State of Iowa v. Christopher Ryan Lee Roby , 897 N.W.2d 127 ( 2017 )

IN THE SUPREME COURT OF IOWA
No. 15–0175
Filed June 16, 2017
STATE OF IOWA,
Appellee,
vs.
CHRISTOPHER RYAN LEE ROBY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
Stephen C. Clarke, Judge.
Christopher Ryan Lee Roby challenges the district court’s
imposition of a minimum term of incarceration without the possibility of
parole following a resentencing hearing in which the district court was to
consider certain mitigating factors attributable to his youth at the time of
the offense. DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT SENTENCE VACATED AND CASE REMANDED WITH
INSTRUCTIONS.
John Audlehelm of Audlehelm Law Office, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant
Attorney General, for appellee.
2
CADY, Chief Justice.
In this appeal, we must decide if article I, section 17 of the Iowa
Constitution categorically prohibits any minimum term of incarceration
without the possibility of parole when imposed on an individual who was
a juvenile at the time of the offense. If it does not, we must also decide
whether the district court erred in resentencing Christopher Roby to a
minimum term of incarceration following a hearing in which the court
was to consider certain mitigating factors attributable to his youth at the
time of the offense. In December of 2004, a jury found Roby guilty of two
counts of sexual abuse for his conduct when he was sixteen and
seventeen years of age. The court initially sentenced him, as required by
statute, to twenty-five years with a mandatory minimum of seventeen
and one-half years for sexual abuse in the second degree and a
concurrent term of ten years for sexual abuse in the third degree.
Following our decision in State v. Lyle, 854 N.W.2d 378 (2014), in which
we held all statutorily imposed mandatory minimums constituted cruel
and unusual punishment under the Iowa Constitution, the district court
held a resentencing hearing to determine whether the minimum term of
incarceration should be imposed. It found it should and issued an order
detailing its reasoning. Roby appealed, arguing any minimum term of
incarceration without the possibility of parole is unconstitutional and, in
the alternative, that the district court failed to properly apply the factors
we identified in Lyle. The court of appeals disagreed with Roby on both
matters and affirmed the sentence. We granted further review. On
further review, we find the Iowa Constitution does not prohibit a district
court from sentencing a juvenile offender to a minimum term of
incarceration without the possibility of parole, but we remand for
resentencing.
3
I. Factual Background and Proceedings.
Christopher Roby was convicted following a jury trial of the crimes
of sexual abuse in the second and third degrees on December 2, 2004.
He was sixteen and seventeen when he committed the crimes. The
conviction resulted from Roby’s inappropriate sexual conduct with S.M.,
who was ages eleven through thirteen during the relevant times.
A. The Offenses. The first incident, for which Roby was not
prosecuted, but the jury did hear evidence on, was apparently in the
spring of 1998. Roby was staying at S.M.’s house. S.M.’s parents were
downstairs, while S.M. and her siblings, along with Roby, were upstairs.
This was not unusual. Roby was S.M.’s brother’s best friend since
kindergarten and would often stay overnight. He was considered a
member of the family and would even accompany them on vacations and
to church. S.M., then ten years old, fell asleep in her parents’ bedroom
while watching television. She awoke to Roby, then fifteen, forcing his
hand under her pants and underwear. She immediately left the room,
went downstairs, and told her parents what had occurred. S.M.’s
parents were furious and confronted Roby, who left the house with S.M.’s
brother, and the two walked to a gas station before Roby went home to
his own parents. S.M.’s parents did not contact the police or Roby’s
parents at that time.
After about six to eight weeks, S.M.’s parents allowed Roby back
into the home. They insisted Roby not be left alone with S.M. Over time,
however, this precaution eased. Years passed with Roby frequently
coming and going and staying over, just as he was before the initial
incident. In March of 2002, Roby, now eighteen, left for the Navy. In
September of 2002, he returned on leave. That was when S.M., now
fourteen, confided in her brother’s girlfriend that Roby had been abusing
4
her ever since being let back into the house. S.M. stated the abuse
would occur nearly every time Roby had stayed over during the preceding
three years and that it occurred again with Roby back on leave. Either
Roby would touch S.M.’s genitals and breasts or he would force S.M. to
masturbate him. This contact with S.M. was always nonconsensual and
was severely impacting her mental health. S.M.’s parents learned of the
abuse, and S.M.’s mother confronted Roby. Roby denied any contact
occurred. S.M.’s mother then went to the police.
The police arrested Roby. There is some indication Roby initially
thought the police were investigating him for stealing a video game or
maybe thought admitting that crime would deflect them from
investigating the abuse. During an interrogation, Roby confessed to the
contact. However, the court ultimately suppressed the interrogation
because Roby only confessed after the investigator implied he must
submit to a polygraph for use in court, promised him leniency, and
threatened greater punishment if he continued to deny the allegations.
After the interrogation, Roby was charged and released on bond to
return to the Navy. He served for two years until being discharged to
answer for this case. The prosecutor had initially charged Roby with one
count of sexual abuse in the third degree for the alleged conduct while
Roby was eighteen and S.M. was under fourteen. After a breakdown in
plea negotiations, the prosecutor charged Roby with four counts,
delineated by Roby and S.M.’s birthdays: (Count I) sexual abuse in the
second degree for conduct occurring when S.M. was under twelve and
Roby was fifteen or sixteen, (Count II) sexual abuse in the third degree
for conduct occurring when S.M. was under fourteen and Roby was
under eighteen, (Count III) sexual abuse in the third degree for conduct
occurring when S.M. was under fourteen and Roby was eighteen, and
5
(Count IV) sexual abuse in the third degree for conduct occurring when
S.M. was fourteen and Roby was eighteen. After Roby moved to dismiss
Count I for alleging conduct while Roby was fifteen and therefore under
the jurisdiction of the juvenile court, the prosecutor amended Count I a
second time and confined it to the time after Roby turned sixteen. Thus,
while the jury heard evidence regarding the initial incident when S.M.
told her parents Roby was touching her while she was sleeping, he was
not charged for this event. Instead, he was charged based on S.M.’s
statements of continuing abuse from that point.
At trial, the State presented testimony from S.M., her parents, and
her brother. Roby did not testify. He also did not present witnesses.
The jury found Roby guilty of Counts I and II. They found him guilty of
sexual abuse occurring when Roby was sixteen and S.M. was eleven, and
when Roby was seventeen and S.M. was twelve or thirteen years old. The
jury found Roby not guilty of Counts III and IV, abuse occurring after he
turned eighteen.
B. Initial Sentencing. A presentence investigation (PSI) report
was prepared, and the court held a sentencing hearing with testimony
from Roby and his parents. Though the record is limited on Roby’s life
before prison, at least some history appears from trial testimony, this
hearing, and the PSI. The record shows Roby was born two months
premature on December 20, 1983. His mother indicated his biological
father abducted, abused, and neglected him for four years when he was
very young. Roby’s father eventually returned him to his mother in
Waterloo, who later married a man who adopted Roby. Roby’s mother
was a homemaker and his adoptive father worked for a farm implement
company as a designer. Roby is the middle child of three. He
maintained a good relationship with his family, despite the absence of his
6
biological father, but generally felt his childhood was “rough.” He was
diagnosed with attention-deficit disorder. He completed the tenth grade
at Expo Alternative Learning Center in Waterloo and reported getting
along well with his teachers, although he was suspended once for
fighting. Roby joined the Navy to, in his words, straighten out his life.
The PSI reported Roby frequently consumed alcohol while in the Navy
and used marijuana. At sentencing, Roby denied any alcohol or drug
use. Roby had no juvenile record before this case.
Roby’s mother testified,
It just seems like it’s been one thing after another with
this kid. . . . This kid has tried and tried and tried to get his
life on track, and it seems like every time he does, it’s one
thing after another waitin’ there to knock him back down.
And now you’re going to take him away from me for 25 years
or whatever, and I just—I think it’s ridiculous.
Roby’s adoptive father testified,
I think the penalty for the crime far outweighs the
crime. It’s absurd and it’s even more absurd that the judge
is not allowed to make any adjustments to that. I don’t
think you can take things like that away from the judges.
Second-degree sexual abuse, you can’t lump all of them into
one. Chris was a minor when it happened. And like what he
did get a little therapy, you don’t put them in jail for 25
years. That’s not going to solve anything.
Roby also testified. He maintained his innocence and stated,
“There’s just so many inconsistencies in her story, and I mean, I just—I
don’t see how one person can—can take another person’s life like this.”
The court sentenced Roby, stating, “The court is sympathetic to the
feelings of the family, however, as they point out, this is the only
disposition available to the court under the law[] as it presently stands.”
The court was statutorily required to, and did, impose the maximum
sentence of twenty-five years on Count I with a mandatory minimum of
seventeen and one-half years before eligibility for parole. The court
7
imposed a concurrent sentence of ten years for Count II. This was in
January of 2005. Roby had recently turned twenty-one while in jail
awaiting sentencing.
C. Resentencing. In 2014, following this court’s holdings in State
v. Null, 836 N.W.2d 41 (Iowa 2013), State v. Pearson, 836 N.W.2d 88
(Iowa 2013), and State v. Ragland, 836 N.W.2d 107 (Iowa 2013), Roby,
who was thirty years old, moved to correct an illegal sentence. He
argued he was entitled to an individualized review under the principles of
those cases. Around the same time, we issued our opinion in Lyle and
confirmed juveniles like Roby were entitled to individualized review of
their statutorily imposed sentences. 854 N.W.2d at 404. Pursuant to
these opinions, the court held a resentencing hearing to correct the
statutorily mandated minimum sentence of seventeen and one-half years
using the five factors identified in Lyle:
(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.
Id. at 404 n.10 (quoting Miller v. Alabama, 567 U.S. 460, ___, 132 S. Ct.
2455, 2468 (2012)). On “considering all the relevant factors and facts of
the case,” the district court had to either “resentence [Roby] by imposing
a condition that [Roby] be eligible for parole” or, “[i]f the mandatory
minimum period of incarceration is warranted, . . . impose the sentence
provided for under the statute, as previously imposed.” Id.
Roby presented his prison disciplinary and other prison treatment
records. This was the only exhibit. Roby’s counsel addressed the Lyle
8
factors by first noting Roby was kicked out of his parents’ home,
indicating a lack of familial support. Roby’s counsel continued, noting
Roby had no prior criminal record. She argued Roby had difficulties
navigating the criminal justice system as indicated by the interrogation
the court ultimately had to suppress. She noted he served two years in
the Navy. She argued he had the potential to be rehabilitated based on
his prison disciplinary records, which showed most of his violations
occurred early on in his incarceration. She also noted he had obtained
his GED, taken a college course, been a lead person in the science shop,
worked in the kitchen, and tutored other inmates. Finally, Roby’s
counsel pointed out that Roby had family in Waterloo willing to assist
him on release.
The State countered that Roby’s disciplinary records did not
indicate rehabilitation potential because they included an infraction for
inappropriately touching female staff. The State also pointed to Roby’s
failure to obtain sex-offender treatment, which Roby’s counsel argued
was due to department of corrections backlog and policy not to treat
offenders until they are nearing release. The State also argued Roby
continued to deny responsibility and blame the victim based on
statements he made while being treated for anxiety and sleeplessness.
The State concluded as to the first Lyle factor, “It would cut against him
because of the multiple acts that were involved in this case.” The State
continued its arguments on the Lyle factors, noting Roby’s home
environment was the same as the victim’s. As to the circumstances of
the crime, the State noted Roby’s actions were not sexual exploration,
but abuse. As to navigating the criminal process, the State noted Roby
had to be taken from the Navy and that he exercised his rights to have
the interrogation suppressed. As to rehabilitation, the State again
9
argued Roby failed to take responsibility, as shown by his numerous
posttrial appeals and motions.
