James Elvin Dorsey v. State of Iowa ( 2022 )

IN THE SUPREME COURT OF IOWA
No. 19–1917
Submitted February 22, 2022—Filed June 10, 2022
JAMES ELVIN DORSEY,
Petitioner,
vs.
STATE OF IOWA,
Respondent.
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
The appellant challenges the constitutionality of his sentence of life
imprisonment without the possibility of parole for first-degree murder.
PETITION FOR WRIT OF CERTIORARI GRANTED AND WRIT ANNULLED.
McDonald, J., delivered the opinion of the court, in which
Christensen, C.J., and Waterman, Mansfield, Oxley, and McDermott, JJ., joined.
Appel, J., filed a dissenting opinion.
Alexander Smith (argued) of Parrish Kruidenier Gentry Brown
Bergmann & Messamer L.L.P., Des Moines, for petitioner.
2
Thomas J. Miller, Attorney General, and Louis S. Sloven (argued),
Assistant Attorney General, for respondent.
3
McDONALD, Justice.
Petitioner James Dorsey shot and killed a woman when he was eighteen
years and five days old. He was found guilty of murder in the first degree and
was sentenced to a mandatory term of life in prison without the possibility of
parole. Dorsey contends this sentence violates his state constitutional right to
be free from “cruel and unusual punishment.” Iowa Const. art. I, § 17. He argues
the state constitution prohibits imposing a mandatory punishment on a young
adult offender and instead requires the district court to hold an individualized
sentencing hearing before imposing any sentence. He further argues his life
sentence without the possibility of parole is grossly disproportionate to the crime.
For the reasons expressed below, we affirm Dorsey’s sentence.
I.
On September 3, 1984, Dorsey, accompanied by two other men, entered
the Des Moines home of Juanita Weaver with a shotgun. Dorsey went to Weaver’s
home to retrieve a revolver that Dorsey and Weaver’s son had previously stolen
from Dorsey’s uncle. After Dorsey entered the home, he realized Weaver’s son
was not there. Weaver went into the living room upon hearing noises in the home
and came upon Dorsey and the two other men. Dorsey fired at Weaver and
missed. Weaver ran into the bathroom, and Dorsey followed, where he shot
Weaver at close range and killed her. The three men fled the scene and went to
a party but were eventually arrested. A jury found Dorsey guilty of murder in the
first degree, and the district court sentenced Dorsey to a mandatory term of life
in prison without the possibility of parole.
4
In the nearly thirty-eight years since the murder, Dorsey has challenged
his conviction and resulting mandatory life sentence on numerous occasions.
His conviction was first affirmed on direct appeal in February 1986. In
September 1986, Dorsey filed two separate but overlapping applications for
postconviction relief. The applications were treated as a single application and
dismissed as meritless in March 1994. Dorsey filed a second application for
postconviction relief in November 1994, which the district court dismissed as
time-barred. Dorsey filed his third and fourth applications for postconviction
relief in January 1999 and October 2008, which were also dismissed as
time-barred.
In January 2014, Dorsey filed a motion to correct an illegal sentence in
the underlying criminal case. In that motion, he contended that his mandatory
life sentence without the possibility of parole inflicted cruel and unusual
punishment upon him in violation of the Federal and State Constitutions. In
support of his argument, Dorsey relied on United States Supreme Court
precedents stating that juvenile offenders have diminished culpability and better
chances for reform and that “the penological justifications for imposing the
harshest sentences on juvenile offenders” are diminished and, in some
instances, categorically prohibited. Miller v. Alabama, 567 U.S. 460, 472 (2012);
see id. at 489 (“By requiring that all children convicted of homicide receive
lifetime incarceration without possibility of parole, regardless of their age and
age-related characteristics and the nature of their crimes, the
mandatory-sentencing schemes before us violate this principle of
5
proportionality, and so the Eighth Amendment’s ban on cruel and unusual
punishment.”); Graham v. Florida, 560 U.S. 48, 82 (2010) (“The Constitution
prohibits the imposition of a life without parole sentence on a juvenile offender
who did not commit homicide. A State need not guarantee the offender eventual
release, but if it imposes a sentence of life it must provide him or her with some
realistic opportunity to obtain release before the end of that term.”); Roper v.
Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and Fourteenth Amendments
forbid imposition of the death penalty on offenders who were under the age of 18
when their crimes were committed.”). Dorsey recognized that he was not a
juvenile at the time of the offense, but he argued “[t]he courts in Iowa are
expanding on the ruling of the United States Supreme Court” by applying the
same rationale in other contexts. The district court denied the motion. Although
Dorsey raised both a federal and state constitutional claim in his motion, the
district court’s order referenced only the federal claim.
The filing at issue in this case is Dorsey’s fifth application for
postconviction relief. In his application, Dorsey argued that his mandatory life
sentence without the possibility of parole violated the federal and state
constitutional prohibitions against cruel and unusual punishment. In support
of his claims, Dorsey relied on this court’s more recent juvenile sentencing
jurisprudence applying and extending Roper v. Miller, Graham v. Florida, and
Miller v. Alabama. See generally State v. Roby, 897 N.W.2d 127 (Iowa 2017);
State v. Sweet, 879 N.W.2d 811 (Iowa 2016); State v. Louisell, 865 N.W.2d 590(Iowa 2015); State v. Seats, 865 N.W.2d 545 (Iowa 2015); State v. Lyle, 854
6
N.W.2d 378 (Iowa 2014); State v. Ragland, 836 N.W.2d 107 (Iowa 2013); State v.
Pearson, 836 N.W.2d 88 (Iowa 2013); State v. Null, 836 N.W.2d 41 (Iowa 2013).
Dorsey relied specifically on State v. Lyle, in which this court held that “all
mandatory minimum sentences of imprisonment for youthful offenders are
unconstitutional under the cruel and unusual punishment clause in article I,
section 17 of our constitution.” 854 N.W.2d at 400. He also relied on State v.
Sweet, which created “a categorical rule that juvenile offenders may not be
sentenced to life without the possibility of parole under article I, section 17 of
the Iowa Constitution.” 879 N.W.2d at 839. In his application, Dorsey recognized
that these holdings explicitly applied only to juvenile offenders, but he argued
the cases should be extended or their holdings modified to provide relief for
young adult offenders. He argued Lyle and Sweet should preclude the imposition
of mandatory punishments on young adult offenders and should require
individualized sentencing hearings for all young adult offenders, including those
convicted of murder in the first degree.
The district court declined to provide Dorsey any relief and granted the
State’s motion for summary disposition of the claims. The district court held
Dorsey’s application for postconviction relief was barred by the three-year statute
of limitations set forth in Iowa Code section 822.3 (2019). The district court also
concluded that, to the extent Dorsey’s claims could be considered a motion to
correct an illegal sentence, the claims were barred res judicata because Dorsey
raised the same claims in his 2014 motion to correct an illegal sentence. Finally,
the district court concluded that Dorsey was not entitled to any relief on the
7
merits because Lyle and Sweet applied only to juvenile offenders and not adult
offenders. Dorsey timely filed his notice of appeal, and we retained the case.
II.
When an offender files an application for postconviction relief and
“complains his sentence is illegal . . . the claim ‘is not a postconviction relief
action.’ ” Bonilla v. State, 791 N.W.2d 697, 699 (Iowa 2010) (quoting Veal v. State,
779 N.W.2d 63, 65 (Iowa 2010)). Instead, the application for postconviction relief
is treated as a motion to correct an illegal sentence. Id. at 699–700. We therefore
construe Dorsey’s application for postconviction relief as a motion to correct an
illegal sentence. There is no appeal as a matter of right from the denial of a
motion to correct an illegal sentence. See State v. Propps, 897 N.W.2d 91, 96–97
(Iowa 2017). However, when a case is initiated by a notice of appeal, but another
form of review is proper, we need not dismiss the action and may proceed instead
as though the proper form of review was requested. Iowa R. App. P. 6.108. We
treat Dorsey’s “notice of appeal and accompanying briefs as a petition for writ of
certiorari, as we conclude that appeals from a motion to correct an illegal
sentence are most appropriately fashioned in this manner. We grant the petition
for writ of certiorari.” Propps, 897 N.W.2d at 97.
III.
The district court denied Dorsey’s challenge to his mandatory life sentence
without the possibility of parole on three grounds. First, the district court held
that Dorsey’s application for postconviction relief was barred by the three-year
statute of limitations set forth in Iowa Code section 822.3. Second, the district
8
court held Dorsey’s claims were barred res judicata because Dorsey had raised
the same claims in his 2014 motion to correct an illegal sentence. Finally, the
district court concluded that Dorsey was not entitled to any relief on the merits.
We address each ruling in turn.
A.
