsically disproportionate and therefore cruel and unusual.

         I acknowledge the Supreme Court has not yet adopted my position

that a categorical ban on LWOP sentences for homicide offenses is

constitutionally required. 1 In Miller, the Court only held unconstitutional

mandatory LWOP sentences that are imposed without individualized

consideration of an offender’s youthful characteristics. Miller, 567 U.S.

at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (“[T]he Eighth

Amendment forbids a sentencing scheme that mandates life in prison

without possibility of parole for juvenile offenders. . . .               [W]e do not

consider [the] alternative argument that the Eighth Amendment requires

a categorical bar on [LWOP] for juveniles . . . .”). The Supreme Court left

open the possibility that a juvenile could, consistent with the Eighth

Amendment, be sentenced to LWOP, but noted “appropriate occasions for
sentencing      juveniles    to    this   harshest     possible      penalty    will    be

uncommon.”        Id.   I would reach a different conclusion under article I,

section 17 of the Iowa Constitution because I have no confidence that a

principled standard can be developed to distinguish an “uncommon

         1Apetition for certiorari currently before the Supreme Court raises that question
in part; the question presented is whether “the Eighth Amendment’s ban on cruel and
unusual punishment forbid[s] sentencing a child to [LWOP] when that child has been
convicted of felony murder despite not having killed or intended to kill.” Petition for
Writ of Certiorari at i, Davis v. Michigan, No. 14–8106 (U.S. Jan. 20, 2015). Although
Davis only involves a subcategory of homicide offenses, it nonetheless establishes that
this issue continues to arise.
                                      27

occasion” justifying an irrevocable determination of LWOP from other

occasions in which a possibility of parole is required.

      Other jurists have shared my lack of confidence in our ability to

conceive—or in sentencing courts’ ability to apply consistently—a

principled standard for identifying the uncommon or rare circumstances

justifying LWOP for a juvenile offender. See Graham, 560 U.S. at 77, 130

S. Ct. at 2032, 176 L. Ed. 2d at 847 (doubting “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”); 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.”); Diatchenko, 1 N.E.3d at 284 (noting that when

sentencing juveniles, “the judge cannot ascertain, with any reasonable

degree of certainty, whether imposition of th[e] most severe punishment

is warranted”).   “[E]ven for juveniles who commit murder, their moral

culpability compared to adults remains diminished by their age . . . , and

they, therefore, are still less deserving, as a categorical matter, of the

most severe punishments.” Mary Berkheiser, Developmental Detour: How

the Minimalism of Miller v. Alabama Led the Court’s “Kids Are Different”

Eighth Amendment Jurisprudence Down a Blind Alley, 46 Akron L. Rev.

489, 501–02 (2013) [hereinafter Berkheiser]; see also Aryn Seiler, Note,

Buried Alive: The Constitutional Question of Life Without Parole for

Juvenile Offenders Convicted of Homicide, 17 Lewis & Clark L. Rev. 293,

321 (2013) (“[T]he culpability of the juvenile offender is diminished in the

homicide case just as it is diminished in the non-homicide case.

Culpability belongs to the offender, not the offense.”).
                                    28

      Let us suppose that any standard for identifying an “uncommon”

case justifying LWOP might call for consideration of the heinous nature

of the juvenile offender’s crime. This factor is problematic for multiple

reasons.   First, as the Supreme Court has noted, “[a]n unacceptable

likelihood exists that the brutality or cold-blooded nature of any

particular crime would overpower mitigating arguments based on youth

as a matter of course.” Roper, 543 U.S. at 573, 125 S. Ct. at 1197, 161

L. Ed. 2d at 24. But even more problematic in my view is the fact that

the heinousness of a juvenile’s crime is likely to be causally connected

with the very attributes and disabilities of youth which cause some folks

to cringe at the prospect of LWOP sentences for juvenile offenders. As

this court has previously noted, juveniles often fail to appreciate risks

and are susceptible to peer pressure; they tend to act impetuously

without contemplating the consequences of their behavior. See Null, 836

N.W.2d at 54–56.       Thus, the very attributes and disabilities making

youth constitutionally different are causal factors increasing the

likelihood of heinous behavior. Accordingly, I think it cannot be sensible

to suggest that a principled standard for identifying the uncommon case

deserving an LWOP should include the heinousness of a juvenile

offender’s crime.

      Other potential factors that might be considered in any standard

for identifying the uncommon case suitable for an LWOP sentence are

similarly problematic. Consider, for example, the juvenile offender’s age.

Do we really believe a sentencing court can make a principled distinction

between an offender who is fifteen years old and another who is

seventeen years old in assessing relative capacities for maturation and

rehabilitation?     Given what we now know about the incompleteness of

brain development during adolescence, I believe the court’s ability to
                                    29

predict such capacities of juvenile offenders is largely based on sheer

speculation at either age.

      Another sentencing consideration commonly included in the

analysis of whether an LWOP might be appropriate for a juvenile offender

convicted of homicide is whether the offender experienced severe abuse

or neglect as a child. But should a juvenile offender’s history of horrific

abuse or neglect augur in favor of or against LWOP when he or she is

sentenced for a homicide? The juvenile offender with such a history of

deprivation might be viewed as less culpable than another who was

raised in a stable home with caring parents. Yet, the horrifically deprived

and abused juvenile offender might have been so deeply scarred by the

circumstances of his or her young life that rehabilitation might be a very

doubtful and distant prospect.

      I suggest the picture is no clearer in the case of the juvenile

offender who was raised in a stable home with caring parents. Should

the sentencing court conclude this offender found guilty of homicide is

more culpable than the child whose family life was characterized by

chaos and deprivation? Perhaps; but even if the sentencing court views

him as morally more blameworthy, might he nonetheless have better

prospects for maturation and rehabilitation because he does not carry

the deep scars of deprivation—and might he therefore be a better

candidate for parole than our less fortunate hypothetical offender? No

matter how the sentencing court might answer these extremely

challenging questions, it cannot predict with reasonable certainty which

juvenile offender will in fact mature and develop the capacity to become a

contributing member of society. Only time will tell.

      History shows us that some juvenile offenders convicted of

homicide make remarkable progress toward maturity and rehabilitation
                                          30

over time during incarceration. To illustrate this phenomenon, one need

only look to State v. Louisell, ___ N.W.2d ___ (Iowa 2015), also decided

today.      Louisell endured a difficult and chaotic childhood before

attending college in Iowa beginning in 1987.             Id. at ___.    She was

convicted of first-degree murder after befriending an older, physically

handicapped art student, stabbing him in his home, and stealing his

wallet.    Id. at ___.   A jury found she committed a premeditated and

deliberate crime. Id. at ___; see Iowa Code § 707.2(1) (1987). Yet, during

her time in prison, Louisell earned an associate’s degree and a bachelor’s

degree, learned a trade, became a published author, and became a

mentor and tutor for other incarcerated women. Louisell, ___ N.W.2d at

___.      In 1988, when Louisell was sentenced to LWOP, few if any

participants in the proceedings would have predicted Louisell would shed

the disabilities of youth given the nature of her crime.                Yet, her

accomplishments since then demonstrate that an LWOP determination

should not focus on missed opportunities to mature during childhood

and adolescence, but on the possibility that a juvenile offender convicted

of the most serious of offenses might capitalize on future ones while in

prison.     Because an irrevocable LWOP determination by a sentencing

court is fraught with so much uncertainty attending the juvenile

offender’s potential for maturation and rehabilitation, I conclude article I,

section 17 mandates prohibition of LWOP sentences for all juveniles

convicted of homicide offenses.

       Some have contended LWOP should remain available as a

sentencing     option    for   juvenile   offenders   convicted   of   homicides

committed after thinking and planning. See People v. Carp, 852 N.W.2d

801, 843 (Mich. 2014) (“Because some juvenile offenders . . . form an

unequivocal premeditated intent to kill in the face of the consequences, it
                                    31

is not categorically disproportionate to punish at least some juvenile

offenders the same as adults.”). To be sure, the circumstances of Seats’s

crime suggest he engaged in some deliberation before committing the

offense in this case.      He knew his friend had a gun, arranged

transportation to the victim’s residence, and acted at night when the

victim would likely be sleeping. These facts are certainly chilling, just

like the facts in Roper.   See Roper, 543 U.S. at 556–57, 125 S. Ct. at

1187–88, 161 L. Ed. 2d at 13 (noting the defendant instigated a plan to

commit burglary and murder, acted at night, and threw the victim off a

bridge after wrapping her face in duct tape). “But the Constitution does

not permit subjective gut reactions to define the sentencing of our

young.” Berkheiser, 46 Akron L. Rev. at 508.

      Furthermore, the circumstances of Seats’s crime also highlight the

frailty of juvenile reasoning and the undeveloped juvenile capacity to

understand the horrible and permanent consequences of behavior. See

Steinberg, 5 Ann. Rev. Clinical Psychol. at 467 (“[D]espite the fact that in

many ways adolescents may appear to be as intelligent as adults . . . ,

their ability to regulate their behavior in accord with these advanced

intellectual abilities is more limited.”). Seats worried that he would be

reported for committing a crime, so he decided to commit another, more

serious crime. He acted so impetuously that he did not even verify he

had encountered his intended victim before firing multiple shots.        He

contacted a police investigator because he “had heard” he was a suspect

in the murder and wanted to clear his name, apparently believing his

friendly outreach would remove any suspicion the police otherwise had.

I recognize there is no assurance that these traits will resolve as Seats

ages and matures. Nonetheless, I believe no sentencing court should be

able to deprive him of an opportunity, at some point in the future, to
                                          32

demonstrate that they have. See Graham, 560 U.S. at 79, 130 S. Ct. at

2032, 176 L. Ed. 2d at 848 (“Maturity can lead to that considered

reflection     which   is   the    foundation      for   remorse,     renewal,     and

rehabilitation.”).

       One other state—Massachusetts—has already determined that

juvenile LWOP sentences are categorically prohibited under its state

constitution. Diatchenko, 1 N.E.3d at 284–85 (“[W]e conclude that the

discretionary imposition of [LWOP] on juveniles who are under the age of

eighteen when they commit murder in the first degree violates the

[constitutional] prohibition against ‘cruel or unusual punishment’ . . . .”).

In doing so, the Supreme Judicial Court of Massachusetts relied on two

analytical pillars I would adopt here: first, that the “back end” parole

board mechanism better accommodates juveniles’ capacity for change

than a “front end” irrevocable LWOP determination; and second, that

juveniles have diminished culpability no matter the offense they commit.

See id. at 282–85. Iowa should join Massachusetts on the path it has

forged. 2




       2Some    other states have legislatively abolished LWOP for juveniles. See, e.g.,
Haw. Rev. Stat. Ann. § 706-656(1) (West, Westlaw through June 3, 2015) (“Persons
under the age of eighteen years at the time of the offense who are convicted of first
degree murder or first degree attempted murder shall be sentenced to life imprisonment
with the possibility of parole.”); W. Va. Code Ann. § 61-11-23(a)(2) (West, Westlaw
through 2015 Reg. Sess.) (“Notwithstanding any other provision of law to the contrary, a
sentence of [LWOP] may not be imposed on a person who . . . [w]as less than eighteen
years of age at the time the offense was committed.”); Wyo. Stat. Ann. § 6-2-101(b)
(West, Westlaw through 2014 Budget Sess.) (“A person convicted of murder in the first
degree shall be punished by death, life imprisonment without parole or life
imprisonment according to law, except that a person convicted of murder in the first
degree who was under the age of eighteen (18) years at the time of the offense shall be
punished by life imprisonment.”); see also Tex. Penal Code Ann. § 12.31(a) (West,
Westlaw through 84th Legis., ch. 46 of 2015 Reg. Sess.) (distinguishing between “life”
for juvenile offenders and “life without parole” for adult offenders).
                                    33

      Juvenile justice evolves in incremental steps. See State v. Pearson,

836 N.W.2d 88, 99 (Iowa 2013) (Cady, C.J., concurring specially). Given

the foundation of diminished juvenile culpability and the reasoning set

forth in Roper, Graham, Miller, Diatchenko, and our decisions based on

article I, section 17 of the Iowa Constitution, the categorical rule I

propose in this case is merely the final increment. Because children are

constitutionally different, I believe a sentence of life without parole “may

not be imposed on [them] . . . no matter how heinous the crime.” Roper,

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

concur in my colleagues’ determination that Seats must be resentenced.
                                     34
                                                     #13–1960, State v. Seats
MANSFIELD, Justice (dissenting).

      This is a difficult case presenting two important issues: First, are

life-without-parole   sentences   for     juvenile   murderers   categorically

unconstitutional? Second, even if such sentences are not categorically

unconstitutional, do the facts of this case permit such a sentence?

      Unfortunately, the court decides neither issue. Instead, it remands

the case for an unneeded procedural do-over in which the district court

is directed to reapply caselaw it has already applied. This remand not

only leaves the present case unresolved, but also provides no helpful

guidance to our district courts in other juvenile sentencing cases.