Roby testified on his own behalf, stating,
Your Honor, over the last ten years, I’ve tried to better
myself while I was in there. I was told when I was getting my
GED, one of the teachers told me that if you fail to plan, you
plan to fail. So everything I’ve done since I’ve been in there
has been to make it so I’ll be a better person when I get out,
Your Honor. I’ve gotten my GED. I’ve taken any courses
that’s been available to me. I’ve learned job skills. I’ve
learned trades. I’ve helped other people bettering
themselves, teaching them how to do a cover letter, a
resume, how to use a computer.
I’m sorry for all of this, Your Honor. I just—I hope that
after ten years I can get my life back.
Approximately a month later, the court issued its ruling.
As to the first Lyle factor, the court found,
The acts that resulted in the jury’s guilty verdicts were
not merely based on the defendant’s immaturity, impetuosity
and failure to appreciate the risks and consequences. In this
case this defendant had been confronted at an earlier time
about improper touching of this victim. Notwithstanding
that, the defendant continued to sexually abuse his victim.
As to the second factor,
While the defendant’s family and home environment
were obviously not the best, the victim’s family attempted to
step in and provide a home for him. It was during this time
that the defendant took advantage of the child victim.
For the third,
The defendant’s participation in the conduct that
resulted in his conviction was not the result of any familial
or peer pressure. It was conduct freely chosen by the
defendant with no care at all for the victim and less care for
the victim’s family that was giving him a home.
The court did not address the fourth factor, but noted as to the fifth,
While the court may have been hopeful that a period of
incarceration would have led the defendant to some remorse
for his behavior, it is apparent that this is not the case. The
10
documents submitted as Defendant’s exhibit 1 show that in
an evaluation conducted in May of 2005 at the Iowa
Medication and Classification Center the defendant again
denied any sexual contact ever occurring with the victim. In
a note entitled “Psychological Encounter” showing an
encounter date of October 12, 2012, while explaining his
sleep problems, it was reported, “He noted that he does not
understand how his case has not been overturned because
he was not in Iowa at the time of the crime.”
The victim stance taken by the defendant does not
bode well for rehabilitation. After 10 years the defendant
has yet to confront his own behavior or even begin to be able
to empathize with the victim of his acts.
Thus, the court found a mandatory minimum sentence was
appropriate. Roby appealed, and the court of appeals affirmed. We
granted further review to address Roby’s two arguments: (1) that the
Iowa Constitution categorically prohibits all minimum terms of
incarceration without the possibility of parole when imposed on
juveniles, and in the alternative, (2) that the district court erred in its
analysis of the Lyle factors.
II. Standard of Review.
We review a constitutional challenge to a sentence de novo. See
State v. Sweet, 879 N.W.2d 811, 816 (Iowa 2016). Roby’s first argument
is a categorical one, and therefore, we apply de novo review. See, e.g., id.
at 816–17; see also Lyle, 854 N.W.2d at 382–83. However, the parties
dispute the appropriate standard of review on Roby’s second challenge,
and we have not yet established the standard of review for appeals
following a juvenile’s resentencing hearing.
As we recently noted in State v. Seats, “We have expressed three
different standards of review when a defendant challenges his or her
sentence on appeal.” 865 N.W.2d 545, 552 (Iowa 2015). We review for
an “abuse of discretion,” our most deferential standard, “if the sentence
is within the statutory limits.” Id. We review for “correction of errors at
11
law,” an intermediate standard, “when the defendant challenges the
legality of a sentence on nonconstitutional grounds.” Id. at 553. Finally,
we apply de novo review, our least deferential standard, to constitutional
challenges. Id.
Roby reasons the individualized hearing requirement is
constitutional in origin, and therefore, an appeal from such a hearing is
on constitutional grounds subject to de novo review. The State argues
the sentence imposed is within the statutory limits, and therefore, our
review is for an abuse of discretion. The court of appeals in this case
reviewed Roby’s resentencing hearing for an abuse of discretion. We
affirm this approach, but would elaborate on the use of the abuse-of-
discretion standard in the juvenile sentencing context.
We begin by noting an unconstitutional sentence remains
unconstitutional even if the district court held a hearing before imposing
it. See Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 734
(2016) (“Even if a court considers a child’s age before sentencing him or
her to a lifetime in prison, that sentence still violates the Eighth
Amendment for a child whose crime reflects ‘unfortunate yet transient
immaturity.’ ” (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2469)).
However, we have not yet categorically declared all minimum sentences
of incarceration unconstitutional when imposed on juvenile offenders.
See Lyle, 854 N.W.2d at 403 (“[T]he holding in this case does not prohibit
judges from sentencing juveniles to prison for the length of time
identified by the legislature for the crime committed . . . .”). Instead, we
have held it is the “absence of a sentencing procedure” that offends
article I, section 17 of the Iowa Constitution. Id. at 402. Thus, when
there is an appropriate sentencing procedure there is no constitutional
violation. Under our existing law, if the district court follows the
12
sentencing procedure we have identified and a statute authorizes the
sentence ultimately imposed, then our review is for abuse of discretion;
we ask whether there is “evidence [that] supports the sentence.” Seats,
865 N.W.2d at 553.
However, we agree with a recent decision from a Michigan
appellate court that “the abuse-of-discretion standard requires further
explanation in this context.” See People v. Hyatt, 891 N.W.2d 549, 576
(Mich. Ct. App. 2016). Although the Michigan court was reviewing the
imposition of a sentence of life without parole, we find the special
considerations involved in sentencing a juvenile offender to an adult
sentence similarly mean that, “even under this deferential standard, an
appellate court should view such a sentence as inherently suspect,” and
“cannot merely rubber-stamp the trial court’s sentencing decision.” Id.
at 577–78. We too import this guidance from the Eighth Circuit:
A discretionary sentencing ruling, similarly, may be [an
abuse of discretion] if 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 by arriving at a sentence that lies
outside the limited range of choice dictated by the facts of
the case.
Id. at 578 (alteration in original) (quoting United States v. Haack, 403
F.3d 997, 1004 (8th Cir. 2005)). In sum, while the review is for abuse of
discretion, it is not forgiving of a deficiency in the constitutional right to a
reasoned sentencing decision based on a proper hearing.
III. The Categorical Challenge.
Like the United States Supreme Court, we address a categorical
constitutional challenge to a sentencing practice by using a two-step
analysis. See Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 2022
(2010); Roper v. Simmons, 543 U.S. 551, 564, 125 S. Ct. 1183, 1192
13
(2005); Sweet, 879 N.W.2d at 835; Lyle, 854 N.W.2d at 386. Under this
analysis, we first “look to whether there is a consensus, or at least an
emerging consensus,” to guide our consideration of the question. Sweet,
879 N.W.2d at 835. “Second, we exercise our independent judgment” to
decide the question. Id. In this case, the question is whether a twenty-
five-year sentence with a minimum period of incarceration of seventeen
and one-half years for a juvenile offender convicted of sexual abuse is
categorically prohibited under the cruel and unusual punishment clause
of the Iowa Constitution. In other words, the question is whether our
constitution requires all juvenile offenders be immediately eligible for
parole.
A. Evidence of Consensus. We recognize the presence or
absence of a national consensus is normally indicated by the actions of
legislatures. See, e.g., Graham, 560 U.S. at 61, 130 S. Ct. at 2022 (“The
Court first considers ‘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.” (quoting Roper, 543 U.S. at 563, 125 S. Ct. at 1191)).
When we decided Lyle, we noted some states had already “limited
or abolished mandatory minimums for juveniles.” 854 N.W.2d at 386 n.3
(compiling statutes). Since then, state legislatures have continued to
reform their state’s juvenile justice systems. For example, many
jurisdictions have reconsidered “the more sweeping question of whether
too many juveniles are being tried in ‘adult’ court.” 1 Brief of the
1See, e.g., Cal. Penal Code § 1170.17(b)(2)(A)–(E) (West, Westlaw current through
ch. 9 of 2017 Reg. Sess.); Colo. Rev. Stat. Ann. § 19-2-517(1)–(3), (6)–(10) (West,
Westlaw current through Laws effective April 28, 2017); Ind. Code. Ann. § 31-30-1-4(c)
(West, Westlaw current through 2017 First Reg. Sess.)
14
Charles Hamilton Houston Inst. for Race & Justice and Criminal Justice
Inst. as Amici Curiae in Support of Neither Party, Montgomery, 136 S. Ct.
718 (No. 14–280), 2015 WL 4624172, at *11. Others have shortened the
minimum term of incarceration juveniles must serve before parole
eligibility. 2 Still others are working to improve juvenile justice by
providing safer facilities 3 and greater access to rehabilitative programs.4
All the foregoing tells us juvenile justice is undergoing significant and
comprehensive reform. However, it also tells us that, in this time of
feverish legislative action, no legislature has chosen to require a Miller-
type hearing before imposing any minimum term of incarceration, and no
legislature has chosen to make all juvenile offenders immediately eligible
for parole.
Yet, we may broaden our inquiry to consider rapid changes in
constitutional protections. See Lyle, 854 N.W.2d at 387. The State of
Iowa was the first to prohibit sentencing juveniles to statutorily imposed
mandatory minimums. See id. at 386 (noting no court has
constitutionally prohibited the practice, and most states permit or
require minimum sentences). We are aware of one state supreme court
that has since held similarly. See State v. Houston-Sconiers, 391 P.3d
409, 420 (Wash. 2017) (“In accordance with Miller, we hold that
2See, e.g., Cal. Penal Code § 3051(b)(1)–(3) (West, Westlaw current through ch. 9
of 2017 Reg. Sess.); Conn. Gen. Stat. Ann. § 54-125a(f)(1) (West, Westlaw current
through May 31, 2017); Del. Code Ann. tit. 11, § 4204A(d)(1) (West, Westlaw current
through 81 Laws 2017, chs. 1–15); Nev. Rev. Stat. Ann. § 213.12135(1)(a)–(b) (West,
Westlaw current through 79th Reg. Sess. 2017); W. Va. Code Ann. § 61-11-23(b) (West,
Westlaw current with 2017 Reg. Sess. through March 14, 2017).
3See, e.g., Conn. Gen. Stat. Ann. § 17a-22bb(f)–(g) (West, Westlaw current
through May 31, 2017); Kan. Stat. Ann. § 75-7023(d)–(f) (West, Westlaw current
through May 18, 2017).
4See, e.g., Mich. Comp. Laws Ann. § 791.262d(3)(a)–(b) (West, Westlaw current
through No. 42 of the 2017 Reg. Sess.).
15
sentencing courts must have complete discretion to consider mitigating
circumstances associated with the youth of any juvenile defendant . . . .”
(Emphasis added.)). We also note courts are still in the midst of defining
the new system of individualized hearings, with little uniformity emerging
as to either when the hearing is required and what it should look like.
Compare Landrum v. State, 192 So. 3d 459, 467 (Fla. 2016) (concluding a
Miller-type hearing is required before a sentencing court may impose a
discretionary sentence of life without parole), with Foster v. State, 754
S.E.2d 33, 37 (Ga. 2014) (finding Miller-type hearing inapplicable to
discretionary sentence of life without parole). Compare Casiano v.
