                 IN THE SUPREME COURT OF IOWA
                                  No. 15–2203

                           Filed March 9, 2018


STATE OF IOWA,

      Appellee,

vs.

RENE ZARATE,

      Appellant.



      Appeal from the Iowa District Court for Buena Vista County,

David A. Lester, Judge.



      Defendant, a juvenile offender, challenges his sentence of life

imprisonment with the possibility of parole after a minimum term of

twenty-five years as cruel and unusual punishment under the Iowa and

Federal Constitutions. DISTRICT COURT SENTENCE VACATED AND

CASE REMANDED.



      Alexander Smith and Benjamin Bergmann of Parrish Kruidenier

Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for

appellant.



      Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, for appellee.



      Joseph Fraioli and Rita Bettis of ACLU of Iowa, Des Moines, for

amicus curiae.
                                     2

ZAGER, Justice.

      The defendant, convicted of first-degree murder as a juvenile

offender, challenges his sentence of life in prison with the possibility of

parole after serving a minimum term of twenty-five-years confinement as

determined by the district court. By means of a motion to correct an

illegal sentence, the defendant challenges the sentencing scheme for

juvenile offenders convicted of first-degree murder set forth in Iowa Code

section 902.1(2) under the cruel and unusual punishment clause of the

Iowa Constitution. He argues that both the sentencing options and the

factors that the sentencing court is required to consider under Iowa Code

section 902.1(2) are unconstitutional given the language of the Iowa

Constitution and prior federal and state precedent regarding juvenile

sentencing. Alternatively, he claims that Iowa Code section 902.1(2) is

unconstitutional as applied to his resentencing because the district court

allowed the circumstances of his offense to overwhelm the analysis in its

resentencing decision. For the reasons set forth below, we find that the

only portion of Iowa Code section 902.1(2) that is unconstitutional under

the Iowa Constitution is section 902.1(2)(a)(1), which provides the district

court with the option to sentence a juvenile offender convicted of murder

in the first degree to life imprisonment without the possibility of parole.

The remainder of Iowa Code section 902.1(2) is constitutional under the

Iowa Constitution. However, we vacate Zarate’s sentence and remand for

resentencing consistent with this opinion and our opinion in State v.

Roby, 897 N.W.2d 127 (Iowa 2017), which was decided subsequent to

Zarate’s resentencing.

      I. Facts and Procedural Background.

      Rene Zarate moved with his family from Mexico to Iowa when he

was about twelve years old. Zarate did not speak English and had below
                                     3

average intellectual abilities.   He struggled with behavioral issues in

school after moving to Iowa, and he began to associate with members of

a criminal street gang known as Surano 13.            Zarate also started

consuming      alcohol    and     using    drugs,    including    cocaine,

methamphetamine, marijuana, and glue. He had frequent contact with

law enforcement and first entered the juvenile justice system when he

was about fourteen years old.      As a teenager, Zarate was involved in

various criminal acts including burglary, theft, and criminal mischief.

Consequently, he spent time in juvenile detention and on house arrest.

Zarate also failed to successfully complete his required probation.

      On the evening of May 1, 1999, fifteen-year old Zarate and some

friends were drinking alcohol together in violation of Zarate’s probation

conditions in a mobile home where Jorge Ramos rented a room. When

Ramos arrived home in the early morning hours of May 2, he began to

argue with one of Zarate’s friends after Ramos refused the friend’s

request for Ramos to drink with them.      Ramos subsequently took the

phone from the living room and went to his bedroom. After Ramos took

the phone, Zarate became worried that Ramos was going to call the

police on him and his friends, which could negatively affect his

probation. Zarate became upset and made multiple attempts to attack

Ramos. First, Zarate tried to attack Ramos with a screwdriver. However,

a friend was able to take the screwdriver away.      Next, Zarate tried to

attack Ramos with a hatchet, but a friend was also able to take the

hatchet away. Finally, Zarate went to a bedroom, removed a fishing knife

he found from a tackle box, and stabbed Ramos with the knife. Ramos

managed to stumble into the living room before he fell on a mattress on

the floor. At this point, Zarate’s friends fled the mobile home. Zarate
                                       4

followed Ramos to the living room and proceeded to stab Ramos a total of

fifty times, resulting in his death.

      After killing Ramos, Zarate kicked and spat on Ramos’s body,

laughing and calling Ramos names in Spanish. He then moved the body

outside and covered it with blankets before attempting to get lighter fluid

or gasoline from friends to burn the blankets and the body. When police

officers arrived on the scene, Zarate initially lied to the police about his

identity and provided them with false information before the police

arrested him.    After questioning, Zarate later confessed to murdering

Ramos. On February 8, 2001, a jury convicted Zarate of murder in the

first degree, a class “A” felony, in violation of Iowa Code section 707.2

(1999).     Zarate   was   subsequently        sentenced   to   mandatory   life

imprisonment without the possibility of parole pursuant to Iowa Code

section 902.1(2).

      In 2012, the United States Supreme Court decided Miller v.

Alabama, 567 U.S. 460, 479, 132 S. Ct. 2455, 2469 (2012), in which it

held a sentencing scheme providing for mandatory life imprisonment

without the possibility of parole for juvenile offenders violates the Eighth

Amendment’s      prohibition    on     cruel    and   unusual     punishment.

Additionally, the Court held that a sentencing court must make

individualized sentencing decisions that consider the juvenile offender’s

age and age-related characteristics before imposing “the harshest

possible penalty for juveniles” of a life sentence without the possibility of

parole. Id. at 489, 132 S. Ct. at 2475.

      Following Miller, the Governor commuted the sentences of Zarate

and all other juvenile offenders in Iowa serving mandatory sentences of

life without parole to sentences of sixty years without parole and with no

credit for earned time. See State v. Ragland, 836 N.W.2d 107, 110–11
                                       5

(Iowa 2013).       Consequently, Zarate filed a Motion to Correct Illegal

Sentence. After Zarate filed that motion, we decided Ragland in which

we found that Miller applied retroactively and held that the Governor’s

commutations were de facto sentences of life without the possibility of

parole that required the same individualized sentencing set forth in

Miller.      Id. at 119, 122.     Therefore, juvenile offenders serving life

sentences without parole were entitled to a resentencing hearing.         Id.

Zarate then filed a Supplemental Motion to Correct Illegal Sentence on

March 7, 2014.

          Prior to Zarate’s resentencing hearing, the Iowa legislature passed

a bill that the Governor signed into law changing Iowa Code section

902.1(2) under which Zarate was originally sentenced. See 2015 Iowa

Acts ch. 15, § 1 (codified at Iowa Code § 902.1(2) (effective Apr. 24,

2015)).      Under the revised law, a sentencing court has the option to

sentence a juvenile offender convicted of first-degree murder to life

imprisonment without the possibility of parole, life imprisonment with

the possibility of parole after serving a minimum term of confinement as

determined by the court, or life imprisonment with the immediate

possibility of parole. Iowa Code § 902.1(2)(a)(1)–(3) (2016). Moreover, the

law sets forth twenty-five sentencing factors for sentencing courts to

consider in determining which of the aforementioned sentencing options

to impose. See id. § 902.1(2)(b)(2)(a)–(v).

          On June 3, 2015, the district court conducted a hearing

concerning Zarate’s supplemental motion to correct his illegal sentence

and request for a resentencing hearing. At the hearing, Zarate argued

that Iowa Code section 902.1(2) violates the Iowa Constitution’s

prohibition against cruel and unusual punishment under article I,

section 17 because it takes away the district court’s discretion to
                                       6

determine sentences for juvenile offenders as required by Miller and

Ragland.     He also argued that the statute denies him a meaningful

opportunity for release, even with the parole options, due to the existing

statutes governing Iowa’s parole system. In response, the State asserted

the district court is required to follow Iowa Code section 902.1(2) in

sentencing    Zarate      because   that   statute   provides   Zarate   with

individualized sentencing by virtue of the factors listed in Iowa Code

section 902.1(2)(b)(2).

      On December 9, the district court ruled that Iowa Code section

902.1(2) did not violate the cruel and unusual punishment clause of the

Iowa Constitution.     In doing so, the district court noted that neither

Miller nor our holding in State v. Lyle, 854 N.W.2d 378 (Iowa 2014),

prohibits sentencing juveniles to prison for the length of time the

legislature sets forth for the crime, nor does either prohibit a legislatively

imposed minimum time that juvenile offenders must serve in prison

before becoming parole eligible.

      Instead, the district court found that the precedent set forth in

Miller, and our progeny of Miller cases, merely require a sentencing judge

to follow an individualized process that allows for the consideration of

mitigating circumstances related to the juvenile offender’s age and

youthful characteristics.     The district court held Iowa Code section

902.1(2) complies with the individualized sentencing requirement by

providing the sentencing court with options concerning the conditions

placed on a term of life in prison for juvenile offenders convicted of first-

degree murder.     Further, the district court found Iowa Code section

902.1(2) provides the mandated individualized sentencing by requiring

the sentencing court to consider the twenty-five factors listed in Iowa

Code section 902.1(2)(b)(2)(a)–(v)—many of which, according to the
                                           7

district court, seemingly have either been taken directly from Miller or fall

within the parameters of Miller. Likewise, the district court found the

inclusion of possible aggravating factors in the law is permissible so long

as the sentencing court also considers the required mitigating factors.

Consequently, the district court held Iowa Code section 902.1(2) is

constitutional on its face and is in accord with both Miller and Ragland.

       Zarate’s resentencing hearing was held on December 18. Zarate

requested a term-of-years sentence of thirty years with parole eligibility

after a period of fifteen years despite acknowledging that this sentence

would violate Iowa Code section 902.1(2). Meanwhile, the State asserted

its belief that life without parole was still justifiable, 1 though it

acknowledged that the district court could choose life with the possibility

of parole. The State also asked the district court to impose a mandatory

minimum term of imprisonment before allowing for parole eligibility. In

imposing Zarate’s sentence, the district court stated, “[Zarate’s] request

for a fixed period of 30 years with a minimum of 15 years I still believe is

unconstitutional.      I don’t have the authority to do that” based on the

sentencing options provided in section 902.1(2). The district court also

found life without the possibility of parole would be an inappropriate
sentence in Zarate’s case.