The statute of limitations governing postconviction-relief proceedings does
not bar Dorsey’s constitutional challenge to his sentence. In general, an
application for postconviction relief “must be filed within three years from the
date the conviction or decision is final or, in the event of an appeal, from the date
the writ of procedendo is issued.” Iowa Code § 822.3. But the statute of
limitations for postconviction-relief proceedings is not applicable here. As
discussed above, the district court should have treated Dorsey’s application for
postconviction relief as a motion to correct an illegal sentence. See Bonilla, 791
N.W.2d at 699–700. Because an offender can file a motion to correct an illegal
sentence at any time, the motion “is not governed by the postconviction statute
of limitations.” Veal, 779 N.W.2d at 65. The district court thus erred to the extent
it held that Dorsey’s claims were barred by section 822.3. See id. (stating that
when a claim of an illegal sentence is raised in an application for postconviction
relief, even when “not labeled as such, the district court . . . should treat [the]
application for postconviction relief as a challenge to an illegal sentence that is
not subject to the three-year statute of limitations in Iowa Code section 822.3”).
9
B.
Nor can we conclude Dorsey’s challenge to his sentence is barred res
judicata. Under Iowa law, “res judicata embraces two concepts: claim preclusion
and issue preclusion.” Braunschweig v. Fahrenkrog, 773 N.W.2d 888, 893 (Iowa
2009). “The general rule of claim preclusion holds that a valid and final judgment
on a claim bars a second action on the adjudicated claim or any part thereof.”
Pavone v. Kirke, 807 N.W.2d 828, 835 (Iowa 2011). “[I]ssue preclusion prevents
parties to a prior action in which judgment has been entered from relitigating in
a subsequent action issues raised and resolved in the previous action.” Hunter v.
City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981) (footnote omitted). “The
term ‘issue preclusion’ is used interchangeably with the term ‘collateral
estoppel.’ ” Id. at 123 n.2.
We cannot conclude the doctrines of claim preclusion and issue preclusion
bar consideration of Dorsey’s claim. First, Dorsey’s 2014 motion to correct an
illegal sentence raised federal and state constitutional claims, but the district
court’s order addressed only Dorsey’s federal claim. There was no ruling on
Dorsey’s state constitutional claim in the prior motion. Second, following the
denial of Dorsey’s 2014 motion, this court created new categorical rules
regarding juvenile sentencing. In Lyle, this court held that “all mandatory
minimum sentences of imprisonment for youthful offenders are unconstitutional
under the cruel and unusual punishment clause in article I, section 17 of our
constitution.” 854 N.W.2d at 400. Two years later, in Sweet, this court extended
Lyle and created “a categorical rule that juvenile offenders may not be sentenced
10
to life without the possibility of parole under article I, section 17 of the Iowa
Constitution.” 879 N.W.2d at 839. Dorsey seeks to take advantage of these new
categorical rules in our state constitutional jurisprudence and extend the
rationale of Lyle and Sweet to young adult offenders such as himself. In other
cases, we have allowed article I, section 17 challenges to the constitutionality of
sentences following changes in our jurisprudence, and we see no reason to
uniquely preclude Dorsey’s challenge. The district court erred in holding
Dorsey’s claim based on new law was barred.
C.
We next address the district court’s alternative ruling on the merits of
Dorsey’s challenge to his sentence. In the district court, Dorsey raised federal
and state constitutional challenges to his sentence. On appeal, Dorsey raises
only his state constitutional claim arising under article I, section 17 of the Iowa
Constitution, which prohibits the infliction of “cruel and unusual punishment.”
Dorsey contends the Iowa Constitution categorically prohibits the imposition of
a mandatory sentence on a young adult offender and instead requires an
individualized sentencing hearing. We conclude the district court did not err in
denying Dorsey’s state constitutional claim on the merits.
Generally, “[t]he legislature possesses the inherent power to prescribe
punishment for crime, and the sentencing authority of the courts is subject to
that power.” State v. Iowa Dist. Ct. for Shelby Cnty., 308 N.W.2d 27, 30 (Iowa
1981). It is solely the legislature’s prerogative to set punishments that balance
the state’s interest in achieving certain penological interests with the other
11
interests related to the administration of criminal justice. The legislature’s
prerogative to set punishments is circumscribed only by the Federal and State
Constitutions. In Sweet and Lyle, this court held article I, section 17
circumscribes the legislature’s prerogative in imposing certain punishments on
juvenile offenders. See Sweet, 879 N.W.2d at 839; Lyle, 854 N.W.2d at 400.
The Sweet and Lyle courts offered several justifications for the creation of
this categorical limitation. See, e.g., Sweet, 879 N.W.2d at 830–34 (identifying
fourteen critical points drawn from the federal caselaw and the three critical
principles distilled from the Iowa caselaw). Among these justifications were
medical literature tending to show the human brain continues to develop until
the age of twenty-five and medical and social science literature tending to show
juveniles think and act differently than adults. See, e.g., Null, 836 N.W.2d at 55
(stating the rationale is based on (1) recent scientific evidence showing “the
human brain continues to mature into the early twenties,” and (2) a finding that
young people generally “lack the ability to properly assess risks and engage in
adult-style self-control”).
While Dorsey acknowledges that our precedents in this area create
categorical rules applicable only to juvenile offenders and that he was not a
juvenile at the time of the offense, he argues the same medical and social science
literature applies with equal force to adult offenders under age twenty-five. At
minimum, he argues someone like him, who was only eighteen years and five
days old at the time of his offense, is entitled to a Miller sentencing hearing before
the imposition of a life sentence.
12
But the arguments by Dorsey and the dissent are foreclosed by the same
precedents on which they rely. As we stated in Lyle:
[O]ur holding today has no application to sentencing laws affecting
adult offenders. Lines are drawn in our law by necessity and are
incorporated into the jurisprudence we have developed to usher the
Iowa Constitution through time. This case does not move any of the
lines that currently exist in the sentencing of adult offenders.
854 N.W.2d at 403. We later reiterated that “the line between being a juvenile
and an adult was drawn for cruel and unusual punishment purposes at eighteen
years of age.” Seats, 865 N.W.2d at 556–57. And in Sweet we stated that “[t]he
qualities that distinguish juveniles from adults do not disappear when an
individual turns eighteen, but society has generally drawn the line at eighteen
for the purposes of distinguishing juveniles from adults.” 879 N.W.2d at 831.
The categorical constitutional distinction this court drew between
juveniles and adults was based on the long-accepted legal categorical distinction
drawn between juveniles and adults. “We have long known juveniles are different
from adults.” Goodwin v. Iowa Dist. Ct. for Davis Cnty., 936 N.W.2d 634, 652
(Iowa 2019) (McDonald, J., concurring specially). “The legislature already
accounted for this by creating a separate juvenile justice system to address the
different and particular needs of juvenile offenders.” Id. at 653. This includes
waiver and reverse waiver provisions that afford the district court discretion in
determining whether a juvenile should be prosecuted as a juvenile or as an adult
based on the particular circumstances of the juvenile. See Iowa Code §§ 232.8,
.45. The legislature also, in accord with our caselaw, distinguishes between
juvenile and adult offenders with respect to sentencing for murder in the first
13
degree. Adults convicted of murder in the first degree, such as Dorsey, are
required to serve mandatory terms of life imprisonment without the possibility
of parole. See id. § 707.2(2); id. § 902.1(1). Whereas, those under the age of
eighteen at the time of the offense, may be eligible for parole. Id. § 902.1(2). And,
as we explained in Lyle, juveniles are treated differently than adults in a variety
of other contexts outside the area of criminal law. See Lyle, 854 N.W.2d at 388–
89 (cataloging laws treating juveniles differently than adults).
The bright-line constitutional distinction between juvenile offenders and
adult offenders for purposes of article I, section 17 has been clear from the
outset. In reliance on that bright-line rule, the court of appeals repeatedly has
considered and rejected the same argument Dorsey and the dissent advance
here. See, e.g., McGuire v. State, No. 21–0031, 2022 WL 470841, at *4 (Iowa Ct.
App. Feb. 16, 2022); Hayes v. Polk Cnty. Dist. Ct., No. 19–1660, 2021 WL
3378674, at *1 (Iowa Ct. App. Aug. 4, 2021); Mozie v. State, No. 20–0024, 2021
WL 810962, at *1 (Iowa Ct. App. Mar. 3, 2021); Shuford v. Iowa Dist. Ct. for Scott
Cnty., No. 18–1434, 2020 WL 1879663, at *3 (Iowa Ct. App. Apr. 15, 2020);
Swan v. State, No. 17–0877, 2018 WL 6706212, at *3 (Iowa Ct. App. Dec. 19,
2018); Nassif v. State, No. 17–0762, 2018 WL 3301828, at *1 (Iowa Ct. App.
July 5, 2018); Thomas v. State, No. 16–0008, 2017 WL 2665104, at *2 (Iowa Ct.