      I would not avoid the hard issues this case presents. I would hold,

consistent with the decisions of federal appellate courts and all but one

state appellate court, that life-without-parole sentences in juvenile

homicide cases are not always unconstitutional. I would also hold that

under the facts of this case, the district court could constitutionally

exercise its discretion to impose a life-without-parole sentence.

      Reasonable people can disagree on these matters. But whatever

our views may be, I think we ought to come to a decision. We should not

leave district courts, defendants, victims, prosecutors, defense attorneys,

legislators, and the public in the lurch.

      Deciding the appellant’s categorical challenge takes on added

importance here because the legislature has recently passed a law that

retains life without parole as a sentencing option for juveniles who

commit first-degree murder. Is that law constitutional? We should say

yes or no today, in a case where the issue is squarely presented by the

parties.
                                       35

        The court justifies its failure to reach a decision by maintaining

that when there are alternative grounds raised on appeal, it only needs to

reach one of them.      That position has a problem here, however.         The

relief granted by the majority (a remand for a do-over) is less than the full

relief requested by the appellant (vacating the LWOP sentence with no

possibility of its being reinstated).       Normally, appellate courts do not

decline to reach an argument on appeal just because they have reached

other arguments that grant lesser relief.

        Otherwise stated, it would not be dictum for the court to decide

whether Seats can be sentenced to LWOP at all.               Rather, it is an

abdication of our responsibility not to reach this issue.

        I. Additional Relevant Facts.

        I will try to avoid repeating facts stated in the majority opinion, but

will discuss some additional facts that are relevant to the appellant’s as-

applied challenge to his sentence.

        Damion Seats was just a few months shy of eighteen years old on

August 23, 2008, when he went to a party at a friend’s trailer in Mason

City.    Although other people at the party were drinking alcohol and

smoking marijuana, Seats was not under the influence of any

substances.     At the party, Seats and his friend, Andre Wells, handled

Wells’s handgun and its bullets and discussed robbing “R[e]uben

[Ramirez] and the Mexicans.” Seats asked Wells for assurance that the

clip was not going to jam. Wells responded that it shouldn’t.

        Before leaving the party, Seats and Wells convinced another friend,

Jamie McFarland, to give them a ride to Ramirez’s house.                When

McFarland warned Seats the two of them would get caught, Seats

replied, “[D]ead people don’t talk.”
                                     36

      As explained by the majority, upon entering Ramirez’s house,

Seats mistook the sleeping victim, Isidoro Cervantes Erreguin, for

Ramirez. Seats shot Cervantes five times from a distance of a few feet.

Cervantes died as a result of his wounds.

      Seats and Wells then returned to the waiting car. Seats stated he

had “just shot two Mexicans” and “emptied the whole clip.” Seats later

returned to the party and indicated that if the cops inquired, the guests

should say that Seats and Wells had been at the party all evening.

      During his time at the police station on the evening of August 24,

where he ultimately confessed to the murder, Seats made the following

statements among others:

             I let my emotions get the best of me. I let something
      that happened a month and a half ago take over my mind
      and make me do what I did. . . . At least I should’ve killed
      the right one; I wish that was Reuben [Ramirez] that was on
      my side of that couch.

            ....

             . . . Some people was telling me that after me and
      [Ramirez] got into that fight and stuff and he got injured real
      bad that the police was going to try to get me for attempted
      murder from beating him with a brick and all that and
      breaking his arms and messing up his back or whatever.
      And so that’s what I was real scared about, like, I don’t want
      to go to prison for no attempted murder over a fight. . . . I
      was hearing around town that, yeah, they was looking for me
      for trying to kill him . . . so I just said f*** it and just went
      over there.

            ....

            . . . [Ramirez] was laying, like, I don’t know who was it,
      he was laying on the couch like this. . . . There was a closer
      couch and a farther couch and so me and Andre standing
      over him and I tapped him with the gun, like, “Get up.” And
      then he was saying something and then, I don’t know. . . .
      I’m actually in there in front of this man and facing him, I
      know I got to kill him now ’cause I’m already inside his
      house. . . . I just emptied the whole clip and walked out.
                                         37

       The agents asked how the victim reacted after Seats shot him and

Seats said, “To tell you the truth, I just shot five times and turned my

back and walked off.”

       By the time of trial a year later, Seats was eighteen years and

seven months old.         McFarland was one of the State’s main witnesses,

having entered into a plea agreement with the State.              McFarland had

agreed to plead guilty to aiding and abetting first-degree burglary and to

testify at Seats’s trial. See Iowa Code §§ 713.1, .3 (2009). 3

       During the defense case, Seats took the stand. Seats testified he

had grown up in Chicago, Illinois, but moved to Charles City with his

mother and oldest brother when he was twelve. After a year, he moved

with his mother to Mason City. He lived there with his mother and sister

for two years, attending the Mason City schools.                   During Seats’s

freshman        year,   his   mother   moved back      to   Chicago,    but   Seats

accompanied her for less than a year, returning to Mason City where he

attended school through the eleventh grade and played sports.                 Seats

lived with his older brother in Mason City until the brother went to

prison. After that, Seats had no regular home; in August 2008 he was

“homeless” in his own words, with clothing scattered around several

houses, although he often stayed at the house of his best friend, whose

mother took care of him.

       Seats also testified he had a good relationship with his own mother

who was sending him money from Chicago every week.                     He had just

begun to attend the alternative school in Mason City for twelfth grade at



       3Wellssubsequently entered into a plea agreement under which he pled guilty to
involuntary manslaughter, see Iowa Code § 707.5, and first-degree robbery, see id.
§§ 711.1–.2.
                                     38

the time of the murder. Seats also claimed that he had been planning to

start a part-time job the Monday after the shooting.

        At trial, Seats recanted his earlier confession. He testified that a

man several years older than him named Brandon Crawford had

committed the murder.       Seats claimed his girlfriend had recently told

him she was pregnant. Seats, believing he was going to become a father,

testified he was concerned about supporting a child and therefore

contacted Crawford to ask if he (Seats) could sell drugs for Crawford to

make money.       According to Seats, on the night of the shooting, he

planned to meet Crawford and pick up drugs. It so happened that the

meeting was to occur near Ramirez’s house.

        Seats thus testified that McFarland was actually driving Seats and

Wells so they could meet Crawford, not so they could enter Ramirez’s

house. Seats testified that when they stopped, Wells got the gun out of

the trunk for protection, while Seats urged Wells to “leave the gun”

because “[t]here’s no reason for it.” Thereafter, according to Seats, he

entered Crawford’s SUV. While inside Crawford’s vehicle, Seats allegedly

received a bag from Crawford.         Seats testified that after he exited

Crawford’s vehicle and while he was walking back to McFarland’s car,

Crawford, Wells, and a third person who had been in Crawford’s vehicle

began to huddle together and have a conversation that Seats could not

hear.    Wells then supposedly asked for the shirt off Seats’s back and

proceeded to tie it on his head to cover his face.          Seats allegedly

continued to walk toward McFarland’s car. Seats claimed he did not see

where the other three went, but gunshots rang out a short while later.

Upon hearing the shots, Seats claimed he ran the rest of the way to

McFarland’s car.     Wells also allegedly reentered McFarland’s car soon

thereafter.   Once they were both in McFarland’s car, Wells reportedly
                                     39

handed Seats the gun, wrapped in the t-shirt Seats had previously given

him.

       Seats denied ever entering Ramirez’s house that evening.          He

admitted hiding the gun under the bushes. In short, Seats told a story

consistent with much of McFarland’s testimony that nonetheless would

have exonerated him of the murder.

       Seats went on to testify that the story he had told police during his

initial afternoon interview was correct in that he had nothing to do with

the shooting. Seats admitted lying during that interview about not being

anywhere near the area when the shooting occurred. According to Seats,

after he left the first interview, he ran into Crawford.          Crawford

supposedly slammed Seats to the ground and threatened to harm Seats’s

family if Seats did not lie to protect Crawford.    Seats stated Crawford

instructed him to tell the police that only Seats and Wells had been in

the house and that one of them shot Ramirez.        Seats testified he was

scared of Crawford and that was the reason he falsely confessed to the

murder during the evening interview.      Seats explained he was able to

draw a diagram of the murder scene during the second interview because

he had previously seen the layout of the house during the night of the

fight involving the brick.

       The State called Crawford as a rebuttal witness. Crawford testified

he was at home from approximately 11:30 p.m. onward on the night of

August 23. He denied speaking to Seats on the night of August 23 and

claimed he never met with Seats to deliver drugs to him near Ramirez’s

house. He also denied that he saw or threatened Seats on August 24.

Crawford’s girlfriend corroborated Crawford’s testimony about his being

at home on the night of the shooting.
                                    40

      A jury found Seats guilty of both first-degree murder and first-

degree burglary. As statutorily required, he was sentenced to life without

parole on the first-degree murder conviction.

      Four years later, in November 2013, Seats received a resentencing

based on the United Supreme Court decision in Miller v. Alabama, 567

U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and our decisions in

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

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

      As pointed out by the majority, the PSI that was prepared for

Seats’s resentencing covered not only the first eighteen years of Seats’s

life but also the subsequent four years he had spent in prison. Thus, the

PSI noted Seats’s difficult childhood, including a lack of adult

supervision and an early exposure to gang violence.      It also reported

Seats had an extensive juvenile criminal history, including assault, going

armed with a knife, possession of a controlled substance, and third-

degree burglary.      And it noted Seats—while imprisoned—had been

disciplined ten times. Seats had dropped out of a GED program and was

not permitted to hold a job in prison because of his disciplinary status.

The majority raises no question about the comprehensiveness of the PSI.

      The State presented one witness at the resentencing hearing—a

relative of the victim.   She testified that Cervantes’s fiancée had been

pregnant in Mexico with Cervantes’s child at the time of the murder and

was now raising the child in an impoverished area of Mexico.

      Seats, now almost twenty-three years old, also testified at the

hearing.   His direct testimony, covered in great detail by the majority,

described the very serious challenges Seats had to confront while

growing up. The State cross-examined Seats only briefly, ending with the

following exchange:
                                    41
             Q. Now in the pre-sentence investigation, they asked
       you about what happened in the incident of this crime and
       you denied any involvement in it. Is that fair? A. I didn’t
       deny any involvement. I denied that I killed the man.

             Q. Okay. And you continue to deny that today; is that
       right? A. Absolutely, because it didn’t happen.

       As the quotations recited in the majority opinion indicate, the

district court clearly understood its role in resentencing Seats.       In

particular, its job was to follow Miller, Ragland, Null, and Pearson. This

meant, as the court put it, that it “must take into account how children

are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.”       (Internal quotation marks

omitted.) The court said on the record that this was one of the “unusual”

cases in which life without parole was warranted, and then explained

why.   The court specifically acknowledged Seats’s troubled youth, but

explained that other circumstances carried greater weight. Although the

majority has quoted from the district court’s explanations and reasoning,

the following statement also bears quotation:

             As to the crime, Mr. Seats shot a man asleep on a
       couch. Mr. Seats was not provoked, it was not a situation of
       a conflict that got out of control, and there is no arguable
       issue of self-defense. Mr. Seats was a primary actor in the
       murder and not a bystander who got caught up in events.
       He then took a series of proactive communications after his
       arrest, and he was demonstrably able to assist in his own
       defense at trial. Mr. Seats still does not acknowledge his
       guilt, show remorse for the crime he committed or
       demonstrate concern for the victim or the victim’s family.

       I will now address Seats’s argument that the Eighth Amendment to

the United States Constitution and article I, section 17 of the Iowa

Constitution categorically prohibit the sentence of life without parole for

persons who commit first-degree murder when under the age of
                                           42

eighteen. 4 I will then turn to Seats’s alternative, as-applied challenge to

his life-without-parole sentence. 5
     II. Seats’s Categorical Challenge to Life-Without-Parole
Sentences for Juveniles Convicted of First-Degree Murder.

       A. Recent United States Supreme Court Precedent. In Roper v.

Simmons, 543 U.S. 551, 575, 125 S. Ct. 1183, 1198, 161 L. Ed. 2d 1, 25,

(2005), the United States Supreme Court held that the Eighth

Amendment categorically prohibits the execution of juveniles who

commit murder. “[T]he death penalty is disproportionate punishment for

offenders under 18,” the Court stated. Id.