       The district court ultimately decided to resentence Zarate under

Iowa Code section 902.1(2)(a)(2) to life imprisonment with the possibility

of parole after a minimum term of imprisonment of twenty-five years with

credit for time already served under his previously imposed illegal


       1At  the time of Zarate’s resentencing, life without the possibility of parole was
still a constitutional sentencing option. However, we have since found life without the
possibility of parole for juvenile offenders is unconstitutional. See State v. Sweet, 879
N.W.2d 811, 839 (Iowa 2016).
                                      8

sentence.   In reaching this decision, the district court stated, “I have

taken into consideration the 25 factors I’m now supposed to consider

under the existing statute, and the circumstances, I guess is the

terminology they now use.” While the district court did not individually

go through each factor, it did make statements about various

circumstances that guided its decision.      Specifically, the district court

noted Zarate’s age and involvement in the crime, the fact that Zarate did

not seem to be a threat to the public or any other individual beyond his

victim, Zarate’s degree of participation in the crime, Zarate’s intellectual

and emotional capacity, his susceptibility to peer pressure, the violent

aspect of the crime, his drug and alcohol abuse, and his acceptance of

responsibility for the crime.

      Finally, the district court stated,

      After considering all those foregoing factors, which I am for
      the record considering as mitigating factors just so we’re all
      clear, after considering those factors along with your
      improved behavior since you’ve been in prison during the
      last 10 years . . . lead me to conclude that you are entitled
      not only to have an opportunity at parole, but also that
      opportunity should be available to you at a fixed point in
      time in the future. I’ve chosen that point of time to be
      approximately 10 years from now just to ensure that you
      serve what I believe should be the minimum period of time
      for somebody that takes the life of another individual,
      whether that person is a juvenile or an adult.

Zarate appealed, and we retained the appeal.

      On appeal, Zarate presents three issues. First, whether Iowa Code

section 902.1(2)(a)(1)–(3) violates article I, section 17 of the Iowa

Constitution, which prohibits cruel and unusual punishment. Second,

whether the sentencing factors enumerated in Iowa Code section

902.1(2)(b)(2)(a)–(v) violate article I, section 17 of the Iowa Constitution.

Finally, if neither of these provisions is unconstitutional, whether
                                     9

Zarate’s resentencing was unconstitutional based on his claim that the

district court allowed the circumstances of the crime to overwhelm the

analysis, thereby preventing him from receiving a truly individualized

sentence as is constitutionally required.

      II. Standard of Review.

      We may review a challenge that a sentence is illegal at any time.

Lyle, 854 N.W.2d at 382; see also Iowa R. Crim. P. 2.24(5)(a). While we

generally review challenges to illegal sentences for correction of errors at

law, we apply de novo review for an allegation of an unconstitutional

sentence.   State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015).       Zarate’s

first two challenges are categorical, so we apply de novo review. Finally,

we review sentences that are within the statutory limits for an abuse of

discretion, though this standard “is not forgiving of a deficiency in the

constitutional right to a reasoned sentencing decision based on a proper

hearing.” Roby, 897 N.W.2d at 138.

      III. Analysis.

      A. State and Federal Jurisprudence on Cruel and Unusual

Punishment Regarding Juvenile Sentencing. The Eighth Amendment

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

Constitution both prohibit cruel and unusual punishment. U.S. Const.

amend. VIII; Iowa Const. art. I, § 17. Under both provisions, the right to

be free from cruel and unusual punishment “ ‘flows from the basic

“precept of justice that punishment for crime should be graduated and

proportioned” ’ to both the offender and the offense.” Miller, 567 U.S. at

469, 132 S. Ct. at 2463 (quoting Roper v. Simmons, 543 U.S. 551, 560,

125 S. Ct. 1183, 1190 (2005)); State v. Propps, 897 N.W.2d 91, 98 (Iowa

2017). Over the past fifteen years, the United States Supreme Court has

decided a trilogy of cases interpreting the Eighth Amendment’s Cruel and
                                        10

Unusual Punishment Clause in relation to juvenile sentencing.                   See

Miller, 567 U.S. 460, 132 S. Ct. 2455; Graham v. Florida, 560 U.S. 48,

130 S. Ct. 2011 (2010); Roper, 543 U.S. 551, 125 S. Ct. 1183.

Additionally, we have decided a number of recent cases in line with the

Supreme Court’s jurisprudence under the Iowa Constitution dealing with

cruel and unusual punishment regarding juvenile sentencing.                      To

analyze Zarate’s argument under the Iowa Constitution’s cruel and

unusual punishment jurisprudence, we first review the federal and state

jurisprudence necessary to give context to the analysis.

      The Supreme Court’s trilogy of juvenile sentencing cases began

with its 2005 holding in Roper that the Eighth Amendment’s Cruel and

Unusual       Punishment     Clause    prohibits   the    imposition    of   capital

punishment on juvenile offenders. 543 U.S. at 560, 125 S. Ct. at 1190.

In Roper, the Court noted the differences in maturity, responsibility,

susceptibility to negative influences, control, and character development

between adult and juvenile offenders that “render suspect any conclusion

that a juvenile falls among the worst offenders.”            Id. at 569–70, 125

S. Ct. at 1195.     Five years later, the Supreme Court decided Graham,

holding a sentence of life without the possibility of parole for juveniles

convicted of nonhomicide offenses violates the Eighth Amendment. 560

U.S. at 74, 130 S. Ct. at 2030. Finally, in 2012, the Supreme Court held

in Miller that a mandatory sentence of life imprisonment without the

possibility    of   parole   for   juvenile   offenders    violates    the   Eighth

Amendment. 567 U.S. at 479, 132 S. Ct. at 2469. In doing so, the Court

held that sentencing courts must make individualized sentencing

decisions for juvenile offenders that consider their age and age-related

characteristics before imposing “the harshest possible penalty for
                                        11

juveniles” of a life sentence without the possibility of parole. Id. at 489,

132 S. Ct. at 2475.

         In the wake of Miller, the Governor commuted the sentences of all

juvenile offenders in Iowa serving mandatory sentences of life without

parole to sentences of sixty years without parole and with no credit for

earned time.     See Ragland, 836 N.W.2d at 110–11.          Consequently, in

Ragland, we held that Miller applied retroactively and that the Governor’s

commutations were de facto sentences of life without the possibility of

parole that required individualized sentencing as described in Miller. Id.

at 119, 122. Miller and our subsequent decision in Ragland launched a

series    of   cases   regarding    juvenile   sentencing   under   the   Iowa

Constitution.

         First, in State v. Null, we held that Miller’s individualized

sentencing requirement applied to a 52.5-year sentence because

“geriatric release” after a lengthy term-of-years sentence for a juvenile

offender fails to provide the juvenile with any meaningful opportunity to

demonstrate his or her maturity and rehabilitation. 836 N.W.2d 41, 70–

71 (2013).       Likewise, in State v. Pearson, we held that Miller’s

individualized     sentencing      requirement   applied    under   the   Iowa

Constitution to a minimum sentence of thirty-five years before parole

eligibility for a juvenile offender convicted of nonhomicide offenses. 836

N.W.2d 88, 96 (Iowa 2013).

         Further, in Lyle, we held all mandatory minimum prison sentences

for juvenile offenders are unconstitutional under article I, section 17 of

the Iowa Constitution and found 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.” 854 N.W.2d at 400–01. We
                                     12

also provided the following factors that a district court must use in

determining whether the minimum period of incarceration without parole

is warranted:

          (1) the age of the offender and the features of youthful
          behavior, such as “immaturity, impetuosity, and failure
          to appreciate risks and consequences”; (2) the particular
          “family and home environment” that surround the youth;
          (3) the circumstances of the particular crime and all
          circumstances relating to youth that may have played a
          role in the commission of the crime; (4) the challenges for
          youthful offenders in navigating through the criminal
          process; and (5) the possibility of rehabilitation and the
          capacity for change.

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

2468).

      In State v. Louisell, we reaffirmed

      that under both the United States Constitution and the Iowa
      Constitution, juveniles convicted of crimes must be afforded
      a “meaningful opportunity to obtain release based on
      demonstrated maturity and rehabilitation”—if a sentencing
      judge, exercising discretion, determines parole should be
      available.

865 N.W.2d 590, 602 (Iowa 2015) (quoting Graham, 560 U.S. at 75, 130

S. Ct. at 2030). We also held that a fixed term-of-years sentence was not

an option “[b]ecause there was no statutory authority for the determinate

sentence” and “judges may only impose punishment authorized by the

legislature within constitutional constraints.” Id. at 598. Additionally,

we declined to address Louisell’s argument that her parole eligibility was

illusory based on Iowa’s low rate of parole-eligible offenders who had

actually been granted parole, asserting that this argument was not ripe

for us to decide. Id. at 601–02.

      In Seats, we expounded upon the factors a district court should

consider as part of its discretionary sentencing in cases where it could

sentence a juvenile to life in prison without the possibility of parole for
                                    13

first-degree murder. 865 N.W.2d at 556–57. These factors stem from

our holding in Lyle and include the differences between children and

adults, the family and home environment, the circumstances of the

homicide offense, the role of substance abuse in the juvenile’s offense,

and the fact that juveniles are more capable of rehabilitation than adults.

Id. at 555–57. Additionally, we stressed that “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.” Id. at 555.

      In State v. Sweet, we categorically banned sentencing juvenile

offenders to life without the possibility of parole under article I, section

17 of the Iowa Constitution.     879 N.W.2d 811, 839 (Iowa 2016).       We

noted that the Miller individualized sentencing hearing is inadequate in

the context of sentencing juvenile offenders to life without the possibility

of parole because that sentence required the sentencer to “do the

impossible, namely, to determine whether the offender is ‘irretrievably

corrupt’ at a time when even trained professionals with years of clinical

experience would not attempt to make such a determination.” Id. at 837.

Rather, the parole board, not the sentencer, is in the best position to

determine whether the offender is incorrigibly corrupt. Id. at 839.

      Finally, in Roby, we concluded article I, section 17 of the Iowa

Constitution does not categorically prohibit imposing a minimum term of

incarceration without the possibility of parole on a juvenile offender so

long as the court only imposes it after considering relevant mitigating

factors of youth.    897 N.W.2d at 143.       We also sought to provide

guidance on the Lyle sentencing factors, noting that they ordinarily work

to mitigate punishment in order to help sentencing courts craft “a

punishment that serves the best interests of the child and society.” Id. at
                                      14

144 (quoting Lyle, 854 N.W.2d at 402).           Further, we reiterated the

differences between children and adults in sentencing, asserting

“[p]erceptions applicable to adult behavior cannot normally be used to

draw conclusions from juvenile behavior.” Id. at 147.