App. June 21, 2017); State v. Clayton, No. 13–1771, 2014 WL 5862075, at *5
(Iowa Ct. App. Nov. 13, 2014). “Considerations of efficiency and certainty require
a bright line separating adults from juveniles.” United States v. Marshall, 736
F.3d 492, 500 (6th Cir. 2013). We adhere to the bright-line distinction drawn in
14
our caselaw and repeatedly followed by the court of appeals. Dorsey is not
entitled to any relief on this claim.
IV.
Dorsey also asserts a separate challenge to his sentence for the first time
on appeal. Dorsey argues that his sentence of life imprisonment without the
possibility of parole is “grossly disproportionate” to the crime of murder in the
first degree and therefore constitutes cruel and unusual punishment in violation
of article I, section 17 of the Iowa Constitution. “Where, as here, the claim is that
the sentence itself is inherently illegal, whether based on constitution or statute,
we believe the claim may be brought at any time.” State v. Bruegger, 773 N.W.2d
862, 872 (Iowa 2009). This includes a claim being brought for the first time on
appeal. See id. We thus turn to the merits of the claim.
We employ a three-part test to determine whether a sentence is grossly
disproportionate to the underlying offense. The first step is a “threshold” inquiry
which involves “a balancing of the gravity of the crime against the severity of the
sentence.” Id. at 873. If the sentence being reviewed does not “raise an inference
of gross disproportionality,” then the inquiry ends and “[n]o further analysis is
required.” State v. Wickes, 910 N.W.2d 554, 572 (Iowa 2018). If the threshold
inquiry is satisfied, step two requires “an intrajurisdictional analysis to compare
the challenged sentence to sentences of other crimes within our jurisdiction.” Id.Step three requires “an interjurisdictional review and examine the sentences for
similar crimes in other jurisdictions.” Id.15
At the threshold stage of analysis, our primary task is to balance “the
gravity of the crime against the severity of the sentence.” Bruegger, 773 N.W.2d
at 873. In balancing these competing considerations, we consider several general
principles. First, “we owe substantial deference to the penalties the legislature
has established for various crimes.” State v. Oliver, 812 N.W.2d 636, 650 (Iowa
2012). “Criminal punishment can have different goals, and choosing among them
is within a legislature’s discretion.” Graham, 560 U.S. at 71. Second, “it is rare
that a sentence will be so grossly disproportionate to the crime as to satisfy the
threshold inquiry and warrant further review.” Oliver, 812 N.W.2d at 650. Third,
“a recidivist offender is more culpable and thus more deserving of a longer
sentence than a first-time offender.” Id. And finally, “the unique features of a
case can ‘converge to generate a high risk of potential gross disproportionality.’ ”
Id. at 651 (quoting Bruegger, 773 N.W.2d at 884).
As a general matter, the sentence of life imprisonment without the
possibility of parole for the crime of murder in the first degree does not raise an
inference of gross disproportionality. The prohibition against cruel and unusual
punishment “does not require a precise calibration of crime and punishment.”
United States v. Graciani, 61 F.3d 70, 76 (1st Cir. 1995). Rather, the prohibition
“gives rise to a ‘narrow proportionality principle,’ forbidding only extreme
sentences that are significantly disproportionate to the underlying crime.” Id.(citation omitted) (quoting Harmelin v. Michigan, 501 U.S. 957, 997 (1991)
(Kennedy, J., concurring in part and concurring in the judgment)). “[T]he taking
of innocent life is considered the greatest universal wrong.” State v. Izzolena, 609
16
N.W.2d 541, 550 (Iowa 2000) (en banc). And the proportionate response is to
impose the greatest punishment allowed under our law, life imprisonment
without the possibility of parole. See State v. Fitz, 265 N.W.2d 896, 899 (Iowa
1978) (rejecting challenge to life sentence for murder); State v. Fuhrmann, 261
N.W.2d 475, 479–80 (Iowa 1978) (en banc) (“Life imprisonment for first-degree
murder is not so disproportionate to the seriousness of the offense as to shock
the conscience or sense of justice.”).
And there is nothing unique about the facts of this case that raise an
inference of gross disproportionality. Dorsey entered Weaver’s home armed with
a shotgun in search of her son. When Weaver refused to disclose her son’s
whereabouts, Dorsey shot at her. Weaver fled into the bathroom, and Dorsey
followed her. He reloaded the shotgun and killed Weaver with a close-range shot
that left “a massive shotgun wound in [her] face and arm.” Based on these facts,
the jury found Dorsey guilty of committing a willful, deliberate, and premeditated
murder. Dorsey’s willful, deliberate, and premeditated murder of an unarmed
woman in her own home justifies the most severe sentence allowed under our
law. There is no inference of gross disproportionality here. See Fuhrmann, 261
N.W.2d at 479–80; see also People v. Blackwell, 207 Cal. Rptr. 3d 444, 472 (Ct.
App. 2016) (“The sentence in this case, though undoubtedly harsh, does not
shock the conscience and is not disproportionate. Blackwell was convicted of
first degree murder with special circumstances. First degree special
circumstance murder, viewed in the abstract, is perhaps the most serious offense
under California law, and the facts of this particular case do not remove it from
17
this category.”); People v. Castillo, ___ P.3d ___, ___ , 2022 WL 480893, at *8
(Colo. App. Feb. 17, 2022) (holding sentence of life imprisonment without parole
for a murder conviction imposed on an eighteen-year-old “does not give rise to
an inference of gross disproportionality”).
V.
The district court did not err in denying Dorsey’s challenges to his
sentence.
PETITION FOR WRIT OF CERTIORARI GRANTED AND WRIT
ANNULLED.
All justices concur except Appel, J., who dissents.
18
#19–1917, Dorsey v. State
APPEL, Justice (dissenting).
I respectfully dissent. In my view, the proper disposition in this case under
the cruel and unusual punishment clause of the Iowa Constitution is a remand
to the district court for an individualized hearing to determine whether the State
can show that the defendant is not entitled mitigation based upon the
characteristics of youth.
I. Introduction.
In this case, we must decide if the evolving science regarding the
characteristics of youth above the age of eighteen must be considered in cases
involving the imposition of a sentence of life without possibility of parole in order
to avoid a violation of the cruel and unusual punishment clause of article I,
section 17 of the Iowa Constitution. If the answer to the threshold question is
no, that is the end of the matter. If the answer is yes, the next question is: how
should the science be applied in our cruel and unusual punishment
jurisprudence?
In order to answer these questions, I first provide a brief review of the
sentence of life without possibility of parole. Second, I review the cruel and
unusual punishment jurisprudence for offenders under the age of eighteen
developed by the United States Supreme Court and this court. Third, I examine
scientific developments related to the development of adolescents since Roper v.
Simmons, 543 U.S. 551 (2005). Fourth, I examine relevant caselaw and
commentary advancing the idea that science, which had such a profound impact
19
on our jurisprudence related to cruel and unusual punishment for juveniles,
should also apply to adolescent youth over the age of eighteen. Finally, I consider
choices available to the court in applying the science and provide an analysis of
why I conclude that an individualized hearing on the application of science is the
proper approach in this case.
II. Life-Without-Possibility-of-Parole Sentences.
The United States imposes more life-without-possibility-of-parole
sentences than any other country in the world by far. William W. Berry III,
Evolved Standards, Evolving Justices? The Case for a Broader Application of the
Eighth Amendment, 96 Wash. U. L. Rev. 105, 109 (2018). The United States has
approximately 50,000 persons serving life-without-possibility-of-parole
sentences, while the runner-up countries have only a few hundred. Id. The
United States is the only country in the world that allows life-without-possibility-
of-parole sentences on juvenile offenders. Id. at 143.
Life without possibility of parole has been frequently compared to the
death penalty. As John Stuart Mill observed centuries ago:
What comparison can there really be, in point of severity, between
consigning a man to the short pang of a rapid death, and immuring
him in a living tomb, there to linger out what may be a long life in
the hardest and most monotonous toil, without any of its alleviations
or rewards-debarred from all pleasant sights and sounds, and cut
off from all earthly hope, except a slight mitigation of bodily
restraint, or a small improvement of diet?
William W. Berry III, Life-With-Hope Sentencing: The Argument for Replacing Life-
Without-Parole Sentences with Presumptive Life Sentences, 76 Ohio St. L.J. 1051,
20
1053 n.7 (2015) (quoting John Stuart Mill, Speech in Favor of Capital Punishment
Before Parliament (Apr. 21, 1868)).
Pope Francis also agreed with this comparison; he has concluded that “[a]
life sentence is just a death penalty in disguise.” Address of Pope Francis to the
Delegates of the International Association of Penal Law, Vatican (Oct. 23, 2014),
https://www.vatican.va/content/francesco/en/speeches/2014/october/docu
ments/papa-francesco_20141023_associazione-internazionale-diritto-
penale.html [https://perma.cc/P42Z-P2NW]; see also Brittany L. Deitch, Life
Without Parole as Death Without Dignity, 72 Ala. L. Rev. 327, 328 n.1 (2020).