Comm’r of Corr., 115 A.3d 1031, 1044 (Conn. 2015) (concluding Miller
applies to juvenile offenders sentenced to the “functional equivalent” of
life without parole), with State v. Ali, ___ N.W.2d ___, ___, 2017 WL
2152730, at *1 (Minn. 2017) (holding Miller only applies to the specific
sentence of life without parole). Compare State v. Charles, 892 N.W.2d
915, 922–23 (S.D. 2017) (finding a resentencing hearing satisfied the
standard announced in Miller), with People v. Berg, 202 Cal. Rptr. 3d
786, 795 (Cal. Ct. App. 2016) (finding a resentencing hearing failed to
satisfy Miller). The Supreme Court has intervened only to say that parole
eligibility is the simplest way to cure an otherwise constitutionally
impermissible juvenile sentence. See Montgomery, 577 U.S. at ___, 136
S. Ct. at 736. In all, we can foresee these challenges will continue, with
frequency, for some time before the Constitution’s role in sentencing
juveniles is clarified.
We may also consider changes in professional opinion and
scholarly commentary in finding consensus. See Sweet, 879 N.W.2d at
835–36. Many academics appear comfortable with the idea of either
individualized sentencing or “a system of minimum sentences for juvenile
16
offenders that are shorter in duration than those imposed on their adult
counterparts.” Elizabeth Scott et al., Juvenile Sentencing Reform in a
Constitutional Framework, 88 Temp. L. Rev. 675, 708 (2016) [hereinafter
Scott]. But others assert the time has come to refocus on rehabilitative
efforts, with a heavy emphasis on the availability of parole. See Martin
Gardner, Youthful Offenders and the Eighth Amendment Right to
Rehabilitation: Limitations on the Punishment of Juveniles, 83 Tenn. L.
Rev. 455, 495 (2016) (“Rather than either parole release or individualized
presentencing hearings, the best reading of Roper/Graham/Miller
requires both.”). As one commentator explains,
Given the Court’s acknowledgment of the pre-sentence
impossibility of precisely distinguishing those juveniles
whose crimes are one-time products of “transient
immaturity” and those “rare [offenders] whose crime[s] reflect
irreparable corruption,” rehabilitation programs within
prison with parole release are necessary to effectuate a
youthful offender’s right to a “meaningful opportunity to
obtain release based on demonstrated maturity and
rehabilitation.” Moreover, because rehabilitation can occur
at any time and requires immediate release from prison upon
its occurrence, it follows that mandatory minimum
sentences can no longer be imposed on juvenile offenders if
Graham is followed to its logical conclusions.
Id. at 495–96 (alterations in original) (footnotes omitted) (quoting
Graham, 560 U.S. at 68, 75, 130 S. Ct. at 2026, 2030). In addition, the
American Law Institute (ALI), in section 6.11A of its Model Penal Code:
Sentencing, proposes the court must always have the “authority to
impose a sentence that deviates from any mandatory-minimum term of
imprisonment under state law,” in keeping with its “categorical
disapproval” of mandatory penalty provisions. See Model Penal Code:
Sentencing § 6.11A(f) & cmt. f, at 36, 43 (Am. Law. Inst., Tent. Draft
No. 2, 2011). This section was approved in 2011, one year prior to the
Supreme Court’s guidance in Miller. See Model Penal Code: Sentencing
17
at xii (Am. Law. Inst., Tent. Draft No. 4, 2016). Even then, the ALI
recognized the lessened blameworthiness of juvenile offenders, their
potential for rehabilitation, and the lack of “persuasive empirical support
for the proposition that increased punishment severity acts as an
effective deterrent of criminal acts.” Model Penal Code: Sentencing
§ 6.11A cmt. c(5), at 41 (Am. Law. Inst., Tent. Draft No. 2). The ALI did
not, however, discuss parole availability, aside from noting the then-
recent Graham case. See id. at 44.
Finally, we consider the actions of our own legislature in
determining consensus. See Lyle, 854 N.W.2d at 388. The Iowa
legislature has recently adopted statutes that permit the sentencing
court to depart from statutory minimums. See 2015 Iowa Acts ch. 65,
§ 1 (now codified at Iowa Code § 902.1(2)(a)(2) (2017)) (authorizing the
court to sentence a juvenile convicted of a class “A” felony to “life with
the possibility of parole after serving a minimum term of confinement as
determined by the court”); 2013 Iowa Acts ch. 42, § 14 (now codified at
Iowa Code § 901.5(14)) (“Notwithstanding any provision . . . prescribing a
mandatory minimum sentence for the offense, if the defendant . . . was
under the age of eighteen at the time the offense was committed, the
court may suspend the sentence in whole or in part, including any
mandatory minimum sentence . . . .”). We give substantial “deference to
the legislature when it expands the discretion of the court in juvenile
sentencing” because it “can be ‘the most reliable objective indicator[] 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)). We find “the Code
in general is replete with provisions vesting considerable discretion in
courts to take action for the best interests of the child.” Id. at 388–89
 18
(citing as examples Iowa Code section 92.13; section 232C.3(1), and
section 282.18(5)). We can infer from these latest legislative
developments that the Iowa legislature has embraced the notion of court
discretion when initially sentencing juveniles. To contrast, there is no
indication the Iowa legislature would forbid the court from imposing a
minimum sentence.
In all, no national or community consensus readily emerges to
support Roby’s claim. This “gives us pause.” Sweet, 879 N.W.2d at 836.
In Roper, the Court observed “even in the 20 States without a formal
prohibition on executing juveniles, the practice is infrequent.” Roper,
543 U.S. at 564, 125 S. Ct. at 1192. The rate of legislative change, too,
was significant. Id. at 565, 125 S. Ct. at 1193. Similarly, in Graham, the
Court found the ability to impose life without parole on juveniles existed
widely, but was seldom used except in certain jurisdictions. See
Graham, 560 U.S. at 62–64, 130 S. Ct. at 2023–24. After Graham, many
states acted to forbid the practice. See Sweet, 879 N.W.2d at 835. In
contrast apparently every state permits a minimum sentence. Moreover,
the growing body of constitutional challenges and professional criticism
is still being tested. And finally, our legislature has recently reauthorized
minimum sentences at the discretion of the sentencing court. This all
shows us the individualized hearing process is still being defined, and it
will likely not be the last reform.
B. Independent Judgment. Since consensus is not dispositive of
our inquiry, we turn to our own independent judgment. See id. at 836.
By that, we mean we carefully consider if available information and
evidence would support the categorical elimination of the practice of
sentencing juvenile offenders to a minimum prison term with no
opportunity for parole. It is our duty to use this type of consideration, as
19
“Iowans have generally enjoyed a greater degree of liberty and equality
because we do not rely on a national consensus regarding fundamental
rights without also examining any new understanding.” Lyle, 854
N.W.2d at 387. To this, we note the “watershed”-like change in juvenile
justice over the last decade is not complete. Id. at 390; Cara H. Drinan,
The Miller Revolution, 101 Iowa L. Rev. 1787, 1825 (2016) [hereinafter
Drinan] (addressing “three areas ripe for reform in the wake of Miller: (1)
juvenile transfer laws; (2) presumptive sentencing guidelines as they
apply to children; and (3) juvenile conditions of confinement”). In many
ways, we are still understanding how brain science can make our
juvenile justice system better. However, the State argues the opportunity
to be eligible for parole provides the needed bulwark against overly harsh
mandatory minimum sentences, and we have reached this particular
watershed’s common outlet. We turn to our body of cases to see if more
can be found to support Roby’s categorical argument.
In Lyle, we found our constitution prohibited statutorily imposed
mandatory minimums. See Lyle, 854 N.W.2d at 404. Our reasoning
began with twin principles: (1) Juveniles have diminished culpability,
and (2) penological justifications are less applicable to them. Id. at 393–
94. We look to see if these principles also prohibit judicially imposed
minimum sentences. We find the first is equally applicable to every
juvenile, whether subjected to a statutorily or judicially imposed
minimum sentence. Juveniles “are not fully equipped to make
‘important, affirmative choices with potentially serious consequences.’ ”
Id. at 397 (quoting Bellotti v. Baird, 443 U.S. 622, 635, 99 S. Ct. 3035,
3044 (1979)). They lack maturity and the ability to make reasoned
decisions, they are susceptible to outside influence, and they will likely
change. See Roper, 543 U.S. at 569–70, 125 S. Ct. at 1195. As noted in
20
Miller and Lyle, nothing about this is crime or punishment specific.
Miller, 567 U.S. at ___, 132 S. Ct. at 2465; Lyle, 854 N.W.2d at 399.
Therefore, whether the punishment is handed down by the legislature or
the court, a juvenile’s diminished culpability means it risks being
excessive.
The second principle, diminished penological justifications, is less
compelling when a court is given discretion to impose a minimum
sentence. For example, statutorily imposed mandatory minimums are
not appropriate retribution because “attempting to mete out a given
punishment to a juvenile for retributive purposes irrespective of an
individualized analysis of the juvenile’s categorically diminished
culpability is an irrational exercise.” Lyle, 854 N.W.2d at 399. But
judicially imposed mandatory minimums only follow a hearing on “the
culpability of the offender in addition to the harm the offender caused.”
Id. at 398. Thus, 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.
On the other hand, although we used the phrase “statutorily
mandated,” we have recognized incarceration “[a]fter the juvenile’s
transient impetuosity ebbs and the juvenile matures and reforms . . .
becomes ‘nothing more than the 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)). Therefore, even a judicially imposed
minimum may quickly exceed the sentence necessary to punish the
juvenile offender. Additionally, the justification of deterrence will
normally be irrelevant to all juveniles. See id. at 399 (“If a juvenile will
not engage in the kind of cost-benefit analysis involving the death
21
penalty that may deter them from committing a crime, there is no reason
to believe a comparatively minor sentence of a term of years subject to a
mandatory minimum will do so.”).
Finally, we note all minimum sentences tend to obstruct
rehabilitation. Studies show incarcerating juveniles increases the risk of
recidivism by depriving the juvenile of positive influences during a crucial
time for development. See id. at 400 (“Juvenile offenders who are placed
in prison at a formative time in their growth and formation can be
exposed to a life that can increase the likelihood of recidivism.” (Citation
omitted.)). Perhaps the initial shock of incarceration may scare some
juveniles “straight,” but the damaging effects of the prison environment
on juvenile development are well documented and severe. See, e.g.,
Katherine Hunt Federle, The Right to Redemption: Juvenile Dispositions
and Sentences, 77 La. L. Rev. 47, 59–64 (2016) (identifying increased
recidivism, higher rates of abuse and health problems, reduced
opportunities, and delayed maturation as collateral consequences of
incarcerating juvenile offenders). This is true of all juveniles held with
minimum sentences and is likely made worse by apparent Iowa
Department of Corrections policy leaving them ineligible for rehabilitative
treatment until they near their discharge date.
Thus, “[i]f rehabilitation were the sole proper goal, it would follow
that all sentences for juveniles should come with immediate parole
eligibility.” Seats, 865 N.W.2d at 580–81 (Mansfield, J., dissenting). This
has not been the approach since the progressive reformers of the late
nineteenth century. See Lyle, 854 N.W.2d at 390 (“To ameliorate the
harshness and inequity of trying children in adult courts . . . , reformers
advocated for the establishment of a system less concerned with
ascertaining the child’s guilt or innocence and more concerned with
22
determining what was in the child’s best interests based upon the child’s
unique circumstances.”); see also Null, 836 N.W.2d at 52 (noting juvenile
courts were originally intended to “promote the welfare of juvenile
offenders”). While many may believe it is time for a complete
restructuring of the juvenile justice system to return us to that
understanding, we have never indicated such a change was
constitutionally mandated.