       B. Zarate’s Categorical Challenges.        The court employs a two-

step inquiry to a categorical challenge to a sentence.        See Lyle, 854

N.W.2d at 386.         First, we examine “ ‘objective indicia of society’s

standards, as expressed in legislative enactments and state practice’ to

determine whether there is a national consensus against the sentencing

practice at issue.” Id. (quoting Graham, 560 U.S. at 61, 130 S. Ct. at

2022).    Second, we consider our controlling precedents and our

interpretation of the Iowa Constitution’s text, history, meaning, and

purpose to guide our own independent judgment on the constitutionality

of the challenged sentence. Id. As part of our independent judgment, we

also   evaluate   whether    the   challenged   sentencing   practice   serves

legitimate penological goals, as well as “the culpability of the offenders at

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

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

130 S. Ct. at 2026).

       1. The constitutionality of Iowa Code section 902.1(2)(a)(1)–(3).

During the 2015 legislative session, the general assembly enacted and

the Governor signed into law Senate File 448, which is codified at Iowa

Code section 902.1. Iowa Code section 902.1(2)(a)(1)–(3) provides three

sentencing options for juveniles convicted of first-degree murder:

             (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.
                                        15
            (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.

Iowa Code § 902.1(2)(a)(1)–(3).

      Zarate    argues    that   Iowa   Code    section   902.1(2)(a)(1)–(3)   is

unconstitutional because it does not provide sentencing judges with the

opportunity to sentence juvenile offenders convicted of first-degree
murder to a term-of-years sentence.          Although the sentencing statute

provides the sentencing court with flexibility to choose between set

sentencing options, Zarate argues that the statute does not go far

enough in creating judicial discretion to fashion juvenile sentences.

Additionally, Zarate argues the sentencing options under section

902.1(2)(a)    are   unconstitutional   because    they   do   not   provide   a

meaningful opportunity for release under Miller and Ragland since life

imprisonment with the possibility of parole is a de facto life sentence.

Specifically, Zarate contends parole is merely illusory because the parole

board is not required to annually review the status of an offender

convicted of a class “A” felony, few inmates serving a life sentence with

the possibility of parole have actually received parole, and

      the passage of Senate File 448 and the Governor’s
      commutation language make it clear that the legislature and
      [G]overnor do not intend to have a parole board that will
      consider the constitutional mitigating factors from Null,
      Ragland, Lyle, and Miller.

      At the outset, we hold that Iowa Code section 902.1(2)(a)(1), which

allows the sentencing court to sentence a juvenile offender to life

imprisonment without the possibility of parole is unconstitutional based

on our holding in Sweet. We categorically banned the sentence of life
                                     16

imprisonment without the possibility of parole for all juvenile offenders in

Sweet, holding this sentence violated article I, section 17 of the Iowa

Constitution.   879 N.W.2d at 839.        However, this unconstitutional

portion of the statute does not render the rest of section 902.1(2)(a)

unconstitutional.

      “When parts of a statute or ordinance are constitutionally valid,

but other discrete and identifiable parts are infirm, we may sever the

offending portion from the enactment and leave the remainder intact.”

Am. Dog Owners Ass’n v. City of Des Moines, 469 N.W.2d 416, 418 (Iowa

1991) (per curiam). We “leave the valid parts in force on the assumption

that the legislature would have intended those provisions to stand

alone.” Breeden v. Iowa Dep’t of Corr., 887 N.W.2d 602, 608 (Iowa 2016)

(quoting Jacob Scott, Codified Canons and the Common Law of

Interpretation, 98 Geo. L.J. 341, 384 (2010)); see also Iowa Code § 4.12

(codifying the severability doctrine). In this case, the rest of Iowa Code

section 902.1(2)(a) is constitutional based on the following two-prong

inquiry we apply to categorical challenges.      Thus, Iowa Code section

902.1(2)(a)(2)–(3) remains valid and in force.

      Beginning with the first prong of the analysis, an objective

examination of legislative enactments and state practices demonstrates

that there is not a national consensus against mandatorily sentencing

juvenile offenders convicted of first-degree murder to life imprisonment

with the immediate possibility of parole or life imprisonment with the

possibility of parole after a set number of years. Instead, a survey of the

juvenile sentencing laws of other states demonstrates a national trend in

favor of sentencing juvenile offenders like Zarate to at least a sentence of

life imprisonment with the possibility of parole after an established

minimum term of confinement.
                                           17

       Five states have juvenile sentencing schemes that require courts to

sentence juvenile offenders convicted of first-degree murder to at least

life with the possibility of parole after serving a minimum term of

confinement similar to the sentencing option listed in Iowa Code section

902.1(2)(a)(2). 2 Another ten states subject their juvenile offenders to the

same mandatory life with the possibility of parole options as their

convicted adult offenders, many of which require offenders to serve a

minimum term of years before becoming parole eligible. 3 Further, rather

than provide sentencing courts with the ability to craft any sentence they

desire as Zarate contends is the only constitutional way to comply with

Miller and our juvenile sentencing jurisprudence, a number of states

have mandatory minimum sentences for juvenile homicide offenders.4


       2Ala. Code § 13A-6-2 (Westlaw through 2017 Reg. Sess.); Ariz. Rev. Stat.       Ann.
§ 13-751(A)(2) (Westlaw through 1st Reg. Sess. of 53rd Leg. (2017)); Ark. Code.       Ann.
§ 5-4-104 (West, Westlaw through 2017 Reg. Sess. & 1st Extraordinary Sess.); La.      Stat.
Ann. § 15:574.4(E)(1)(a) (Westlaw through 2017 2d Extraordinary Sess.); N.C. Gen.     Stat.
Ann. § 15A-1340.19A (West, Westlaw through 2017 Reg. Sess.).
       3Idaho  Code Ann. § 18-4004 (West, Westlaw through 2017 1st Reg. Sess.); Md.
Code Ann. Corr. Serv. § 7-301 (West, Westlaw through 2017 Reg. Sess.); Minn. Stat.
Ann. § 243.05 (West, Westlaw through 2017 Reg. & 1st Spec. Sess.); N.D. Cent. Code
Ann. § 12.1-32-01 (West, Westlaw through 2017 Reg. Sess.); Ohio Rev. Code Ann.
§ 2929.02(B)(1) (West, Westlaw through File 48 of 132d Gen. Assemb. (2017–2018));
Okla. Stat. Ann. tit. 21, § 701.9 (West, Westlaw through 1st Reg. Sess. & 1st Spec.
Sess. of 56th Leg. (2017)); 13 R.I. Gen. Laws Ann. § 13-8-13(a) (West, Westlaw through
ch. 480 of Jan. 2017 Sess.); S.C. Code Ann. § 16-3-20 (Westlaw through 2017 Sess.);
Tenn. Code Ann. § 40-35-501(h)(1) (West, Westlaw through 2017 1st Reg. Sess.); Wis.
Stat. Ann. § 973.014(1)(a)(1) (West, Westlaw through 2017 Act 135).
       4See,  e.g., Alaska Stat. Ann. § 12.55.125(a) (West, Westlaw through 2017 1st
Reg. Sess. through 4th Spec. Sess. of 30th Leg.) (“A defendant convicted of murder in
the first degree or murder of an unborn child under AS 11.41.150(a)(1) shall be
sentenced to a definite term of imprisonment of at least 30 years . . . .”); Del. Code Ann.
tit. 11, § 4209A (West, Westlaw through 81 Laws 2018) (“Any person who is convicted of
first-degree murder for an offense that was committed before the person had reached
the person’s eighteenth birthday shall be sentenced to a term of incarceration not less
than 25 years . . . .”); Ind. Code Ann. § 35-50-2-3(a) (West, Westlaw through 2017 1st
Reg. Sess.) (“A person who commits murder shall be imprisoned for a fixed term of
between forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-
five (55) years.”); Me. Ann. Stat. tit. 17-A, § 1251 (Westlaw through 2017 1st Reg. Sess.
                                             18

See generally Kallee Spooner & Michael S. Vaugh, Sentencing Juvenile

Offenders: A 50-State Survey, 5 Va. J. Crim. L. 130, 146–50 (2017)

(providing a detailed overview of the juvenile sentencing landscape post-

Miller). While we have done away with automatic mandatory minimum

sentences of imprisonment for juvenile offenders in Iowa, an objective

examination         of    other   legislative   enactments      and    state    practices

demonstrates that there is a national consensus in favor of requiring

juvenile offenders convicted of first-degree murder to serve a mandatory

minimum term of confinement before becoming parole eligible.

       Additionally, the decision of our legislature to implement Iowa

Code section 902.1(2)(a) and provide the sentencing courts with greater

discretion     to        determine    when      a   juvenile   offender     serving    life

imprisonment with the possibility of parole can become parole eligible

serves as objective indicia of Iowa’s standards regarding the challenged

sentencing practice. As we noted in Lyle, the court owes “deference to

the legislature when it expands the discretion of the court in juvenile

sentencing.” 854 N.W.2d at 388. Unlike the cases we decide, which are

limited to the record before us, “[t]he legislature is uniquely suited to

identifying    and         adopting   additional      substantive     and      procedural

__________________________________________
& 1st Spec. Sess. of 128th Leg.) (“A person convicted of the crime of murder shall be
sentenced to imprisonment for life or for any term of years that is not less than 25.”);
Mo. Rev. Stat. Ann. § 565.033(1) (West, Westlaw through 2017 1st Reg. Sess. & 1st &
2d Extraordinary Sess. of 99th Gen. Assemb.) (“A person found guilty of murder in the
first degree who was under the age of eighteen at the time of the commission of the
offense shall be sentenced to a term of life without eligibility for probation or parole as
provided in section 565.034, life imprisonment with eligibility for parole, or not less
than thirty years and not to exceed forty years imprisonment.”); Neb. Rev. Stat. Ann.
§ 28-105.02(1) (West, Westlaw through 2017 1st Reg. Sess.) (“Notwithstanding any
other provision of law, the penalty for any person convicted of a Class 1A felony for an
offense committed when such person was under the age of eighteen years shall be a
maximum sentence of not greater than life imprisonment and a minimum sentence of
not less than forty years’ imprisonment.”).
                                              19

protections to further the constitutional recognition that ‘children are

different.’ ”    Roby, 897 N.W.2d at 144 (quoting Seats, 865 N.W.2d at

555).     Moreover, “[l]egislative judgments can be ‘the most reliable

objective indicators of community standards for purposes of determining

whether a punishment is cruel and unusual.’ ” Lyle, 854 N.W.2d at 388

(quoting State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009)).