Some state courts have recognized the despair and hopelessness of life-
without-possibility-of-parole sentences. For example, the Supreme Court of
Nevada declared with respect to a life in prison without possibility of parole for
a juvenile defendant:
Denial of [the opportunity to seek parole] means denial of hope; it
means that good behavior and character improvement are
immaterial; it means that whatever the future might hold in store
for the mind and spirit of [the offender], he will remain in prison for
the rest of his days.
Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989). The court went on to hold
that a sentence of life imprisonment without possibility of parole for juvenile
offenders was unconstitutional on both state and federal grounds. Id. at 949 n.6.
Life-without-possibility-of-parole sentences deprive the individual’s
personhood or humanity. As noted by one observer, the essence of personhood
or humanity, as culled from leading philosophers:
[I]t is a sense of self that conveys the capacity and moral right to
make choices and hence be self-determining. Self-determination, in
21
turn, both finds expression in and presupposes . . . some degree of
(1) autonomy, defined as the capacity to influence one’s environment
and hence shape one’s fate, (2) security, defined as the capacity to
find or create stability in one’s world and hence shelter oneself from
harm, and (3) relatedness to others, defined as the capacity for fees
for oneself and others and hence to have caring and constructive
relationships.
Robert Johnson, Death Work: A Study of the Modern Execution Process 204 (2d
ed. 1998).
By the above measure, life without possibility of parole is inhumane and
the distinction between death by incarceration and death by execution is closed
if not eliminated. Commentators have described a life sentence without
possibility of parole as the “new death penalty” or “the other death penalty” or
as being sentenced to be “buried alive.” See Marie Gottschalk, Sentenced to Life:
Penal Reform and the Most Severe Sanctions, 9 Ann. Rev. L. & Soc. Sci. 353, 354
(2013); see also Miller v. Alabama, 567 U.S. 460, 474–75 (2012) (noting that life-
without-parole sentences for juveniles is akin to the death penalty).
Some persons sentenced to life without possibility of parole agree. Scholar
Margaret E. Leigey has collected statements from such prisoners. See Margaret
E. Leigey, The Forgotten Men: Serving a Life Without Parole Sentence (2015). One
prisoner declared that a person serving life without possibility of parole “would
be a lot better off if they just went on and executed him as opposed to the life
without parole because that’s torture.” Id. at 15. Another prisoner stated that “it
would be better if they just take us out back and shot us,” and referred to the
sentence as “the hard death penalty.” Id. Given the extraordinarily severe
consequences of a life-without-possibility-of-parole sentence, courts have
22
remarkably upheld prisoners’ decisions of preferring the death penalty to life in
prison. See Autry v. McKaskle, 727 F.2d 358, 363 (5th Cir. 1984) (per curiam)
(noting prisoners preference for death over life in prison not irrational); Smith v.
State, 686 N.E.2d 1264, 1273 (Ind. 1997) (collecting cases and concluding that
prisoners preference for death over life in prison not per se irrational); Wayne A.
Logan, Proportionality and Punishment: Imposing Life Without Parole on Juveniles,
33 Wake Forest L. Rev. 681, 712 (1998); see also John H. Blume, Killing the
Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939 (2005).
III. Overview of Cruel and Unusual Punishment Jurisprudence
Applicable to Juveniles Under Eighteen Years of Age.
A. United States Supreme Court Precedent.
1. Evolving standards of decency. I begin by briefly traveling on a familiar
path. The United States Supreme Court has repeatedly declared that the content
of the Cruel and Unusual Punishment Clause is not static but instead derives
meaning from “evolving standards of decency that mark the progress of a
maturing society.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v.
Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)); see also Weems v. United
States, 217 U.S. 349, 378 (1910). As explained by the Supreme Court in Kennedy
v. Louisiana, “[T]he standard of extreme cruelty is not merely descriptive, but
necessarily embodies a moral judgment. The standard itself remains the same,
but its applicability must change as the basic mores of society change.” 554 U.S.
407, 419 (2008) (quoting Furman v. Georgia, 408 U.S. 238, 382 (1972)
(per curiam) (Burger, C.J., dissenting)).
23
There can be no question that recent cases of the Supreme Court have
evolved even in a relatively short period of time, particularly when dealing with
harsh sentences of juvenile offenders. For example, in Thompson v. Oklahoma,
the Supreme Court held that the death penalty could not be constitutionally
applied to persons under the age of sixteen. 487 U.S. 815, 838 (1988). In the
following year, the Supreme Court rejected the extension of the prohibition to
persons aged sixteen to eighteen. See Stanford v. Kentucky, 492 U.S. 361, 378–
79 (1989), abrogated by Roper, 543 U.S. 551. But a little more than fifteen years
later, the Supreme Court overruled Stanford and extended the prohibition to
persons under the age of eighteen. See Roper, 543 U.S. at 563–64 (conducting
the inquiry into “our society’s evolving standards of decency,” and recognizing
evidence of a “national consensus against the death penalty for juveniles”).
Similarly, in Penry v. Lynaugh, the Supreme Court declined to mandate a
categorical exemption from the death penalty for the mentally disabled. 492 U.S.
302, 335 (1989), abrogated by Atkins v. Virginia, 536 U.S. 304 (2002). But less
than fifteen years later, in Atkins v. Virginia, the Court reversed course and
declared categorically that the death penalty could not be imposed on the
mentally disabled. 536 U.S. at 321. The cruel and unusual punishment cases of
the Supreme Court clearly leave room for constitutional growth and
development.
Applying evolving standards in three important cases, the Supreme Court
determined that, notwithstanding historic practice, the Cruel and Unusual
Punishment Clause of the Eighth Amendment categorically prohibited
24
imposition of the death penalty to persons under eighteen, Roper, 543 U.S. at574–75; categorically prohibited life without possibility of parole for juveniles
who commit a nonhomicidal crime, Graham v. Florida, 560 U.S. 48, 79 (2010);
and generally held that a person under eighteen years of age who committed
homicide could not be sentenced to life without possibility of parole unless shown
to be a rare juvenile who was incorrigible. Miller, 567 U.S. at 479. These dynamic
cases set the framework for analysis of the question of whether the harshest
irrevocable punishments may be imposed against young offenders.
2. Roper v. Simmons. In Roper, the Supreme Court considered whether
the death penalty could be constitutionally imposed on a juvenile who committed
the crime while under the age of eighteen. 543 U.S. at 574–75. For the
prosecution, the answer to this question was obvious. At trial, the prosecution
argued that the young age of the offender was an aggravating factor. Id. at 558.
The prosecution told the jury, “Think about age. Seventeen years old. Isn’t that
scary? Doesn’t that scare you? Mitigating? Quite the contrary I submit. Quite
the contrary.” Id.In categorically declaring that the death penalty could not constitutionally
be imposed on any juvenile under the age of eighteen, the Supreme Court in
Roper unequivocally rejected the prosecution’s age-as-an-aggravating-factor
theory. Id. at 572–73. The Roper Court did so in part by relying on developing
neuroscience and social psychology. Id. at 569–70. First, the Roper Court
emphasized that persons eighteen and under lack maturity and have an
underdeveloped sense of responsibility. Id. at 569. Second, the Roper Court
25
stressed that juveniles are “more vulnerable or susceptible to negative influences
and outside pressures, including peer pressure.” Id. (citing Eddings v. Oklahoma,
455 U.S. 104, 115 (1982)). Finally, the Roper Court observed that “the character
of a juvenile is not as well formed as that of an adult.” Id. at 570. According to
Roper, “From a moral standpoint it would be misguided to equate the failings of
a minor with those of an adult, for a greater possibility exists that a minor’s
character deficiencies will be reformed.” Id.
Given these factors, not only was age not an aggravating factor as argued
by the Roper prosecution, but age under the United States Constitution was
categorically a mitigating factor. See id. at 569–73. In so holding, the Supreme
Court favored science over rhetoric. In light of the neuroscience and social
psychology developments that demonstrated lessened culpability of youth and
greater prospects for reform, the Roper Court refused to embrace scientifically
unsupported but politically popular age-aggravation trope. See id. at 573. Under
the United States Constitution as interpreted by the Supreme Court, there was
no constitutional space for the age-aggravation theory in applying the death
penalty. See id.
For juveniles who committed homicidal crimes, the Supreme Court drew
a line at the age of eighteen for application of the categorical ban on execution.
Id. at 574. The Roper Court recognized that the drawing of a bright line had
arbitrary features. Id. (noting that line-drawing is subject to objections). The
Roper Court noted, “The qualities that distinguish juveniles from adults do not
disappear when an individual turns 18.” Id. Yet, according to Roper, “a line must
26
be drawn.” Id. Roper declared that the categorical line for purposes of
categorically prohibiting the death penalty was drawn at age eighteen because of
its social acceptance as the dividing line between childhood and adulthood. Id.
Nothing in Roper, however, suggests that other lines could not be drawn in other
contexts involving juveniles.
