IN THE SUPREME COURT OF IOWA

No. 14–0175

Filed June 26, 2015

STATE OF IOWA,

Appellant,

vs.

YVETTE MARIE LOUISELL,

Appellee.

Appeal from the Iowa District Court for Story County, James C. 

Ellefson, Judge.

The State appeals the sentence imposed on a juvenile convicted of 

first-degree murder, contending the district court lacks authority to 

impose it. DISTRICT COURT SENTENCE VACATED AND CASE 

REMANDED WITH INSTRUCTIONS.

Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant 

Attorney General, and Stephen H. Holmes, County Attorney, for 

appellant.

Gordon E. Allen, Johnston, and Matthew L. Shimanovsky (until 

withdrawal), Urbandale, for appellee.

Rita Bettis and Randall C. Wilson, Des Moines, and Ezekiel R. 

Edwards and Steven M. Watt, New York, New York, for amici curiae 

ACLU of Iowa and ACLU Foundation.
2

HECHT, Justice.

Recent decisions of this court have explored the constitutionality of 

criminal sentences for juvenile offenders. See generally State v. Lyle, 854 

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). Today we consider the nature and extent of a court’s 

discretion in resentencing a juvenile offender convicted of a murder 

committed in 1987. Because we conclude the district court lacked 

authority to impose a determinate sentence of twenty-five years, but did 

have authority to impose a sentence of life in prison with eligibility for 

parole, we vacate the sentence and remand with instructions. 

I. Background Facts and Proceedings.

In 1988, a jury convicted Yvette Louisell of first-degree murder, 

stemming from the 1987 stabbing death of Keith Stilwell. At the time 

she committed the crime, Louisell was seventeen years and five months 

old and was a student at Iowa State University (ISU). 

Louisell’s chaotic family background and home environment 

heavily influenced and shaped the seventeen-year-old prior to the 

homicide. Louisell’s mother suffered from mental illness, and her father 

was often absent from the family home. When he was present, he and 

Louisell’s mother were often violent with one another; Louisell’s first 

memory is of her parents fighting. At age three, Louisell ingested LSD 

she found in the house—not knowing what it was—and experienced 

hallucinations. At age four, Louisell’s mother left the home, and soon 

after that, Louisell’s parents divorced. During the next few years, 

Louisell moved across state lines several different times and was shuttled 

between homes in Michigan, Wisconsin, Illinois, and Ohio. Eventually, 

Louisell’s grandmother became her legal guardian and primary parental 
3

figure. Louisell attended nine different schools and never attended the 

same school for two consecutive years until her junior and senior years 

of high school in Michigan. Yet despite these difficult circumstances, 

Louisell participated in programs for gifted students and even skipped a 

grade in elementary school.

Unfortunately, the adversity Louisell faced throughout her 

childhood did not dissipate once she reached high school and obtained 

some locational stability. Her father remarried, but did not become more 

supportive. On one particular occasion, Louisell watched her stepmother 

chase her father with a knife and became so afraid of further violence 

that she hid all the other knives in the house. Additionally, because she 

was younger than her peers and behind them developmentally, Louisell 

felt isolated from them.

Despite this considerable cumulative adversity, Louisell graduated 

early from high school at age sixteen. She initially contemplated 

attending college in Michigan or Indiana, close to home. However, for 

financial reasons, she accepted a full tuition scholarship and 

immediately enrolled in a summer enrichment program at ISU, hundreds 

of miles from home. After Louisell arrived at ISU, she found the sudden 

independence of a college student overwhelming. She began to struggle 

academically and, with her self-confidence near zero, started drinking 

heavily and using marijuana to escape from her emotional stress. As the 

fall semester continued, Louisell’s grades continued to slip and she felt 

hopeless.

Needing to earn money because she feared ISU would revoke her 

scholarship for poor academic performance, Louisell answered an 

advertisement seeking a model for art classes at a local art institute. She 

initially declined employment because the institute informed her that 
4

posing nude was a requirement of the position. However, she eventually 

decided she needed the money and agreed to pose nude for one of the 

institute’s classes. After she posed for a few sessions at the institute, 

Stilwell, one of the students at the institute, befriended Louisell and 

hired her to model privately in his home. See Louisell v. Dir. of Iowa 

Dep’t of Corr., 178 F.3d 1019, 1021 (8th Cir. 1999). Stilwell was 

physically handicapped and could walk only by using canes. See id. 

Louisell agreed to the private sessions because Stilwell—an older student 

twice Louisell’s age—offered to compensate her at four times the hourly 

wage the institute paid her. 

After several sessions in Stilwell’s home, Louisell decided she did 

not want to continue modeling privately for Stilwell. Accordingly, she 

informed Stilwell an upcoming session would be her last. During that 

final session, Louisell contended at trial, Stilwell cornered her with a 

knife—despite his handicap—and announced he was going to have sex 

with her. Reacting instinctively, she claimed she wrested the knife from 

Stilwell and stabbed him in self-defense to prevent him from raping her. 

She left Stilwell’s home and took Stilwell’s wallet with her. She was later 

apprehended while attempting to use Stilwell’s credit card to make a 

purchase at a local mall. A jury rejected Louisell’s version of events and 

her justification defense, returning a verdict finding Louisell guilty of 

first-degree murder.

After Louisell’s conviction, she was sentenced to life imprisonment 

without parole,1 the only sentence authorized in Iowa Code section 902.1 

1In this opinion, we use the acronym LWOP when referring to a sentence of life 

without parole.

 
5

(1987) for that crime.2 She unsuccessfully pursued a direct appeal and 

two subsequent applications for postconviction relief in state court. Her 

habeas petition filed in federal court was also denied. See Louisell, 178 

F.3d at 1021–22, 1024. She has remained in state custody for twentysix years since her 1988 conviction and is currently incarcerated at the 

Iowa Correctional Institution for Women (ICIW) in Mitchellville, Iowa.