        Here,        the   legislative    decision     to     require   mandatory    life

imprisonment with the possibility of parole, and to expand the discretion

of   sentencing        courts    by      allowing    them     to   make   individualized

determinations on when a juvenile offender convicted of first-degree

murder is parole eligible, speaks to a consensus in Iowa in favor of the

challenged sentencing practice. The legislature’s recognition of the need

for some discretion in the juvenile sentencing process comports with our

prior holdings dealing with the issue of juvenile sentencing in the

aftermath       of    Miller.    Iowa Code          section    902.1(2)(a)(2)–(3) allows

sentencing courts to craft individualized sentences for each juvenile

offender so long as the juvenile offender is first sentenced to life

imprisonment with some option for parole eligibility.

        As the second step in our inquiry, we analyze the Iowa

Constitution’s cruel and unusual punishment clause to determine if the

sentencing options at issue violate the cruel and unusual punishment

clause in light of its text, meaning, purpose, and history. “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).

However, originalism may not be the best guide for interpreting our

constitution’s cruel and unusual punishment clause in light of the

changes to juvenile sentencing. Interpreting our constitution based on
                                      20

our founders’ intent would not support a categorical ban on life

imprisonment without the possibility of parole eligibility because

juveniles over the age of fourteen were tried and sentenced as adults

when our constitution was adopted. See Lyle, 854 N.W.2d at 390.

      Nonetheless, other decisions in our history similarly point to the

constitutionality of the sentencing practice at issue. Zarate’s argument

that the statute is unconstitutional because it prevents a term-of-years

sentence seeks to expand our categorical ban on mandatory minimum

sentencing schemes in Lyle to an area of the law that we expressly stated

was not included in the categorical ban.         As we stated in Lyle, the

categorical ban on mandatory minimums for juvenile offenders does not

“prohibit the legislature from imposing a minimum time that youthful

offenders must serve in prison before being eligible for parole.”   Id. at

403. We reiterated this again in Roby, holding there was no national or

local consensus against imposing a minimum prison sentence on

youthful offenders before they can become parole eligible, and “in our

independent judgment article I, section 17 does not yet require abolition

of the practice.”   897 N.W.2d at 143.      Rather, our cruel and unusual

punishment clause simply requires an individualized sentencing process

instead of a one-size-fits-all sentencing scheme before the mandatory

prison sentences can be applied. Id. Iowa Code section 902.1(2) meets

this requirement because it instructs sentencing courts to employ an

individualized review of each juvenile offender’s situation—including a

consideration of the factors mandated in Miller, Lyle, and Seats—then

allows the sentencing court to form a unique sentence with regards to

parole eligibility for each juvenile offender.

      Further, Iowa Code section 902.1(2)(a)(2)–(3)’s sentencing options

align with the United States Supreme Court and this court’s recognition
                                      21

of “a fundamental and virtually inexorable difference between juveniles

and adults for the purposes of punishment.” Lyle, 854 N.W.2d at 393.

This difference is reflected throughout Iowa Code section 902.1(2)(a)(2)–

(3), beginning with its different sentencing options for juveniles from

adults.   While Iowa law mandates life without parole for adults who

commit first-degree murder, the sentencing options provided in section

902.1(2) provide no mandatory minimum period of incarceration for

juvenile offenders who commit first-degree murder. Compare Iowa Code

§ 902.1(1), with id. § 902.1(2)(a)(2)–(3).   Moreover, in contrast to the

mandatory life without parole for adult offenders who commit first-degree

murder, juvenile offenders convicted of the same crime are provided with

an individualized sentencing hearing that takes into account their youth

and a number of other mitigating factors that provide juveniles with more

leniency in the sentencing process.        Compare id. § 902.1(1), with id.

§ 902.1(2)(b)(2)(a)–(v).

      In addition to our understanding and interpretation of the Iowa

Constitution, we also consider whether the challenged sentencing

practice serves legitimate penological goals and the culpability of the

offender at issue.         Lyle, 854 N.W.2d at 386.     These goals include

rehabilitation, retribution, deterrence, and incapacitation.       State v.

Oliver, 812 N.W.2d 636, 646 (Iowa 2012).         While we have noted that

penological justifications beyond rehabilitation carry less weight in the

juvenile sentencing context, they still have some relevance and purpose

in the sentencing process.        See Roby, 897 N.W.2d at 154 (Zager, J.,

dissenting); Lyle, 854 N.W.2d at 399–400.             Even so, our juvenile

sentencing jurisprudence focuses heavily on the goal of rehabilitation

over all others due to the increased capacity of juveniles to reform in

comparison to adults. See Roby, 897 N.W.2d at 147 (majority opinion).
                                    22

The possibility of parole options presented in Iowa Code section

902.1(2)(a)(2)–(3) align with our focus on rehabilitation and allow

sentencing judges to acknowledge the fundamental concept of our

juvenile sentencing jurisprudence that children are different from adults

and should be treated differently due to their increased potential for

rehabilitation. Consequently, sentencing courts can immediately declare

a rehabilitated juvenile offender eligible for parole, or they can consider

the changes a juvenile offender has made and subsequently subject him

or her to a term of imprisonment first to ensure that these changes are

permanent.

      Furthermore, the statute’s sentencing options promote other

legitimate   penological   goals   like     retribution,   deterrence,   and

incapacitation. For example, in Roby, we stated, “it may be appropriate

retribution to incarcerate a juvenile for a short time without the

possibility of parole.   Additionally, a sentencing judge could properly

conclude a short term of guaranteed incarceration is necessary to protect

the public.” Id. at 142. Iowa Code section 902.1(2)(a)(2)–(3) aligns with

our statements about penological goals in Roby by allowing sentencing

courts to subject juvenile offenders convicted of first-degree murder to a

term of imprisonment before becoming parole eligible that considers the

nature of the crime as one of many factors in the sentencing process.

Requiring a sentencing court to sentence a juvenile offender convicted of

first-degree murder to a definite term of years as Zarate requests, as

opposed to life imprisonment with the possibility of parole, would hinder

the sentencing court’s ability to protect society from offenders who show

signs of recidivism that may require incapacitation until a parole board

determines the offender’s rehabilitation.
                                        23

      Finally, Zarate’s claim that Iowa Code section 902.1(2) denies

juvenile   offenders   convicted   of   first-degree   murder   a   meaningful

opportunity for parole is not ripe for adjudication because it is merely

speculative. “A case is ripe for adjudication when it presents an actual,

present controversy, as opposed to one that is merely hypothetical or

speculative.”   State v. Wade, 757 N.W.2d 618, 627 (Iowa 2008).           The

ripeness doctrine exists to avoid premature adjudication of issues that

would entangle the courts in abstract disagreements over administrative

policies. Id. For example, in Louisell, we declined on ripeness grounds to

rule on the opportunity for meaningful release for parole eligible juvenile

offenders in which the juvenile offender argued the opportunity was

simply illusory due to the low number of juvenile offenders actually

granted parole.    865 N.W.2d at 601–02.          Yvette Louisell made this

argument before being denied parole, and even after Louisell became

eligible for parole as a result of our remand order, the question of her

meaningful opportunity for release under a sentence of life imprisonment

with the possibility of parole was still not ripe because she had not been

denied parole in order to claim a legal violation. Id.

      The same ripeness issue occurs in this case. Similar to Louisell,

Zarate’s claim that life imprisonment with the possibility of parole for

juvenile offenders under section 902.1(2)(a)(2)–(3) does not present a

meaningful opportunity for release is speculative.         Much of Zarate’s

argument focuses on the alleged intentions of the specific legislature that

passed Iowa Code section 902.1(2) and the Governor, who signed the bill

into law. Zarate claims the legislature and Governor have an improper

motive and intent to keep juvenile homicide offenders incarcerated,

which denies juvenile offenders convicted of first-degree murder a

meaningful opportunity for parole because the Governor and legislature
                                    24

have the power to appoint and confirm the parole board members under

Iowa Code section 904A.3. However, parole board members must meet

certain qualifications and are appointed for fixed terms. See Iowa Code

§§ 904A.1–.2. Parole decisions are subject to legal standards. See id.

§§ 906.3–.4. Zarate has provided no basis for us to conclude that the

parole board will fail to follow the law in a case that is presented to it,

including his own.

      To decide the issue of whether Iowa Code section 902.1(2) denies

juvenile offenders with a meaningful opportunity for release when Zarate

has not yet become parole eligible, or been denied parole, would require

us to speculate about the actions of the parole board in the future. This

abstract decision is not within our purview. Consequently, we reserve

the issue of whether life imprisonment with the possibility of parole

provides juvenile offenders who are eligible for immediate parole with a

meaningful opportunity for release for another day.

      2. The constitutionality of sentencing factors under Iowa Code

section 902.1(2). Under Iowa Code section 902.1(2)(b)(2), in determining

what sentence to impose,

      the [sentencing] court shall consider all circumstances
      including but not limited to the following:

            (a) The impact of the offense on each victim, as
      defined by section 915.10, through the use of a victim
      impact statement, as defined in section 915.10, under any
      format permitted by section 915.13. The victim impact
      statement may include comment on the sentence of the
      defendant.

            (b) The impact of the offense on the community.

            (c) The threat to the safety of the public or any
      individual posed by the defendant.

            (d) The degree of participation in the murder by the
      defendant.
                               25
      (e) The nature of the offense.

      (f) The defendant’s remorse.

      (g) The defendant’s acceptance of responsibility.

       (h) The severity of the offense, including any of the
following:

      (i) The commission of the murder while participating
in another felony.

      (ii) The number of victims.

      (iii) The heinous, brutal, cruel manner of the murder,
including whether the murder was the result of torture.

      (i) The capacity of the defendant to appreciate the
criminality of the conduct.

      (j) Whether the ability to conform the defendant’s
conduct with the requirements of the law was substantially
impaired.

      (k) The level of maturity of the defendant.

      (l) The   intellectual   and     mental   capacity   of   the
defendant.

      (m) The nature and extent of any prior juvenile
delinquency or criminal history of the defendant, including
the success or failure of previous attempts at rehabilitation.

      (n) The mental health history of the defendant.

      (o) The level of compulsion, duress, or influence
exerted upon the defendant, but not to such an extent as to
constitute a defense.

      (p) The likelihood of      the    commission    of   further
offenses by the defendant.

       (q) The chronological age of the defendant and the
features of youth, including immaturity, impetuosity, and
failure to appreciate risks and consequences.

      (r) The family and home environment that surrounded
the defendant.

      (s) The circumstances of the murder including the
extent of the defendant’s participation in the conduct and
the way familial and peer pressure may have affected the
defendant.
                                         26
             (t) The competencies associated with youth, including
      but not limited to the defendant’s inability to deal with peace
      officers or the prosecution or the defendant’s incapacity to
      assist the defendant’s attorney in the defendant’s defense.