3. Graham v. Florida. Indeed, Graham demonstrated the notion that there
were further lines to be drawn. 560 U.S. 48. In Graham, the question was
whether a juvenile offender under the age of eighteen could be sentenced to
mandatory death in prison, typically referred to as life without possibility of
parole, for nonhomicidal crimes. The Supreme Court, drawing another
categorical line, said no. Id. at 74–75.
The reasoning of the decision in Graham hewed closely to that of Roper.
The Graham Court noted that developments “in psychology and brain science
continue to show fundamental differences between juvenile and adult minds[,]
[f]or example, parts of the brain involved in behavior control.” Id. at 68. It cited
amicus briefs filed by the American Medical Association and the American
Psychological Association for the proposition that behavior control continues to
mature through adolescence. Id.The Graham Court recognized the goals of retribution, deterrence,
incapacitation, and rehabilitation. Id. at 71–72. While recognizing the legitimacy
of retribution in criminal sentencing, the Court observed that the personal
culpability of a juvenile offender was not as strong as it was with an adult. Id. at
74. Further, deterrence was limited because of the limited moral responsibility
27
of the offender. Id. at 72. With respect to incapacitation, the Graham Court noted
it was difficult even for trained “psychologists to differentiate between the
juvenile offender whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irreparable corruption.” Id. at 73(quoting Roper, 543 U.S. at 573). Finally, the Graham Court noted the similarity
between the death penalty and life without possibility of parole. Id. at 78.
Although life in prison without the possibility of parole was different than death,
the Graham Court recognized that both “share some characteristics” in that both
“alter[] the offender’s life by a forfeiture that is irrevocable,” and “deprive[] the
convict of the most basic liberties without giving hope of restoration.” Id. at 69–
70.
The Graham Court further noted that a sentence of life without possibility
of parole “forswears altogether the rehabilitative ideal.” Id. at 74. While the Court
recognized that the state was “not required to guarantee eventual freedom to a
juvenile offender,” it must give the offender “some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation.” Id. at 75. In
adopting a categorical rule and rejecting a case-by-case analysis, the Graham
Court noted that it was difficult to distinguish with accuracy “the few incorrigible
juvenile offenders” from the many who are capable of change. Id. at 77.
4. Miller v. Alabama. Finally, the Supreme Court in Miller v. Alabama,
considered whether juveniles under the age of eighteen who committed homicidal
crimes could be sentenced to life without possibility of parole. 567 U.S. 460, 465
(2012). Miller recognized that the observations in Graham were made in the
28
context of nonhomicidal crimes. Id. at 473. Yet, it emphasized that “none of what
[Graham] said about children—about their distinctive (and transitory) mental
traits and environmental vulnerabilities—is crime-specific.”1 Id. Here, the
Supreme Court clearly broke from its “death is different” analysis in favor of a
“children are different” approach, see id. at 472–74, and stated that “imposition
of a State’s most severe penalties on juvenile offenders cannot proceed as though
they were not children.” Id. at 474.
Again, the Miller Court emphasized that juvenile life sentences were
“analogous to capital punishment.” Id. at 475 (quoting Graham, 560 U.S. at 89
(Roberts, C.J., concurring in the judgment)). In imposing the harshest sentences
like life without possibility of parole, Miller stressed the importance of not
excluding “the possibility of compassionate or mitigating factors” from
consideration. Id. (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)).
Miller pointed out that Alabama’s mandatory sentencing scheme “poses too great
a risk of disproportionate punishment.” Id. at 479. Although Miller did not
foreclose the possibility of a life-without-possibility-of-parole sentence for
juveniles in homicide cases, it required the state “to take into account how
children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Id. at 480.
1In Miller, the Supreme Court repeated the observations in Graham that the science and
social science findings related to “transient rashness, proclivity for risk, and inability to assess
consequences[] both lessened a child’s ‘moral culpability’ and enhanced the prospect that, as the
years go by and neurological development occurs, his ‘ “deficiencies will be reformed.” ’ ” Miller,
567 U.S. at 472 (quoting Graham, 560 U.S. at 68).
29
An important aspect of Miller is the reliance on Woodson v. North Carolina,
428 U.S. 280 (1976). Woodson, of course, stands for the proposition that before
the death penalty may be imposed, the court must conduct an individualized
inquiry on a case-by-case basis to determine whether the defendant is
sufficiently culpable to merit the death penalty. Id. at 304; see also Lockett v.
Ohio, 438 U.S. 586, 605 (1978) (“[A]n individualized decision is essential in
capital cases.”).
B. Iowa Precedent Regarding Juvenile Sentencing. Although the
language in article I, section 17 of the Iowa Constitution is similar to that of the
Eighth Amendment to the United States Constitution, we, of course, are not
bound to follow the approach of the United States Supreme Court in its
interpretation of parallel Eighth Amendment provisions, and instead are free to
develop our own independent approach. E.g. State v. Ochoa, 792 N.W.2d 260,
264 (Iowa 2010). See generally Mark Denniston & Christoffer Binning, The Role
of State Constitutionalism in Determining Juvenile Life Sentences, 17 Geo. J.L. &
Pub. Pol’y 599 (2019) (identifying and discussing the post-Miller implementation
trend of criminal sentences for juvenile offenders and concluding that, due to a
lack of guidance, states resolve issues in vastly different ways). That said, we
look to cases of the Supreme Court, and indeed any court, for whatever
persuasive reasoning they might provide. Ochoa, 792 N.W.2d at 264–65.
We have embraced the Supreme Court’s rationale in Roper, Graham, and
Miller and further extended application of the role of neuroscience and social
psychology in the considering whether certain punishments of juveniles under
30
the age of eighteen constitutes cruel and unusual punishment under the Iowa
Constitution. See, e.g., State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016) (holding
under article I, section 17 of the Iowa Constitution, juvenile offenders may not
be sentenced to life without possibility of parole); State v. Null, 836 N.W.2d 41,
71 (Iowa 2013) (holding that lengthy sentence imposed on juvenile offenders
triggers Miller-type protections); State v. Pearson, 836 N.W.2d 88, 96 (Iowa 2013)
(holding that consecutive sentences resulting in lengthy imprisonment triggers
Miller-Null-type protections); State v. Ragland, 836 N.W.2d 107, 118–21 (Iowa
2013) (holding that the Governor’s commuted sentence amounts to mandatory
life without parole and was unconstitutional under Miller).
In State v. Ragland, we considered whether the Governor’s commuting of
a mandatory life without possibility of parole for a juvenile offender who
committed felony murder to sixty years mandatory imprisonment was
constitutional under article I, section 17 of the Iowa Constitution. Ragland, 836
N.W.2d at 118–19. We concluded that it was not. Id. at 121 (holding that for all
practical purposes, the same motivation in Miller applies to the commuted
sentence since it is the practical equivalent to life without parole).
In State v. Null, after recognizing the fundamental differences between
juveniles and adults as illustrated by Miller, we held that a cumulative
mandatory prison term of fifty-two and a half years for second-degree murder
and first-degree robbery was contrary to the Cruel and Unusual Punishment
Clause of the United States and Iowa Constitutions. Null, 836 N.W.2d at 70–73.
After extensively canvassing the body of science related to juvenile immaturity,
31
we concluded that the teaching of Miller about children being different was fully
applicable and that Null was entitled to an individualized sentencing hearing to
determine the question of parole eligibility. Id. at 70. Although not a life-without-
possibility-of-parole sentence, we stated that the opportunity for geriatric release
“does not provide a ‘meaningful opportunity’ to demonstrate the ‘maturity and
rehabilitation’ required to obtain release and reenter society as required by
Graham.” Id. at 71 (quoting Graham, 560 U.S. at 75).
We considered lengthy prison terms for nonhomicidal crime in State v.
Pearson, 836 N.W.2d 88, and State v. Lyle, 854 N.W.2d 378 (Iowa 2014). In
Pearson, we considered a case where a juvenile defendant was convicted of two
counts of first-degree robbery and two counts of first-degree burglary in
connection with a crime spree. 836 N.W.2d at 89. The defendant was sentenced
to thirty-five years in prison without the possibility of parole. Id. We held that
the teaching of Miller—namely, the need for an individualized hearing before a
lengthy sentence is imposed on a juvenile offender—applied in a case where a
thirty-five-year mandatory sentence was imposed for the crimes of robbery and
burglary. Id. at 91, 96.
Similarly, in Lyle, we considered a seven-year mandatory sentence of a
juvenile arising out of a second-degree robbery conviction. 854 N.W.2d at 381.
We noted, among other things, that “scientific data and the opinions of medical
experts provide a compelling and increasingly ineluctable case that from a
neurodevelopment standpoint, juvenile culpability does not rise to the adult-like
standard.” Id. at 398. We concluded that sentencing to a statutory mandatory
32
minimum without a hearing to consider the mitigating factors of youth did not
adequately serve legitimate penological objectives in light of the child’s
categorically diminished culpability. Id. at 399.