In 2010, the United States Supreme Court held the Eighth 

Amendment prohibits LWOP sentences for juveniles who commit 

nonhomicide offenses; they must be afforded “some realistic opportunity 

to obtain release.” Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct. 2011, 

2034, 176 L. Ed. 2d 825, 850 (2010). Seeking to extend Graham’s Eighth 

Amendment protections to include juveniles convicted of homicide, 

Louisell filed a motion to correct an illegal sentence in 2011. While the 

motion was pending, the United States Supreme Court struck down 

mandatory sentencing schemes that impose LWOP while failing to afford 

juvenile offenders—even those convicted of homicide—an individualized 

sentencing determination based on specific factors the Court identified. 

Miller v. Alabama, 567 U.S. ___, ___, ___, 132 S. Ct. 2455, 2468, 2475, 

183 L. Ed. 2d 407, 423, 430 (2012) (identifying five factors sentencing 

courts must consider); Ragland, 836 N.W.2d at 115 n.6 (adopting the 

Miller factors). 

Louisell’s mandatory LWOP sentence fell within the category of 

sentences Miller made invalid. Governor Terry Branstad subsequently 

commuted Louisell’s LWOP sentence—along with the sentences of thirtyseven other juvenile offenders—to life imprisonment with the possibility 

2The language from the 1987 version of this statute remains in effect today. See 

Iowa Code § 902.1(1) (2015).

 
6

of parole after sixty years in prison. See Ragland, 836 N.W.2d at 110–12 

(reproducing one of the Governor’s commutation orders in its entirety). 

Yet, the district court denied Louisell’s motion to correct an illegal 

sentence, concluding Miller had only prospective effect. Louisell 

appealed.

While Louisell’s appeal was pending, we held that, as applied to 

one of the other thirty-seven LWOP sentences imposed on juvenile 

offenders, the Governor’s commutation elevated form over substance. 

See id. at 121. We explained that although parole was technically 

available to the affected inmates after sixty years in prison, the 

commuted sentences were “the functional equivalent of life without 

parole” because they provided no meaningful opportunity for release. Id.

at 121–22. We also determined that Miller applies retroactively. Id. at 

117.

Following our Ragland decision, we summarily vacated Louisell’s 

sentence and remanded the case to the district court for an 

individualized sentencing hearing. At the hearing, Louisell presented 

testimony and exhibits tending to show she has been rehabilitated 

during her twenty-six years in prison. For example, the record shows 

Louisell completed numerous educational courses and programs while in 

prison, including an associate’s degree in 1998 and a bachelor’s degree—

with magna cum laude honors—in 2009.3 She learned at least one 

trade—electrician’s helper—and participated in numerous other artistic, 

musical, and religious activities at the prison. Further, Louisell is a 

published author who mentors and tutors other incarcerated women. 

3According to one of Louisell’s counselors, Louisell is only the second woman in 

ICIW’s history to receive a bachelor’s degree while incarcerated.

 
7

Key players in Louisell’s 1988 murder trial weighed in at the 

resentencing hearing. The county attorney who prosecuted Louisell 

testified she believes Louisell has served enough time and has been 

punished sufficiently. Judge Allan Goode, who presided over Louisell’s 

1988 criminal trial, authored a letter in which he opined Louisell could 

make positive contributions to the community if she were released from 

prison.4 

Louisell presented other evidence at the resentencing hearing 

detailing the circumstances awaiting her should she be released from 

prison. For example, the record includes a letter confirming she has 

received an offer of employment as an apprentice electrical trimmer. 

Other evidence was presented to the court describing the support system 

standing ready to help Louisell reenter society should she be discharged 

from prison. Together, the evidence created an overarching theme: By all 

accounts, Louisell is a model inmate who has achieved rehabilitation; 

grown from a naïve and impulsive youngster to a mature, accomplished, 

and intelligent woman; and accepted full responsibility for the crime she 

committed as a juvenile in 1987.

After hearing the testimony and considering the exhibits Louisell 

presented, the district court acknowledged significant statutory and 

constitutional uncertainty with regard to the court’s sentencing authority 

after Miller and Ragland. The court then carefully considered the 

evidence in the record and thoroughly analyzed each of the Miller factors. 

After doing so, the court resentenced Louisell to a definite term of 

twenty-five years with credit for time served, thereby discharging her 

4Judge Goode wrote the letter in 2009 to support an application for 

commutation Louisell made to then-Governor Chet Culver. Judge Goode passed away 

in 2010.

 
8

from prison immediately and releasing her to correctional supervision, as 

if on parole, for no more than two years. Recognizing the possibility an 

appellate court might conclude the district court lacked authority to 

impose a definite term of years for first-degree murder, the court imposed 

an alternative sentence of life in prison with the possibility of parole after 

twenty-five years. Under this alternative sentence, the court determined 

Louisell is now eligible for parole, but left to the parole board’s discretion 

when Louisell should in fact be paroled.

The State appealed and also requested an immediate stay of the 

district court’s resentencing order. We granted the stay and retained the 

appeal to clarify the district court’s sentencing authority in this evolving 

area of law.

II. Scope of Review.

Illegal sentences can be challenged at any time. Iowa R. Crim. P. 

2.24(5)(a); State v. Hoeck, 843 N.W.2d 67, 70 (Iowa 2014); Pearson, 836 

N.W.2d at 94. A sentence is illegal if it amounts to cruel and unusual 

punishment. Hoeck, 843 N.W.2d at 70; Bonilla v. State, 791 N.W.2d 697, 

699 (Iowa 2010). Because appeals asserting cruel and unusual 

punishment claims require constitutional analysis, our review is typically 

de novo. Hoeck, 843 N.W.2d at 70; Ragland, 836 N.W.2d at 113.