             (u) The possibility of rehabilitation.

            (v) Any other information considered relevant by the
      sentencing court.

Iowa Code § 902.1(2)(b)(2)(a)–(v).

      Zarate argues that the sentencing factors found in Iowa Code

section 902.1(2)(b)(2)(a)–(v) are unconstitutional because they require a

sentencing court to consider factors beyond the mitigating factors

established in Miller.     Zarate is especially concerned that a sentencing

court could weigh aggravating factors more heavily than mitigating

factors despite the fact that the statute does not give certain factors more

weight than others. We decline Zarate’s request for us to hold that the

sentencing    factors    set   forth     in   section   902.1(2)(b)(2)(a)–(v)   are

categorically unconstitutional.        However, we do agree with Zarate that

the use of the factors must comport with our juvenile sentencing

jurisprudence in that the five factors set forth in Lyle must be considered

as mitigating factors in the sentencing process. See Lyle, 854 N.W.2d at

404 n.10.    We also hold that the district court’s consideration of any

potential aggravating factors set forth in section 902.1(2)(b)(2)(a)–(v) shall

align with our juvenile sentencing jurisprudence so as not to overwhelm

the mitigating factors associated with youth, especially the five factors of

youth set forth in Lyle.

      Under the first prong of our two-prong inquiry to a categorical

challenge, an objective examination of legislative enactments and state

practices demonstrates that there is a growing consensus toward

enumerating set factors for sentencing courts to consider with regard to

sentencing juvenile offenders convicted of first-degree murder. Similar to
                                            27

Iowa’s    juvenile     sentencing       framework,        nine    other     states     have

implemented a juvenile sentencing framework to comply with Miller that

lists related, if not identical, sentencing factors to Iowa’s for a sentencing

court to consider when sentencing juvenile offenders convicted of first-

degree murder. 5

       5See   Fla. Stat. Ann. § 921.1401(2)(a–j) (West, Westlaw through 2017 1st Reg.
Sess. & Spec. “A” Sess. of 25th Leg.) (“In determining whether life imprisonment or a
term of years equal to life imprisonment is an appropriate sentence, the court shall
consider factors relevant to the offense and the defendant’s youth and attendant
circumstances, including, but not limited to: (a) [t]he nature and circumstances of the
offense committed by the defendant; (b) [t]he effect of the crime on the victim’s family
and on the community; (c) [t]he defendant’s age, maturity, intellectual capacity, and
mental and emotional health at the time of the offense; (d) [t]he defendant’s
background, including his or her family, home, and community environment; (e) [t]he
effect, if any, of immaturity, impetuosity, or failure to appreciate risks and
consequences on the defendant’s participation in the offense; (f) [t]he extent of the
defendant’s participation in the offense; (g) [t]he effect, if any, of familial pressure or
peer pressure on the defendant’s actions; (h) [t]he nature and extent of the defendant’s
prior criminal history; (i) [t]he effect, if any, of characteristics attributable to the
defendant’s youth on the defendant’s judgment; (j) [t]he possibility of rehabilitating the
defendant.”); 730 Ill. Comp. Stat. 5/5-4.5-105(a)(1–9) (West, Westlaw through P.A. 100-
578 of 2018 Reg. Sess.) (“[W]hen a person commits an offense and the person is under
18 years of age at the time of the commission of the offense, the court, at the sentencing
hearing conducted under Section 5-4-1, shall consider the following additional factors
in mitigation in determining the appropriate sentence: (1) the person’s age, impetuosity,
and level of maturity at the time of the offense, including the ability to consider risks
and consequences of behavior, and the presence of cognitive or developmental
disability, or both, if any; (2) whether the person was subjected to outside pressure,
including peer pressure, familial pressure, or negative influences; (3) the person’s
family, home environment, educational and social background, including any history of
parental neglect, physical abuse, or other childhood trauma; (4) the person’s potential
for rehabilitation or evidence of rehabilitation, or both; (5) the circumstances of the
offense; (6) the person’s degree of participation and specific role in the offense, including
the level of planning by the defendant before the offense; (7) whether the person was
able to meaningfully participate in his or her defense; (8) the person’s prior juvenile or
criminal history; and (9) any other information the court finds relevant and reliable,
including an expression of remorse, if appropriate. However, if the person on advice of
counsel chooses not to make a statement, the court shall not consider a lack of an
expression of remorse as an aggravating factor.”); La. Code Crim. Proc. Ann. art.
878.1(C) (“At the [juvenile sentencing] hearing, the prosecution and defense shall be
allowed to introduce any aggravating and mitigating evidence that is relevant to the
charged offense or the character of the offender, including but not limited to the facts
and circumstances of the crime, the criminal history of the offender, the offender’s level
of family support, social history, and such other factors as the court may deem
relevant.”); Mo. Ann. Stat. § 565.033(2) (“When assessing punishment in all first degree
                                              28

__________________________________________
murder cases in which the defendant was under the age of eighteen at the time of the
commission of the offense or offenses, the judge in a jury-waived trial shall consider, or
the judge shall include in instructions to the jury for it to consider, the following
factors: (1) [t]he nature and circumstances of the offense committed by the defendant;
(2) [t]he degree of the defendant’s culpability in light of his or her age and role in the
offense; (3) [t]he defendant’s age, maturity, intellectual capacity, and mental and
emotional health and development at the time of the offense; (4) [t]he defendant’s
background, including his or her family, home, and community environment; (5) [t]he
likelihood for rehabilitation of the defendant; (6) [t]he extent of the defendant’s
participation in the offense; (7) [t]he effect of familial pressure or peer pressure on the
defendant’s actions; (8) [t]he nature and extent of the defendant’s prior criminal history,
including whether the offense was committed by a person with a prior record of
conviction for murder in the first degree, or one or more serious assaultive criminal
convictions; (9) [t]he effect of characteristics attributable to the defendant’s youth on the
defendant’s judgment; and (10) [a] statement by the victim or the victim’s family
member . . . .”); Neb. Rev. Stat. Ann. § 28-105.02(2) (In determining the sentence of a
juvenile offender convicted of a Class 1A felony, “the court shall consider mitigating
factors which led to the commission of the offense. The convicted person may submit
mitigating factors to the court, including, but not limited to: (a) [t]he convicted person’s
age at the time of the offense; (b) [t]he impetuosity of the convicted person; (c) [t]he
convicted person’s family and community environment; (d) [t]he convicted person’s
ability to appreciate the risks and consequences of the conduct; (e) [t]he convicted
person’s intellectual capacity; and (f) [t]he outcome of a comprehensive mental health
evaluation of the convicted person conducted by an adolescent mental health
professional licensed in this state. The evaluation shall include, but not be limited to,
interviews with the convicted person’s family in order to learn about the convicted
person’s prenatal history, developmental history, medical history, substance abuse
treatment history, if any, social history, and psychological history.”); Nev. Rev. Stat.
Ann. § 176.017 (West, Westlaw through 79th Reg. Sess. (2017)) (“If a person is
convicted as an adult for an offense that the person committed when he or she was less
than 18 years of age, in addition to any other factor that the court is required to
consider before imposing a sentence upon such a person, the court shall consider the
differences between juvenile and adult offenders, including, without limitation, the
diminished culpability of juveniles as compared to that of adults and the typical
characteristics of youth.”); N.C. Gen. Stat. Ann. § 15A-1340.19B(c)(1)–(9) (West, Westlaw
through 2017 Reg. Sess.) (“The defendant or the defendant’s counsel may submit
mitigating circumstances to the court, including, but not limited to, the following
factors: (1) [a]ge at the time of the offense; (2) [i]mmaturity; (3) [a]bility to appreciate the
risks and consequences of the conduct; (4) [i]ntellectual capacity; (5) [p]rior record;
(6) [m]ental health; (7) [f]amilial or peer pressure exerted upon the defendant;
(8) [l]ikelihood that the defendant would benefit from rehabilitation in confinement;
(9) [a]ny other mitigating factor or circumstance.”); W. Va. Code Ann. § 61-11-23(c)(1)–
(15) (West, Westlaw through 2017 3d Extraordinary Sess.) (“In addition to other factors
required by law to be considered prior to the imposition of a sentence, in determining
the appropriate sentence to be imposed on a person who has been transferred to the
criminal jurisdiction of the court pursuant to section ten, article five, chapter forty-nine
of this code and who has been subsequently tried and convicted of a felony offense as
an adult, the court shall consider the following mitigating circumstances: (1) [a]ge at the
time of the offense; (2) [i]mpetuosity; (3) [f]amily and community environment;
                                              29

        Likewise, the decision of our legislature to enumerate sentencing

factors under Iowa Code section 902.1(2)(b)(2), and provide the

sentencing courts with a plethora of factors to allow for greater discretion

in crafting a juvenile sentence, serves as objective indicia of Iowa’s

standards regarding the challenged sentencing factors.                        As we noted

previously, the legislature is entitled to deference when it expands the

court’s discretion in the juvenile sentencing realm. Lyle, 854 N.W.2d at

388. Further, the legislature is in the best position to identify and adopt

legal protections that advance our constitutional recognition that

“children are different.” Roby, 897 N.W.2d at 144 (quoting Seats, 865

N.W.2d at 555).