Instead, we repeatedly limited our holding in Lyle to statutorily
imposed minimums. We stated expressly,
It is important to be mindful that the holding in this
case does not prohibit judges from sentencing juveniles to
prison for the length of time identified by the legislature for
the crime committed, nor does it prohibit the legislature from
imposing a minimum time that youthful offenders must
serve in prison before being eligible for parole. Article I,
section 17 only prohibits the one-size-fits-all mandatory
sentencing for juveniles. Our constitution demands that we
do better for youthful offenders—all youthful offenders, not
just those who commit the most serious crimes. Some
juveniles will deserve mandatory minimum imprisonment,
but others may not. A statute that sends all juvenile
offenders to prison for a minimum period of time under all
circumstances simply cannot satisfy the standards of
decency and fairness embedded in article I, section 17 of the
Iowa Constitution.
Lyle, 854 N.W.2d at 403. We expressly authorized our judges to
“sentence those juvenile offenders to the maximum sentence if warranted
and to a lesser sentence providing for parole if warranted.” Id. at 404. In
fact, “[i]f the mandatory minimum period of incarceration is warranted,”
we commanded them to impose the sentence. See id. at 404 n.10.
In sum, applying the two-step inquiry we use for categorical
challenges, we can conclude, at this time, (1) there is no national or
community consensus against imposing minimum terms of incarceration
without the possibility of parole on juveniles, provided they have the
23
opportunity to appear before a neutral decision-maker for an
individualized review; and (2) in our independent judgment article I,
section 17 does not yet require abolition of the practice.
C. Practical Difficulties. Notwithstanding, Roby argues the
practical difficulties in applying the Lyle factors are so substantial that
we should abandon the practice in favor of a categorical prohibition that
would require immediate eligibility for parole. He also points to the
efficacy of the parole board and the procedural difficulties of challenging
the action or inaction of the parole board.
The linchpin of the constitutional protection provided to juveniles
is individualized sentencing. We have on numerous occasions discussed
the nature of this sentencing and the role of the court in imposing the
sentence. See e.g., Seats, 865 N.W.2d at 555–56 (majority opinion); Lyle,
854 N.W.2d at 404 n.10; Null, 836 N.W.2d at 74–75. We endorse the five
factors identified in Miller as guideposts for courts to follow. Lyle, 854
N.W.2d at 404 n.10. Yet, as this case and others illustrate, difficulties in
applying the factors are obvious. See Sweet, 879 N.W.2d at 838.
Nevertheless, we are not prepared to conclude that practice has
proven the five factors to be unworkable. Instead, the difficulties in
applying the factors are a call for clearer guidance to permit them to
supply the required protection demanded by our constitution. This
observation is not a criticism in any way, but a recognition that justice
advances in steps.
The five factors were drawn from the reasons that created the
fundamental constitutional proposition that harsh criminal sentences
are no longer appropriate for juvenile offenders. They are woven from the
growing body of scientific research and represent our current and best
understanding of the distinct features of human development. Our laws
24
have always sought to give special consideration to youth. Our ability to
integrate this consideration into the law simply gets better over time as
our understanding improves. The change that results from this
understanding is what a justice system gives a democracy when it is
doing its job under the Constitution. It is what the Supreme Court did
fifty years ago in In re Gault when it changed the historic approach to
dealing with juvenile offenders and recognized that youthful offenders are
constitutionally entitled to the same type of procedural protections
provided to other criminal offenders. 387 U.S. 1, 27–28, 87 S. Ct. 1428,
1444 (1967). It reached this conclusion based in large measure on
research showing procedural fairness promotes rehabilitation and
reform. See id. at 26, 87 S. Ct. at 1443.
We also recognize that our constitution establishes a baseline, and
courts are not alone in developing new standards to protect juvenile
offenders from overly harsh sentencing. The legislature is uniquely
suited to identifying and adopting additional substantive and procedural
protections to further the constitutional recognition that “children are
different.” See Seats, 865 N.W.2d at 555 (quoting Miller, 567 U.S. at ___,
132 S. Ct. at 2469). For example, our legislature has already acted to
authorize sentencing courts to suspend or defer the sentences of
juveniles. See Iowa Code § 901.5(14). We would call attention to other
efforts advocated by leading scholars in this area, such as reforming
juvenile transfer laws, establishing appropriate facilities for juvenile
confinement, sealing and expunging juvenile criminal records, and
expanding access to educational and treatment programs while
incarcerated, to name a few. See Drinan, 101 Iowa L. Rev. at 1825–26,
1828–31; Scott, 88 Temp. L. Rev. at 708–09, 712. Thus, we too now turn
25
back to understand why the factors have led to difficulties and to
consider what can be done to provide greater guidance.
In doing so, we begin by emphasizing some basic propositions we
have previously described. First, the factors generally serve to mitigate
punishment, not aggravate punishment. Lyle, 854 N.W.2d at 402 n.8.
Second, juvenile sentencing hearings are not entirely adversarial. The
goal is to craft a “punishment that serves the best interests of the child
and of society.” Id. at 402. Third, the default rule in sentencing a
juvenile is that they are not subject to minimum periods of incarceration.
See Null, 836 N.W.2d at 74 (“First, the district court must recognize that
because ‘children are constitutionally different from adults,’ they
ordinarily cannot be held to the same standard of culpability as adults in
criminal sentencing.” (quoting Miller, 567 U.S. at ___, 132 S. Ct. at
2464)).
Finally, we note these factors have unique challenges on
resentencing. Objective indicia of a juvenile’s relevant characteristics
may be difficult or impossible to obtain ten or twenty years later.
However, the factors do not lose relevance. There are baseline “average
developmental characteristics of youth of the age that the prisoner was
when he or she committed the offense,” which the parties can then use
as evidence of the juvenile’s conduct after the offense to show the
juvenile “conformed to or departed from developmental norms.” Scott, 88
Temp. L. Rev. at 702. Additionally, while objective indicia may be
elusive, it may still be available in the form of contemporaneous medical
records or school and disciplinary reports. Id. Interviews of relevant
individuals’ recollection, as opposed to their current perception, may also
be helpful. See id. Applied to this record, we are not prepared to assume
these inquiries were made but returned nothing.
26
D. The Individualized Hearing. Accordingly, we turn to analyze
each factor to provide greater understanding of its role in juvenile
sentencing. Properly applied, these factors ensure the constitutional
guarantee against cruel and unusual punishment is satisfied.
1. Age and features of youthful behavior. The first factor is the
“age of the offender and the features of youthful behavior.” Lyle, 854
N.W.2d at 404 n.10 This factor is the basis for the core constitutional
protection extended to juvenile offenders. See id. at 398 (“First and
foremost, the time when a seventeen-year-old could seriously be
considered to have adult-like culpability has passed.”). The features of
age that give rise to this protection include “immaturity, impetuosity, and
[a] failure to appreciate risks and consequences.” Id. at 404 n.10
(quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2468). The factor draws
upon the features expected to be exhibited by youthful offenders that
support mitigation and allows for the introduction of evidence at the
sentencing hearing to show the offender had more or less maturity,
deliberation of thought, and appreciation of risk-taking than normally
exhibited by juveniles. This factor is most meaningfully applied when
based on qualified professional assessments of the offender’s decisional
capacity. See Scott, 88 Temp. L. Rev. at 696–97 (describing use of
“validated assessment methods,” review of “the youth’s facility under
real-life conditions,” and an expert’s “developmental and clinical
knowledge and experience to integrate [the] information”).
Additionally, age is not a sliding scale that necessarily weighs
against mitigation the closer the offender is to turning eighteen years old
at the time of the crime. See Elizabeth S. Scott et al., Young Adulthood
as a Transitional Legal Category: Science, Social Change, and Justice
Policy, 85 Fordham L. Rev. 641, 647 (2016) (noting “developmental
27
changes . . . continue into the early twenties”). When the Miller Court
referred to “chronological age” in identifying the need to distinguish the
criminal sentencing of children from adults, it did not suggest that a
seventeen-year-old child is more deserving of adult punishment than a
sixteen-year-old child, or a fifteen-year-old child more deserving than a
fourteen-year-old child. See Miller, 567 U.S. at ___, 132 S. Ct. at 2467
(“[Y]outh is more than a chronological fact.” (quoting Eddings v.
Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 877 (1982))). It referred to
“chronological age” as a unit of age that distinguishes children from
adults. See id. The court recognized that children within this unit have
“signature qualities” of “immaturity, irresponsibility, ‘impetuousness[,]
and recklessness.’ ” Id. (alteration in original) (quoting Johnson v. Texas,
509 U.S. 350, 368, 113 S. Ct. 2658, 2669 (1993)). Thus, minority status
is the designated factor that supports the special sentencing
consideration and expert evidence may be used to conclude any
particular juvenile offender possessed features of maturity beyond his or
her years. This is not to say judges cannot and should not be alert to
circumstances that might suggest the age of a particular offender might
not support mitigation. Yet, categorical age groups do not exist for
children to justify using age alone as a factor against granting eligibility
for parole.
2. Family and home environment. The second factor is “the
particular ‘family and home environment’ that surround the youth.”
Lyle, 854 N.W.2d at 404 n.10 (quoting Miller, 567 U.S. at ___, 132 S. Ct.
at 2468). This factor seeks to identify any familial dependency and
negative influences of family circumstances that can be ingrained on
children. Scott, 88 Temp. L. Rev. at 698. As with the first factor, expert
testimony will best assess how the family and home environment may
28
have affected the functioning of the juvenile offender. Id. (describing the
use of “psychometric measures,” including “ ‘social maturity scales’ . . .
[that] assess the youth’s degree of independence and self-direction in
everyday functioning”). This factor does not rely on general perceptions,
but specific measures of the degree of functioning. Furthermore, it is not
limited to extremely brutal or dysfunctional home environments, but
considers the impact of all circumstances and all income and social
backgrounds.
3. The circumstances of the crime. The third factor considers the
circumstances of the crime. Lyle, 854 N.W.2d at 404 n.10. Within these
circumstances, attention must be given to the juvenile offender’s actual
role and the role of various types of external pressure. Thus, this factor
is particularly important in cases of group participation in a crime.
Expert testimony will be helpful to understand the complexity behind the
circumstances of a crime when influences such as peer pressure are not
immediately evident and will aid the court in applying the factor properly.
See Scott, 88 Temp. L. Rev. at 698. Yet, the prominence of peer pressure
in the analysis of this factor does not mean the factor cannot support
mitigation for crimes committed alone. See id. (“[P]eer influence can play
a more subtle role in adolescent behavior, as when teenagers engage in
behavior that they think will win peer approval (‘showing off,’ for
example), or simply encourage one another through group interaction.”).
Likewise, the circumstances of the crime do not necessarily weigh
against mitigation when the crime caused grave harm or involved
especially brutal circumstances. As the Court said in Miller, the special
analysis for juveniles is not “crime-specific.” 567 U.S. at ___, 132 S. Ct.
at 2465. Mitigation normally is warranted in all crimes. The aggravating
29
circumstances of a crime that suggest an adult offender is depraved may
only reveal a juvenile offender to be wildly immature and impetuous.