Louisell has not appealed from the new sentence, and we therefore 

do not consider whether it is illegal or cruel and unusual. Rather, this 

appeal brought by the State requires us to decide whether the district 

court had the authority to impose a determinate sentence or a sentence 

setting the date when Louisell became eligible for parole. We review 

challenges to the legality of a sentence for correction of legal errors. See 

Ragland, 836 N.W.2d at 113. 
9

III. The Parties’ Positions.

A. The State. The State concedes Louisell’s original LWOP 

sentence was unconstitutional under Miller and Ragland, but asserts her 

corrected sentence of a determinate term of twenty-five years in prison 

must be vacated because it is not authorized by statute and is therefore 

illegal. The State insists that no set of facts authorizes a district court to 

impose a sentence not found in the Iowa Code. The only sentence for 

first-degree murder, the State contends, is life in prison.

The State rests its argument on separation of powers principles. 

Our state constitution instructs that “[t]he powers of the government of 

Iowa shall be divided into three separate departments . . . and no person 

charged with the exercise of powers properly belonging to one of these 

departments shall exercise any function appertaining to either of the 

others.” Iowa Const. art. III, § 1. According to the State, the legislature 

has exclusive power to prescribe punishment for criminal convictions, 

while judicial power is limited to judgments imposing the prescribed 

punishment. In other words, the State contends a court can only “give 

effect to the law as written, not . . . rewrite the law in accordance with 

the court’s view of the preferred public policy.” State v. Wagner, 596 

N.W.2d 83, 88 (Iowa 1999). The district court’s determination that 

Louisell be sentenced to twenty-five years in prison with credit for time 

served—and accordingly, that she should now be discharged from 

custody—violates these principles, the State asserts, because the 

legislature has not authorized such a sentence.

The State identifies three dispositional alternatives that would, in 

its view, comport with the court’s constitutional role: (1) uphold the 

sentence of sixty years under the Governor’s commutation order; (2) 

sever parole ineligibility from Iowa Code section 902.1(1) (2015), leaving 
10

intact Louisell’s life sentence but making her immediately eligible for 

parole and, therefore, affording her release from prison at such time as 

the board of parole may determine; or (3) move downward along the 

charging scale to a punishment expressly authorized by the legislature 

for a different homicide offense. 

As we have already held the commuted sentence offering parole 

eligibility after sixty years in prison is unconstitutional because it was 

imposed without individualized consideration of the Miller factors, 

Ragland, 836 N.W.2d at 122, the State’s first proposed dispositional 

option is a nonstarter. The State’s second option is functionally similar 

to the district court’s alternative sentence of life in prison with parole 

after serving twenty-five years. In both instances, Louisell would 

immediately be eligible for parole because she has served more than 

twenty-five years in prison, and the parole board would make the 

determination of whether and when she will be released on parole. The 

State characterizes its third proposed dispositional alternative as 

“invasive,” and it therefore discourages us from implementing that 

alternative. See Commonwealth v. Brown, 1 N.E.3d 259, 264–66 (Mass. 

2013) (refusing to create “an entirely new penalty scheme ad hoc”).

B. Louisell. According to Louisell, the court should not defer to 

the legislature as the State urges because deference would merely 

perpetuate her illegal LWOP sentence. While she would theoretically be 

parole-eligible under the State’s preferred disposition and under the 

district court’s alternative sentencing option, she contends the likelihood 

of ever receiving parole is negligible given the parole board’s steadfast 

refusal to grant juvenile offenders release, even after the decisions in 

Graham, Miller, and Ragland were filed. As such, she argues, any 

sentence other than the district court’s first alternative leading to 
11

immediate discharge would deprive her of a meaningful opportunity to 

reenter society and leave her stuck in parole limbo incompatible with the 

spirit of Miller, Null, Pearson and Ragland. 

In Ragland, we concluded an individualized sentencing hearing 

including consideration of the Miller factors “cures the unconstitutional 

aspects of [mandatory LWOP] statutes as applied to juvenile offenders 

until amended by the legislature to establish a different constitutional 

procedure.” Ragland, 836 N.W.2d at 119 n.7. Louisell seizes on the 

phrase “until amended by the legislature,” and notes the legislature did 

not amend section 902.1 to establish a constitutional sentencing 

procedure for juvenile offenders convicted of first-degree murder in the 

two legislative sessions held after Miller was decided.5 Thus, Louisell

asserts, the resentencing court was forced to craft a new sentence 

because section 902.1 calls for LWOP and is constitutionally infirm. It 

comes down, she asserts, to a choice between judicial discretion or a 

punishment we know is cruel and unusual. Louisell insists judicial 

discretion must rule the day, and the district court’s conclusion it had 

discretion to depart from the strict letter of the unconstitutional statute 

and craft an appropriate determinate sentence under the circumstances 

presented here should therefore be affirmed.

Addressing the State’s separation-of-powers argument, Louisell 

notes the judicial function is to apply constitutional principles to decide 

controversies—not simply point them out. And although we must 

respect the powers of the legislative and executive departments, Louisell 

5At the time of Louisell’s resentencing, only one legislative session had 

concluded without passage of legislation addressing individualized sentencing of 

juvenile offenders convicted of class “A” felonies involving homicides. A second 

legislative session without legislative action on this subject ended prior to the 

submission of this appeal.

 
12

contends the judicial department has inherent power to do justice when 

the other departments fail to adopt sentencing and parole regimes 

compatible with article I, section 17 of our constitution. Deference to the 

other departments in this particular context would, in Louisell’s view, 

prevent sentencing judges from exercising their discretion and nullify her 

right to be free from cruel and unusual punishment.

IV. Analysis.

A. Determinate Term of Twenty-five Years in Prison. We begin 

by noting the well-established principle that sentences imposed without 

statutory authorization are illegal and void. State v. Ross, 729 N.W.2d 

806, 809 (Iowa 2007); State v. Freeman, 705 N.W.2d 286, 287 (Iowa 

2005). “We have upheld this principle even in cases in which the illegal 

sentence was more lenient than that allowed by law and when correction 

of the sentence would result in an increase in the sentence.” State v. 