        With regard to the second factor, examining our controlling

precedents and interpretations of the Iowa Constitution’s text, history,

meaning, and purpose, an examination of the sentencing factors

enumerated in Iowa Code section 902.1(2)(b)(2)(a)–(v) supports our

__________________________________________
(4) [a]bility to appreciate the risks and consequences of the conduct; (5) [i]ntellectual
capacity; (6) [t]he outcomes of a comprehensive mental health evaluation conducted by
[a] mental health professional licensed to treat adolescents in the State of West Virginia:
Provided, that no provision of this section may be construed to require that a
comprehensive mental health evaluation be conducted; (7) [p]eer or familial pressure;
(8) [l]evel of participation in the offense; (9) [a]bility to participate meaningfully in his or
her defense; (10) [c]apacity for rehabilitation; (11) [s]chool records and special education
evaluations; (12) [t]rauma history; (13) [f]aith and community involvement;
(14) [i]involvement in the child welfare system; and (15) [a]ny other mitigating factor or
circumstances.); Ex parte Henderson, 144 So. 3d 1262, 1283–84 (Ala. 2013) (“We hold
that a sentencing hearing for a juvenile convicted of a capital offense must now include
consideration of: (1) the juvenile’s chronological age at the time of the offense and the
hallmark features of youth, such as immaturity, impetuosity, and failure to appreciate
risks and consequences; (2) the juvenile’s diminished culpability; (3) the circumstances
of the offense; (4) the extent of the juvenile’s participation in the crime; (5) the juvenile’s
family, home, and neighborhood environment; (6) the juvenile’s emotional maturity and
development; (7) whether familial and/or peer pressure affected the juvenile; (8) the
juvenile’s past exposure to violence; (9) the juvenile’s drug and alcohol history; (10) the
juvenile’s ability to deal with the police; (11) the juvenile’s capacity to assist his or her
attorney; (12) the juvenile’s mental-health history; (13) the juvenile’s potential for
rehabilitation; and (14) any other relevant factor related to the juvenile’s youth.”).
                                             30

decision that the statutory factors comport with our juvenile sentencing

jurisprudence and the Iowa Constitution. In Seats, we expounded upon

the five youth-related characteristics required under Miller and Lyle,

holding that a sentencing court must consider the factors as “mitigating,

not aggravating” when sentencing a juvenile offender. Seats, 865 N.W.2d

at 555–57. In Roby, we again endorsed the use of these factors, noting

that they “identify the primary reasons most juvenile offenders should

not be sentenced without parole eligibility,” and they “must not normally

be used to impose a minimum sentence of incarceration without parole

unless expert evidence supports the use of the factors to reach such a

result.”   897 N.W.2d at 147.               A comparison of the Lyle factors we

discussed in greater length in Seats and Roby, to those in Iowa Code

section 902.1(2)(b)(2), demonstrates the statutory factors’ alignment with

our juvenile sentencing jurisprudence.              Cf. Sweet, 879 N.W.2d at 840

(Cady, C.J., concurring specially) (noting these factors “addressed the

constitutional deficiency identified in Miller and in our cases that

followed”).

      The first Lyle factor requires a sentencing court to consider “the

age of the offender and the features of youthful behavior, such as

‘immaturity,        impetuosity,     and     failure        to   appreciate     risks   and

consequences.’ ”       854 N.W.2d at 404 n.10 (quoting Miller, 567 U.S. at

477–78, 132 S. Ct. at 2468).              In Seats, we asserted this consideration

requires      the    sentencing     judge     to    recognize       that   “children    are

constitutionally different from adults.” 865 N.W.2d at 556. In Roby, we

elaborated further, stating this factor allows for the introduction of

evidence      at    sentencing     that    speaks      to    the   juvenile’s    “maturity,

deliberation of thought, and appreciation of risk-taking” and “is most

meaningfully applied when based on qualified professional assessments
                                       31

of the offender’s decisional capacity.” 897 N.W.2d at 145. Similarly, the

statutory factors require the sentencing judge to evaluate “[w]hether the

ability to conform the defendant’s conduct with the requirements of the

law was substantially impaired,” “[t]he level of maturity of the

defendant,” “[t]he intellectual and mental capacity of the defendant,”

“[t]he level of compulsion, duress, or influence exerted upon the

defendant,” “[t]he chronological age of the defendant and the features of

youth, including immaturity, impetuosity, and failure to appreciate the

risks and consequences,” the effect of peer pressure on the defendant,

and “[t]he competencies associated with youth, including but not limited

to the defendant’s inability to deal with peace officers or the prosecution

or the defendant’s incapacity to assist the defendant’s attorney in the

defendant’s defense.” Iowa Code § 902.1(2)(b)(2)(j)–(l), (o), (q), (s).

       Second, Lyle requires a sentencing judge to consider the juvenile’s

family and home environment. 854 N.W.2d at 404 n.10. In Seats, we

explained that this factor requires review of “any information 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.” 865 N.W.2d at 556. Further, in Roby, we noted this

factor “is not limited to extremely brutal or dysfunctional home

environments, but considers the impact of all circumstances and all

income and social backgrounds.”         897 N.W.2d at 146.       The statutory

factors comply with our caselaw by requiring sentencing judges to

consider the “mental health history of the defendant,” “[t]he family and

home    environment     that   surrounded      the   defendant,”    and   “[t]he

circumstances of the murder including the extent of the defendant’s
                                       32

participation in the conduct and the way familial and peer pressure may

have affected the defendant.” Iowa Code § 902.1(2)(b)(2)(n), (r)–(s).

      Third, under Lyle, the sentencing judge must consider “the

circumstances of the particular crime and all circumstances relating to

youth that may have played a role in the commission of the crime.” 854

N.W.2d at 404 n.10. With regard to homicide offenses, we stated that

this requires the consideration of “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.”

Seats, 865 N.W.2d at 556 (alteration in original) (quoting Miller, 567 U.S.

at 477, 132 S. Ct. at 2468).          Also, in Roby, we noted that “[t]he

aggravating circumstances of a crime that suggest an adult offender is

depraved may only reveal a juvenile offender to be wildly immature and

impetuous.” 897 N.W.2d at 146. Thus, “the circumstances of the crime

do not necessarily weigh against mitigation when the crime caused grave

harm or involved especially brutal circumstances.” Id. In accord with

these holdings, Iowa Code section 902.1(2)(b)(2)(r)–(s) requires sentencing

judges to consider the      circumstances of the crime and the effects of

familial and peer pressure.       Moreover, comparable to our holding in

Seats, the statute also requires sentencing judges to consider “[t]he

degree of participation in the murder by the defendant,” “[t]he nature of

the offense,” “[t]he severity of the offense, including any of the following:

(i) [t]he commission of the murder while participating in another felony[,]

(ii) [t]he number of victims, [and] (iii) [t]he heinous, brutal, cruel manner

of the murder, including whether the murder was the result of torture.”

Iowa Code § 902.1(2)(b)(2)(d)–(e), (h)–(l).

      Fourth, Lyle requires the sentencing court to consider “the

challenges of youthful offenders in navigating through the criminal
                                      33

process.” 854 N.W.2d at 404 n.10. In Roby, we explained this factor

“mitigates against punishment because juveniles are generally less

capable of navigating through the criminal process than adult offenders,”

which can affect the juvenile’s “general competency to stand trial or

relate more specifically to cognitive or other incapacities to withstand

police interrogation.” 897 N.W.2d at 146–47. As noted previously, the

statute takes this into consideration by requiring the sentencing judge to

examine “[t]he competencies associated with youth, including but not

limited to the defendant’s inability to deal with peace officers or the

prosecution or the defendant’s incapacity to assist the defendant’s

attorney in the defendant’s defense.” Iowa Code § 902.1(2)(b)(2)(t).

        Finally, Lyle mandates the sentencing judge to consider “the

possibility of rehabilitation and capacity for change.” 854 N.W.2d at 404

n.10.     We explained in Roby that this factor ordinarily supports

mitigation because juveniles are more capable of rehabilitation.           897

N.W.2d at 147.      Iowa Code section 902.1(2) does this by requiring a

sentencing judge to consider “[t]he nature and extent of any prior

juvenile delinquency or criminal history of the defendant, including the

success or failure of previous attempts at rehabilitation,” “[t]he likelihood

of the commission of further offenses by the defendant,” and “[t]he

possibility of rehabilitation.” Iowa Code § 902.1(2)(b)(2)(m), (p), (u).

        Despite these similarities, Zarate argues the statutory factors are

unconstitutional because they do not explicitly state that the sentencing

court must treat these factors as mitigating rather than aggravating. We

agree that the sentencing court must treat the relevant factors associated

with youth that we first set forth in Lyle as mitigating.       However, the

statute’s failure to explicitly state that these factors must be treated as

mitigating does not render the sentencing factors unconstitutional. As
                                             34

we have already noted, our existing juvenile sentencing jurisprudence

establishes that a sentencing court must consider the five Lyle factors in

a mitigating fashion in the juvenile sentencing process, and the

consideration      of    any     potential   aggravating   factors,    including    the

circumstances of the crime, cannot overwhelm the sentencing court’s

analysis. See, e.g., Roby, 897 N.W.2d at 143–47. “We strive to interpret

our statutes consistent with our case law.” State v. Carter, 618 N.W.2d

374, 377 (Iowa 2000). In this case, we interpret the sentencing factors of

Iowa Code section 902.1(2)(b)(2)(a)–(v) consistent with our caselaw to

require sentencing courts to apply the statute according to our juvenile

sentencing jurisprudence as laid out in this opinion.

      Further, we reject Zarate’s overly broad interpretation of our

holding in Null that children cannot be held to the same standard of

culpability   as        adults    in   criminal   sentencing.         Under   Zarate’s

interpretation, it would be unconstitutional for a sentencing judge to

consider any aggravating factors or the nature of the crime.                       This

interprets our holding far too broadly.             See Null, 836 N.W.2d at 75.

Nothing in the federal or state juvenile sentencing jurisprudence prevents

sentencing courts from considering additional and/or aggravating factors

beyond the factors established in Miller, as Zarate contends. In Miller,

the Supreme Court stated that the sentencing court may consider “the

nature of the[ ] crimes,” not just “age and age-related characteristics.”

567 U.S. at 489, 132 S. Ct. at 2475. In Ragland, we held “the possibility

of rehabilitation” was one of five sentencing factors, though not the only

one to consider, 836 N.W.2d at 115 n.6 (quoting Miller, 567 U.S. 478,

132 S. Ct. at 2468), in contrast to Zarate’s argument that rehabilitation

should be the primary focus of juvenile sentencing.                     In Seats, we

expounded upon these factors to provide sentencing courts with certain
                                          35

factors it must consider as mitigating. 865 N.W.2d at 556–57. Yet we

never barred the sentencing court from considering additional or

aggravating factors.   Id. at 555–57.          Zarate himself noted in his reply

brief that “[t]he court never limited what characteristics could be

considered, it just stated that ‘the typical characteristics of youth . . . are

to be regarded as mitigating, not aggravating factors.’ ” (quoting Null, 836

N.W.2d at 75).

      The fact of the matter is, “[c]riminal punishment can have different

goals, and choosing among them is within the legislature’s discretion.”

Oliver, 812 N.W.2d at 646 (quoting Graham, 560 U.S. at 71, 130 S. Ct. at

2028). While the goal of deterrence carries less weight in the juvenile

sentencing   realm,    it   still   has    some     weight   depending   on   the

circumstances of each case. See, e.g., Roby, 897 N.W.2d at 142; Lyle,

854 N.W.2d at 399. Nevertheless, Zarate’s request that we hold the use

of additional and/or aggravating factors beyond the mitigating youth-

related factors first established in Miller is unconstitutional would

impede the legislature’s discretion and ability to promote goals for the

criminal punishment of juvenile offenders other than rehabilitation.