       The Roper Court initially noted a “national consensus against the

death penalty for juveniles”—marked by “the rejection of the juvenile

death penalty in the majority of States; the infrequency of its use even

where it remains on the books; and the consistency in the trend toward

abolition of the practice.” Id. at 564, 567, 125 S. Ct. at 1192, 1194, 161

L. Ed. 2d at 18, 20.          Also, the Court found that due to differences

between juveniles and adults, “juvenile offenders cannot with reliability

be classified among the worst offenders.” Id. at 569, 125 S. Ct. at 1195,

161 L. Ed. 2d at 21.            “[A] greater possibility exists that a minor’s
character deficiencies will be reformed.” Id. at 570, 125 S. Ct. at 1195–


        4The Eighth Amendment provides, “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.
amend. VIII. Article I, section 17 states, “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.
       5The     majority states that Seats has raised three issues on appeal. Technically
that is true, but the second issue is simply a brief recapitulation of the argument we
have already accepted in Ragland, 836 N.W.2d at 122, namely, that even with the
benefit of the Governor’s commutation from life without parole to sixty years before
eligibility for parole, Seats has the functional equivalent of an LWOP sentence. The only
arguments that present previously unresolved issues are Seats’s categorical and his as-
applied challenges to his LWOP sentence.
                                      43

96, 161 L. Ed. 2d at 22. Furthermore, the Roper Court observed that

juveniles, on the whole, have “diminished culpability,” and therefore “the

penological justifications for the death penalty apply to them with lesser

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

“Retribution is not proportional if the law’s most severe penalty is

imposed on one whose culpability or blameworthiness is diminished, to a

substantial degree, by reason of youth and immaturity.” Id.

      Five years later, in Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct.

2011, 2034, 176 L. Ed. 2d 825, 850 (2010), the Supreme Court held the

Eighth Amendment categorically prohibits a juvenile offender from being

sentenced to life without parole for a nonhomicide crime.           The Court

relied on several considerations.

      First, it noted that this sentencing practice is “exceedingly rare.”

Id. at 67, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841.                “[O]nly 11

jurisdictions nationwide in fact impose life without parole sentences on

juvenile nonhomicide offenders—and most of these do so quite rarely

. . . .” Id. at 64, 130 S. Ct. at 2024, 176 L. Ed. 2d at 839.

      Second, the Graham Court considered culpability and severity. It

observed that persons, especially juveniles, “who do not kill, intend to

kill, or foresee that life will be taken are categorically less deserving of the

most serious forms of punishment than are murderers.” Id. at 69, 130

S. Ct. at 2027, 176 L. Ed. 2d at 842.

            It follows that, when compared to an adult murderer, a
      juvenile offender who did not kill or intend to kill has a twice
      diminished moral culpability. The age of the offender and
      the nature of the crime each bear on the analysis.

Id. The Court emphasized that LWOP is “the second most severe penalty

permitted by law.” Id. (internal quotation marks omitted).
                                    44

      After discussing the penological justifications, the Graham Court

held the Eighth Amendment requires states to give all juvenile

nonhomicide offenders “some meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation.”        Id. at 75, 130

S. Ct. at 2030, 176 L. Ed. 2d at 846.

      In Miller, 567 U.S. ___, ___, 132 S. Ct. 2455, 2467, 183 L. Ed. 2d

407, 422 (2012), the Supreme Court confronted the constitutionality of

LWOP sentences for juvenile offenders convicted of murder. It found that

a mandatory life-without-parole sentence was unconstitutional because

the Eighth Amendment required individualized sentencing accounting for

the offender’s youth. Id. As the Court put it,

      Such mandatory penalties, by their nature, preclude a
      sentencer from taking account of an offender’s age and the
      wealth of characteristics and circumstances attendant to it.
      Under these schemes, every juvenile will receive the same
      sentence as every other—the 17-year-old and the 14-year-
      old, the shooter and the accomplice, the child from a stable
      household and the child from a chaotic and abusive one.

Id. at ___, 132 S. Ct. at 2467–68, 183 L. Ed. 2d at 422.        The Miller

holding thus had two components. First, a mandatory—as opposed to a

discretionary—LWOP sentence for a juvenile murderer is impermissible.
Second, in exercising the required discretion, the sentencing authority

has to consider the offender’s youth and matters relevant to that youth.

      Although the Miller Court did not foreclose an LWOP sentence for a

juvenile who commits murder, it did state as follows:

      [G]iven all we have said . . . about children’s diminished
      culpability and heightened capacity for change, we think
      appropriate occasions for sentencing juveniles to this
      harshest possible penalty will be uncommon.             That is
      especially so because of the great difficulty we noted in Roper
      and Graham of distinguishing at this early age between the
      juvenile offender whose crime reflects unfortunate yet
      transient immaturity, and the rare juvenile offender whose
      crime reflects irreparable corruption. Although we do not
                                      45
      foreclose a sentencer’s ability to make that judgment in
      homicide cases, we require it to take into account how
      children are different, and how those differences counsel
      against irrevocably sentencing them to a lifetime in prison.

Id. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (citation omitted)

(internal quotation marks omitted).

      In short, Miller left open LWOP as a potential sentencing option.

Still, it did establish that no juvenile could be sentenced to LWOP unless

the sentencing court first conducted a hearing that considered the

characteristics of youth and their mitigating effects.    And it indicated

that appropriate occasions for such sentences would be uncommon. As

the Court stated later in the opinion, “[A] judge or jury must have the

opportunity to consider mitigating circumstances before imposing the

harshest possible penalty for juveniles.” Id. at ___, 132 S. Ct. at 2475,

183 L. Ed. 2d at 430.         The Miller Court condemned mandatory

sentencing laws because they “prohibit a sentencing authority from

assessing   whether    the   law’s    harshest   term    of   imprisonment

proportionately punishes a juvenile offender.” Id. at ___, 132 S. Ct. at

2466, 183 L. Ed. 2d at 420–21 (emphasis added).

      B. Our Recent Precedent. In the wake of Miller, we have decided

several cases on juvenile sentencing. See generally Elisabeth A. Archer,

Note, Establishing Principled Interpretation Standards in Iowa’s Cruel and

Unusual Punishment Jurisprudence, 100 Iowa L. Rev. 323, 337–44 (2014)

(discussing the Iowa Supreme Court’s recent caselaw under article I,

section 17 of the Iowa Constitution).      Two years ago, in Ragland, 836

N.W.2d at 122, we held the Governor’s blanket commutation of LWOP

sentences to life without parole for sixty years resulted in sentencing that

did not comply with Miller. We said, “[T]he unconstitutional imposition of

a mandatory life-without-parole sentence is not fixed by substituting it
                                         46

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

sentence without parole.” Id. at 121. We also summarized five factors

that a court must consider at the individualized hearing required by

Miller:

                 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.”

Id. at 115 n.6 (alterations in original) (quoting Miller, 567 U.S. at ___, 132

S. Ct. at 2468, 183 L. Ed. 2d at 423).

          At the same time, in State v. Null, 836 N.W.2d at 76, we held under

the Iowa Constitution that the Miller ruling applies to a mandatory

sentence of 52.5 years before parole eligibility.         We stated that before

imposing this kind of sentence, the trial court must (1) “recognize that

because       children   are   constitutionally   different   from   adults,   they

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

criminal sentencing”; (2) make findings to justify an exception to this

general rule; (3) “recognize that [j]uveniles are more capable of change

than are adults” and “most juveniles who engage in criminal activity are

not destined to become lifelong criminals”; and (4) “recognize that a

lengthy prison sentence without the possibility of parole . . . is

appropriate, if at all, only in rare or uncommon cases.”             Id. at 74–75

(alteration in original) (internal quotation marks omitted).
                                     47

      Also on the same day, in State v. Pearson, 836 N.W.2d at 96–97,

we held under the Iowa Constitution that Miller applies to a sentence of

thirty-five years before parole eligibility, comprised of two consecutive

mandatory periods of incarceration.       We condemned as insufficient a

sentencing hearing that “emphasized the nature of the crimes to the

exclusion of the mitigating features of youth, which are required to be

considered under Miller and Null.”        Id. at 97.    We therefore vacated

Pearson’s sentence and remanded for “application of the Miller standards

as described in Null and this opinion.” Id.

      Finally, last year, in State v. Lyle, 854 N.W.2d 378, 400 (Iowa

2014), we found all mandatory minimum prison sentences for juveniles

unconstitutional under article I, section 17.         We concluded that “the

sentencing of juveniles according to statutorily required mandatory

minimums     does    not   adequately   serve   the    legitimate   penological

objectives in light of the child’s categorically diminished culpability.” Id.

at 398. We said that “juveniles can still be sentenced to long terms of

imprisonment, but not mandatorily.” Id. at 401. However, we reserved

and did not decide the question whether an LWOP sentence could be

imposed on any juvenile who commits murder. Id. n.7. That question

was not before us in Lyle, but is before us today, although the majority

declines to decide it.

      C. Recent Legislative Action in Iowa and Elsewhere. Following

Graham, our general assembly eliminated life without parole as a

possible sentence for class “A” felonies committed by juveniles other than

first-degree murder. See 2011 Iowa Acts ch. 131, § 147 (codified at Iowa

Code § 902.1(2) (2013)).       Additionally, during the 2015 legislative

session, the general assembly enacted a law that provides three

alternatives for juveniles convicted of first-degree murder:
                                         48
       [A] defendant convicted of murder in the first degree in
       violation of section 707.2, and who was under the age of
       eighteen at the time the offense was committed shall receive
       one the following sentences:

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

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

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

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

Iowa Code § 902.1).

       This law by its terms applies to “a person who was convicted of a

class ‘A’ felony prior to, on, or after the effective date of this Act and who

was under the age of eighteen at the time the offense was committed.”

Id. § 5. It passed the senate by a vote of forty-seven to three, passed the

house by a vote of eighty to eighteen, and was signed by the Governor on

April 24, 2015. S. Journal, 86th G.A., 1st Reg. Sess., at 626, 932 (Iowa

2015); H. Journal 86th G.A., 1st Reg. Sess., at 803–04 (Iowa 2015).
Thus, the Iowa legislature has decided to provide sentencing discretion to

the district courts in juvenile homicide cases, as required by Miller, while

retaining life without parole as a sentencing option.

       In contrast to Iowa, six state legislatures and the District of

Columbia have responded to Miller by eliminating LWOP for juveniles

convicted of first-degree murder. 6 These states join six jurisdictions that

       6See D.C. Code § 22-2104 (West, Westlaw through June 1, 2015) (“[N]o person

who was less than 18 years of age at the time the murder was committed shall be
sentenced to life imprisonment without release.); Haw. Rev. Stat. § 706-656(1) (West,
Westlaw through June 3, 2015) (“Persons under the age of eighteen years at the time of
                                           49

already prohibited life without parole for juveniles prior to the Miller

decision. 7

       However, a total of twenty-four jurisdictions in addition to Iowa

have retained life without parole as a sentencing option for juveniles who

commit murder following Miller. 8
______________________________________
the offense who are convicted of first degree murder or first degree attempted murder
shall be sentenced to life imprisonment with the possibility of parole.”); Tex. Penal Code
Ann. § 12.31(a) (West, Westlaw through 84th Legis., ch. 46 of 2015 Reg. Sess.) (stating
only individuals eighteen years of age and older can be sentenced to life imprisonment
without parole for capital felonies); Vt. Stat. Ann. tit. 13, § 7045 (West, Westlaw through
No. 22 of 1st Sess. of 2015–2016 Gen. Assemb.) (“A court shall not sentence a person to
life imprisonment without the possibility of parole if the person was under 18 years of
age at the time of the commission of the offense.”); W. Va. Code Ann. § 61-11-23(a)(2)
(West, Westlaw through 2015 Reg. Sess.) (banning life-without-parole sentences for
persons under eighteen years of age who were convicted of an offense punishable by life
imprisonment); Wyo. Stat. Ann. § 6-10-301(b) (West, Westlaw through 2014 Budget
Sess.) (prohibiting life-without-parole sentences for persons under eighteen years of age
at the time of the offense, unless they have assaulted an officer or attempted to escape
since being incarcerated and reaching the age of majority); 2015 Nev. Stat. ch. 152, § 2
(to be codified at Nev. Rev. Stat. § 176.025) (“A sentence of death or life imprisonment
without the possibility of parole must not be imposed or inflicted upon any person
convicted of a crime . . . who at the time of the commission of the crime was less than
18 years of age.”).
       7See  Alaska Stat. Ann. § 12.55.125(a) (West, Westlaw current 2015 1st Reg.
Sess. of 29th Leg.) (applying term of years sentences in place of life sentences); Colo.
Rev. Stat. Ann. § 18-1.3-401(4)(b)(I) (West, Westlaw current through May 15, 2015 of
1st Reg. Sess. of 70th Gen. Assemb.); Kan. Stat. Ann. § 21-6618 (West, Westlaw
through 2014 Reg. and Spec. Sess.); Mont. Code Ann. § 46-18-222 (West, Westlaw
through chapters effective Feb. 27, 2015, 2015 Sess.); N.M. Stat. Ann. §§ 31-21-10, 31-
18-15.3 (West, Westlaw through 2014 Legis., and including chapters 5, 75, 79, 83, 88,
99, 136, 149, and 150 of 1st Reg. Sess. of 52d Leg. (2015)), Or. Rev. Stat. Ann.
§ 161.620 (West, Westlaw through chapter 275 of 2015 Reg. Sess.). Kentucky banned
life without parole for juveniles under the age of sixteen. See Ky. Rev. Stat. Ann.
§ 640.040 (West, Westlaw through immediately effective legis. from 2015 Reg. Sess.).
        8See Ariz. Rev. Stat. Ann. § 13-751(A)(2) (West, Westlaw through legis. effective