Allen, 601 N.W.2d 689, 690 (Iowa 1999) (per curiam); see State v. Draper, 

457 N.W.2d 600, 605–06 (Iowa 1990) (increasing sentences for drug 

violations to five years when the district court impermissibly imposed 

only three years); State v. Ohnmacht, 342 N.W.2d 838, 842–43, 845 (Iowa 

1983) (reinstating prison time because a defendant convicted of firstdegree robbery was not statutorily eligible for the suspended sentence he 

received). Sentencing judges exercise discretion in pursuit of a 

statutorily mandated goal: to “provide maximum opportunity for the 

rehabilitation of the defendant[] and for the protection of the community 

from further offenses by the defendant and others.” Iowa Code § 901.5

(2013). But in implementing this goal, judges may only impose 

punishment authorized by the legislature within constitutional 

constraints. “[L]egislative determinations of punishment are entitled to 
13

great deference.” State v. Bruegger, 773 N.W.2d 862, 872–73 (Iowa 

2009).

The Code of Iowa does not currently authorize a term-of-years 

sentence for a defendant convicted of first-degree murder, even if that 

defendant committed the crime as a juvenile. Several sections within 

chapter 902 mandate that class “A” felons, and specifically those 

convicted of first-degree murder, receive more severe sentences than 

persons convicted of lesser crimes. For example, Iowa Code section 

902.1(1) states that a convicted class “A” felon shall be committed into 

custody for life.6 Additionally, section 902.3 excludes class “A” felonies 

from indeterminate sentencing, reinforcing the idea that life in prison is 

the intended punishment for such crimes. Iowa Code § 902.3. Finally,

section 902.4 excludes class “A” felons from the universe of felons whose 

sentences may be reconsidered within one year after their conviction. Id. 

§ 902.4.

Because there was no statutory authority for the determinate 

sentence of twenty-five years in prison for Louisell’s first-degree murder 

conviction, that part of the district court’s sentencing order must be 

vacated. See Freeman, 705 N.W.2d at 287 (“A sentence is void if the 

statute does not authorize [it].”); Draper, 457 N.W.2d at 605 (“Simply 

stated, when a sentencing court departs—upward or downward—from 

the legislatively authorized sentence for a given offense, the pronounced 

sentence is a nullity . . . .”); Ohnmacht, 342 N.W.2d at 842 (“A court has 

6Lesser offenses are notably punished less severely. For example, a term-ofyears sentence is prescribed for second-degree murder, a class “B” felony. Compare

Iowa Code § 707.2 (defining first-degree murder as a class “A” felony), and id. § 902.1(1) 

(indicating all individuals convicted of class “A” felonies receive life sentences), with id. 

§ 707.3 (“Murder in the second degree is a class “B” felony. . . . [T]he maximum 

sentence for a person convicted under this section shall be a period of confinement of 

not more than fifty years.”).

 
14

no authority to mitigate punishment by providing for a sentence not 

authorized by statute.”).

B. Life with Eligibility for Parole After Twenty-Five Years. We 

turn now to the district court’s alternative sentence of life in prison with 

parole eligibility after twenty-five years. To determine whether that 

sentence was within the district court’s discretion, we again look to the 

relevant statutes. 

Louisell was originally sentenced under the 1987 edition of the 

Code of Iowa. At the time, the section establishing sentences for class 

“A” felonies read, in its entirety:

Upon a plea of guilty, a verdict of guilty, or a special 

verdict upon which a judgment of conviction of a class “A” 

felony may be rendered, the court shall enter a judgment of 

conviction and shall commit the defendant into the custody 

of the director of the Iowa department of corrections for the 

rest of the defendant’s life. Nothing in the Iowa corrections 

code pertaining to deferred judgment, deferred sentence, 

suspended sentence, or reconsideration of sentence applies 

to a class “A” felony, and a person convicted of a class “A” 

felony shall not be released on parole unless the governor 

commutes the sentence to a term of years.

Iowa Code § 902.1 (1987). In 2011—after Graham was decided but 

before the decision in Miller was filed—the legislature amended section 

902.1, adding language and renumbering the subsections. 2011 Iowa 

Acts ch. 131, § 147. After the 2011 amendment, section 902.1 provided:

1. Upon a plea of guilty, a verdict of guilty, or a 

special verdict upon which a judgment of conviction of a 

class “A” felony may be rendered, the court shall enter a 

judgment of conviction and shall commit the defendant into 

the custody of the director of the Iowa department of 

corrections for the rest of the defendant’s life. Nothing in the 

Iowa corrections code pertaining to deferred judgment, 

deferred sentence, suspended sentence, or reconsideration of 

sentence applies to a class “A” felony, and a person convicted 

of a class “A” felony shall not be released on parole unless 

the governor commutes the sentence to a term of years. 
15

2. a. Notwithstanding subsection 1, a person 

convicted of a class “A” felony, and who was under the age of 

eighteen at the time the offense was committed shall be 

eligible for parole after serving a minimum term of 

confinement of twenty-five years. 

b. If a person is paroled pursuant to this subsection 

the person shall be subject to the same set of procedures set 

out in chapters 901B, 905, 906, and chapter 908, and rules 

adopted under those chapters for persons on parole. 

c. A person convicted of murder in the first degree in 

violation of section 707.2 shall not be eligible for parole 

pursuant to this subsection.

Iowa Code § 902.1 (2013). In sum, the 2011 amendment left the 1987 

statutory language fully intact, but renumbered it as section 902.1(1). 

The amendment also added subsections providing that all juvenile 

offenders convicted of class “A” felonies—except first-degree murder—

shall be eligible for parole after serving twenty-five years. Id.

§ 902.1(2)(a), (c). 

Sentencing courts confronting unconstitutional sentencing 

statutes may choose the remedy of severance in appropriate cases. Iowa 

Code § 4.12; Bonilla, 791 N.W.2d at 701–02. Severing constitutionally 

infirm provisions “is appropriate if it does not substantially impair the 

legislative purpose, if the enactment remains capable of fulfilling the 

apparent legislative intent, and if the remaining portion of the enactment 

can be given effect without the invalid provision.” Am. Dog Owners 

Ass’n, Inc. v. City of Des Moines, 469 N.W.2d 416, 418 (Iowa 1991). 