Our next foray into the field was State v. Sweet, 879 N.W.2d 811. In Sweet,
we considered whether juvenile offenders could be sentenced to life in prison
without possibility of parole for first-degree murder. Id. at 812. We noted that
using our independent judgment under article I, section 17 of the Iowa
Constitution, we have applied the principles of the Roper-Graham-Miller trilogy
“outside the narrow factual confines of those cases, including cases involving
de facto life sentences, very long sentences, and relatively short sentences.” Id.
at 834.
Further, we repeated that it was extremely difficult for even a trained
psychologist to determine the small percentage of juvenile offenders who were
“irreparably corrupt.” Id. at 834. We noted that the district court could not decide
in any principled way which adolescents were those very few who might later
prove to be irreparably depraved. Id. at 837. We cited Montgomery v. Louisiana,
577 U.S. 190 (2016), for the proposition that a life-without-possibility-of-parole
sentence should be available to a juvenile offender only in the rarest of cases. Id.
at 834. We declined to ask our district courts to do what trained professionals
with years of clinical experience declined to do, namely, identify the rarest of
cases where a youth could be shown to be irreparably corrupt, thereby
supporting a life-without-possibility-of-parole sentence. Id. at 839. Ultimately,
33
we held that life-without-possibility-of-parole sentences were categorically
barred for juveniles. Id.
IV. Post-Roper/Graham/Miller Authorities Applying Developments in
Neuroscience and Psychology to Sentencing of Defendants Beyond Age
Eighteen.
A. Cases Declining to Extend Analysis. There are a number of federal
and state court cases that have declined to extend the Miller principles where a
criminal defendant was over the age of eighteen at the time of the crime. See,
e.g., Wright v. United States, 902 F.3d 868, 871–72 (8th Cir. 2018); United States
v. Williston, 862 F.3d 1023, 1039–40 (10th Cir. 2017); United States v. Marshall,
736 F.3d 492, 500 (6th Cir. 2013); Burgie v. State, 575 S.W.3d 127, 128–29 (Ark.
2019); State v. Allen, 958 A.2d 1214, 1233–36 (Conn. 2008).
At least some of the cases that have denied relief, however, leave the door
open to as-applied challenges to harsh sentences by young adults on cruel and
unusual punishment grounds. For instance, in People v. Harris, the Illinois
Supreme Court declined to extend the categorical prohibition of Roper to a
seventy-six-year sentence to a young adult who was eighteen years old at the
time of the crime. 120 N.E.3d 900, 912 (Ill. 2018). While the court rejected the
categorical change, the court declined to rule on the question of whether the
sentence might be cruel and unusual as applied. Id. at 912–14.
B. Cases Considering Roper/Graham/Miller Principles Beyond the
Age of Eighteen.
1. Commonwealth v. Bredhold. In Commonwealth v. Bredhold, a Kentucky
circuit court considered the potential application of the death penalty to a
34
defendant who was eighteen years and five months old at the time of the murder
and robbery. No. 14–CR–161, 2017 WL 8792559, at *1 (Ky. Cir. Ct. Aug. 1, 2017).
Notably, the judge presiding in Bredhold had heard testimony from a nationally
known expert, Dr. Laurence Steinberg, regarding the differences between
adolescents under the age of eighteen and young adults aged eighteen to twenty-
one in a companion case.2 Id. According to the Bredhold court, Steinberg testified
that “if a different version of Roper were heard today, knowing what we know
now, one could’ve made the very same arguments about eighteen (18), nineteen
(19), and twenty (20) year olds that were made about sixteen (16) and seventeen
(17) year olds in Roper.” Id.The Bredhold court concluded that there was a growing consensus against
the death penalty for persons under age twenty-one. Id. at *3. Further, the
Bredhold court concluded that individuals in their late teens and early twenties
were less mature than older adults and more likely to engage in behavior that
underestimates risks and promotes “sensation-seeking.” Id. at *4. The Bredhold
court further noted that young adults are less able to control their impulses and
consider the future consequences of their acts. Id. In addition, the Bredhold court
noted that cognitive abilities mature more rapidly than emotional abilities,
including the ability to exercise control, to properly consider the risks and
rewards of alternative courses of action, and to resist coercive pressure from
others. Id. According to the Bredhold court, the applicable research as well as
2There are some characteristics with death sentences that are shared by other sentences.
Commonwealth v. Diaz, No. 15–CR–584–001 (Ky. Cir. Ct. Sept. 6, 2017).
35
the individual assessment “support the exclusion of the death penalty for this
Defendant.” Id. at *7.
The circuit court ruling in Bredhold, however, was short lived. The
Kentucky Supreme Court vacated the ruling, noting that the defendant had not
yet been sentenced and, as a result, did not have standing to support a
constitutional challenge. See Commonwealth v. Bredhold, 599 S.W.3d 409, 417–
18 (Ky. 2020).
Even so, as the Bredhold circuit court noted, the conclusions of an expert
who made an individualized assessment of the defendant, “are still relevant.”
Bredhold, 2017 WL 8792559, at *7. The expert reported that the defendant
operated “at a level at least four years below that of his peers.” Id. According to
the circuit court, the findings of the expert “further support the exclusion of the
death penalty” for the defendant. Id. Bredhold, of course, is a death penalty case,
but it extends and applies the science described in Roper to a case involving a
criminal defendant above the age of eighteen.
2. State v. Norris. A New Jersey appellate court considered the application
of Miller in a case involving a twenty-one-year-old defendant in State v. Norris,
No. A–3008–15T4, 2017 WL 2062145, at *5 (N.J. Super. Ct. App. Div. May 15,
2017) (per curiam). The New Jersey appellate court in a short per curiam opinion
did not explicitly state that the defendant was entitled to the same consideration
as a juvenile offender, but suggested that Miller factors should be considered
when the trial court considers a sentence for a lengthy term of incarceration. Id.(“[T]he real life consequences of a consecutive, extended-term sentence should
36
be considered, particularly under circumstances such as these, where on the
attempted murder charge the most serious aggravating factors had been
eliminated and the two that remained were somewhat ubiquitous.”).
3. People v. House. An intermediate Illinois appellate court considered the
applicability of developments in brain science to a nineteen-year-old defendant
in People v. House, 72 N.E.3d 357, 384 (Ill. App. Ct. 2015), appeal denied,
judgment vacated, 111 N.E.3d 940 (Ill. 2018). That case involved a question of
the validity of a life-without-possibility-of-parole sentence imposed on a
nineteen-year-old defendant convicted of multiple murders. Id. at 383. The court
reasoned that while the defendant was not a juvenile at the time of the crime,
his “young age of 19 is relevant in consideration.” Id. at 384. Under the specific
facts of the case, the court questioned the propriety of mandatory natural life for
a nineteen-year-old under the theory of accountability. Id. at 385. Additionally,
the court recognized the continuing brain development in adolescents, id., and
noted that legal scholars had observed that “the United States Supreme Court is
moving rather quickly towards abolishing life without parole sentences for
juvenile offenders entirely.” Id. at 386 (quoting Maureen Dowling, Note, Juvenile
Sentencing in Illinois: Addressing the Supreme Court Trend Away from Harsh
Punishments for Juvenile Offenders, 35 N. Ill. U. L. Rev. 611, 619 (2015)). Most
importantly, the court argued that while Roper delineated the division between
juvenile and adult offenders at the age of eighteen, it did not believe that “this
demarcation has created a bright line rule.” Id. at 386. Instead, it believed such
division is “somewhat arbitrary.” Id. at 387. Accordingly, the court argued that
37
there was a need to expand juvenile sentencing provisions for young adult
offenders. Id.
The House holding, however, was vacated by the Illinois Supreme Court,
111 N.E.3d 940, with instructions to the appellate court to consider the recent
holding of the Illinois Supreme Court in Harris, 120 N.E.3d 900. In Harris, the
Illinois Supreme Court held that an aggregate sentence of seventy-six years in
prison upon an eighteen-year-old defendant did not violate the cruel and
unusual punishment provision of Illinois’s constitution where the defendant only
raised a facial challenge to the sentence. Id. at 845. The Illinois Supreme Court
refused to extend Miller, which it regarded as establishing a categorical rule, to
persons over the age of eighteen. Id. at 846–47. The Harris court emphasized,
however, that the defendant did not claim the sentence as applied to him was
cruel and unusual. Id. at 847.
4. United States v. Cruz. A federal district court approached the question
of the application of science to the sentencing of a defendant when he was
eighteen years and twenty weeks old. Cruz v. United States, No. 11–CV–787
(JCH), 2018 WL 1541898, at *1 (D. Conn. Mar. 29, 2018), vacated and
remanded, 826 F. App’x 49 (2d Cir. 2020). In that case, Cruz had been
incarcerated for many years and was bringing his claim that the life-without-
possibility-of-parole sentence amounted to cruel and unusual punishment. Id.at *1–2.