Apr. 13, 2015 of 1st Reg. Sess. of 52d Leg.) (retaining the option of life without parole
for juveniles convicted of first-degree murder); Ark. Code Ann. § 5-4-104(b) (West,
Westlaw 2015 Reg. Sess. laws effective through Apr. 8, 90th Ark. Gen. Assemb.)
(allowing the option of life imprisonment without parole for defendants convicted of
capital murder or treason while younger than eighteen years of age); Cal. Penal Code
§ 190.5 (West, Westlaw through urgency legis. through chapter 4 of 2015 Reg. Sess.)
(permitting life without parole for juveniles between sixteen and eighteen years of age at
the discretion of the court); Del. Code. Ann. tit. 11, § 4209A (West, Westlaw through 80
Laws 2015, chapter 29) (permitting life without parole for juveniles convicted of first-
degree murder and imposing a twenty-five year minimum prison term); Fla. Stat. Ann.
§ 775.082 (West, Westlaw through chapters from 2015 1st Reg. Sess. of 24th Leg. in
                                           50

______________________________________
effect through June 2, 2015) (stating a juvenile can be sentenced to life imprisonment if
a judge determines it is the appropriate sentence); Ga. Code Ann. § 16-5-1 (West,
Westlaw through Acts 2 through 44, 200, 203, 207, 209, 211, 217, 225, 229, 236, 249,
252, 300, 304, 306, and 309 of 2015 Sess. of Ga. Gen. Assemb.) (allowing LWOP as an
option for persons convicted of murder); Idaho Code Ann. § 18-4004 (West, Westlaw
through chapter 212 of 2015 1st Reg. Sess. of 63d Idaho Leg.) (stating that the
punishment for murder where the death penalty is not sought shall be life with no
parole eligibility for at least ten years); Ind. Code Ann. § 35-50-2-3 (West, Westlaw
through 2015 1st Reg. Sess. of 119th Gen. Assemb. legis. effective through June 28,
2015) (allowing discretionary life without parole for persons between sixteen and
eighteen years of age); La. Rev. Stat. Ann. § 15:574.4(E) (West, Westlaw through 2014
Reg. Sess.) (allowing juvenile life without parole for first- and second-degree murder);
Me. Rev. Stat. Ann. tit. 17-A, § 1251 (West, Westlaw through emergency legis. through
chapter 96 of 2015 1st Reg. Sess. of 127th Leg.) (allowing either life imprisonment or a
term of years sentence for murder); Md. Code Ann., Crim. Law § 2-201 (West, Westlaw
through June 1, 2015 legis. of 2015 Reg. Sess. of Gen. Assemb.) (setting the penalty for
first-degree murder as life imprisonment with or without parole); Mich. Comp. Laws
Ann. § 769.25 (West, Westlaw through P.A. 2015, No. 43, of 2015 Reg. Sess., 98th Leg.)
(permitting the prosecuting attorney to seek a sentence of imprisonment for life without
the possibility of parole and imposing a twenty-five year minimum term for juveniles not
sentenced to life); Neb. Rev. Stat. Ann. § 28-105.02 (West, Westlaw through end of 2014
Reg. Sess.) (stating a person under eighteen years convicted of a Class 1A felony shall
be sentenced to between forty years’ and life imprisonment and allowing the defendant
to submit mitigating factors to the court at sentencing); N.Y. Penal Law § 70.00
(McKinney, Westlaw through L. 2015, chapters 1 to 18, 50 to 61) (allowing life
imprisonment without parole for persons convicted of class A felonies); N.C. Gen. Stat.
Ann. § 15A-1340.19A–B (West, Westlaw through chapter 38 of 2015 Reg. Sess. of Gen.
Assemb.) (allowing a possible life-without-parole sentence for juveniles convicted of
first-degree murder and imposing a twenty-five year minimum sentence for juveniles
eligible for parole); N.D. Cent. Code Ann. § 12.1-32-01 (West, Westlaw through HB
1104, HB 1105, HB 1107, HB 1127, HB 1134, HB 1159, HB 1199, HB 1206, HB 1281,
HB 1358, HB 1370, HB 1390, HB 1407, SB 2052, SB 2079, SB 2082, SB 2100, SB
2176, SB 2188, SB 2237, SB 2271 and SB 2301 of 2015 Reg. Sess. of 64th Leg.)
(setting the maximum penalty for class AA felonies as life without parole); Okla. Stat.
Ann. tit. 21, § 701.9 (West, Westlaw through emergency effective provisions through
chapter 338 of 1st Reg. Sess. of 55th Leg. (2015)) (allowing life-without-parole sentences
for first-degree murder); 18 Pa. Cons. Stat. Ann. § 1102.1 (West, Westlaw through Act
2015-4) (stating a court has discretion to sentence a juvenile to life without parole and
imposing minimum sentences for juveniles sentenced to terms of imprisonment rather
than life); R.I. Gen. Laws Ann. § 11-23-2 (West, Westlaw through chapter 41 of Jan.
2015 Sess.) (allowing the court to impose life-without-parole sentences for persons
convicted of murder in the first degree); S.D. Codified Laws § 22-6-1 (West, Westlaw
current through 2014 Reg. Sess.) (“If the defendant is under the age of eighteen years at
the time of the offense and found guilty of a Class A or B felony, the maximum sentence
may be life imprisonment in the state penitentiary.”); Tenn. Code Ann. § 39-13-202
(West, Westlaw through laws from 2015 1st Reg. Sess., effective through Apr. 6. 2015)
(allowing discretionary life without parole for first-degree murder); Utah Code Ann. § 76-
3-207.7 (West, Westlaw through 2014 Gen. Sess.) (allowing a life-without-parole
sentence for juveniles convicted of aggravated murder); Wash. Rev. Code Ann.
                                           51

       Lastly, eleven states that had statutory schemes imposing

mandatory life without parole on certain juvenile homicide offenders have

yet to pass new legislation conforming their respective statutory schemes

to Miller. 9

       D. Does the Eighth Amendment Categorically Prohibit Life

Without Parole for Juveniles Who Commit Murder?                                   To my

knowledge,      no    appellate    court    has    determined       that    the   Eighth

Amendment, in light of Miller, categorically prohibits LWOP sentences for

juvenile homicide offenders. To the contrary, numerous appellate courts

have affirmed LWOP sentences for juvenile murderers post-Miller. 10

Miller itself said,

______________________________________
§ 10.95.030(3) (West, Westlaw through legis. effective through May 18, 2015) (stating
that juveniles can be sentenced to life without parole but the court must take into
account mitigating factors before handing down a life sentence); Wis. Stat. Ann.
§ 939.50 (West, Westlaw through 2015 Act 20) (setting life imprisonment as the penalty
for Class A felonies).
       9See  Ala. Code § 13A-5-45 (West, Westlaw through Act 2015-183 of 2015 Reg.
Sess.); Conn. Gen. Stat. Ann. § 54-125a (West, Westlaw through Pub. Acts 15-3
through 15-5 of 2015 Jan. Reg. Sess. of Conn. Gen. Assemb.); 730 Ill. Comp. Stat. Ann.
5/5-8-1 (West, Westlaw through P.A. 99-4 of 2015 Reg. Sess.); Minn. Stat. Ann.
§ 609.106 (West, Westlaw through chapters 1 to 15, 24, 43, 45, 46, 49, 51, and 53 of
2015 Reg. Sess.); Miss. Code. Ann. § 47-7-3 (West, Westlaw through laws in effect
through Apr. 23, 2015); Mo. Ann. Stat. § 565.020 (West, Westlaw through emergency
legislation approved through Apr. 8, 2015, of 2015 1st Reg. Sess. of 98th Gen.
Assemb.); N.H. Rev. Stat. Ann. § 630:1-a (West, Westlaw through chapter 48 of 2015
Reg. Sess.); N.J. Stat. Ann. § 2C:11-3 (West, Westlaw through L. 2015, c. 60 and J.R.
No. 1); Ohio Rev. Code Ann. § 2929.03 (West, Westlaw through 2015 Files 1 to 6 of the
131st Gen. Assemb.); S.C. Code Ann. § 17-25-45 (West, Westlaw through Acts 1 and 3
of 2015 Sess.); Va. Code Ann. § 18.2-10 (West, Westlaw through end of 2014 Reg. Sess.
and end of 2014 Sp. S.I. and includes 2015 Reg. Sess. cc. 1, 7, 8, 39, 61, 67, and 89).
       10See  Evans–García v. United States, 744 F.3d 235, 240 (1st Cir. 2014) (finding a
habeas petitioner not entitled to relief because he received a discretionary life-without-
parole sentence); Pennington v. Hobbs, 451 S.W.3d 199, 202 (Ark. 2014) (holding that a
nonmandatory sentence of life without parole did not violate Miller); People v. Wilder, ___
P.3d ___, ___, 2015 WL 795834, at *5 (Colo. App. Feb. 26, 2015) (“Miller did not
categorically bar the imposition of a life without parole sentence for a juvenile
offender.”); People v. Gutierrez–Ruiz, ___ P.3d ___, ___, 2014 WL 4242887, at *4 (Colo.
App. Aug. 28, 2014) (“[T]he constitutional defect in defendant’s sentence for first degree
murder is not its length or the fact that he will not be eligible for parole. Instead,
                                            52
       Our decision does not categorically bar a penalty for a class
       of offenders or type of crime—as, for example, we did in
       Roper or Graham. Instead, it mandates only that a sentencer
       follow a certain process—considering an offender’s youth and
       attendant characteristics—before imposing a particular
       penalty.

567 U.S. at ___, 132 S. Ct. at 2471, 183 L. Ed. 2d at 426.

       I would read Miller as every other appellate court has. Miller allows

states to impose LWOP sentences on some juveniles who commit murder

______________________________________
defendant’s sentence of life without parole violates the Eighth Amendment because it
was imposed without any opportunity for the sentencing court to consider whether this
punishment is just and appropriate in light of defendant’s age, maturity, and the other
factors discussed in Miller.”); Washington v. State, 103 So. 3d 917, 920 (Fla. Dist. Ct.
App. 2012) (“Under Miller, a sentence of life without the possibility of parole remains a
constitutionally permissible sentencing option.”); Foster v. State, 754 S.E.2d 33, 37 (Ga.
2014) (finding no Eighth Amendment violation in a discretionary life-without-parole
sentence); People v. Baker, 28 N.E.3d 836, 848 (Ill. App. Ct. 2015) (“Under Miller, a
juvenile defendant can be sentenced to natural life in prison without parole, so long as
the natural life sentence is at the trial court’s discretion and not mandatory.”); Conley v.
State, 972 N.E.2d 864, 879 (Ind. 2012) (“Our holding that [Indiana’s discretionary] life-
without-parole sentence is not unconstitutional is not altered by Miller.”); State v.
Fletcher, 149 So. 3d 934, 941 (La. Ct. App. 2014) (“Miller did not preclude life without
parole for juveniles. It merely required that a sentencing court consider mitigating facts
related to the juvenile’s youth before imposing a sentence without benefit of parole.”);
People v. Carp, 852 N.W.2d 801, 841 (Mich. 2014), petitions for cert. filed sub nom. Carp
v. Michigan (U.S. Jan. 13, 2015) (No. 14-824), Davis v. Michigan (U.S. Jan. 23, 2015)
(No. 14-8106) (“[T]he proportionality review employed by the United States Supreme
Court in fashioning the rules in Roper, Graham, and Miller . . . does not support the
categorical rule sought by defendants.”); State v. Ali, 855 N.W.2d 235, 258 (Minn. 2014)
(“The Court specifically did not foreclose the punishment of [LWOP] for juveniles, but
required that such sentences not be imposed without taking the defendants’ youth into
consideration.”); State v. Hart, 404 S.W.3d 232, 238 (Mo. 2013) (“From these forceful
and repetitious statements, it is reasonable to infer that the Supreme Court did not
intend for Miller to be misused in precisely the way that Hart suggests, i.e., that the
Supreme Court was not holding that the Eighth Amendment categorically prohibits life
sentences without parole for juvenile offenders found guilty of first-degree murder.”);
Commonwealth v. Batts, 66 A.3d 286, 296 (Pa. 2013) (“Miller requires only that there be
judicial consideration of the appropriate age-related factors set forth in that decision
prior to the imposition of a sentence of life imprisonment without the possibility of
parole on a juvenile.”); Aiken v. Byars, 765 S.E.2d 572, 578 (S.C. 2014) (“Without
question, the judge may still determine that life without parole is the appropriate
sentence in some of these cases in light of other aggravating circumstances.”); State v.
Houston, ___ P.3d ___, ___, 2015 WL 773718, at *14 (Utah Mar. 13, 2015) (“[W]e
conclude that imposing LWOP on a juvenile convicted of homicide does not violate the
Eighth Amendment’s prohibition on cruel and unusual punishments.”).
                                    53

without violating the Eighth Amendment.          Seats would invert the

foregoing quotation from Miller (i.e., “does not categorically bar”).   He

asks us to hold that Miller does categorically bar a penalty for a class of

offenders or type of crime. That is not what Miller says.