Because Louisell could not be sentenced to mandatory LWOP, Miller, 

Ragland, Null, and Pearson mandate the final clause of section 902.1(1)—

“and a person convicted of a class “A” felony shall not be released on 

parole unless the governor commutes the sentence to a term of years”—

be severed. See Bonilla, 791 N.W.2d at 702 (severing the same clause of 

section 902.1 on review of a juvenile offender’s LWOP sentence for a class 
16

“A” felony kidnapping offense). The district court took this approach in 

resentencing Louisell, correctly noting that the clause within section 

902.1 purporting categorically to preclude parole for juvenile offenders 

convicted of class “A” felonies must be severed. 

The district court also correctly concluded subsection 902.1(2)(c) 

must be severed in resentencing Louisell. That subsection providing “[a] 

person convicted of murder in the first degree . . . shall not be eligible for 

parole pursuant to this subsection,” must be severed because it too 

would categorically exclude Louisell from the universe of juvenile 

offenders entitled to a meaningful opportunity for parole. See Miller, 567 

U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (holding the Eighth 

Amendment prohibited “a sentencing scheme that mandates life in 

prison without possibility of parole for juvenile offenders.”). 

After severing from section 902.1 the two provisions discussed 

above, we now confront section 902.1(2)(a). This subsection makes 

juvenile offenders convicted of class “A” felonies eligible for parole after a 

minimum term of confinement of twenty-five years. Iowa Code 

§ 902.1(2)(a). The problem here, of course, is that all mandatory 

minimum sentences for juveniles violate article I, section 17 of the Iowa 

Constitution. Lyle, 854 N.W.2d at 400; see also Richard A. Bierschbach 

& Stephanos Bibas, Constitutionally Tailoring Punishment, 112 Mich. L. 

Rev. 397, 439–40 (2013) (noting mandatory minimum sentences are 

“crude sledgehammers” that do not “tailor punishments to moral 

blameworthiness”). Accordingly, Lyle requires that the final clause of 

subsection 902.1(2)(a) providing for a mandatory minimum term of 

confinement also be severed for purposes of sentencing Louisell. With 

strikethrough added to illustrate the severed parts, that subsection 

would provide: “Notwithstanding subsection 1, a person convicted of a 
17

class “A” felony, and who was under the age of eighteen at the time the 

offense was committed shall be eligible for parole after serving a 

minimum term of confinement of twenty-five years.” See Iowa Code 

§ 902.1(2)(a). 

As we have noted, we employ the remedy of severing statutory 

provisions in this context if the excised statute (1) does not substantially 

impair the legislative purpose, (2) remains capable of fulfilling the 

apparent legislative intent, and (3) can be given effect without the excised 

language. See Am. Dog Owners Ass’n, 469 N.W.2d at 418. We conclude 

the leaner section 902.1 remaining after severance of the constitutionally 

infirm provisions comports with these criteria. The legislative purpose of 

prescribing the most severe sentences for offenders convicted of murder 

in the first degree—including juveniles—is maintained. Although 

sentencing courts must have the discretion to decide juvenile offenders 

convicted of the most serious of offenses shall be eligible for parole, the 

legislature’s power to prescribe the sentence of life in prison is preserved. 

Similarly, the severance remedy respects the legislature’s intent in 

establishing the most substantial penalty available under Iowa law and 

consistent with prevailing constitutional principles for first-degree 

murder. The third criterion affecting our determination of whether the 

severance remedy should be employed also augurs in favor of its 

application here. After constitutionally infirm provisions are severed 

from section 902.1, the statute can be given effect. In sentencing 

Louisell, the court had discretion to impose a life sentence with eligibility 

for parole.7

7As the Court noted in Miller, however, “given all [the Court] said in Roper, 

Graham, and [Miller] about children’s diminished culpability and heightened capacity 

for change, we think appropriate occasions for sentencing juveniles to [LWOP] will be 

 
18

Having severed the provisions of section 902.1 affected by the 

constitutional infirmity, we conclude the district court had discretion, 

after considering the Miller factors, to sentence Louisell to life in prison 

with eligibility for parole. Although under the district court’s 

resentencing order Louisell would effectively be eligible for parole 

immediately because she has already served more than twenty-five years, 

we conclude the court’s sentencing discretion under the circumstances 

presented here was limited to the question of whether Louisell is eligible 

for parole. The district court had discretion to conclude Louisell should 

be eligible for parole immediately, but after excising the unconstitutional 

statutory provisions detailed above, we conclude the district court did 

not have discretion under the remaining sentencing framework to decide 

Louisell’s eligibility for parole commenced after serving a specific term of 

twenty-five years in prison.8 See Bonilla, 791 N.W.2d at 702 (severing 

from a mandatory LWOP sentence only that which was necessary to 

ensure a constitutionally permissible punishment). Accordingly, we also 

uncommon.” Miller, 567 U.S. at ____, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. The 

State does not contend the district court erred in exercising discretion to impose a 

sentence making Louisell eligible for parole. 

8While this appeal was pending, the legislature passed Senate File 448, and the 

governor signed the bill into law. See Governor’s Transmission of Approval (April 24, 

2015), available at http://coolice.legis.iowa.gov/linc/86/external/govbills/SF448.pdf.

Senate File 448 authorizes sentencing judges to consider a list of sentencing factors and 

select, as the district court did in this case, a minimum term of confinement before 

making juveniles convicted of first-degree murder eligible for parole. 2015 Iowa Legis. 

Serv. S.F. 448, § 1 (West 2015). The bill applies to any person “who was convicted of a 

class ‘A’ felony prior to, on, or after the [bill’s immediate] effective date . . . and who was 

under the age of eighteen at the time the offense was committed.” Id. § 5. However, 

although the new statute would appear to authorize a sentence of life with parole after 

twenty-five years if Louisell were resentenced today, we conclude the subsequent 

legislation does not affect our consideration of whether that sentence was authorized at 

the time the district court imposed it. Furthermore, we express no opinion as to the 

constitutionality of this new statute.