The Cruz court considered whether Supreme Court precedent barred the
district court from consideration of application of the Miller principles to the
38
defendant. Id. at *6. According to the Cruz court, Miller said nothing about how
the Eighth Amendment would apply to mandatory life without possibility for
parole for those over the age of eighteen. Id. at *15 (stating that the state failed
to recognize that there were “different kinds of lines” and taking for example that
the Supreme Court expanded the protection of death penalty sentences for
underage offenders from sixteen to eighteen through a series of cases from
Thompson, 487 U.S. 815, to Stanford, 492 U.S. 361, and reasoning that,
similarly, Roper, Graham, and Miller protected offenders that fall under the line
while remaining silent as to offenders that fall above the line). As a result, Miller
did not preclude the district court from considering the relevance of science to a
cruel-and-unusual-punishment claim where the defendant was eighteen years
old. Id. at *16.
Dr. Steinberg, an expert on juvenile brain development, testified
extensively at trial. Dr. Steinberg testified that early adolescence as occurring
between the ages of ten and thirteen, middle adolescence between the ages of
fourteen and seventeen, and late adolescence between the ages of eighteen and
twenty-one. Cruz, 2018 WL 1541898, at *23. Specifically, late adolescents “still
show problems with impulse control and self-regulation and heightened
sensation-seeking, which would make them in those respects more similar to
somewhat younger people than to older people.” Id. Therefore, scientific evidence
revealed that late adolescents displayed similar characteristics of immaturity
and impulsivity as juveniles under eighteen. Id. Yet, people in late adolescence
were still more capable of change than adults. Id. at *24.
39
Additionally, Dr. Steinberg testified that at the time when Roper was
decided, little research focused on the brain development of late adolescence or
young adulthood, so when Roper drew the line at the age of eighteen in 2005,
scientific record was not available to the United States Supreme Court as it is
today. Cruz, 2018 WL 1541898, at *25. Based on the evidence and the body of
research, the district court concluded that Miller-type principles should be
extended to persons over the age of eighteen. Id. at *25.
But the United States Court of Appeals for the Second Circuit reversed.
See Cruz v. United States, 826 F. App’x 49, 52 (2d Cir. 2020). The Second Circuit
held that persons who committed offenses when over the age of eighteen were
not entitled to Miller-type protections, and insisted that Miller embraced the age
of eighteen as a substantive cut-off date for making similar claims. Id.
5. United States v. C.R. In C.R., United States District Court Judge Jack
Weinstein wrote a lengthy opinion considering the validity of a mandatory five-
year prison sentence on a nineteen-year-old convicted of possession of child
pornography. 792 F. Supp. 2d 343, 347 (E.D.N.Y. 2011), vacated by United
States v. Reingold, 731 F.3d 204 (2d Cir. 2013). Judge Weinstein canvassed the
science related to the development of juveniles into young adults, and concluded
that young brains are still developing after the age of eighteen and that their
culpability was therefore reduced. Id. at 490. He concluded under the facts of
the case that the imposition of a five-year minimum prison sentence on a
nineteen-year-old defendant would amount to cruel and unusual punishment.
Id. at 510.
40
V. Overview of the Science Regarding Harsh Sentences for Young
Adults.
Roper, of course, was decided in 2005. 543 U.S. 551. Even in Roper,
however, the Supreme Court recognized that the juvenile brain development that
impacted the culpability of criminal defendants did not end at age eighteen but
extended beyond that date. Id. at 574.
Since then, neuroscience involving adolescents has continued to
accumulate. Post-Roper studies reinforce the notion that impulsivity and neural
plasticity are characteristic of young adults. Madison Ard, Note, Coming of Age:
Modern Neuroscience and the Expansion of Juvenile Sentencing Protections, 72
Ala. L. Rev. 511, 520–21 (2020). Research has confirmed that the brain
continues to mature beyond the age of eighteen. See, e.g., Kathryn L. Mills et al.,
Structural Brain Development Between Childhood and Adulthood: Convergence
Across Four Longitudinal Samples, 141 Neuroimage 273, 276 (2016); Marc D.
Rudolph et al., At Risk of Being Risky: The Relationship Between “Brain Age”
Under Emotional States and Risk Preference, 24 Developmental Cognitive
Neuroscience 93, 102–03 (2017); Christian K. Tamnes et al., Development of the
Cerebral Cortex Across Adolescence: A Multisample Study of Inter-Related
Longitudinal Changes in Cortical Volume, Surface Area, and Thickness, 71 J.
Neuroscience 3402, 3410 (2017). And social psychology continues to show the
immaturity of young adults beyond the age of eighteen. See, e.g., Alexandra O.
Cohen et al., When Is an Adolescent an Adult? Assessing Cognitive Control in
Emotional and Nonemotional Contexts, 27 Psychological Sci. 549, 550, 559–60
(2016); Kathryn Monahan et al., Juvenile Justice Policy and Practice: A
41
Developmental Perspective, 44 Crime & Just. 577, 582 (2015). As summarized
by one commentator, “[E]ighteen-to twenty-one-year-olds [are] more similar to
ten- to seventeen-year-olds on indices of psychosocial maturity than they [are]
to adults twenty-six years of age and older.” Andrew Michaels, A Decent Proposal:
Exempting Eighteen- to Twenty-Year-Olds from the Death Penalty, 40 N.Y.U. Rev.
L. & Soc. Change 139, 163 (2016) [hereinafter Michaels].
In light of the evolving science, there have been suggestions in scholarly
literature regarding how best to treat young offenders who fall within the aged
eighteen to twenty-one or eighteen to twenty-five category. Some scholars have
cogently suggested simply moving some of the categorical goal posts, just like
the Supreme Court did when it increased the categorical age for prohibition of
the death penalty from sixteen in Thompson to eighteen in Roper. See John H.
Blume et al., Death by Numbers: Why Evolving Standards Compel Extending
Roper’s Categorical Ban Against Executing Juveniles from Eighteen to Twenty-
One, 98 Tex. L. Rev. 921, 950 (2020); Carly Loomis-Gustafson, Student Article,
Adjusting the Bright-Line Age of Accountability within the Criminal Justice System:
Raising the Age of Majority to Age 21 Based on the Conclusions of Scientific
Studies Regarding Neurological Development and Culpability, 55 Duq. L. Rev.
221, 237 (2017); Michaels, 40 N.Y.U. Rev. L. & Soc. Change 139. These scholars
urge that the categorical judgment that the death penalty cannot be applied to
children under the age of eighteen should be raised to age twenty-one or twenty-
five. In the context of Iowa law, where life without possibility of parole is the
42
harshest sanction available, the implication is that this sentence should be
categorically barred for young adults as well as those under the age of eighteen.
Other authorities have rejected a per se bar on severe sentences such as
life without possibility of parole for persons over the age of eighteen, but have
instead argued that the appropriate way to integrate the science into the
sentencing process is through an individualized hearing. See William W. Berry
III, Eighth Amendment Presumptive Penumbras (and Juvenile Offenders), 106
Iowa L. Rev. 1, 42 (2020). One scholar has suggested that in such an
individualized hearing, the state would carry the burden of demonstrating the
need for a life-without-possibility-of-parole sentence. Id. Under such a regime, it
might be difficult to apply a life-without-possibility-of-parole sentence to a
nonhomicidal crime of a young adult. Id.Three leading scholars—Elizabeth S. Scott, Richard J. Bonnie, and
Laurence Steinberg—wrote a 2016 article considering the question of proper
treatment of young adults for purposes of applying cruel and unusual
punishment law. See Elizabeth S. Scott et al., Young Adulthood as a Transitional
Legal Category: Science, Social Change, and Justice Policy, 85 Fordham L. Rev.
641 (2016) [hereinafter Scott]. In this somewhat dated review of scholarship, the
authors recognize that it was time to reconsider the law’s approach to young
adult offenders in light of recent scientific research. Id. at 643. The authors
caution that the research does not establish that individuals aged eighteen
through twenty are not indistinguishable from children under the age of
eighteen. Id. Instead, according to the authors, the young adult years can be best
43
understood as a transition stage between adolescence and mature adulthood.
Id. at 644. In short, the authors reject a binary approach to childhood and
adulthood. Id. They do not advocate simply extending the categorical goal posts
of Roper and its progeny to persons under the age of twenty-one or twenty-five.
The authors caution is based, at least in part, on the limitations in the
psychological studies of young adults. First, they note that the studies showing
emotional immaturity are somewhat task dependent. Id. at 648–50. Second, the
studies of peer pressure for the older age group are equivocal. Id. Third,
psychological maturity varies at given ages considerably. Id. Finally, age
differences in psychological functioning in young adulthood seems to vary as a
function of context. Id. With respect to brain development studies, the authors
observe that the research has not yet significantly informed our understanding
of the characteristics necessary for the formation of social policy. Id. at 652.