      E. Does Article I, Section 17 of the Iowa Constitution

Categorically Prohibit Life-Without-Parole Sentences for Juveniles

Who Commit Murder?          In considering Seats’s categorical challenge

under the Iowa Constitution, I believe it is valuable to draw on two

additional sources of authority—pre-2013 Iowa caselaw and decisions

from other states addressing categorical challenges to juvenile homicide

LWOP sentences under their state constitutions. After examining these

authorities, I turn to the question whether the Iowa Constitution

prohibits all LWOP sentences for juvenile murderers.

      1. Additional Iowa caselaw. This court has been dealing with the

difficult questions raised by both juvenile sentencing and LWOP

sentences for some time.         That effort did not begin with the

Ragland/Null/Pearson trilogy in 2013.

      Thus, our court has held that a mandatory LWOP sentence for an

adult who commits first-degree kidnapping does not violate article I,

section 17. See State v. Nims, 357 N.W.2d 608, 610–11 (Iowa 1984). We

have also upheld against state constitutional challenge a mandatory

sentence of 42.5 years’ imprisonment before parole eligibility for an adult

who commits second-degree murder. See State v. Cronkhite, 613 N.W.2d

664, 669–70 (Iowa 2000).

      More recently, we held an LWOP sentence for an adult who

committed third-degree sexual abuse for the second time did not violate

article I, section 17. See State v. Oliver, 812 N.W.2d 636, 649–53 (Iowa

2012).   As a twenty-four-year-old, the defendant had sexual relations
                                   54

with a girl who was fourteen or fifteen, and later as a thirty-three-year-

old, he had sexual relations with a girl who was thirteen. Id. at 651. We

concluded that no inference of gross disproportionality arose and ended

the analysis there. Id. at 653.

      We have also said, “We seek to interpret our constitution

consistent with the object sought to be obtained at the time of adoption

as disclosed by the circumstances.” Chiodo v. Section 43.24 Panel, 846

N.W.2d 845, 851 (Iowa 2014); see also Homan v. Branstad, 812 N.W.2d

623, 629 (Iowa 2012) (indicating that in construing a provision of the

Iowa Constitution, “our mission ‘is to ascertain the intent of the

framers.’ ” (quoting Rants v. Vilsack, 684 N.W.2d 193, 199 (Iowa 2004))).

Yet when our present constitution was adopted, our laws mandated

capital punishment for first-degree murder.      See Iowa Code § 2569

(1851). During that time period, juveniles over fourteen were presumed

to have the capacity to commit criminal acts, and when tried, were tried

as adults. See Lyle, 854 N.W.2d at 390.

      In an early case, decided when our constitution was of relatively

recent vintage, we upheld the conviction and death sentence of juvenile

James Dooley for the murder of his aunt and cousin.          See State v.

Dooley, 89 Iowa 584, 594, 57 N.W. 414, 417 (1894). Dooley was sixteen

when he committed his crimes, and at the time, our laws authorized the

jury to determine either death or imprisonment for life at hard labor as

the punishment for first-degree murder. Id. at 586–87, 57 N.W. at 415.

The jury chose death. Id. at 594, 57 N.W. at 417. We described the facts

of the case and also made a number of observations concerning the

defendant:

            There can be no reasonable doubt that defendant is
      guilty of the crime of which he was convicted.       He
      commenced to work for his uncle in September, 1891, and
                             55
worked for him continuously until the time of the murder,
excepting some time during the winter, when he attended
the Prescott school. In the morning of May 11, after his
uncle left home, his aunt scolded him for permitting the
cattle to get into a neighbor’s field, which made him angry.
At about 10 o’clock he went to Prescott, and while there
wrote an order on a merchant of the town, to which he
signed a name intended to be that of his uncle, and with it
went to a hardware store, where he inquired for revolvers.
He was shown one, which he agreed to take, if the merchant
would accept the order. The order was accepted, and the
defendant carried away with him the revolver and a box of
cartridges. He states that he purchased the revolver to
practice with, and at the time had no intention of shooting
any one; that he had half a pint of whisky with him, which
he and another person drank, and that he went home about
noon; that his aunt was usually kind to him; and that he
had not felt any improper desires towards her or his cousin,
but when he reached home the cattle were in a neighbor’s
field. Mrs. Coons scolded him at the dinner table for
neglecting the cattle, and they quarreled for some minutes.
After dinner, about half past 12 o’clock, she again began
scolding him. He had in his pocket a padlock, which he had
picked up in the yard for the purpose of unlocking it, but
when Mrs. Coons scolded him he became angry, and struck
her on the head twice with it. The blows knocked her down.
They struggled for a time, and he then shot her. The little
girl came running in from the barn, and as she came
through the door he struck her on the head with the
padlock, and knocked her down; then shot her in the
forehead. He placed the bodies on the bed, took a satchel,
with clothing, locked the house, harnessed the team to a
buggy, and drove away. He further says that he did not
recover from his passion sufficiently to realize the enormity
of what he had done until he had driven four or five
miles. . . . Counsel for appellant discuss at some length the
character of the defendant, as shown by his history. His
father died when he was but a few years old. His mother
remarried, and he left home when he was about thirteen
years of age, and worked at different places until he
commenced working for his uncle. He seems to have been a
quiet, well behaved boy, who was favorably regarded by
those who knew him. He attended school in Prescott a
portion of the winter preceding the murder, and during that
winter joined a church, and attended Sunday school. He
was not an apt pupil, and his mental development, from lack
of opportunity or of natural ability, seemed to be a little
inferior to the average development of boys of his age. He is
described as having the appearance of an easy going,
sluggish fellow, who did not have the perseverance boys of
his age and opportunities usually have. He had not drank
much intoxicating liquor, but was quite a reader of cheap,
                                        56
      sensational novels. . . . There is nothing in the record,
      excepting the commission of the crimes which were proven,
      to show that defendant is of a depraved nature. Certainly,
      he cannot be regarded as a hardened criminal, although
      guilty of a crime having few parallels in wanton atrocity in
      the history of the state.      In view of the youth of the
      defendant, his lack of mental development, and his almost
      uniformly good conduct before the crime was committed, we
      should have been better satisfied had the jury designated
      imprisonment in the penitentiary for life as his punishment;
      but, in a legal sense, the evidence was sufficient to authorize
      the punishment designated, and there is no sufficient
      ground upon which we can prevent it.

Id. at 591–94, 57 N.W. at 416–17. Dooley was seventeen years old when

we affirmed his conviction and sentence and was executed on the

grounds of the Iowa State Penitentiary later the same year after he had

turned eighteen. See N.N. Jones, Biennial Report of the Warden of the

Penitentiary at Fort Madison to the Governor of Iowa 40–41 (1895).

      Of   course,   originalism   is    not   the   only   available   tool   in

constitutional interpretation.     See, e.g., Lyle, 854 N.W.2d at 384

(referring to “evolving standards of decency” (internal quotation marks

omitted)); Chiodo, 846 N.W.2d at 854 (same).          In this area of law in

particular, this court has said that “punishments once thought just and

constitutional may later come to be seen as fundamentally repugnant to

the core values contained in our State and Federal Constitutions as we

grow in our understanding over time.”          Lyle, 854 N.W.2d at 385.        My

point here is simply that originalism would not support a categorical ban

on the death penalty for juveniles who commit murder, let alone a ban

on life without parole.

      Additionally, we have long recognized that discretion in sentencing

can alleviate possible constitutional problems under article I, section 17.

In State v. Teeters, 97 Iowa 458, 462–63, 66 N.W. 754, 756 (1896), we

rejected a constitutional challenge to a law permitting a sentence of up to
                                    57

five years in prison or up to a $500 fine for obstructing a public highway,

emphasizing that this was simply a maximum. As we put it, “If the law

fixed arbitrarily the excessive punishment, the claim of the law being

unconstitutional because of it would be more tenable.” Id. at 463, 66

N.W. at 756.

      2. State constitutional rulings in other jurisdictions.       In the

aftermath of Miller, a number of state appellate courts have addressed

under their respective state constitutions categorical challenges to life-

without-parole sentences for juvenile murderers. In all but one instance,

they have overruled those challenges. See, e.g., People v. Palafox, 179

Cal. Rptr. 3d 789, 805 (Ct. App. 2014) (disagreeing with the proposition

that “an LWOP term cannot properly be imposed under California law or

the Eighth Amendment” (emphasis added)); Bun v. State, 769 S.E.2d

381, 383–84 (Ga. 2015) (rejecting the defendant’s argument that

imposition of an LWOP sentence violated the Georgia Constitution); State

v. Fletcher, 149 So. 3d 934, 944, 950 (La. Ct. App. 2014) (rejecting a

claim that the district court’s imposition of a life-without-parole sentence

following a post-Miller resentencing violated the Louisiana Constitution);

State v. Ali, 855 N.W.2d 235, 258–59 (Minn. 2014) (rejecting the

argument that the discretionary imposition of consecutive life sentences

that are the practical equivalent of life without parole violated the

Minnesota Constitution); State v. Houston, ___ P.3d ___, ___, 2015 WL

773718, at *14–15 (Utah Mar. 13, 2015) (rejecting the argument that

LWOP is a categorically impermissible sentence under the Utah

Constitution for a juvenile convicted of murder and noting that “a

majority of our sister states as well as the federal system permit LWOP

for juveniles convicted of the most heinous crimes”).
                                     58

       In one case, the Michigan Supreme Court took note that

Michigan’s constitution, unlike the United States Constitution and the

Iowa    Constitution,    contains   disjunctive   wording     and   prohibits

punishments that are either “cruel or unusual.”        People v. Carp, 852

N.W.2d 801, 844 (Mich. 2014) (emphasis in original) (internal quotation

marks omitted), petitions for cert. filed sub nom. Carp v. Michigan (U.S.

Jan. 13, 2015) (No. 14-824), Davis v. Michigan (U.S. Jan. 23, 2015) (No.

14-8106). The court went on,

       The textual difference between the federal constitutional
       protection and the state constitutional protection is of
       consequence and has led this Court to conclude that Article
       1, § 16 [of the Michigan Constitution] provides greater
       protection against certain punishments than its federal
       counterpart in that if a punishment must be both “cruel”
       and “unusual” for it to be proscribed by the Eighth
       Amendment, a punishment that is unusual but not
       necessarily cruel is also proscribed by Article 1, § 16.

Id. (emphasis in original) (internal quotation marks omitted). Yet despite

this textual difference, the court was unwilling to conclude that LWOP

was so disproportionate a punishment for a juvenile homicide offender as

to be unconstitutional in all cases. Id. at 845–46.

       In another case, the Pennsylvania Supreme Court similarly denied

a categorical challenge to an LWOP sentence for a juvenile homicide

offender, even though Pennsylvania’s constitutional language differs from

the Eighth Amendment. See Commonwealth v. Batts, 66 A.3d 286, 299

(Pa.   2013).      The    Pennsylvania    Constitution      prohibits    “cruel

punishment”—whether unusual or not.         Id. at 298 (internal quotation

marks omitted). Nonetheless, the Batts court concluded,

             We find the textual analysis provided by Appellant and
       his amici to carry little force. The purport of the argument is
       that this Court should expand upon the United States
       Supreme Court’s proportionality approach, not that it should
                                    59
      derive new theoretical distinctions based on differences
      between the conceptions of “cruel” and “unusual.”

            ....

            We view Appellant’s policy arguments in essentially the
      same light. These emphasize the trend of the United States
      Supreme Court towards viewing juveniles as a category as
      less culpable than adults, and, while we recognize this
      progression, Appellant does not acknowledge that there has
      been no concomitant movement in this Court or in the
      Pennsylvania Legislature away from considering murder to
      be a particularly heinous offense, even when committed by a
      juvenile.

Id. at 298–99.

      Lastly, the Indiana Supreme Court also upheld a post-Miller LWOP

sentence for a juvenile over a state constitutional challenge. Conley v.

State, 972 N.E.2d 864, 879–80 (Ind. 2012). Under Indiana law, an LWOP

sentence may be imposed only after the sentencing court identifies all

aggravating and mitigating circumstances, includes the facts and

reasons that support those findings, balances those circumstances, and

determines the sentence is appropriate. Id. at 873. The court must also

find at least one aggravating circumstance and that the aggravating

circumstances outweigh the mitigating circumstances. Id.

      The Indiana Supreme Court acknowledged that the Indiana

Constitution “can provide more protections than the United States

Constitution provides” and its “language is not the same.” Id. at 879. In

particular, the Indiana Constitution states, “ ‘The penal code shall be

founded on the principles of reformation, and not of vindictive justice.’ ”

Id. (quoting Ind. Const. art. 1, § 18).       Still, the court found no

constitutional violation, noting that the defendant was “only the fourth

juvenile sentenced to a life-without-parole sentence” in Indiana. Id. at

880. The court observed that in Indiana, “[l]ife without parole is reserved
                                          60

for use in only the most heinous of crimes that so shock our conscience

as a community.” Id.