___________________
19

vacate this aspect of the sentence and remand for entry of a sentence of 

life in prison with eligibility for parole.9 

C. Meaningful Opportunity for Parole. Our conclusion that the 

district court’s discretion allowed it to conclude Louisell should be 

parole-eligible does not end our analysis. As we have noted, Louisell 

asserts the district court’s choice of a determinate sentence and 

discharge from prison should be upheld because, in reality, her eligibility 

for parole is illusory, not real. She emphasizes that, since Miller, 

Ragland, Null, and Pearson were decided, only one of Iowa’s thirty-eight 

juvenile offenders originally sentenced to LWOP has been granted parole. 

The only one of these prisoners granted parole was conditionally released 

to hospice care for cancer treatment, and the parole board reserved the 

right to revisit its decision if her health improved. Grant Rodgers, Dying 

Inmate Kristina Fetters Granted Hospice-Only Parole, Des Moines Reg. 

(Dec. 3, 2013), http://blogs.desmoinesregister.com/dmr/index.php/

2013/12/03/board-grants-fetters-parole-to-hospice-only/article.10 

This historical data, Louisell contends, should give us little 

confidence that the existing parole system establishes a meaningful 

opportunity for parole for juvenile offenders serving life sentences. In 

other words, Louisell posits if juveniles who committed class “A” felonies 

less serious than murder—such as kidnapping or robbery—are 

9We emphasize our holding today addresses only the scope of the district court’s 

discretion to impose an individualized sentence after considering the Miller factors. The 

question whether the sentence of life in prison with eligibility for parole is in this 

particular case disproportionate, illegal, or cruel and unusual under either the Eighth 

Amendment or article I, section 17 of the Iowa Constitution is neither raised nor 

decided in this appeal. 

10Fetters passed away while in hospice care. Daniel P. Finney & Linh Ta, Freed 

Inmate Kristina Fetters, Convicted as Juvenile, Dies, Des Moines Reg. (July 28, 2014), 

available at http://www.desmoinesregister.com/story/news/crime-and-courts/2014/

07/27/kristina-fetters-dies/13238853/.

 
20

repeatedly denied parole based on offense severity, there is no realistic 

opportunity for her to receive parole, no matter how extensively she has 

been rehabilitated. Without a realistic and meaningful opportunity, a 

scholar has suggested, “the fact that a teen who was impulsive, reckless, 

and without moral grounding[] becomes an adult who has none of these 

traits” is wholly (and wrongly) ignored. Samuel H. Pillsbury, Talking 

About Cruelty: The Eighth Amendment and Juvenile Offenders After Miller 

v. Alabama, 46 Loy. L.A. L. Rev. 885, 926 (2013). The question whether 

Louisell—although now eligible for parole—has been denied it in violation 

of law is not before us in this appeal.11

Although the question whether Louisell has been wrongfully denied 

parole is not ripe for our decision at this juncture, we reaffirm that under 

both the United States Constitution and the Iowa Constitution, juveniles 

convicted of crimes must be afforded a “meaningful opportunity to obtain 

release based on demonstrated maturity and rehabilitation”—if a 

sentencing judge, exercising discretion, determines parole should be 

available. See Graham, 560 U.S. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d 

at 845–46; see also Miller, 567 U.S. at ___, 132 S. Ct. at 2475, 183 L. Ed. 

2d at 430 (concluding judges sentencing juveniles convicted of murder 

must be able to consider mitigating factors and determine whether parole 

should be available); Null, 836 N.W.2d at 67–68. In Null, we 

acknowledged

it is unclear what the Supreme Court precisely meant in 

Graham by requiring the state to provide “some meaningful 

opportunity to obtain release based on demonstrated 

11We note, however, that our parole statutes and administrative rules currently 

provide the board of parole shall parole an inmate when “there is reasonable probability

that the person can be released without detriment to the community” or to themselves. 

Iowa Code § 906.4 (2015) (emphasis added); see also Iowa Admin. Code r. 205–8.1.

 
21

maturity and rehabilitation.” 560 U.S. at 74, 130 S. Ct. at 

2030, 176 L. Ed. 2d at 845–46. It did not indicate when 

such an opportunity must be provided or provide guidance 

regarding the nature or structure of such a second-look or 

back-end opportunity. Instead, the Court left it to the 

states “to explore the means and mechanisms for 

compliance.” Id. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d at 

846.

Null, 836 N.W.2d at 67–68 (footnote omitted). Since Null, we have not 

had occasion to explore more fully the meaning of the phrase 

“meaningful opportunity” in this context. To be sure, a meaningful 

opportunity must be realistic. Graham, 560 U.S. at 82, 130 S. Ct. at 

2034, 176 L. Ed. 2d at 850. But we must leave for another day the 

question whether repeated cursory denials of parole deprive juvenile 

offenders who have shown demonstrable rehabilitation and maturity of a 

meaningful or realistic opportunity for release. 

As presently codified, the Iowa Code and the Iowa Administrative 

Code enumerate factors the parole board considers when making parole 

decisions. Iowa Code § 906.5(3) (2015); Iowa Admin. Code r. 205—

8.10(1). These codified factors do not closely track the Miller factors 

pertinent to the parole eligibility of juvenile offenders, nor do they 

account for the mitigating attributes of youth that are constitutionally 

required sentencing considerations. One scholar has opined that 

“[w]ithout . . . particularized assessment, youth sentenced to long prison 

terms, even with the possibility of parole, will continue to be denied the 

‘meaningful opportunity to obtain release’ promised by Graham and 

Miller.” Laura Cohen, Freedom’s Road: Youth, Parole, and the Promise of 

Miller v. Alabama and Graham v. Florida, 35 Cardozo L. Rev. 1031,

1055–56 (2014) (emphasis added). “And, if the possibility of parole does 

not afford an inmate a true expectation of release, why should it render 

valid an otherwise invalid sentence?” Id. at 1059; see also Richard A. 
22

Bierschbach, Proportionality and Parole, 160 U. Pa. L. Rev. 1745, 1761–

62 (2012) (asserting that, just as the possibility of commutation or 

clemency does not provide a meaningful opportunity for release, a 

possibility of parole that is only remote is not meaningful). 