4. Legal incompetency. The fourth factor is the legal incompetency
associated with youth. Lyle, 854 N.W.2d at 404 n.10. It mitigates
against punishment because juveniles are generally less capable of
navigating through the criminal process than adult offenders. See Scott,
88 Temp. L. Rev. at 699. Thus, the same shortsightedness of thought
tied to juvenile behavior in the commission of a crime can also surface in
their subsequent dealings in the legal process. These juvenile
deficiencies can play out in general competency to stand trial or relate
more specifically to cognitive or other incapacities to withstand police
interrogation. See id. The relevance of this factor ultimately relates to
the general proposition that youthful offenders are less able to confront
the legal process. Whether a particular youth would be more capable
than most would normally be a matter for expert testimony.
5. Rehabilitation. The final factor is the possibility of rehabilitation
and the capacity for change. Lyle, 854 N.W.2d at 404 n.10. This factor
supports mitigation for most juvenile offenders because delinquency is
normally transient, and most juveniles will grow out of it by the time
brain development is complete. See Scott, 88 Temp. L. Rev. at 700.
Additionally, juveniles are normally more malleable to change and reform
in response to available treatment. Id. at 701. The seriousness of the
crime does not alter these propositions. Id. at 700. Thus, judges cannot
necessarily use the seriousness of a criminal act, such as murder, to
conclude the juvenile falls within the minority of juveniles who will be
future offenders or are not amenable to reform. Again, any such
conclusion would normally need to be supported by expert testimony. Id.
at 701.
 30
6. Discretion exercised by the district court. We appreciate the
difficulty judges can often face when called upon to decide if juvenile
offenders should be eligible for parole. Yet, the factors used to apply the
constitutional principle at stake in this decision will best serve their
purpose if sentencing courts remain committed to several key
observations. First, the five factors identify the primary reasons most
juvenile offenders should not be sentenced without parole eligibility. A
sentence of incarceration without parole eligibility will be an uncommon
result. Second, the factors 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. Third,
the factors cannot be applied detached from the evidence from which
they were created and must not be applied solely through the lens of the
background or culture of the judge charged with the responsibility to
apply them. Perceptions applicable to adult behavior cannot normally be
used to draw conclusions from juvenile behavior.
In the end, this case shows how the factors can be misused. The
district court in this case misused the first factor—age and the features
of youthful behavior—by considering the evidence at trial that Roby
continued to engage in sexual abuse after he was confronted about his
improper physical contact with the victim. This evidence does not in any
way undermine the recognized failure of juveniles to appreciate risks and
consequences and their tendency to make immature and impetuous
decisions. Thus, the finding by the district court could have only been
based on the court’s own observation that the features of youth are
overcome by the warning Roby received. No such evidence supported
this finding.
31
The district court addressed the second factor—family and home
environment—with evidence that Roby sexually abused the victim during
the time the victim’s family was providing him with a home. Again, this
evidence does not undermine what the second factor seeks to convey—
that family and home environment often can affect the functions of a
juvenile. Thus, the finding by the district court was essentially unrelated
to the factor. The district court seemed to suggest Roby acted with a
sinister disposition by abusing the victim while the victim’s family was
helping provide him with a home.
The district court addressed the third factor—the circumstances of
the crime—with evidence that the crime was not the result of peer
pressure, Roby exhibited no concern for harm caused to the victim, and
he betrayed the kindness of the victim’s family. The role of peer pressure
in juvenile crime does not make the absence of peer pressure an
aggravating circumstance. Furthermore, a sentencing judge cannot
normally draw such conclusions from the circumstances of the crime
without expert testimony.
The district court in this case did not consider the fourth factor—
legal incompetency. If this factor had been considered, the evidence
showed Roby initially thought or pretended to think he was being
investigated for stealing a video game, confessed to police during an
interrogation that was subsequently suppressed by the court as
involuntary, and may not have been adequately communicating on trial
strategy with his attorney. All of this could be evidence of the legal
incompetency we normally associate with youth.
Finally, the court addressed the fifth factor—rehabilitation—with
evidence that Roby never admitted his criminal actions and has
continued to deny committing a crime. It concluded this attitude did not
32
make him amenable to rehabilitation. While this evidence is relevant, no
evidence was presented that Roby ever received any treatment to aid in
rehabilitation. Overall, the evidence at sentencing was insufficient to
support a conclusion that Roby was within the small group of juvenile
offenders that never aged out of his delinquent conduct or was not
amenable to rehabilitation.
7. Summary. On our review of the five factors identified in Lyle,
bolstered by the recommendations of leading legal and medical
professionals in this area, we conclude the district court abused its
discretion by imposing a sentence of incarceration without parole
eligibility. The evidence presented at the sentencing hearing could not,
as a matter of law, support the imposition of incarceration without an
opportunity for parole under the five factors that must be observed at
sentencing to ensure that the punishment does not violate article I,
section 17 of the Iowa Constitution. The district court applied the
factors, but not in the manner required to protect the juvenile offender
from cruel and unusual punishment.
IV. Conclusion.
We conclude article I, section 17 of the Iowa Constitution does not
categorically prohibit the imposition of a minimum term of incarceration
without the possibility of parole on a juvenile offender, provided the court
only imposes it after a complete and careful consideration of the relevant
mitigating factors of youth. We recognize the difficulties of individualized
hearings, but decline at this time to hold our constitution requires
abandonment of the practice. Instead, we take this opportunity to
provide additional guidance to our courts, attorneys, and juveniles on the
use of the factors and the content of a sentencing hearing. While we
conclude the district court abused its discretion in this case, we are
33
confident the additional direction provided by this case will lead to
sentencing more consistent with our constitutional principles.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT SENTENCE VACATED AND CASE REMANDED WITH
INSTRUCTIONS.
Wiggins and Appel, JJ., join this opinion. Hecht, J., files a
concurring opinion. Appel, J., files a separate concurring opinion in
which Wiggins, J., joins. Zager, J., files a dissenting opinion in which
Waterman, and Mansfield, JJ., join.
34
#15–0175, State v. Roby
HECHT, Justice (concurring specially).
I concur in the determination that Christopher Roby’s prison
sentence must be vacated. I write separately, however, to express my
view that article I, section 17 of the Iowa Constitution prohibits a
mandatory term of incarceration for any offense committed by a juvenile
offender.
In State v. Lyle, 854 N.W.2d 378 (Iowa 2014), we concluded “a
mandatory minimum sentencing schema . . . violates article I, section 17
of the Iowa Constitution when applied in cases involving conduct
committed by youthful offenders.” 854 N.W.2d at 402. We reasoned that
a statute that “sends all juvenile offenders to prison for a minimum
period of time under all circumstances simply cannot satisfy the
standards of decency and fairness embedded in [our constitution].” Id. at
403. Our decision in Lyle left room, however, for the possibility that
“[s]ome juveniles will deserve mandatory minimum imprisonment, but
others may not,” id., and left this differentiation to the district court with
due consideration of the Miller factors focusing upon “youth and its
attendant circumstances as a mitigating factor.” Id. at 402 n.8, 404
(citing Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012)). We
noted the “keystone of our reasoning is that youth and its attendant
circumstances and attributes make a broad statutory declaration
denying courts this very discretion categorically repugnant to article I,
section 17 of our constitution.” Id. at 402–03.
In my subsequent concurring opinion in State v. Seats, 865
N.W.2d 545 (Iowa 2015), I expressed “my lack of confidence in [this
court’s] ability to conceive—or in sentencing courts’ ability to apply
consistently—a principled standard for identifying the uncommon or rare
35
circumstances” justifying a denial of an opportunity for parole for
juvenile offenders sentenced to life in prison. 865 N.W.2d at 560
(Hecht, J., concurring). In that opinion, I explained why several of the
Miller factors are not helpful in assessing the relative capacities of
juvenile offenders for maturation and rehabilitation, and I concluded
article I, section 17 mandates prohibition of life-without-parole sentences
for all juveniles convicted of homicide offenses. Id. at 561–62, 563.
The infirmities of the Miller factors led me to reject them in Seats
as a framework for identifying the rare juvenile offenders convicted of
homicide who lack the capacity to mature and be rehabilitated. I now
conclude the infirmities are no less profound when applied by judges
sentencing juvenile offenders convicted of lesser offenses. Like the
Supreme Judicial Court of Massachusetts, I believe the “back end”
parole-board mechanism better accommodates juveniles’ capacity for
change than a “front end” irrevocable determination of eligibility for
parole. See Diatchenko v. Dist. Att’y, 1 N.E.3d 270, 282–85 (Mass. 2013).
The compelling reasons counseling against mandatory statutory
deprivations of juvenile offenders’ opportunities for parole should lead us
to conclude there is no constitutionally sound basis for empowering
judges to make calls on eligibility of juvenile offenders for parole based
on unsound predictive criteria.
Consistent with this conclusion, I concur with the majority’s
conclusion that the sentence rendering Roby ineligible for parole for a
term of seventeen and one-half years violated article I, section 17 of the
Iowa Constitution.
36
#15–0175, State v. Roby
APPEL, Justice (concurring specially).
I join in the court’s opinion but write separately to emphasize why.
The court’s opinion leaves the door ajar, at least in theory, that a
juvenile offender might be sentenced to a lengthy adult minimum
sentence. But, as we have now repeatedly stated, “children are
constitutionally different” when it comes to sentencing for crimes. State
v. Null, 836 N.W.2d 41, 65 (Iowa 2013) (quoting Miller v. Alabama, 567
U.S. 460, ___, 132 S. Ct. 2455, 2464 (2012)); accord State v. Seats, 865
N.W.2d 545, 556 (Iowa 2015); State v. Lyle, 854 N.W.2d 378, 395 (Iowa
2014). The multifactored Miller test, as shaped by this court, powerfully
drives the analysis toward a finding that children are constitutionally
different and therefore, as a general proposition, juvenile offenders
cannot be sentenced to mandatory adult minimums.
Although we have not expressly said so, the State in theory may
overcome these factors by presenting what amounts to a case of
psychopathy demonstrating, among other things, resistance to change
and a stunting of the ordinary maturation process. But so far,
psychopathy measures during adolescence that have been developed by
experts have unacceptable false positive rates when used to make
individualized predictions. See Thomas Grisso & Antoinette Kavanaugh,
Prospects for Developmental Evidence in Juvenile Sentencing Based on
Miller v. Alabama, 22 Psychol., Pub. Pol’y, & L. 235, 240 (2015).
According to a recent comprehensive review of the literature, available
measures of psychopathy in adolescents “have not established a
sufficiently high level of stability . . . to warrant testimony about whether
a youth has a psychopathic personality disorder.” Id. (quoting Gina M.
Vincent et al., Juvenile Psychopathy: Appropriate and Inappropriate Uses
37
in Legal Proceedings in APA Handbook of Psychology and Juvenile Justice
219 (Kirk Heilbrun et al., eds., 2016)).
As a result, I do not think as a practical matter there is much
difference between the court’s approach and the categorical approach in
State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016). The seventeen and
one-half-year mandatory sentence in this case is less draconian than a
life-without-the-possibility-of-parole sentence in Sweet, but the crimes
are less serious, too. Although the stakes are lower, I think there are
solid reasons to extend the categorical approach of Sweet to this case.
Once again, of course, such an approach would not be an entitlement to
early release, but only to a meaningful opportunity to show rehabilitation
prior to the expiration of a seventeen and one-half-year mandatory
sentence.
Nonetheless, for now I join the court’s opinion. If implementation
of this decision proves inconsistent, confusing, difficult, or unworkable,
the obvious solution would be to move to the analysis in Sweet and
categorically eliminate the application of adult mandatory minimum
sentences to juvenile offenders.
Wiggins, J., joins this special concurrence.
38
#15–0175, State v. Roby
ZAGER, Justice (dissenting).