       One state constitutional decision is to the contrary. In Diatchenko

v. District Attorney, 1 N.E.3d 270, 276, 282–85 (Mass. 2013), the

Massachusetts       Supreme      Judicial      Court   acknowledged       that    Miller

foreclosed only mandatory life-without-parole sentences for juvenile

homicide offenders under the Eighth Amendment, yet invalidated all life-

without-parole sentences for juveniles in Massachusetts under Article 26

of the declaration of rights in that state’s constitution.               The relevant

provision of that article bars courts from inflicting “cruel or unusual

punishments.” Mass. Const., pt. 1, art. 26. 11

       The Massachusetts court based its reasoning on two points—first,

the inability of courts to determine with a high degree of confidence

whether a juvenile offender can or cannot be rehabilitated, and second,

the similarity between life without parole and the death penalty (the

latter of which the Massachusetts Supreme Judicial Court had

previously found to be unconstitutional in all circumstances).                      See

Diatchenko, 1 N.E.3d at 283–84. Thus, the court explained,

             Given current scientific research on adolescent brain
       development, and the myriad significant ways that this
       development impacts a juvenile’s personality and behavior, a
       conclusive showing of traits such as an “irretrievably
       depraved character” can never be made, with integrity, by
       the Commonwealth at an individualized hearing to determine
       whether a sentence of life without parole should be imposed

       11Itis worth noting that the Massachusetts Supreme Judicial Court has declined
to hold that a mandatory sentence of life with parole eligibility after fifteen years (in
other words, fifteen years of mandatory incarceration) for a juvenile who committed
second-degree murder violates either the Eighth Amendment or Article 26 of the
Massachusetts Declaration of Rights. Commonwealth v. Okoro, 26 N.E.3d 1092, 1098–
1101 (Mass. 2015). The court observed that it would be “prudent” to allow the law to
develop further. Id. at 1101. The court referenced Lyle but decided not to follow it. Id.
at 1100–01 & n.17.
                                    61
      on a juvenile homicide offender. Simply put, because the
      brain of a juvenile is not fully developed, either structurally
      or functionally, by the age of eighteen, a judge cannot find
      with confidence that a particular offender, at that point in
      time, is irretrievably depraved. Therefore, it follows that the
      judge cannot ascertain, with any reasonable degree of
      certainty, whether imposition of this most severe
      punishment is warranted.

Id. (footnote omitted) (citations omitted). The court then added,

      When considered in the context of the offender’s age and the
      wholesale forfeiture of all liberties, the imposition of a
      sentence of life without parole on a juvenile homicide
      offender is strikingly similar, in many respects, to the death
      penalty, which this court has determined is unconstitutional
      under art. 26.

Id. at 284. It further observed,

             The penological justifications for imposing life in
      prison without the possibility of parole—incapacitation,
      retribution, and deterrence—reflect the ideas that certain
      offenders should be imprisoned permanently because they
      have committed the most serious crimes, and they pose an
      ongoing and lasting danger to society.        However, the
      distinctive attributes of juvenile offenders render such
      justifications suspect.   More importantly, they cannot
      override the fundamental imperative of art. 26 that criminal
      punishment be proportionate to the offender and the offense.

Id. at 284 (citations omitted).

      The views of the Diatchenko court need to be considered carefully

because they distill the case for a categorical ban on life-without-parole

sentences for juvenile homicide offenders.    The first argument asserts

that with juveniles, a sentencer cannot confidently say whether or not a

juvenile can be rehabilitated, so the only constitutional outcome is

always to allow the possibility of parole.   Id. at 283–84.    The second

argument holds that life without parole is simply too harsh and

disproportionate a sentence to impose on any juvenile. Id. at 284. I will

examine these arguments in turn.
                                    62

      3. Does Iowa’s constitution categorically prohibit life without parole

for juvenile murderers? As noted, the Massachusetts Supreme Judicial

Court gave two reasons in Diatchenko for imposing a categorical ban

under the Massachusetts Constitution on life-without-parole sentences

for juveniles who commit murder—the inability of courts to determine

with confidence whether a juvenile can be rehabilitated, and the overall

harshness of the life-without-parole sentence for juveniles. Id. at 283–

84.

      One possible answer to the first argument is that the judicial

process is always subject to error. Predicting when or whether a person

can be rehabilitated is far from a science. Divining when or whether a

juvenile can be rehabilitated is even more difficult, as we have previously

noted.   Yet we have made clear that sentencing courts may impose

lengthy periods of required incarceration on juveniles if they do so after

considering the mitigating attributes of youth.     In Lyle, we expressed

confidence in our trial judges:

             It is important to be mindful that the holding in this
      case does not prohibit judges from sentencing juveniles to
      prison for the length of time identified by the legislature for
      the crime committed, nor does it prohibit the legislature from
      imposing a minimum time that youthful offenders must
      serve in prison before being eligible for parole. Article I,
      section 17 only prohibits the one-size-fits-all mandatory
      sentencing for juveniles.

            ....

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

854 N.W.2d at 403–04.
                                     63

      Also, Miller and its progeny rely heavily on parole boards as the

backstop to the process; yet a parole board’s determination that someone

has or has not been rehabilitated is likewise subject to error.

      Furthermore, focusing exclusively on the difficulty of determining

at the time of sentencing whether a juvenile can be rehabilitated

overstates the scope of Miller and our cases. Rehabilitation is not the

only legitimate goal served by imprisonment, even for juveniles. Rather,

our criminal justice system takes into account retribution, deterrence,

and incapacitation as well.       See Oliver, 812 N.W.2d at 646.           If

rehabilitation were the sole proper goal, it would follow that all sentences

for juveniles should come with immediate parole eligibility. Miller does

not go that far and does not hold that rehabilitation is the only

consideration that may govern sentencing of juvenile homicide offenders.

It simply holds that because of the capacity of juveniles to reform, and

their diminished culpability, the factors of youth must be considered in a

discretionary sentencing process.

      Nor does Lyle go that far. As we put it in Lyle,

      The Supreme Court banned mandatory life-without-parole
      sentences for juveniles in Miller, but it did not ban
      nonmandatory       life-without-parole   sentences   if   the
      sentencing court is given the opportunity to consider the
      attributes of youth in mitigation of punishment. Thus,
      juveniles can still be sentenced to long terms of
      imprisonment, but not mandatorily. Accordingly, the heart
      of the constitutional infirmity with the punishment imposed
      in Miller was its mandatory imposition, not the length of the
      sentence.

854 N.W.2d at 401 (footnote omitted) (citations omitted). We observed in

Lyle that “justice requires us to consider the culpability of the offender in

addition to [not exclusive of] the harm the offender caused.” Id. at 398

(emphasis added). Thus, both Miller and our cases allow the sentencing
                                          64

court to consider the nature of the crime, so long as the court also

considers all relevant attributes of youth. 12

       I therefore turn to the Massachusetts Supreme Judicial Court’s

second point.        This, I believe, is the heart of Seats’s categorical

argument—namely, that an LWOP sentence violates article I, section 17

because it is simply too harsh and disproportionate ever to be imposed

on a person who commits first-degree murder while under the age of

eighteen.

       To be sure, in recent years, both the United States Supreme Court

and this court have recognized “a fundamental and virtually inexorable

difference between juveniles and adults for the purposes of punishment.”

Id. at 393.       This difference is presently reflected in Iowa law, which

mandates LWOP for adults who commit first-degree murder but provides

no mandatory minimum period of incarceration at all for a juvenile who

commits the same crime.          Compare Iowa Code § 902.1(1) (2009), with

2015 Iowa Legis. Serv. no. 76 (S.F. 448) (West 2015).




       12Miller  indicated that “the distinctive attributes of youth diminish the
penological justifications for imposing the harshest sentences on juvenile offenders,
even when they commit terrible crimes.” Miller, 567 U.S. at ___, 132 S. Ct. at 2465, 183
L. Ed. 2d at 419. It did not say those attributes eliminated the justifications for such
sentences. Hence, Miller condemned mandatory LWOP laws for juvenile homicide
offenders not only because they do not differentiate among juveniles but also because
they do not differentiate among homicides:
       Under these schemes, every juvenile will receive the same sentence as
       every other—the 17–year–old and the 14–year–old, the shooter and the
       accomplice, the child from a stable household and the child from a
       chaotic and abusive one.
Id. at ___, 132 S. Ct. at 2467–68, 183 L. Ed. 2d at 422. (emphasis added). In Lyle, we
made the same point: “The youth of this state will be better served when judges have
been permitted to carefully consider all of the circumstances of each case to craft an
appropriate sentence and give each juvenile the individual sentencing attention they
deserve and our constitution demands.” Lyle, 854 N.W.2d at 403 (emphasis added).
                                       65

       The question is whether this difference between adults and

juveniles is so vast that an LWOP sentence for a juvenile who commits

murder has become “off the charts” in all situations.          See State v.

Bruegger, 773 N.W.2d 862, 867, 886 (Iowa 2009) (internal quotation

marks omitted) (holding that a mandatory sentence of 21.25 years for an

adult who committed statutory rape and had been previously adjudicated

a delinquent for two counts of criminal sexual conduct in the first degree

was “off the charts” such that a hearing was required to determine the

constitutionality of the sentence (internal quotation marks omitted)). I

believe it is not.

       To begin with, we do not have a situation as in Roper where there

is a “national consensus” against the punishment. 543 U.S. at 564, 125

S. Ct. at 1192, 161 L. Ed. 2d at 18; see also Oliver, 812 N.W.2d at 641–

46 (emphasizing the importance of a national consensus). The sentence

is not “exceedingly rare” as in Graham, 560 U.S. at 67, 130 S. Ct. at

2026, 176 L. Ed. 2d at 841. To the contrary, even in the wake of Miller,

LWOP remains a statutorily available sentence for juvenile homicide

offenders in thirty-six jurisdictions, including Iowa.          Legislatively

speaking, “Iowa is not an outlier.” Oliver, 812 N.W.2d at 641.

       Also, turning to judicial decisions in other states—another

consideration we deemed relevant in Oliver, see id. at 643—it is

noteworthy that almost all post-Miller state appellate courts to rule

(Massachusetts being the only exception) have upheld as constitutional

discretionary    life-without-parole   sentences   for   juvenile   homicide

offenders.

       Nor do we have a Roper/Graham scenario where the sentence may

exist more in theory than in practice. Miller was decided less than three

years ago, yet there at least fifteen cases in which juvenile homicide
                                          66

offenders have already been sentenced or resentenced, post-Miller, to life

without parole and the sentences have been upheld on appeal. 13


       13The Louisiana Court of Appeals recently upheld the imposition of a sentence of
life imprisonment without parole on a juvenile convicted of second-degree murder.
State v. Smoot, 134 So. 3d 1, 2 (La. Ct. App. 2014). The defendant was seventeen years
old when he shot a man in a dispute involving drugs and a boom box. Id. at 2–4 & n.3.
The defendant was sentenced on January 31, 2013, after Miller was decided. See id. at
5. At the sentencing hearing, defense counsel presented evidence that the defendant
came from a broken home, had lived in group homes between ages twelve and fifteen,
and was treated by counselors during that time. Id. at 6. Before imposing the
sentence, the trial court explained its reasoning on the record:
       The trial court stated that it had taken into account the youth of
       defendant as well as his upbringing and previous criminal activity.
       Despite defendant’s youth, the court found that defendant preyed upon a
       particularly vulnerable individual who was a homeless, HIV positive drug
       addict. Further, the court also expressed astonishment that defendant
       shot this victim multiple times over a stereo.
               . . . The court found this conduct demonstrated that defendant
       had “so little value [for] life” and exhibited a deliberate cruelty to the
       victim.
Id. (alteration in original) (footnote omitted). The defendant challenged the adequacy of
the sentencing hearing under Miller. Id. at 4. The appellate court stated it was “clear
that the trial court complied with the principles set forth in Miller prior to imposing
sentence.” Id. at 6. Because the court had properly considered both the defendant’s
youth and any other potentially mitigating factors before imposing life without parole,
the court affirmed the defendant’s LWOP sentence. See id; see also United States v.
Bryant, ___ F. App’x ___, ___, 2015 WL 1884376, at *1–2 (9th Cir. Apr. 27, 2015)
(assuming that Miller applied to an eighty-year sentence but upholding the sentence
where “[t]he district court understood that it had discretion to depart from a life
sentence,” “performed an individualized assessment” of the defendant, and was “well
informed as to [the defendant]’s troubled upbringing and the mitigating characteristics
of youth”); United States v. Maldonado, No. 09 Cr. 339–02, 2012 WL 5878673, at *10
(S.D.N.Y. Nov. 21, 2012) (sentencing the juvenile defendant to life imprisonment after
considering the defendant was seventeen years old, committed a murder for hire in
furtherance of a drug business, had not expressed remorse for his crimes, and had not
shown himself to be rehabilitatable while incarcerated), aff’d sub nom. United States v.
Guerrero, 560 F. App’x 110, 112 (2d Cir. 2014); Palafox, 179 Cal. Rptr. 3d at 795–97,
805–06 (approving of LWOP sentence of juvenile offender who was resentenced under
Miller where the court weighed the defendant’s youth, but found it outweighed by the
brutality of the crimes); Lane v. State, 151 So. 3d 20, 20–21 (Fla. Dist. Ct. App. 2014)
(affirming the juvenile defendant’s LWOP sentence for second-degree murder because
the trial court “conducted an individualized mitigation inquiry” (internal quotation
marks omitted)); Copeland v. State, 129 So. 3d 508, 510 (Fla. Dist. Ct. App. 2014)
(upholding defendant’s sentence to LWOP after Miller where the defendant was only
months shy of being eighteen, had no drug or family problems, had a prior criminal
history, and murdered a fifteen-year-old victim); Bun, 769 S.E.2d at 383–84 & n.5
                                            67