      The sentencing court’s ultimate goal is to decide which sentence

“will provide maximum opportunity for the rehabilitation of the

defendant, and for the protection of the community from further offenses

by the defendant and others.”         Iowa Code § 901.5.       For a sentencing

court to adequately meet this goal, the relevant information in the

sentencing calculation may include aggravating factors.            Otherwise, it

would become seemingly impossible for the state to                   rebut the

presumption “that the judge should sentence juveniles to life in prison

with the possibility of parole unless the other factors require a different
                                    36

sentence” in order for the sentencing court to impose any minimum term

of imprisonment before parole eligibility. Seats, 865 N.W.2d at 555.

      While Zarate has improved his life during his time in prison, and

may now be less culpable than other juvenile offenders given his

circumstances, other juvenile offenders may still require incapacitation

to prevent recidivism, or may require a longer sentence due to their

culpability. The factors enumerated in Iowa Code section 902.1(2)(b)(2)

will assist the sentencing court in recognizing these differences between

juvenile and adult offenders. Additionally, it will assist the sentencing

court in balancing the competing goals of punishment and provide

sentencing courts with a variety of case-specific factors to help them

appropriately take these differences and goals into account when

prescribing sentences.   This creates a truly individualized sentencing

hearing. Overall, “the Code in general [for juvenile sentencing] is replete

with provisions vesting considerable discretion in courts to take action

for the best interests of the child.” Roby, 897 N.W.2d at 141.

      Ultimately, “[t]he constitutional analysis is not about excusing

juvenile behavior, but imposing punishment in a way that is consistent

with our understanding of humanity today.” Lyle, 854 N.W.2d at 398.

The sentencing factors enumerated in Iowa Code section 902.1(2)(b)(2)

meet this constitutional analysis by taking into account youth-related

factors, while also recognizing that not all juvenile offenders are capable

of rehabilitation or reintroduction into the community within a set term

of years.   More importantly, the listed factors provide the necessary

individualized sentencing process for juvenile offenders by allowing

sentencing courts to consider a wide array of factors on a case-by-case

basis to craft an individualized sentence for each juvenile offender.

Therefore, we affirm the district court on this issue with the additional
                                     37

mandate that the typical factors associated with youth as set forth in

Lyle must be considered mitigating and that the circumstances of the

crime or other aggravating factors may not overwhelm the mitigating

factors.

      C. Zarate’s As-Applied Challenge.          Zarate argues we should

vacate his sentence because the resentencing court inappropriately

considered the sentencing factors under Iowa Code section 902.1(2)(b)(2)

in a manner that allowed the circumstances of his offense to overwhelm

the sentencing analysis.       On our review of the district court’s

resentencing decision, we conclude the district court abused its

discretion by imposing a mandatory minimum sentence of ten additional

years of imprisonment based on the sentencing judge’s belief that there

“should be [a] minimum period of time [for imprisonment] for somebody

that takes the life of another individual, whether that person is a juvenile

or an adult.”

      As we held in Roby, our abuse of discretion standard for sentences

that are within the statutory limits “is not forgiving of a deficiency in the

constitutional right to a reasoned sentencing decision based on a proper

hearing.”   897 N.W.2d at 138.         We have repeatedly stressed the

constitutional   mandate    that   juvenile   offenders   must   receive   an

individualized hearing that takes into account the Lyle factors in a

mitigating fashion. See, e.g., id. at 143–47. We have also maintained

that “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.” Seats, 865

N.W.2d at 555.      After all, “most juvenile offenders should not be

sentenced without parole eligibility. A sentence of incarceration without

parole eligibility will be an uncommon result.” Roby, 897 N.W.2d at 147.
                                     38

      In this case, the district court deprived Zarate of his right to a truly

individualized hearing that appropriately took into account the mitigating

factors of his youth.      We agree that the district court allowed the

circumstances of Zarate’s offense to overwhelm its analysis. Rather than

starting from the necessary presumption of life with the possibility of

parole, the sentencing judge allowed the nature of Zarate’s offense to

taint his analysis by imposing a mandatory minimum sentence of

imprisonment due to his belief that there should be a minimum term of

imprisonment for anyone who commits murder, regardless of their age at

the time of the offense.

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

should have received significant weight, gives significant weight to an

improper or irrelevant factor, or considers only appropriate factors but

nevertheless commits a clear error of judgment” a discretionary

sentencing ruling may be an abuse of discretion.        Id. at 138 (quoting

People v. Hyatt, 891 N.W.2d 549, 578 (Mich. Ct. App. 2016)). Here, the

sentencing judge had a predisposition to a mandatory minimum before

parole eligibility for anyone who commits murder and inappropriately

allowed this predisposition to accord improper weight to the nature of

Zarate’s crime when considering the necessary sentencing factors.

Consequently, the sentencing judge failed to appropriately consider the

relevant sentencing factors when he resentenced Zarate. As such, the

sentencing judge did not provide Zarate with the constitutionally

required individualized sentencing process that he is entitled to receive.

Notably, since Zarate’s resentencing took place on December 28, 2015,

the sentencing court did not have the benefit of our holdings in Sweet

and Roby to help guide its analysis.         In light of these subsequent

opinions, we must vacate Zarate’s sentence and remand for a
                                       39

resentencing that is consistent with our current juvenile sentencing

jurisprudence and this opinion.

      IV. Conclusion.

      The   only   portion   of   Iowa      Code   section   902.1(2)   that   is

unconstitutional under the Iowa Constitution is section 902.1(2)(a)(1),

which gives the district court the sentencing option of life imprisonment

without the possibility of parole for juvenile offenders convicted of first-

degree murder.     The remainder of the sentencing options set forth in

Iowa Code section 902.1(2)(a), and the sentencing factors listed in Iowa

Code section 902.1(2)(b)(2)(a)–(v), are constitutional under the Iowa

Constitution.   However, for the aforementioned reasons, we vacate the

sentence of the district court and remand for a resentencing that is

consistent with our current juvenile sentencing jurisprudence and with

this opinion.

      DISTRICT      COURT         SENTENCE         VACATED       AND      CASE

REMANDED.

      Cady, C.J. and Waterman and Mansfield, JJ. join this opinion.

Hecht, J. files a concurring opinion in which Wiggins, J. joins. Appel, J.

files a separate concurring opinion.
                                     40

                                                  #15–2203, State v. Zarate

HECHT, Justice (concurring specially).

      I agree with the majority’s determination that the sentence

imposing a minimum term of incarceration must be vacated. Although I

reach the same result as the majority, my rationale for doing so is

different. For the reasons stated in my concurrence in State v. Roby, 897

N.W.2d 127, 149 (Iowa 2017) (Hecht, J., concurring specially), I believe a

mandatory minimum term of incarceration for a juvenile offender is

categorically prohibited by article I, section 17 of the Iowa Constitution.

Whether imposed by legislative mandate or by a sentencing court, the

constitutional infirmity of mandatory minimum sentences for juvenile

offenders is the same in my view. The timing of Rene Zarate’s parole, if

any, from his life sentence should be left to the board of parole, the entity

in the best position to discern whether he has shown maturation and

rehabilitation.

      Wiggins, J. joins this special concurrence.
                                     41

                                                   #15–2203, State v. Zarate

APPEL, Justice (concurring specially).

      I respectfully concur in the result only in this case.

      First, I do not believe a judicially imposed twenty-five-year

mandatory minimum sentence without possibility of parole for a juvenile

offender passes constitutional muster.       As will be pointed out below,

such an approach is inconsistent with observations made in State v.

Lyle, 854 N.W.2d 378 (Iowa 2014).          In Lyle, we declared “[a]fter the

juvenile’s transient impetuosity ebbs and the juvenile matures and

reforms, the incapacitation objective can no longer seriously be served”

and the mandatory sentence becomes a “purposeless and needless

imposition of pain and suffering.” Id. at 400 (quoting Coker v. Georgia,

433 U.S. 584, 592, 97 S. Ct. 2861, 2866 (1977) (second quote)).

      The mandatory sentence in the current case extends until the

offender is forty-two years old, well beyond the time at which juvenile

character is formed. It is inconsistent with the humane underpinnings of

Graham v. Florida, where Justice Kennedy eloquently wrote about the

role of hope for a meaningful life for a juvenile offender. 560 U.S. 48, 79,

130 S. Ct. 2011, 2032 (2010) (“Life in prison without the possibility of

parole gives no chance for fulfillment outside prison walls, no chance for

reconciliation with society, no hope.”).     And, under Lyle, a mandatory

sentence significantly beyond the time of maturation for purposes of

incapacity is “purposeless and needless.” 854 N.W.2d at 400 (quoting

Coker, 433 U.S. at 592, 97 S. Ct. at 2866).

      Second, I have come to the conclusion that predicting the future

course of a juvenile offender, as psychiatrists have repeatedly warned us,

is simply not possible with any degree of accuracy. See, e.g., Roper v.

Simmons, 543 U.S. 551, 573, 125 S. Ct. 1183, 1197 (2005); Alex R.
                                   42

Piquero, Youth Matters: The Meaning of Miller for Theory, Research, and

Policy Regarding Developmental/Life-Course Criminology, 39 New Eng. J.

on Crim. & Civ. Confinement 347, 356–57 (2013); Laurence Steinberg &

Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental

Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58

Am. Psychologist 1009, 1014–16 (2003).          Time and time again,

professional organizations have repeatedly warned judges that prediction

of the future course of an offender generally, and a youthful offender

more particularly, is really impossible. See Elizabeth Cauffman et. al.,

Comparing the Stability of Psychopathy Scores in Adolescents Versus

Adults: How Often Is “Fledgling Psychopathy” Misdiagnosed?, 22 Psychol.

Pub. Pol’y & L. 77, 80, 88 (2016) (presenting American Psychological

Association research showing that the majority of juveniles diagnosed

with psychopathy are misdiagnosed, because psychopathic traits are

most often transient). We should not expect judges to be any better at it

than professionally trained psychiatrists.    Indeed, I simply do not

understand what equips judges to be better at making the prediction

than experts.   Instead of imposing mandatory minimums through an

unreliable judicial guess, the constitutionally sound approach is to

abolish mandatory minimum sentences on children and allow the parole

board to make periodic judgments as to whether a child offender has

demonstrated maturity and rehabilitation based on an observable track

record.

     I. Mandatory Minimum Incarceration to Age Forty-Two Is
Contrary to Lyle Principles.

      I do not believe a twenty-five-year mandatory minimum term, even

if imposed by a judge, passes constitutional muster. A juvenile offender

who is subject to a term of imprisonment is entitled to a meaningful
                                    43

opportunity to be heard to demonstrate maturity and rehabilitation.