V. Conclusion.

The district court did not have authority to sentence Louisell to a 

determinate term of twenty-five years in prison for murder in the first 

degree. Although the district court did have authority upon 

consideration of the Miller factors to resentence Louisell to life in prison 

with eligibility for parole, the court did not have authority at the time of 

resentencing to order commencement of Louisell’s eligibility for parole to 

begin after serving twenty-five years in prison. Accordingly, we vacate 

the sentencing order and remand for entry of the sentence of life in 

prison with eligibility for parole. 

DISTRICT COURT SENTENCE VACATED AND CASE 

REMANDED WITH INSTRUCTIONS.

All justices concur except Mansfield, Waterman, and Zager, JJ., 

who concur in part and dissent in part.
23

#14–0175, State v. Louisell

MANSFIELD, Justice (concurring in part and dissenting in part).

I join the court’s well-reasoned opinion with the exception of part 

IV.B, where I respectfully dissent. In part IV.A, the court recognizes the 

legislature’s right to determine appropriate sentences, subject to 

constitutional constraints. However, in part IV.B, the court disregards 

the lesson of part IV.A and resentences Louisell itself, instead of giving 

effect to current law. I believe it is wrong not to give the 2015 legislation 

its intended effect, and wrong not to apply it to Yvette Louisell’s case.12 

As noted by the majority in a footnote, our general assembly recently 

amended the law relating to sentencing of juveniles convicted of first 

degree murder. The law now provides: 

[A] defendant convicted of murder in the first degree in 

violation of section 707.2, and who was under the age of 

eighteen at the time the offense was committed shall receive 

one of the following sentences: 

(1) Commitment to the director of the department of 

corrections for the rest of the defendant’s life with no 

possibility of parole unless the governor commutes the 

sentence to a term of years. 

(2) Commitment to the custody of the director of the 

department of corrections for the rest of the defendant’s life 

with the possibility of parole after serving a minimum term of 

confinement as determined by the court. 

(3) Commitment to the custody of the director of the 

department of corrections for the rest of the defendant’s life 

with the possibility of parole. 

12One initial comment: While my review of the record for most part confirms the 

court’s statement of background facts, the court has largely presented Louisell’s version 

of the 1987 stabbing death of Stilwell. The jury rejected this version in finding her 

guilty of first-degree murder. We do not have the trial transcript in the present record, 

but the court of appeals opinion affirming her conviction presents additional facts that 

support Louisell’s guilt. See State v. Louisell, No. 88–1601 (Iowa Ct. App. Apr. 24, 

1990). This is not to deny Louisell’s difficult upbringing, or her achievements in prison.

 
24

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

Iowa Code § 902.1).

Thus, the legislature has now established three sentencing 

options—life without parole, life with parole, and life with parole 

eligibility after service of a term of years. Id. § 1. This law applies to “a 

person who was convicted of a class ‘A’ felony prior to, on, or after the 

effective date of this Act and who was under the age of eighteen at the 

time the offense was committed.” Id. § 5. Hence, by its terms, the law 

applies to Louisell. 

Generally, of course, criminal defendants are sentenced based on 

the law that was in effect at the time the crime was committed. However, 

Iowa Code section 4.13(2) provides that if the punishment for an offense 

is reduced, then punishment “if not already imposed shall be imposed 

according to the statute as amended.” Iowa Code § 4.13(2) (2015); see 

State v. Chrisman, 514 N.W.2d 57, 61, 63 (Iowa 1994) (holding that 

where legislation reducing the punishment became effective after the 

crime was committed but before sentencing, the new legislation applied). 

The legislature’s 2015 amendment amounts to a reduction in the prior 

mandatory life-without-parole (LWOP) sentence. Thus, with respect to 

any juvenile homicide defendant who has not yet been sentenced, or 

whose LWOP sentence has been vacated and has not yet been 

resentenced, section 4.13(2) would apply—not to mention the fact 

(already noted) that the 2015 legislation itself says that it applies 

retroactively. See 2015 Iowa Legis. Serv. no. 76 (S.F. 448) § 5.

Our colleagues in Nebraska recently had to sort through similar 

issues. In 2013, responding to the United States Supreme Court’s 

decision in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 

2d 407 (2012), the Nebraska legislature eliminated mandatory LWOP for 
25

juveniles who commit first-degree murder and provided a sentencing 

range of forty years to life. See State v. Castaneda, 842 N.W.2d 740, 759 

(Neb. 2014). The Nebraska Supreme Court then had to address the case 

of a defendant who had been sentenced to LWOP before Miller but whose 

appeal was still pending at the time of the 2013 amendment. Id. at 760. 

The defendant argued his LWOP sentence should be struck down and he 

should be given the sentence for second-degree murder as it existed 

when he committed the offense. Id. at 760–61. The state maintained the 

defendant should be resentenced under the 2013 legislation. Id. at 760.

The court agreed with the state. Id. at 761–62. The court found 

no ex post facto violation because the new law was ameliorative—it 

reduced the sentence for first-degree murder. Id. And the court found 

that application of the new law was supported by a Nebraska principle of 

legal interpretation similar to Iowa Code section 4.13(2), which provided 

that “[w]here a criminal statute is amended by mitigating the 

punishment, after the commission of a prohibited act but before final 

judgment, the punishment is that provided by the amendatory act unless 

the Legislature has specifically provided otherwise.” Id. at 762 (internal 

quotation marks omitted). Thus, the court directed that the defendant 

be resentenced for first-degree felony murder under the 2013 sentencing 

legislation. Id.; see also State v. Taylor, 842 N.W.2d 771, 780–81 (Neb. 