       A statewide consensus against this punishment cannot be

discerned either. As I’ve mentioned above, during the recently adjourned


______________________________________
(rejecting the defendant’s facial challenge to his LWOP sentence and noting that even if
he had raised an as-applied challenge, “the trial court’s order and sentencing transcript
make clear that the trial court considered Bun’s youth and its accompanying attributes
in making its sentencing decision and whatever the significance attributed to Bun’s
youth, the trial court found it was outweighed by the severity of his crimes, his criminal
history, and his lack of remorse”); State v. Wilson, ___ So.3d ___, ___ 2015 WL 1955410,
at *9–10 (La. Ct. App. Apr. 29, 2015) (affirming the defendant’s sentencing to LWOP
despite the defendant’s “lack of parental guidance, his placement in special education
classes, and the impact of peer pressure on him” and stating that “Miller does not
require the sentencing court to articulate all mitigating factors on the record”); Fletcher,
149 So. 3d at 936, 949–50 (affirming the defendant’s resentencing to LWOP where the
fifteen-year-old offender “executed his own parents in cold blood” despite a good
upbringing, expressed no genuine remorse, threatened his sister, and was unlikely to
be rehabilitated); State v. Reese, No. 2013 KA 1905, 2014 WL 3843859, at *3–5 (La. Ct.
App. June 25, 2014) (upholding the juvenile defendant’s sentence of LWOP where the
court considered the defendant was almost seventeen, demonstrated little potential for
rehabilitation, had a favorable upbringing, and murdered an innocent, younger child);
State v. Brooks, 139 So. 3d 571, 575 (La. Ct. App. 2014) (approving of seventeen-year-
old defendant’s resentencing under Miller to LWOP where the trial court considered the
defendant’s age, that he lacked an explanation for the senseless murder, that he failed
to comprehend he had escalated the situation and endangered many lives, that he
lacked remorse, and the impact of the crime on the fifteen-year-old victim’s family);
State v. Lovette, 758 S.E.2d 399, 408 (N.C. Ct. App. 2014) (upholding the juvenile
defendant’s LWOP sentence following resentencing post-Miller because the trial court
properly weighed all the factors and, despite stating defendant was not irretrievably
corrupt, still determined a life sentence was appropriate); State v. Rafferty, No. 26724,
2015 WL 1932693, at *29–30 (Ohio Ct. App. Apr. 29, 2015) (upholding an LWOP
sentence for a sixteen-year-old boy who aided and abetted a man in his fifties in
robbing and murdering three persons, even though the boy “came from a broken home”
and he was “more susceptible to being influenced” by the man, where “there was
nothing reckless or impetuous” about the murders and the district court “separately
considered [the defendant]’s youth as a mitigating factor”); State v. Lane, No. 2013–G–
3144, 2014 WL 1900459, at *15–16 (Ohio Ct. App. May 12, 2014) (affirming the trial
court’s decision to sentence the juvenile defendant to life without parole where the
defendant killed three students in a school shooting without provocation, he was
seventeen and one-half years old, he was intelligent and knew what he did was wrong,
he had a tumultuous upbringing, he was not pressured into committing the crime, and
he demonstrated no remorse, but rather contempt for his victims’ families, at
sentencing); Commonwealth v. Seagraves, 103 A.3d 839, 847–49 (Pa. Super. Ct. 2014)
(affirming the defendant’s resentencing after the Miller decision where the court
considered his age, mental health, drug history, maturity, lack of capacity to be
rehabilitated, the brutality of the crime, his closeness to adulthood, his lengthy juvenile
record, his primary role in the premeditated crime, lack of peer pressure, and decent
upbringing and determined LWOP was warranted).
                                    68

legislative session the general assembly by large bipartisan majorities

approved a Miller fix that leaves life without parole as a sentencing option

for juveniles who commit first-degree murder.

      Of course, this court must also make an independent judgment

whether a sentence violates the constitution. Lyle, 854 N.W.2d at 398;

Oliver, 812 N.W.2d at 646. A fundamental consideration here is whether

the sentence serves legitimate penological goals.     Lyle, 854 N.W.2d at

398; Oliver, 812 N.W.2d at 646. Clearly, an LWOP sentence serves no

rehabilitative goal. Oliver, 812 N.W.2d at 646. And while retribution is

certainly a permissible goal of punishment, there must be a relationship

between the punishment and the defendant’s culpability. Id.

      Juveniles do not have “adult-like culpability.” Lyle, 854 N.W.2d at

398. Still, the intentional, premeditated taking of another person’s life is

the most serious offense a person can commit, and society is entitled to

recognize this point, even when the person committing the crime was

under the age of eighteen. I cannot say that life without parole falls so

far short of serving legitimate penological goals in all cases involving

juvenile homicide offenders as to be “cruel and unusual” within the

meaning of article I, section 17.

      “[W]e owe substantial deference to the penalties the legislature has

established for various crimes.” Oliver, 812 N.W.2d at 650. The issue for

me is not whether I agree with this particular sentence, any more than

that was the issue when my predecessors decided Dooley over a century

ago. See 89 Iowa at 594, 57 N.W. at 417. The issue is whether the Iowa

Constitution imposes a total ban on life-without-parole sentences for

juvenile murderers.      I am unable to say that LWOP is such a

disproportionate penalty in all instances for a person who commits a
                                     69

murder before reaching the age of eighteen that it violates the Iowa

Constitution.

      F. The Court’s Failure to Reach Seats’s Categorical Challenge.

Unfortunately, the court does not reach the question whether article I,

section 17 prohibits LWOP sentences for juvenile murderers in all cases.

That means the issue will have to continue to be litigated in Iowa. I do

not understand or agree with the court’s refusal to reach this issue.

      For one thing, there is precedent for our upholding a law against a

facial challenge while at the same time finding the law unconstitutional

as applied. Glowacki v. State Bd. of Med. Exam’rs, 501 N.W.2d 539, 541–

42 (Iowa 1993); cf. State v. Hernandez-Lopez, 639 N.W.2d 226, 235, 242

(Iowa 2002) (upholding material witness law against facial challenge

because it raised “issues of public importance” even while dismissing the

as-applied challenge as moot).

      Even more importantly, the categorical challenge and the as-

applied challenge do not afford Seats the same relief. If Seats prevailed

on his categorical challenge, he could not be sentenced to LWOP.

However, the court’s ruling leaves Seats subject to an LWOP sentence on

remand. Thus, it grants Seats less relief than a successful categorical

challenge to the Iowa statute would provide. It is not fair or logical for an

appellate court to say it is unnecessary to reach an appellant’s first

ground for appeal just because the court is reaching another ground that

provides more limited relief. This is like remanding a case for new trial

based on an instructional error while ignoring the appellant’s initial

argument that he or she should have received a directed verdict.

      Texas has a well-developed and well-reasoned body of law on this

issue. “Generally, when a party presents multiple grounds for reversal of

a judgment on appeal, the appellate court should first address those
                                           70

points that would afford the party the greatest relief.” Bradleys’ Elec.,

Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999); cf.

Boykins v. Shinseki, No. 13–0942, 2014 WL 840096, at *5 (Vet. App. Mar.

5, 2014) (“Given that the Court is remanding the appellant’s claim, and

because none of the appellant’s other allegations of error could result in

greater relief, the Court need not address the appellant’s remaining

arguments.”); Tischhauser v. Little, 296 P.2d 1118, 1119 (Kan. 1956)

(reversing and remanding for a new trial because of an evidentiary error,

finding that it was not error to overrule the appellant’s directed verdict

motion, and declining to reach the appellant’s other appellate arguments

because they were also arguments for a new trial and “could afford

appellant no greater relief than that already granted”).                  There is no

juridical or practical reason to avoid reaching the question whether the

Iowa Constitution categorically forbids the imposition of an LWOP

sentence on a juvenile who commits murder.
     III. Seats’s As-Applied Challenge to His Life-Without-Parole
Sentence.

       Seats’s other ground for appeal is his as-applied challenge to his

sentence. He maintains that even if LWOP (or its functional equivalent)

for juveniles who commit murder does not categorically violate the Iowa

Constitution, his particular LWOP sentence did not comply with the

requirements of Miller, Ragland, and Null. 14

       A. The Majority’s Criticisms of the District Court.                    Although

the district court clearly tried to follow Miller and our caselaw, my


       14Seats  did not raise the type of as-applied challenge to his sentence recognized
in Bruegger, 773 N.W.2d at 884–85. He did not argue that the sentence of life without
parole is disproportionate as applied to him. Rather, he relied on the principles relating
specifically to juvenile sentencing set forth in Miller and our subsequent juvenile
sentencing cases.
                                        71

colleagues fault the court for not doing the job well enough.               They

therefore send the case back for more work—or, I would argue, the same

work. The majority identifies four Miller/Ragland/Null “factors” the court

allegedly did not consider: (1) “the presumption” in favor of a sentence

less than life without parole; (2) the juvenile offender’s “ ‘family and home

environment’ ”; (3) the “ ‘circumstances of the homicide offense’ ”; and (4)

the “consideration that ‘[j]uveniles are more capable of change than

adults.’ ” (Alteration in original.) (Internal quotation marks omitted.).

         Additionally, the court offers three further criticisms of the district

court:

         (5) The court should not have “emphasized that Seats was a

seventeen-year-old at the time the crime was committed.”

         (6) The court needed to “make specific findings of fact discussing

why the record rebuts the presumption” against life without parole.

         (7) The court “appeared to use Seats’s family and home

environment       vulnerabilities   together   with   his   lack   of   maturity,

underveloped sense of responsibility, and vulnerability to peer pressure

as aggravating, not mitigating factors.”

         I do not agree with any of these seven criticisms. In fact, I think

these criticisms are quite unfair. Let’s compare what the majority claims

the district court didn’t do and what the district court actually did:

         1. Alleged failure to apply the presumption against LWOP.           The

district court did not overlook this factor.       To the contrary, the court

acknowledged that it must “take into account how children are different,

and how those differences counsel against irrevocably sentencing them

to a lifetime in prison.” (Internal quotation marks omitted.). The district

court also accepted that “only in the unusual case should a juvenile life

sentence without the possibility for parole be imposed.” It then expressly
                                    72

determined that “this case is one of those unusual cases,” following this

determination with several paragraphs of findings.

      2. Alleged failure to consider the juvenile offender’s family and

home environment.    The district court did not disregard Seats’s family

and home environment. It said,

             I have considered the defendant’s unfortunate
      background and the difficulties he faced in his youth. I am
      not unsympathetic to the bleakness and desperation of that
      life. But I fail to find here the “attendant characteristics” of
      youth that might outweigh the seriousness of the crime or
      otherwise require a sentence less than one that would be
      imposed on an adult.

      3. Alleged failure to consider the circumstances of the offense.

Again, this criticism is misplaced. Here is what the district court stated:

            As to the crime, Mr. Seats shot a man asleep on a
      couch. Mr. Seats was not provoked, it was not a situation of
      a conflict that got out of control, and there is no arguable
      issue of self-defense. Mr. Seats was a primary actor in the
      murder and not a bystander who got caught up in events.
      He then took a series of proactive communications after his
      arrest, and he was demonstrably able to assist in his own
      defense at trial. Mr. Seats still does not acknowledge his
      guilt, show remorse for the crime he committed or
      demonstrate concern for the victim or the victim’s family.

      4. Alleged failure to consider that juveniles are more capable of

change than adults. The district court did not miss this factor, either.

As noted above, it acknowledged Miller’s teaching regarding “the

‘attendant characteristics’ of youth.” Yet it also observed that Seats had

not changed in over four years as an adult, had incurred ten major

disciplinary reports in prison, and continued to deny his guilt and

showed no remorse for the crime committed.

      5. Alleged emphasis on Seats being nearly eighteen years old when

the crime was committed. It is true that a single sentence of the district

court’s order said, “When he killed [Cervantes], Mr. Seats was only
                                      73

months away from being an adult.” I would not consider one sentence to

be emphasis.        Furthermore, Miller and Ragland instruct sentencing

courts that they should consider the juvenile’s “chronological age.”

Miller, 567 U.S. at ___, 132 S. Ct. at 2468, 183 L. Ed. 2d at 423;

Ragland, 836 N.W.2d at 115 n.6 (internal quotation marks omitted).