Yet, the authors conclude that the research, though not conclusive, shows
young adults may be “driven by tendencies toward impulsivity and risk-taking
that characterize much of the criminal activity of juveniles.” Id. at 656–57. Even
for violent offenses, the authors suggest that the offender’s relative youth should
be considered in sentencing. Id. at 661. They assert that the evidence may
support a presumption that mandatory minimum sentencing regimes should
exclude young adult offenders. Id. at 662; see also William W. Berry III,
Individualized Sentencing, 76 Wash. & Lee L. Rev. 13 (2019) [hereinafter Berry
III, Individualized Sentencing] (urging individualized sentencing for youth over
the age of eighteen); Josh Gupta-Kagan, The Intersection Between Young Adult
44
Sentencing and Mass Incarceration, 2018 Wis. L. Rev. 669, 714 (2018)
(recommending youth be considered a separate category for cruel and unusual
punishment proportionality analysis).
VI. Discussion.
A. Introduction. This case involves whether the developments in
neuroscience and social science undermines a mandatory sentence of life
without possibility of parole for an eighteen-year-old charged with homicide
under the cruel and unusual punishment clause of article I, section 17 of the
Iowa Constitution. There are two questions presented. The first question is
whether the categorical rule in Sweet, namely, that juvenile offenders under the
age of eighteen cannot be sentenced to life without possibility of parole, should
be extended to cover the defendant here who committed homicide when he was
just over eighteen years of age. If the answer to this question is no, a second
distinctly different question arises, namely, whether a defendant is entitled to an
individualized Miller-type hearing on the question of whether life in prison
without possibility of parole may be constitutionally applied given the maturity
of the defendant.
B. Categorical Ban on Life Without Parole to Defendants Who Commit
Crimes When over the Age of Eighteen. In Sweet, we categorically held that a
child who commits a crime while under the age of eighteen cannot be sentenced
to life without possibility of parole. 879 N.W.2d at 839. The defendant here
argues that the categorical rule in Sweet should be extended to a defendant who
is just over the age of eighteen when the crime is committed. The defendant
45
argues that the age of eighteen should not be regarded as a “bright line” that
excludes consideration of the mitigating features of youth for young adults aged
eighteen and over. The State responds that the language in Sweet stating that
the relief applied to persons eighteen years of age was designed as a “bright line”
that should not be altered in this case.
Drawing the line at age eighteen for the categorical judgment in Sweet was
not based on the notion that the mitigating factors of youth explored in those
cases have no application to sentences of adolescents beyond the age of eighteen.
Instead, the line has been drawn to support the categorical judgment that life
without possibility of parole could never be imposed on any juvenile. See id. at
835–39. The risk of disproportionate punishment of youth under the age of
eighteen through application of mandatory adult punishment is so high, and the
ability to identify incorrigible exceptions so difficult, that an across the board
judgment prohibition is required.
The case for a categorical judgment that life without possibility of parole
could never be imposed weakens after the age of eighteen. It is no doubt true
that the science has evolved since Roper was decided in 2005 and that the
judgments made in Roper, and in Sweet have been further reinforced by
additional research. But as pointed out by Scott, Binnie, and Steinberg in 2016,
the neurological and social science suggesting mitigating factors involving young
adults who commit serious crimes is at least somewhat more ambiguous than
the studies involving children. See generally Scott, 85 Fordham L. Rev. 641. In
other words, based on the current science, the potential disproportionality of
46
application of adult mandatory sentence of life without possibility of parole to
persons over eighteen when the crime is committed is sufficiently reduced that
a categorical ban on the punishment is not required.
As a result, I would decline the invitation of Dorsey to simply extend the
categorical rule of Sweet prohibiting life-without-possibility-of-parole sentences
to young adults like Dorsey at this time. I would not, however, rule out the
possibility that at some point scientific and other developments may require a
reexamination of my conclusion.
C. As-Applied Challenge. In the alternative to a categorical challenge,
Dorsey suggests we apply a State v. Bruegger-type proportionality test in this
case that takes into account the mitigating factors of youth. See 773 N.W.2d 862(Iowa 2009). In Bruegger, we held that under Iowa Rule of Criminal Procedure
2.24(5)(a), a defendant could raise a challenge to the legality of a sentence at any
time, including claims that the sentence amounted to cruel and unusual
punishment. Id. at 884. We reviewed a case involving a number of nonexclusive
factors that contributed to excessive punishment, including the convergence of
a broadly defined criminal statute, the use of a juvenile adjudication when he
was twelve to enhance his sentence, and the dramatic increase in his
punishment resulting from the enhancement. Id. at 885. We emphasized in
Bruegger, however, that no party advocated a standard for interpreting the Iowa
Constitution differently from its federal counterpart. Id. at 883. Nonetheless, we
emphasized our familiar ability to apply the generally applicable standard in a
fashion more stringent than the federal caselaw. Id.47
This case, however, is distinguishable from Bruegger in two important
respects. First, no party in Bruegger presented to us an argument regarding the
potential application of the evolving neuroscience in the evaluation of the
defendant’s culpability. In this case, however, Dorsey invites us to consider the
question of gross proportionality in the context of a life-without-possibility-of-
parole sentence for a person just over the age of eighteen. Second, Brugger
involved a term of years, while this case involves the harshest sentence available
in Iowa—life without possibility of parole. In short, the sum and substance of
Dorsey’s argument, unlike that in Bruegger, is to ask that this court depart from
the federal precedent and extend our holdings to young adults over eighteen
years old.
I now turn to Dorsey’s alternate argument that he is entitled to an
individualized hearing on his as-applied challenge under article I, section 17 of
the Iowa Constitution. Dorsey’s position is consistent with the thread of
authorities that emphasize the need for an individualized assessment before the
harshest sentence may be imposed on an offender. For instance, in Atkins, the
Supreme Court ruled in the death penalty context that an individualized
assessment of a defendant’s mental capacity is required before the death penalty
could be imposed. 536 U.S. at 317, 321 (noting that an assessment is required
to decide if the offender is actually mentally impaired, and that such assessment
possibly would draw much disagreement, but where the offender meets the
standard, “death is not a suitable punishment for a mentally retarded
criminal”). Similarly, in Woodson and Lockett v. Ohio, the Supreme Court held
48
that individualized assessments were required for considering mitigation in a
death penalty case. Woodson, 428 U.S. at 304; Lockett, 438 U.S. at 605.
It is true, of course, that Atkins, Woodson, and Lockett were death penalty
cases. But life without possibility of parole is the harshest of penalties in Iowa.
As established earlier, “[L]ife without parole sentences share some
characteristics with death sentences that are shared by no other sentences.”
Graham, 560 U.S. at 69. They are “an irrevocable judgment about that person’s
value and place in society.” Id. at 74. From a practical perspective, “[a] young
person who knows that he or she has no chance to leave prison before life’s end
has little incentive to become a responsible individual.” Id. at 79.
In the life-without-possibility-of-parole case of Miller, the Supreme Court
emphasized the importance of the Woodson-Lockett individualized assessment
and suggested that the distinction between the death penalty and noncapital
cases was not absolute. See Berry III, Individualized Sentencing, 76 Wash. & Lee
L. Rev. at 62; William W. Berry III, The Mandate of Miller, 51 Am. Crim. L. Rev.
327, 339 (2014). Although Miller involved a defendant under the age of eighteen,
the availability of an individualized hearing on proportionality of a young offender
just over the age of eighteen serves as a protective measure to ensure that only
the most incorrigible of young defendants receive the harshest penalty.
In my view, the state must make a showing of incorrigibility before a life-
without-possibility-of-parole sentence can be imposed on a young adult in light
of the reduced culpability ordinarily associated with youth. As a result, this
matter should be remanded for a Miller-type individualized hearing to determine
49
whether the State can show that the defendant is incorrigible and therefore has
the culpability necessary to support a life-without-possibility-of-parole-death-in-
prison sentence. While an offender under the age of eighteen may be entitled to
a categorical exclusion from a life-without-possibility-of-parole sentence, I would
hold that an individual older than eighteen might be subject to life without
possibility of parole provided that the state can make the necessary showing of
incorrigibility to support the sentence.
Because of the confluence of the mitigating factors of youth and the
harshness of the penalty, I would apply a different version of the gross
proportionality test than has traditionally been applied under the federal
caselaw. Instead, in the context of a youthful offender facing life without
possibility of parole, the state should be required to show that the individual
offender is so incorrigible that even considering a parole-based release at a later
date is out of the question. This heightened sense of proportionality is necessary
because of the potent combination of potential mitigating factors and the
irreversible and severe nature of the underlying punishment. This extension of
individualized determinations is a small but necessary evolution of our current
law.
VII. Conclusion.
For the above reasons, I would vacate the sentence and remand the matter
to the district court for further proceedings consistent with this opinion.