The court giveth and the court taketh away. In part III.A–B of its
opinion, the court correctly concludes that the Iowa Constitution does
not categorically prohibit a district judge, after a hearing on all relevant
factors, from sentencing a juvenile who commits a serious felony such as
rape, armed robbery, or murder, to a minimum period of incarceration
before the juvenile is eligible for parole. However, this correct but limited
conclusion in III.A–B is subsequently undermined by other aspects of the
opinion.
The court introduces a number of statements that go beyond what
this court has decided in its prior juvenile sentencing opinions. For
example, the court declares that minimum periods of incarceration need
to be “short” and “uncommon.” These statements can, and I expect will,
be seized upon in future cases to strike down any minimum term of
incarceration.
More directly, in part III.C–D, the court restates the relevant
factors in a way that will make it difficult, if not practically impossible,
for a sentencing judge to ever impose any minimum term of
incarceration. These significant, practical implications are another
impediment to our district court judges who expend substantial time and
energy exercising their discretion in sentencing. Every application of
every factor must weigh in favor of the defendant. I have repeatedly
cautioned that this approach, in effect, removes any sentencing
discretion from the district court and “bestows upon our appellate courts
the freedom to impose their members’ judgments about the
appropriateness of a sentence.” State v. Lyle, 854 N.W.2d 378, 412 (Iowa
2014) (Zager, J., dissenting).
39
Moreover, it is now apparent that expert testimony will be required
on both sides before a juvenile can be sentenced to any minimum period
of incarceration. The court’s opinion thus endorses and perpetuates the
cottage industry that has developed for mitigation experts—a burden not
only for the district court judges and the State, but also for the juvenile
defendants themselves, many of whom are represented by a public
defender or who may otherwise be constrained by costs. In short, while
the court has technically not invalidated all minimum terms of
incarceration for juveniles, today’s opinion will have that effect in the real
world in which our district courts must operate. And the question that
must be asked is: will the sentence of the district court be any more valid
or constitutional? I don’t believe so.
The majority opinion takes our state even farther away from the
national consensus, but it provides no adequate justification for this
continued extension in juvenile sentencing. The restatement of the
relevant factors does not make sense, and the court’s continued push to
shift authority from our district court judges to the parole board will not
achieve the outcomes it would like to see.
I. Today’s Extensions of Lyle Move Us Farther Away from
Other Jurisdictions.
Today’s decision pulls Iowa farther away from the rest of the
nation. In 2014, this court declared unconstitutional any sentencing law
requiring individuals under the age of eighteen who committed felonies to
be incarcerated for any mandatory minimum period of time. See Lyle,
854 N.W.2d at 400 (majority opinion). This rule applied no matter how
heinous the crime, such as first-degree murder, or how short the period
of incarceration, such as one year. See id. All such sentences were
deemed cruel and unusual. To its credit, the majority acknowledged in
40
Lyle the uniqueness of its decision. “[W]e recognize no other court in the
nation has held that its constitution or the Federal Constitution prohibits
a statutory schema that prescribes a mandatory minimum sentence for a
juvenile offender.” Id. at 386.
Three years have passed since Lyle was decided. Not surprisingly,
criminal defense lawyers in other jurisdictions have urged their states to
follow Lyle. None have accepted the invitation. See, e.g., State v. Imel,
No. 2 CA–CR 2015–0112, 2015 WL 7373800, at *3 (Ariz. Ct. App. Nov.
20, 2015) (“[W]e disagree with Lyle’s characterization of the Court’s
holding in Miller [v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012)].”);
People v. Rigmaden, No. C071533, 2015 WL 5122916, at *18 (Cal. Ct.
App. Sept. 1, 2015) (declining to follow Lyle while observing that “policy
arguments about sentencing juveniles in light of current research on the
developing brains of adolescents (neuroscience)” are “more properly
directed to the Legislature”); People v. Applewhite, 68 N.E.3d 957, 964
(Ill. App. Ct. 2016) (“[W]e are not persuaded by the defendant’s reliance
on an Iowa Supreme Court case finding that all mandatory minimum
juvenile sentences are unconstitutional.”); State v. Anderson, No. 26525,
2016 WL 197122, at *11 (Ohio Ct. App. Jan. 15, 2016) (“The only
authority Anderson cites directly supporting the proposition that all
mandatory minimum sentences imposed on juveniles tried in adult court
constitute cruel and unusual punishment is [Lyle]. . . . Upon review, we
decline to adopt the majority approach in Lyle.”); State v. Barbeau, 883
N.W.2d 520, 533–34 (Wis. Ct. App. 2016) (declining to follow Lyle).
In fairness, it should be noted the Washington Supreme Court
recently held that under the Eighth Amendment, a trial court sentencing
juveniles in the adult criminal justice system “must be vested with full
discretion to depart from the sentencing guidelines and any otherwise
41
mandatory sentence enhancements, and to take the particular
circumstances surrounding a defendant’s youth into account.” State v.
Houston-Sconiers, 391 P.3d 409, 426 (Wash. 2017). Yet, the Washington
court did not rely on its state constitution, did not mention Lyle, and did
not hold that the trial court has an affirmative obligation to hold a
hearing covering all the Miller factors in every case (as opposed to simply
receiving and considering such evidence when it was offered). Id. at 419–
20 Also, the Washington court confirmed that the trial court sentencing
juveniles in the adult criminal justice system must be vested with “full
discretion” to depart from prescribed sentences. Id. at 421 I have not
seen such a confirmation of discretion in our sentencing judges in any of
our juvenile sentencing opinions. While the Washington Supreme Court
may have reached a “similar conclusion,” it did not cite to our opinion.
In light of Lyle’s negative reception in other states, I think a more
cautious approach is appropriate. Instead, today’s opinion extends Lyle.
Consider the following examples. In Lyle, we said “juveniles can still be
sentenced to long terms of imprisonment, but not mandatorily.” 854
N.W.2d at 401 (emphasis added). Just one year ago, in State v. Sweet,
this court assured everyone that even doing away with the option of life
without parole was only a “marginal” change because juveniles who
committed murder would still serve “a substantial period of
incarceration.” 879 N.W.2d 811, 835 (Iowa 2016) (emphasis added). The
majority now takes the opposite approach, walking away from its
previously stated position. The majority says instead that “it may be
appropriate retribution to incarcerate a juvenile for a short time without
the possibility of parole” and “a sentencing judge could properly conclude
a short term of guaranteed incarceration is necessary to protect the
public.” So “long” and “substantial” have now been replaced by “short.”
42
If we keep changing the standards, how can we expect our district court
judges to reliably apply any sentencing factors?
In Lyle, we said that “[s]ome juveniles will deserve mandatory
minimum imprisonment, but others may not.” 854 N.W.2d at 403. We
added,
[Trial] judges will do what they have taken an oath to do.
They will apply the law fairly and impartially, without fear.
They will sentence those juvenile offenders to the maximum
sentence if warranted and to a lesser sentence providing for
parole, if warranted.
Id. at 404. But today we announce that “[a] sentence of incarceration
without parole will be an uncommon result.” In other words, the district
court’s discretion to do what is warranted by the facts in front of it must
give way to a mandate that, except in rare and yet undefined
circumstances, the juvenile must be immediately parole eligible. In
reality, the majority’s opinion makes the district court’s sentencing
discretion merely illusory.
In Lyle, we distinguished between “inane juvenile schoolyard
conduct” and “cold and calculated adult conduct,” recognizing that some
juvenile conduct was subject to deterrence. Id. at 401. Today, though,
the majority concludes that “the justification of deterrence will normally
be irrelevant to all juveniles.” I strongly disagree. Both this court and
the Supreme Court have continuously acknowledged that, while
deterrence has less weight in the analysis of the penological justifications
for juvenile sentencing due to the impetuosity of juvenile decision
making, it still has some weight in every case. Roper v. Simmons, 543
U.S. 551, 570, 125 S. Ct. 1183, 1196 (2005) (“[T]he same characteristics
that render juveniles less culpable than adults suggest as well that
juveniles will be less susceptible to deterrence.”); Lyle, 854 N.W.2d at
43
399 (“We add that a deterrence rationale is actually even less applicable
when the crime . . . is lesser.”); State v. Null, 836 N.W.2d 41, 63 (2013)
(“The [Supreme] Court concluded deterrence has less validity because of
the ‘impetuous and ill-considered’ nature of juvenile decision making.”
(quoting Graham v. Florida, 560 U.S. 48, 72, 130 S. Ct. 2011, 1028–29
(2010))).
Now, we have again changed the standards and concluded that
instead of simply having less weight in our analysis, deterrence is now
“normally irrelevant to all juveniles.” In practice, what does this mean?
How is “less weight” different from “normally irrelevant,” and how are our
district court judges supposed to realistically apply this penological goal
when the goalposts have shifted yet again? I think the court’s
observation on the irrelevance of deterrence would surprise most parents
who believe that deterrence can be effective with their children. Indeed,
there is a sense in which this court’s ever-expanding juvenile
jurisprudence demeans the great majority of youth who do not commit
serious felonies.
This approach also moves us away from the Model Penal Code:
Sentencing approach to juvenile sentencing. While the Model Penal Code
gives priority to rehabilitation and reintegration into society, it does not
foreclose the use of the penological goal of deterrence. Model Penal Code:
Sentencing § 6.11A(b), at 215 (Am. Law Inst., Proposed Final Draft 2017);
id. cmt. (c)(5), at 220–21. Thus, the Model Penal Code would allow for
“the judge’s ability to find, when supported by the facts, that an offender
under 18 acted with an unusually high degree of personal
blameworthiness.” Id. at 218. It adds that courts “must also attend to
the ‘gravity of offenses’ and the ‘harms done to crime victims’ when
reaching final judgments of proportionality. The seriousness of the
44
victim injuries does not diminish when their assailants were underage.”
Id. Notably, the Model Penal Code is, as its name states, a model for
adoption by legislatures, not a constitutional minimum. Yet even with
this model, the consensus of the American Law Institute is that other
considerations besides rehabilitation may enter into juvenile sentencing.
II. There Is No Jurisprudential Basis for the Majority’s
Extensions of Lyle.
These extensions of Lyle find no support in the text of article I
section 17, which only prohibits “cruel and unusual punishment[s].”
Iowa Const. art. I, § 17. Ordering a sixteen- or seventeen-year-old who
commits a rape, an armed robbery, or a murder to serve some amount of
time before being eligible for parole is neither cruel nor unusual.
Nor do the majority’s statements find support in established
jurisprudence. For example, Miller indicated that the “harshest possible
penalty,” i.e., life without parole, should be “uncommon” for juvenile
homicide offenders. 567 U.S. at ___, 132 S. Ct. at 2469 (“[W]e think
appropriate occasions for sentencing juveniles to this harshest possible
penalty will be uncommon.” (Emphasis added.)). Today, as noted above,
the court says that minimum prison terms of any length for juveniles
should be uncommon. This twists words to give the impression that the
court is simply following in the tracks of Miller when in reality, it is not.
To give another example, Miller said that juveniles are “less likely
to consider potential punishment” before committing crimes. Id. at ___,
132 S. Ct. at 2465. As a general statement, that is probably true. But
the majority takes Miller to an extreme by stating that “deterrence will
normally be irrelevant to all juveniles.” There is a big difference between
holding that the less developed brain of juveniles should make it rare
and difficult to give them the most serious punishment, as the Court did
45
in Miller, and holding that it should make it rare and difficult to punish
them at all, which is the gist of today’s decision.