Miller even characterized its holding as “requir[ing] factfinders . . . to take

into account the differences among defendants and crimes,” including

the distinction between seventeen year olds and fourteen year olds.

Miller, 567 U.S. at ___ n.8, 132 S. Ct. at 2469 n.8, 183 L. Ed. 2d at 424

n.8.      So it was entirely appropriate for the district court to make

reference to Seats’s age at the time of the murder.

       6. Alleged failure to make specific findings to overcome the

presumption against LWOP.        I do not understand this criticism.       The

district court made a specific finding that this was “one of those unusual

cases [where LWOP could be imposed],” and then gave several

paragraphs’ worth of findings and reasons.

       7. Alleged    use   of   Seats’s    family   and   home    environment

vulnerabilities together with his lack of maturity, underdeveloped sense of

responsibility, and vulnerability to peer pressure against him.      I do not

follow this criticism either. The district court expressly found that this

murder did not arise out of peer pressure; rather, Seats was “a primary

actor.”     The district court also acknowledged Seats’s “unfortunate

background,” “the difficulties he faced in his youth,” and “the bleakness

and desperation of [Seats’s] life” as mitigating factors, but found them

outweighed by other considerations it identified.

       Miller does not require that we take the general characteristics of

hardened criminals—such as their inability to acknowledge wrongdoing,

their lack of remorse, their continuing illegal activity, and their failure to
                                        74

respond to interventions and attempts at rehabilitation—and treat them

as items to be placed on the defendant’s side of the ledger.

        For all these reasons, in contrast to the majority, I do not believe a

remand is necessary for more fact-finding.

        B. Seats’s Argument that His Case Was Not Heinous Enough.

Seats’s as-applied challenge also has a substantive dimension not

addressed by the majority. Thus, apart from the question whether the

district court followed the proper procedure in resentencing him, Seats

maintains that “his case does not rise to the heinous level” where Miller

permits an LWOP sentence.

        To date, other jurisdictions have been divided on whether Miller’s

sentencing requirements are basically procedural or whether there is also

a substantive component.        Under the former approach, the appellate

court’s duty is to determine whether the sentencing court took the youth-

related factors into account, not to analyze whether the court’s findings

and ultimate conclusion are actually supported by the evidence.           See,

e.g., United States v. Guerrero, 560 F. App’x 110, 112 (2d Cir. 2014)

(affirming the defendant’s resentencing to life without parole because

“[t]he district court properly considered all of the Miller factors”);

Copeland v. State, 129 So. 3d 508, 511 (Fla. Dist. Ct. App. 2014) (“[T]he

sentencing     court   conducted   an    individualized   mitigation   inquiry,

considering several potential mitigating factors before finding that life

without the possibility of parole was, nevertheless, appropriate in this

case.    Accordingly, we AFFIRM Copeland’s judgment and sentence.”);

Commonwealth v. Seagraves, 103 A.3d 839, 850 (Pa. Super. Ct. 2014)

(“Because our review of the record readily reveals that the trial court

considered these factors before re-imposing the sentence, we affirm

Appellant’s life sentence without the possibility of parole.”).
                                       75

      But another group of appellate courts have undertaken to review

the record to determine not only whether the sentencing court

considered the correct factors, but also whether its findings are

supported by the evidence such that the case is truly an “uncommon”

one. Hence, in Palafox, the California Court of Appeal performed its own

“independent review.” 179 Cal. Rptr. 3d at 806. The court elaborated,

      [W]e have subjected the constitutionality of the sentence to
      our independent review, taking into consideration
      defendant’s age and its hallmark features, record
      information regarding defendant’s family and home
      environment, and record evidence and information regarding
      the circumstances of the murders, including whether
      substance abuse played a role. We have considered whether
      defendant’s youth had any effect on how he was charged or
      whether he was somehow disadvantaged in the criminal
      proceedings, but find no evidence or information suggesting
      this factor is applicable to defendant’s case. Finally, we have
      examined the record for any evidence or other information
      bearing on the possibility of rehabilitation. Other than
      defendant’s age and lack of past criminal history, we find
      none—only speculation. Speculation is insufficient to render
      unconstitutional a sentence that otherwise passes
      constitutional muster.

Id. (footnote omitted) (citations omitted). In a footnote, the court referred

to   the   defendant’s    “chaotic    and   unfortunate         upbringing    and

environment,” but noted the same report “did not address any potential

for rehabilitation.” Id. n.17.

      Likewise, the North Carolina Court of Appeals examined for itself

whether the trial court’s findings of fact were supported by substantial

evidence   and   whether    they     supported   the   trial    court’s   ultimate

conclusion. See State v. Lovette, 758 S.E.2d 399, 407–10 (N.C. Ct. App.

2014). Upon its review, the court found the facts did support an LWOP

sentence: “[T]his case is uncommon.”        Id. at 410.        In its opinion, the

appellate court recited some of the pertinent facts, including the

“defendant’s active planning and participation in a particularly senseless
                                     76

murder,” the fact that the defendant was seventeen years old and “of a

typical maturity level for his age,” the fact that the defendant had a

stable upbringing, and his extensive juvenile record despite the

rehabilitative programs offered by the juvenile court. Id.

      Similarly, in Fletcher, the Louisiana court conducted its own

“complete and thorough review of the entire record of all of the

proceedings, including all of the testimony and evidence adduced at the

trial and the Miller hearing, and all of the exhibits introduced in these

proceedings.”   149 So. 3d at 944.        Convinced that the trial court had

considered “the relevant factors,” and fortified by its own “careful review

of the entire record,” the court upheld the trial court’s resentencing of

the defendant to life without parole. Id. at 950; see also State v. Brooks,

139 So. 3d 571, 576 (La. Ct. App. 2014) (sharing the trial court’s

conclusion “that the facts of this case should preclude parole eligibility

for this remorseless killer”).

      I agree with the approach taken by the latter group of courts.

Miller—especially   as   amplified   by    our   holdings   under   the   Iowa

Constitution—requires us to perform a substantive as well as a

procedural review of any juvenile LWOP sentence. Thus, when reviewing

any such sentence, I would consider whether the district court’s findings

on the Miller/Ragland/Null factors          are supported by substantial

evidence, and also independently decide whether the record supports a

determination that the case is sufficiently uncommon—based on those

same factors—that an LWOP sentence can be constitutionally imposed.

      This leads to the question of what the standard of review should

be.   The State urges abuse of discretion—our traditional deferential

standard for reviewing criminal sentences.           I disagree.    Abuse of

discretion might be the right standard if the only question were whether
                                           77

the district court considered the appropriate factors—the typical inquiry

in sentencing appeals. See State v. Valin, 724 N.W.2d 440, 444 (Iowa

2006) (stating that the standard of review for sentencing appeals is abuse

of discretion when a sentence falls within statutory limits). However, if

the review is to go beyond procedure, a less deferential standard of

review is required.

       Accordingly, I think this court should examine whether the district

court’s findings on any Miller/Ragland/Null factors are supported by

substantial evidence, and perform a de novo review to determine whether

a case is sufficiently uncommon, based upon consideration of those

factors, that a sentencer could constitutionally impose a life-without-

parole sentence. The issue, again, would not be whether the appellate

court would have imposed the same sentence, but whether there are

sufficient indicia the case is out of the mainstream of juvenile homicide

cases that an LWOP sentence is a constitutional option. 15

       I believe the district court’s findings of fact at the resentencing are

supported by substantial evidence; indeed, Seats does not challenge any

of them on appeal. I would also conclude from an independent review

that this is the kind of rare case where a district court, exercising its
discretion and after considering all the circumstances of youth

presented, could constitutionally impose an LWOP sentence.

       First, the defendant’s chronological age was just a few months

short of eighteen.       He did not act impetuously.            A murder—really an

       15I do not believe the determination of whether the case is “uncommon” requires
a particular factual finding, as opposed to a balancing of factors. If a particular factual
threshold had to be met, a serious question would be raised whether the life-without-
parole sentence must be imposed by a jury rather than a judge. See Fletcher, 149 So.
3d at 942–43; see also Blakely v. Washington, 542 U.S. 296, 303–04, 124 S. Ct. 2531,
2537, 159 L. Ed. 2d 403, 412–13 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490,
120 S. Ct. 2348, 2362–63, 147 L. Ed. 2d 435, 455 (2000).
                                            78

execution—was planned; Seats’s purpose was to kill someone he was

worried would go to the police and report him.

       Second, as to the circumstances of the murder, Seats was the

gunman, and he “emptied the whole clip” into a man who was sleeping a

few feet away. Seats was not under the influence of any substances. He

was not provoked; he did not act in self-defense or the heat of passion;

he planned the killing under his own initiative without any peer

pressure.

       Third, there is no indication Seats’s youth had any bearing on his

ability to defend himself in the legal system. In fact, Seats was no longer

a juvenile at the time of trial. Nothing in the record suggests that any

plea offer was made to Seats before trial, let alone turned down by him

because of his youth. At trial, Seats took the stand and testified for most

of a day, presenting a detailed, if ultimately unconvincing, defense that

was designed to conveniently explain away a good deal of the

prosecution’s evidence.

       Fourth, while most young people change and mature as they get

older, the district court accurately summarized this record as not

showing any discernible prospects for rehabilitation.                 All rehabilitation

efforts failed when Seats was a juvenile. 16              In prison, Seats had only

made what the district court accurately termed a “half-hearted effort at

obtaining his GED.” 17         Further, as noted by the district court, Seats

       16The record reveals, for example, that Seats was placed in a highly structured,
ninety-day boot camp program in Davenport from October 2006 through January 2007.
        17The district court expressly acknowledged that there exist “few opportunities”

to “ma[k]e significant rehabilitative efforts in prison,” but was skeptical of Seats’s claim
that he had to put aside any efforts toward getting a GED because of other priorities.
The PSI indicates that Seats was accepted into a GED program in 2010 but left the
program two years later without a GED because of “[n]oncompliant/[b]ehavioral
[i]ssues.”
                                          79

failed to show remorse up to the day of his resentencing.                 Four years

after the crime, at the age of twenty-two, Seats continued to deny that he

killed Cervantes. Even when he briefly admitted the crime to police, his

only regret was that he had shot Cervantes rather than Ramirez.

         It is true that one factor weighs quite significantly in Seats’s

favor—his seriously troubled family and home environment. The district

court acknowledged and considered this point, as it had to. I believe this

factor     alone,   though,      does     not    render     an    LWOP       sentence

unconstitutional under the circumstances of this case.                  Other courts

have reached similar conclusions. 18

         The present case stands a considerable distance from the botched

robberies committed by fourteen year olds that were involved in Miller,

567 U.S. at ___, 132 S. Ct. at 2465, 183 L. Ed. at 420, the impulsive

stabbing of a client committed by a teenage model who later became an

exemplary inmate, State v. Louisell, ___ N.W.2d ___, ___ (Iowa 2015), and

the fatal blow with the tire iron that was struck in a fight by someone

other than the defendant, Ragland, 836 N.W.2d at 110.


         18Anumber of courts applying the principles of Miller have agreed that life
without parole can be an appropriate sentence for some juvenile defendants despite
their troubled family and home life. See Palafox, 179 Cal. Rptr. 3d at 793–94 (affirming
life without parole for murders committed by the defendant when he was sixteen,
despite “the family’s issues with drugs, alcohol, gangs, domestic violence, and
delinquent activities”); Brooks, 139 So. 3d at 573–74 (affirming life without parole
despite the very difficult family history of the defendant who dropped out of school at
fourteen and whose parents dealt and used drugs); Smoot, 134 So. 3d at 5–6 (upholding
a juvenile defendant’s life-without-parole sentence despite defense counsel’s
presentation of evidence that the defendant “came from a broken home” and lived in a
group home for a period of his youth); Lane, 2014 WL 1900459, at *15–16 (considering
the juvenile defendant’s “tumultuous upbringing” but affirming the life-without-parole
sentence for a school shooter who planned the attack and showed a complete lack of
remorse at sentencing); Rafferty, 2015 WL 1932693, at *29 (affirming the defendant’s
LWOP sentence despite the fact that he “came from a broken home” and was sixteen
years old at the time of the murders, he was not the gunman, and he was under the
influence of a much older man who was the gunman).
                                         80

       Given the deference we must afford on the one hand to the

legislature’s determination of sentencing options and on the other hand

to the trial court’s exercise of sentencing discretion, I would not find this

sentence violates either the Eighth Amendment or article I, section 17 of

the Iowa Constitution.

       IV. Conclusion.

       For the foregoing reasons, I respectfully dissent and would affirm

the resentencing below. 19

       Waterman and Zager, JJ., join this dissent.




       19One   final note: Seats has not raised a supplemental argument that he is
entitled to resentencing because of the 2015 legislation, which was enacted before his
2013 sentence became final. Nevertheless, if this case is to be remanded anyway for
another resentencing, as the majority concludes, I believe the district court should
apply the 2015 law for the reasons stated in my concurrence in part, dissent in part in
Louisell, ___ N.W.2d at ___.