Miller v. Alabama, 567 U.S. 460, 479, 132 S. Ct. 2455, 2469 (2012);

Graham, 560 U.S. at 75, 130 S. Ct. at 2030; State v. Roby, 897 N.W.2d

127, 140 (Iowa 2017); State v. Louisell, 865 N.W.2d 590, 602 (Iowa 2015);

Lyle, 854 N.W.2d at 381; State v. Null, 836 N.W.2d 41, 75 (Iowa 2013).

The majority does not question this general principle.      The question,

then, is how to apply that principle in this case and in other cases

involving juvenile offenders.

      Neuroscience has established that the character of a juvenile

offender is still being formed until the offender ages into the mid-

twenties.   State v. Sweet, 879 N.W.2d 811, 837 (Iowa 2016); State v.

Seats, 865 N.W.2d 545, 557 (Iowa 2015); Null, 836 N.W.2d at 55; see

also Beth A. Colgan, Constitutional Line Drawing at the Intersection of

Childhood and Crime, 9 Stan. J. C.R. & C.L. 79, 85 & n.26 (2013). At

that point, character formation has generally been completed.

      What do we do with respect to a juvenile offender who has been

incarcerated but has reached the point at which character formation has

been completed? We answered that question in Lyle, 854 N.W.2d 378.

There we declared, “After the juvenile’s transient impetuosity ebbs and

the juvenile matures and reforms, the incapacitation objective can no

longer seriously be served” and the mandatory sentence becomes a

“purposeless and needless imposition of pain and suffering.” Id. at 400

(quoting Coker, 433 U.S. at 592, 97 S. Ct. at 2866 (second quote)).

      As implied in Lyle, the timing of the meaningful opportunity to

show maturity and rehabilitation is a critical element. See id. This is not

a new concept. As noted by one observer, the United States Supreme

Court in Rummel v. Estelle, 445 U.S. 263, 280, 100 S. Ct. 1133, 1142

(1980), cited the prisoner’s eligibility for parole after twelve years as a
                                     44

factor in upholding a sentence from Eighth Amendment challenge. See

Sarah French Russell, Review for Release: Juvenile Offenders, State

Parole Practices, and the Eighth Amendment, 89 Ind. L.J. 373, 381 (2014)

[hereinafter Russell].

      The American Law Institute’s Model Penal Code: Sentencing

addresses the question of juvenile sentence length. Model Penal Code:

Sentencing § 6.11A (Am. Law. Inst., Proposed Final Draft 2017). Under

section 6.11A(g), the Model Penal Code provides that “[n]o sentence of

imprisonment longer than [25] years may be imposed for any offense or

combination of offenses.” Id. § 6.11A(g). Further, the Model Penal Code

recommends a “second look” at juvenile sentences in all cases after ten

years, with earlier consideration if warranted by the facts and

circumstances. Id. § 6.11A(h). The commentary to the Model Penal Code

emphasizes that juvenile eligibility for parole should be considered earlier

than for adult offenders generally. Id. § 6.11A cmt. h. The Model Penal

Code recognizes that “adolescents can generally be expected to change

more rapidly in the immediate post-offense years, and to a greater

absolute degree, than older offenders.” Id.

      At the very most, the state may, perhaps, in appropriate

circumstances     constitutionally   impose    a   mandatory      term    of

imprisonment without possibility of parole on a juvenile offender who

commits first-degree murder until the period of character formation is

completed, or approximately until the offender’s age reaches the mid-

twenties. See Russell, 89 Ind. L.J. at 409 (urging parole eligibility after

ten years of incarceration because “it would be logical to tie the timing of

an initial review to when one can expect an individual to have obtained a

fully mature brain and a more stable character”). After that point, the

state must provide the offender with a meaningful opportunity to show
                                    45

maturity and rehabilitation. If such a showing can be made, holding an

offender for purposes of incapacitation beyond that period is a

“purposeless and needless imposition of pain and suffering.” Lyle, 854

N.W.2d at 400 (quoting Coker, 433 U.S. at 592, 97 S. Ct. at 2866).

      Thus, under Lyle principles, there is no doubt that a twenty-five-

year mandatory minimum sentence of a juvenile offender without the

possibility of parole is constitutionally excessive under article I, section

17 of the Iowa Constitution.        Under this scheme, for instance, a

seventeen-year-old offender would not be eligible for parole until age

forty-two. Such a lengthy prison term without the possibility of parole

does not provide the meaningful opportunity to be heard on the question

of maturity and rehabilitation at the right time.      A juvenile offender

should be eligible for parole consideration after the period of character

formation and time for meaningful observation, even for serious crimes.

To the extent a mandatory minimum sentence may be imposed by the

court, it may constitutionally extend only as necessary to ensure

complete character formation and provide the state with a substantial

opportunity to observe the development of the offender.       I would thus

vacate the sentence in this case and remand it for resentencing

consistent with these principles.

      I do not think the constitutionally deficiency is cured by the fact

that a judge is dragooned into the decision-making process. Our state

trial court judges have many sterling qualities. They consistently strive

to be patient, fair-minded, and impartial.        They strive to exercise

discretionary authority in a thoughtful way, each and every time. But if

psychiatrists have declared to the world from the mountain tops that

they are ill-equipped to make determinations regarding the prognosis of

children who offend, why do we think judges will do a better job? We
                                       46

should not have the hubris to think judges can, in fact, do a good job

with this impossible task, and we should not be so cynical as to

knowingly assign an impossible job to them.

         Of course, I do not suggest that all juvenile offenders are entitled to

release once they are eligible for parole. See Graham, 560 U.S. at 75,

130 S. Ct. at 2030; Sweet, 879 N.W.2d at 832. In any parole evaluation

of a juvenile after a period of imprisonment, the evidence may be

ambiguous or may even affirmatively show that the juvenile offender has

not demonstrated maturity and rehabilitation. The operating principle,

however, is that the juvenile offender must be provided a meaningful

opportunity to demonstrate the maturity and rehabilitation necessary to

support parole at the time that character formation has been completed.

     II. The Time Has Come for Categorical Rejection of Mandatory
Minimums for Juveniles.

         The second aspect of this case that is troubling is the development

of a laundry list of factors to be considered by the district court in

sentencing juvenile offenders.        Our caselaw makes it clear that the

vagaries of youth—the immaturity, the failure to appreciate risk, the peer

pressure, and the lack of appreciation of consequences of actions—are all
mitigating factors. Roby, 897 N.W.2d at 145; Sweet, 879 N.W.2d at 832–

33; State v. Pearson, 836 N.W.2d 88, 95 (Iowa 2013); Null, 836 N.W.2d at

75. We have further emphasized that the nature of the underlying crime

is not to overwhelm the analysis in juvenile sentencing.            Seats, 865

N.W.2d at 557; Null, 836 N.W.2d at 74–75. The legislative laundry list

appears to be an effort to legislatively override the approach of these

cases.

         One approach, of course, is to simply declare that the legislative

action of adding factors does not alter the approach in Seats, 865 N.W.2d
                                     47

at 557, Roby, 854 N.W.2d at 145, and our other juvenile cases. See, e.g.,

Sweet, 879 N.W.2d at 832–33; Louisell, 865 N.W.2d at 602; Pearson, 836

N.W.2d at 95; Null, 836 N.W.2d at 75. Whether the legislature packages

considerations as five factors or fifty factors is of no moment for the

purposes of constitutional analysis.      Indeed, many of the newly listed

factors are redundant and overlapping, and in any case, the number of

listed factors does not reflect arithmetically increasing constitutional

importance.

      Notwithstanding the slicing and dicing of additional factors that

are now scattered in the statute, the more verbose legislative formulation

has no impact on the constitutionally required approach established in

Seats, Lyle, and Roby.      That approach emphasizes that youth is a

mitigating and not an aggravating factor, cautions sentencing courts not

to give undue emphasis on the nature of the crime, and establishes that

mandatory minimums should be the exception and not the rule in cases

involving juvenile offenders.

      But, as I noted in my special concurrence in Roby, 897 N.W.2d at

150 (Appel, J., concurring specially), if implementation of the principles

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

prove inconsistent, confusing, difficult, or unworkable, it may be

necessary to move to a more categorical approach utilized in Sweet, 879

N.W.2d at 839.    I believe the time has come to extend the categorical

approach in Sweet to all statutory minimum sentences imposed by

judges on juvenile offenders. Instead, with respect to juvenile offenders,

consideration of whether the offender demonstrates maturation and

rehabilitation should be left to the parole board.

      What would the process look like if we applied Sweet to

categorically ban minimum sentences for juvenile offenders?             A
                                          48

meaningful opportunity to demonstrate maturation and rehabilitation

implies at least two requirements. 6 First, a meaningful opportunity to

demonstrate maturation and release must occur no later than after the

completion of character formation. Consideration for parole only when

the juvenile offender reaches forty or fifty years of age is not timely.

       In addition, the offender must have a meaningful opportunity to

demonstrate rehabilitation and maturation. The focus of any meaningful

opportunity must be rehabilitation and maturation of the offender.

Further, the offender must have an opportunity to present substantive

evidence to the parole board on rehabilitation and maturation. It would

be premature at this time, however, to outline in detail precisely what a

meaningful opportunity to be heard on the issue would look like, but it

must be a broad enough channel to allow the offender a fair opportunity

to make a case. 7        Of course, the parole board would be under no

obligation to release offenders when the offender has failed to make the

case for rehabilitation and maturation.

       III. Conclusion.

       For the above reasons, I would reverse the judgment of the district

court and remand for a vacation of the mandatory minimum sentence in
this case.



       6I  note that some authorities suggest that if the state is to provide juvenile
offenders with a meaningful opportunity for reform, the offender must be incarcerated
in “a correctional setting that promotes healthy psychological development.” Elizabeth
Scott et al., Juvenile Sentencing Reform in a Constitutional Framework, 88 Temp. L. Rev.
675, 712 (2016).
       7There  is a growing body of legal literature addressing the question. See
generally Megan Annitto, Graham’s Gatekeeping and Beyond: Juvenile Sentencing
Reform in the Wake of Graham and Miller, 80 Brook. L. Rev. 119, 134 (2014); Beth
Caldwell, Creating Meaningful Opportunities for Release: Graham, Miller and California’s
Youth Offender Parole Hearings, 40 N.Y.U. Rev. L. & Soc. Change 245, 257 (2016).