As before, the majority draws heavily on law review articles as a
basis for today’s decision. In stark contrast to how it has been received
by actual courts, the court’s Lyle decision has been enthusiastically
welcomed by law review writers. See, e.g., Cara H. Drinan, The Miller
Revolution, 101 Iowa L. Rev. 1787, 1817 (2016); Lindsey E. Krause, One
Size Does Not Fit All: The Need for a Complete Abolition of Mandatory
Minimum Sentences for Juveniles in Response to Roper, Graham, and
Miller, 33 Law & Ineq. 481, 493 (2015); Elizabeth Scott et al., Juvenile
Sentencing Reform in a Constitutional Framework, 88 Temp. L. Rev. 675,
707–08 (2016) [hereinafter Scott].
To be clear, legal scholarship plays a vital and necessary role in
germinating new concepts, fusing other disciplines to law, and knocking
down badly reasoned judicial opinions. But it is one thing to regard a
nonpeer-reviewed law review article as a source of ideas and quite
another to regard it as authority. Unlike a court, which in a meaningful
way must live with its decision, law review writers have no skin in the
game. They can freely expound without bearing the responsibility for an
actual decision that (like Lyle) has real-world consequences.
III. The Court Has Redefined the Miller Factors in a Way That
Will Make It Practically Very Difficult to Sentence a Juvenile to Any
Minimum Amount of Incarceration, Regardless of the Crime and the
Characteristics of the Person Who Committed It.
Over the last three years, Lyle has led to hundreds of sentencings
and resentencings. District judges, prosecutors, and defense lawyers
have worked countless hours to do what we asked them to do.
Furthermore, the court of appeals has undertaken appellate review of
numerous Lyle sentencings and resentencings. See, e.g., State v. White,
46
No. 15–0829, 2016 WL 4801436 (Iowa Ct. App. Sept. 14, 2016); State v.
Null, No. 15–0833, 2016 WL 4384614 (Iowa Ct. App. Aug. 17, 2016);
State v. Zarate, No. 15–0451, 2016 WL 3269569 (Iowa Ct. App. June 15,
2016); State v. Chany, No. 15–0340, 2016 WL 1705160 (Iowa Ct. App.
Apr. 27, 2016); State v. Tuecke, No. 15–0617, 2016 WL 1681524 (Iowa
Ct. App. Apr. 27, 2016); State v. Bullock, No. 15–0077, 2016 WL 1130311
(Iowa Ct. App. Mar. 23, 2016); State v. Wise, No. 15–0192, 2016 WL
894377 (Iowa Ct. App. Mar. 9, 2016); State v. Davis, No. 14–2156, 2016
WL 146528 (Iowa Ct. App. Jan. 13, 2016); State v. Giles, No. 15–0021,
2015 WL 9450810 (Iowa Ct. App. Dec. 23, 2015); State v. Hajtic, No. 15–
0404, 2015 WL 6508691 (Iowa Ct. App. Oct. 28, 2015).
What our judges need and want from this court is an intelligent
and practical roadmap to guide them in their sentencing decisions—that
is, an illustration of a sentencing or resentencing that complies with this
court’s opinions and allows them the discretion to provide appropriate
juvenile offenders with a minimum period of incarceration. But the court
does not provide such a roadmap. Again, this court simply redefines the
Miller factors in a way that will make it extraordinarily difficult to
sentence a juvenile to any minimum term of imprisonment, regardless of
the individual factors related to the person or any consideration of the
crime he or she committed. The majority continues to focus on the
defendant’s potential for rehabilitation without giving any weight to
public safety, deterrence, or incapacitation. Indeed, the majority’s
analysis only uses the word “victim” when quoting the district court.
These newly redefined factors are not only unfair to our district court
judges, but also unworkable.
A. Chronological Age. The first Miller factor is “the ‘chronological
age’ of the youth and the features of youth, including ‘immaturity,
47
impetuosity, and failure to appreciate risks and consequences.’ ” State v.
Ragland, 836 N.W.2d 107, 115 n.6 (Iowa 2013) (quoting Miller, 567 U.S.
at ___, 132 S. Ct. at 2468). Yet, today’s opinion provides a subtle
change. The word “chronological” has been dropped. So, whereas Miller
specifically distinguished between the seventeen-year-old and the
fourteen-year-old, and emphasized that the cases before it involved
fourteen-year-olds, according to today’s opinion all ages under eighteen
are a mitigating factor unless the State introduces “expert evidence [that
the] offender possessed features of maturity beyond his or her years.”
This renders the age factor meaningless. We do not live in a fictional
world where all children are above average. If all juveniles receive the
same mitigation, unless the State offers expert evidence of
superannuated wisdom, then in a real sense no one receives mitigation.
The fourteen-year-old cannot be treated more leniently than the
seventeen-and-a-half year-old who commits the same crime.
B. Family and Home Environment. The second Miller factor is
the juvenile’s “family and home environment.” 567 U.S. at ___, 132
S. Ct. at 2468. Miller asked the court to consider the juvenile’s “family
and home environment . . . no matter how brutal or dysfunctional.” Id.
Now, instead of analyzing the extent a brutal or dysfunctional family
situation “from which [a juvenile] cannot usually extricate himself [or
herself],” id., the majority seeks to impose the requirement of expert
testimony to “assess how the family and home environment may have
affected the functioning of the offender.” Rather than allowing the
district court to exercise its intellect and discretion in determining the
mitigating weight of a particular juvenile’s home environment, the
majority now requires expert testimony based on “social maturity
scales . . . [that] assess the degree of independence and self-direction in
48
everyday functioning” in every juvenile sentencing—even if the juvenile
may come from a seemingly well-functioning family background. Scott,
88 Temp. L. Rev. at 698. The Supreme Court’s decision in Miller focused
on the extreme—a brutal or dysfunctional family environment from
which a juvenile cannot extricate themselves. See Miller, 567 U.S. at ___,
132 S. Ct. at 2468. As mitigating evidence, the Court found relevant that
Evan Miller’s stepfather abused him, that his mother was an alcoholic
and a drug addict, and that he spent years in and out of the foster care
system. Id. at ___, 132 S. Ct. at 2469. The majority takes away the
district court’s ability to make an informed decision based on its own
observations and perceptions. Instead of allowing a dysfunctional home
environment to serve as a mitigating factor, every juvenile’s home
environment must be analyzed by an expert to offer an opinion on the
degree of dysfunction. Why must a juvenile’s home and family
environment always count as a mitigating factor? What about the case of
“affluenza” where a juvenile raised by a loving family in a wealthy
neighborhood commits a heinous crime?
C. The Circumstances of the Crime and Family or Peer
Pressures. The third Miller factor asks the court to consider “the
circumstances of the homicide offense, including the extent of [the
youth’s] participation in the conduct and the way familial and peer
pressures may have affected [the youth].” Id. at ___, 132 S. Ct. at 2468.
From this, we have applied the factor across the board to any crime
committed by a juvenile. In the cases the Supreme Court considered in
Miller, neither of the juveniles acted alone when they committed their
crime, which illustrated the extent to which peer pressure can affect a
juvenile in the moment. Id. at ___, 132 S. Ct. at 2468–69. However, the
majority now asks our district court judges to analyze the extent to
49
which peer or family pressure affected a juvenile, even when the juvenile
acted alone. Scott, 88 Temp. L. Rev. at 698 (“[P]eer influence can play a
more subtle role in adolescent behavior, as when teenagers engage in
behavior that they think will win peer approval . . . .”). How is a district
court judge to do this? This court offers no guidance on a principled
application.
The court concludes with the observation that “[m]itigation
normally is warranted in all crimes.” So, as with the age factor, every
circumstance apparently serves as mitigation. Again, this has the
unfortunate side effect of treating the juvenile who was truly pressured
into committing his or her crime the same as the juvenile who committed
a solo, cold-blooded offense.
D. Incompetence of Youth as It Affects the Legal Process. The
fourth Miller factor considers the ways a juvenile’s age may affect his or
her ability to deal with police officers, prosecutors, or their own attorney.
Miller, 567 U.S. at ___, 132 S. Ct. at 2468. Here, too, rather than
focusing on the facts of the case before it and the juvenile’s actual
experience with police, prosecutors, and his attorney, the majority
imposes the requirement of expert testimony to determine whether “a
particular youth would be more capable than most” in navigating the
legal process. While I can certainly see the benefit of expert testimony in
limited circumstances, I think our sentencing judges can often look at
the facts and circumstances involving the juvenile, and make an
informed determination of this issue in the exercise of their full
discretion, without the necessity of expert testimony.
Additionally, how is this factor to be applied when we are dealing
with an initial sentencing rather than a resentencing? Once a juvenile
has been convicted of, for example, a forcible felony, does trial counsel
50
then need to present expert testimony on how the youth navigated the
just-completed trial in front of the district court judge? If so, doesn’t trial
counsel need to withdraw so there can be new counsel for sentencing?
E. Rehabilitation. The last Miller factor is the juvenile’s
“possibility of rehabilitation.” Id. This factor takes into consideration
whether a juvenile’s actions demonstrate the transient immaturity of
youth rather than “irreparable corruption.” Id. at ___, 132 S. Ct. at 2469
(quoting Roper, 543 U.S. at 573, 125 S. Ct. at 1197). Notably, the
concept of “irreparable corruption” originated in Roper in the context of
capital punishment and continued with life-without-parole sentences at
issue in Miller. It really has no bearing on cases where the juvenile
offender will be released after a period of years. The issue is simply
whether the sentencing judge can prescribe some amount of time the
juvenile must serve before being parole eligible.
Again, however, the majority cushions its language to make the
district court’s job nearly impossible—it “cannot necessarily use the
seriousness of a criminal act, such as murder, to conclude the juvenile
falls within the minority of juveniles who will be future offenders.” This
leaves the question open as to when, if ever, a district court can use the
seriousness of a criminal act as anything other than a mitigating factor.
From the above review of the Miller factors, and the new
restrictions and guidance provided by the majority, it seems abundantly
clear that the district court still has no sensible direction as to how to
effectively apply the Miller factors in its sentencing decisions. In effect,
the majority is imposing a de facto, categorical ban on any minimum
prison sentence for a juvenile offender, whether the underlying sentence
required any mandatory sentence or not. As I and several of my
colleagues have repeatedly argued, if this is the direction the court wants
51
to take, then be direct enough to just say it. Let’s stop wasting all the
time, resources, and money on a sentencing approach that is impractical
and unworkable. It is a burden on our court system and a burden on
our district court judges who look to our opinions for guidance.
F. Model Penal Code: Sentencing. The Model Penal Code:
Sentencing has recently been drafted to submit to the American Law
Institute. It specifically addresses some of the factors discussed above.
As it pertains to an offender’s age, it notes that “age shall be a
mitigating factor, to be assigned greater weight for offenders of younger
ages.” Model Penal Code: Sentencing § 6.11A(a), at 215. This is more in
line with the mandates of Miller than today’s ruling. In Miller, the court
noted that both of the defendants were fourteen years old—a different
situation than if both had been seventeen. Miller, 567 U.S. at ___, 132
S. Ct. at 2468. The Model Penal Code approach preserves this common-
sense approach, that the fourteen-year-old offender is different from the
seventeen-year-old offender. It still, however, preserves the idea that
juveniles of all ages are still less blameworthy than adults. Model Penal
Code: Sentencing § 6.11A, cmt. c, at 217 (“[O]ffenders under 18 should
be judged less blameworthy for their criminal acts than older offenders—
and age-based mitigation should increase in correspondence with the
youthfulness of individual defendants.”). Age alone, however, need not
always be a mitigating factor. Id. cmt. c, at 218. “[A] sentencing judge
might find an offender unusually culpable—despite his [or her] youth—if
guilty of a violent offense committed only for a thrill, or for sadistic
purposes, or out of racial animus.” Id.
The Model Penal Code acknowledges that peer pressure is a
concern that should be weighed, but not a mitigating factor in every case.
Id. at 219.
 52
While normally developing human beings possess a moral
sense of morality from their early years, important capacities
of abstract moral judgment, impulse control, and self-
direction in the face of peer pressure, continue to solidify
into early adulthood. The developmental literature suggests
that offenders under 18 may be held morally accountable for
their criminal actions in most cases, but assessments of the
degree of personal culpability should be different for older
offenders.
Id. at 219–20. In other words, if peer pressure is an issue in the case, it
should certainly be weighed as a mitigating factor. We saw this in Miller,
where both defendants acted with peers when they committed their
crimes. However, the majority takes it one step too far by proposing that
peer pressure is at issue in every case, even when the defendant acted
alone.
The Model Penal Code also places a premium on the goal of
rehabilitation for juvenile offenders. Id. at 219–21. However, it does so
without foreclosing the possibility that rehabilitation will not work in
every case, for every offender. Id. at 220.
Many believe that adolescents are more responsive to
rehabilitative sanctions than adult offenders. While the
evidence for this proposition is mixed, it is clear that some
rehabilitative programs are effective for some juvenile
offenders. Success rates are at least comparable to those
among programs tailored to adults.
Id. While society has a “greater moral obligation” to attempt to
rehabilitate juvenile offenders, common sense tells us that rehabilitation
will not work for every offender.
IV. Replacing Trial Judge Discretion with Parole Board
Discretion Does Not Necessarily Mean Fairer Sentences.
Lyle eliminated legislative control over how long a juvenile who
committed a serious felony could be incarcerated. Today’s decision
effectively eliminates judicial control over juvenile sentences by making it
essentially impossible to send a juvenile who commits a crime to prison
53
for any minimum amount of time. Now, control is vested exclusively in
the parole board.
The parole board has a statutory duty to release a person under
the following circumstances:
The board shall release on parole or work release any person
whom it has the power to so release, when in its opinion
there is reasonable probability that the person can be
released without detriment to the community or to the
person. A person’s release is not a detriment to the
community or the person if the person is able and willing to
fulfill the obligations of a law-abiding citizen, in the board’s
determination.
Iowa Code § 906.4(1) (2017). In other words, the board is obligated to
release an individual as soon as the individual is rehabilitated. This
explains the court’s preference for parole board discretion: whereas
district court judges can and do consider all the traditional goals of
sentencing—including punishment and deterrence—the parole board
may only consider whether the individual has been rehabilitated.
On paper, this should work in the juvenile’s favor. In practice, I
am not so sure. The parole board has five members; only two of them
work full-time. See id. § 904A.1. These members are responsible for
making all parole decisions in Iowa. Id. § 904A.4(1). Collectively, in
FY2016, they completed 11,468 deliberations resulting in 3767 paroles
and 1611 work releases. See Iowa Bd. of Parole, Annual Report Fiscal
Year 2016, https://www.legis.iowa.gov/docs/publications/DF/804753.
pdf, at 2. It is simply unfair and unrealistic to expect the parole board to
devote the same time and attention, on average, to a particular offender
that a district court judge does in its consideration of an appropriate
sentence for a juvenile offender.
Furthermore, the parole board’s determination will be influenced
heavily by the defendant’s behavior in prison, as reported by the
54
department of corrections. See Iowa Code § 906.5(3); Iowa Admin. Code
r. 205—8.6. One of the main points the court makes today is that a
juvenile’s conduct as a juvenile has limited value in predicting the
person’s capacity for future law-abiding behavior. According to the
court, we need to see the person as an adult—i.e., how the person acts in
prison. This focus on an offender’s behavior in a prison environment will
benefit some defendants, but hurt others.
Additionally, there is no right to counsel at parole hearings as
there was at sentencing. See Iowa R. Crim. P. 2.28(1). So the former
juvenile will not have the benefit of a lawyer to help them make his or her
case, as he or she did at sentencing.
Also, given this court’s view that juveniles who commit serious
crimes should not face societal punishment, but only be detained until
rehabilitation is demonstrated to the parole board, it makes little sense
for district court judges to be concerned about the maximum time to be
served. Thus, while the legislature has given courts discretion to
suspend that maximum sentence in whole or in part, why make that
difficult decision if the person can be released anyway as soon as the
parole board deems him or her rehabilitated?
While I respect the herculean efforts of the parole board, I continue
to doubt that it is a more appropriate body to determine whether a
juvenile warrants incarceration rather than our district court judges.5
Most significantly, the parole board considers a number of other factors
in making its decision to release someone. Some of these factors include
5Sweet, 879 N.W.2d at 852–53 (Zager, J., dissenting) (“Last, with all due respect,
I question whether the board of parole is better able to discern whether the juvenile
offender is irreparably corrupt after time has passed, and after opportunities for
maturation and rehabilitation have been provided.”).
55
rule changes or overcrowding. There may be political or budgetary
considerations that may affect release decisions. Therefore, these
decisions may be made based on factors completely unrelated to Miller,
which this court has spent considerable time and effort attempting to
define—and redefine. Ultimately, I continue to believe the majority
improperly delegates sentencing duties and responsibilities to the parole
board, when this is a duty that is properly vested with the district court.
V. Juveniles Who Commit Serious Crimes Should Be Subject
to Punishment for Those Crimes.
Throughout all of our cases on juvenile sentencing reform, we have
never sought to excuse the behavior of a juveniles’ criminal act, but
rather to impose punishment in a way that takes into account the lesser
culpability and greater capacity for change of juvenile offenders. See,
e.g., Null, 836 N.W.2d at 75 (“[W]hile youth is a mitigating factor in
sentencing, it is not an excuse.”). “The 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. In other words, this analysis requires that we consider
both the crime and the punishment. Tying the district court’s hands by
making the factors nearly impossible to apply in a principled manner
disproportionately weighs the analysis so the district court is only able to
consider the juvenile’s age and lessened culpability. Completely lost is
any consideration of the harm the juvenile offender caused to his or her
victim. Another downside to immediate parole eligibility in place of a
discretionary minimum prison term is that many victims and their family
members will feel compelled to attend the parole hearings to urge
continued incarceration. Each hearing will reopen the wounds scarred
56
over from the defendant’s crime and thereby revictimize the victims and
their families.
There are a number of objectives that must be weighed when
sentencing an offender under the age of eighteen: “offender
rehabilitation, general deterrence, incapacitation of dangerous offenders,
restitution to crime victims, preservation of families, and reintegration of
offenders into the law-aiding community.” Model Penal Code: Sentencing
§ 6.11A, cmt. (c), at 218. Proportionality does not require that these
objectives be ranked in any particular hierarchy; rather, the district
court must analyze the circumstances before it and weigh the gravity of
the offense and the harm done to the victim before reaching a final
judgment of sentence. Id. Generally, however, rehabilitation and
reintegration will have priority over the other goals. Id. at 218–19. An
exception remains for dangerous or unusual criminal offenses. Id. at
219. This is consistent with the approach we have taken in the past,
where we have noted that the lessened culpability of juvenile offenders
must be taken into account during sentencing, but the harm caused to a
victim should not be left out of the equation. See, e.g., Lyle, 854 N.W.2d
at 398. What the majority’s opinion fails to appropriately acknowledge is
that “[t]he seriousness of victim injuries does not diminish when their
assailants were underage.” Model Penal Code: Sentencing § 6.11A, cmt.
c, at 218.
As applied to the resentencing of Christopher Roby, the district
court weighed each of the Miller factors. The district court noted that
Roby committed the sexual abuse against his victim when he was sixteen
and seventeen years of age. Additionally, he had been caught improperly
touching his victim and even banned from the victim’s house for a period
57
of time. These factors weigh against the impetuosity and immaturity of
youth.
The district court also considered Roby’s family and home
environment. The district court noted that his family and home
environment were “not the best,” but the victim’s family stepped in and
attempted to provide a stable home for him. Despite this support, Roby
chose to repeatedly take advantage of his victim in her home.
The district court considered peer pressure in its sentencing
decision. Roby acted alone—indeed, Roby continued to pressure his
victim to keep his abuse secret. Additionally, Roby was living with the
family of the victim and keeping his abuse quiet, which is the opposite of
acting under peer or family pressure.
The district court did not consider Roby’s ability to deal with
police, prosecutors, or his attorney on resentencing. However, his victim
did not report the abuse until after Roby had turned eighteen. Because
of his age, Roby’s contact with the legal system and his communication
with his own attorney did not occur until he was an adult.
Last, the district court noted that Roby displayed a concerning lack
of rehabilitation. Although the sexual abuse perpetrated by Roby
occurred at ages sixteen and seventeen, the district court found he
expressed no remorse for his actions as an adult. Pertinently, even after
ten years of incarceration, Roby maintains that the court is only
punishing him and that he deserves to “get on with his life,” with no
remorse or empathy for his victim.
A good indicator of Roby’s prospects for rehabilitation is his
behavior in prison. He received twenty-eight disciplinary infractions
before his resentencing hearing. Most troubling is his sexual
misbehavior in prison after turning age twenty-five, when his brain was
58
fully developed according to the social science relied on in State v.
Bruegger, 773 N.W.2d 862, 879 n.5 (Iowa 2009). He acted out sexually
by inappropriately touching a female prison guard. His inability to
behave in a controlled environment, even at age twenty-five, foretells an
inability to behave if he is released into society. The majority opinion
does not require the sentencing court to turn a blind eye to Roby’s
postsentencing behavior. In the next resentencing hearing, the State
should supplement the record with Roby’s prison disciplinary history
since the last hearing. The State should also update the court as to
whether Roby has remained ineligible for the sex offender treatment
program based on his continuing refusal to admit guilt.
On resentencing Roby, the district court imposed the identical
sentence originally imposed. The court weighed the Miller factors while
also recognizing the significant impact on the victim. After weighing all
of the necessary factors, and noting Roby’s complete lack of remorse, the
district court concluded the original sentence, including the mandatory
minimum sentence, was appropriate. The district court did exactly what
we asked of it. No amount of redefinition by this court, or the
requirement of expert testimony on each issue, will dissuade me that the
district court, in its broad discretion, entered an appropriate sentence. I
would affirm the district court resentencing.
VI. Conclusion.
I am no admirer of our state’s existing mandatory minimum
sentencing laws. In my view, some of the minimums are far too long
and, as a result, they treat many offenders unfairly. I would like to see
our legislature revise these laws beyond the limited reforms to date. An
important next step would be to reduce the mandatory minimum for
59
most class “B” felonies to something less than the existing seventeen and
one-half years—the sentence Roby has been serving.
But my criticism of these laws is not age-specific. These
sentencing laws are unfair for all ages. Amendment of these laws for
everyone would be preferable to today’s decision which effectively
invalidates all minimum prison terms of any juvenile offender.
Unfortunately, today’s decision (1) isolates Iowa even further in this area
of the law; (2) redefines the Miller factors in a way that will likely deter
our district court judges from trying to impose any kind of minimum
prison term on a juvenile, no matter how horrific the crime; yet (3) may
have unintended consequences that actually harm juveniles. For all
these reasons, I dissent.
Waterman and Mansfield, JJ., join this dissent.