2014) (going through the same analysis for another defendant who had 

been convicted and sentenced to life without parole pre-Miller for a firstdegree murder committed as a juvenile); State v. Ramirez, 842 N.W.2d 

694, 711–13 (Neb. 2014) (same).

Florida has similarly determined that its new sentencing law for 

juveniles, passed in response to Miller, should apply to defendants whose 

sentences became unconstitutional as a result of Miller. See Horsley v. 
26

State, 160 So. 3d 393, 405, 408 (Fla. 2015). In Horsley, the defendant 

had been sentenced pre-Miller to life in prison without the possibility of 

parole for first-degree felony murder under a mandatory sentencing 

scheme. Id. at 395–96. In 2014, the Florida legislature enacted curative 

legislation in response to Miller with an effective date of July 1, 2014. Id.

at 394–95. Horsley filed a motion to correct his sentence, which had 

become unconstitutional following Miller. See id. at 396. The 

intermediate appellate court certified the question of how it should 

resentence Horsley to the Florida Supreme Court. Id. at 397.

The Florida Supreme Court determined that rather than reviving 

and partially rewriting a previous version of the law, the sentencing court 

should resentence Horsley under the 2014 legislation. See id. at 405–08. 

It decided that reviving the prior statute was not consistent with 

legislative intent in light of the new law. See id. at 405–06. It also 

rejected the idea that application of the 2014 legislation would violate the 

state constitution’s savings clause, which precludes retroactive 

application of criminal statutes. Id. at 406. It noted that the savings 

clause was meant to “require the statute in effect at the time of the crime 

to govern the sentence an offender receives.” Id. Yet, in the case of the 

juvenile sentencing law, “the statute in effect at the time of the crime is 

unconstitutional under Miller and the federal constitution, so it cannot, 

in any event, be enforced.” Id. The court concluded that “[o]n remand, 

the trial court should hold an individualized sentencing hearing 

pursuant to [the 2014 law].” Id. at 408; see also Falcon v. State, ___ So. 

3d ___, ___, 2015 WL 1239365, at *8–9 (Fla. Mar. 19, 2015) (concluding 

Miller should apply retroactively and any defendant whose sentence is 

invalidated by the retroactive application of Miller should be resentenced 

under the 2014 Florida legislation pursuant to Horsley); Cruz v. State, 
27

___ So. 3d ___, ___ , 2015 WL 2137783, at *1 (Fla. Dist. Ct. App. May 8, 

2015) (applying the Horsley analysis to a defendant who had been 

sentenced to life without parole pre-Miller and remanding for 

resentencing consistent with the 2014 Florida legislation); Mares v. State, 

___ So. 3d ___, ___, 2015 WL 2078179, at *1 (Fla. Dist. Ct. App. May 6, 

2015) (same); Maize v. State, ___ So. 3d ___, ___, 2015 WL 2078212, at *1 

(Fla. Dist. Ct. App. May 6, 2015) (same); Davis v. State, ___ So. 3d ___, 

___, 2015 WL 2078277, at *1 (Fla. Dist. Ct. App. May 6, 2015) (same); 

Moran v. State, ___ So. 3d ___, ___, 2015 WL 2078374, at *1 (Fla. Dist. Ct. 

App. May 6, 2015) (same).

Washington has reached the same conclusion. Following Miller, its 

legislature enacted a “Miller fix” that “explicitly applies retrospectively to 

acts that occurred before its enactment.” In re McNeil, 334 P.3d 548, 

588–91 (Wash. 2014) (en banc). The fix authorized a sentencing range of 

twenty-five years to life without parole. Id. at 589. Petitioners who had 

been convicted and sentenced before Miller argued that they could only 

receive a sentence that was both on the books and constitutional at the 

time of their crimes, which was a determinate twenty-year sentence. Id. 

at 591. The Washington Supreme Court unanimously disagreed and 

found the new law applied. Id. at 593; id. at 596–97 (McCloud, J., 

concurring). 

The same analysis utilized by the Nebraska, Florida, and 

Washington supreme courts applies here. If Louisell’s existing sentence 

is invalid and she must be resentenced, the resentencing should take 

place under the 2015 legislation.

The majority engages in no analysis on these points. Instead, it 

simply says in a conclusory way, without providing authority or 

reasoning: 
28

[A]lthough the new statute would appear to authorize a 

sentence of life with parole after twenty-five years if Louisell 

were resentenced today, we conclude the subsequent 

legislation does not affect our consideration of whether that 

sentence was authorized at the time the district court 

imposed it.

This sentence contradicts itself. If Louisell’s 2014 sentence wasn’t 

authorized at the time the district court imposed it, then she is being 

resentenced today. And this means the 2015 law applies. We should not 

be performing surgery on the unconstitutional 1987 sentencing law now 

that the legislature has spoken. Instead, we should follow the range of 

sentencing options provided by the 2015 sentencing law.

The close question for me is not whether we can sentence Louisell 

on our own to life with parole. Clearly, we cannot do this. We are not a 

sentencing court. The close question for me is whether we should affirm 

the district court’s backup sentence of life with parole eligibility after 

twenty-five years, or remand for resentencing in accordance with the 

2015 law. I can see reasonable arguments for both approaches. The 

district court’s alternative sentence of life with parole eligibility after 

twenty-five years is authorized under the 2015 legislation. So, by 

affirming that backup sentence, we would be upholding a sentence that 

the legislature has approved.

However, the district court did not have the benefit of the 2015 law 

when it imposed Louisell’s sentence. Normally, the prudent and fairer 

course of action would be to remand the case to the district court for 

resentencing under the 2015 legislation. At that point, the district court 

would have a number of options, but would presumably select one that 

makes Louisell available for parole now. In summary, I do not think we 

can simply resentence Louisell ourselves based on our edits to a 

superseded law.
29

Waterman and Zager, JJ., join this concurrence in part and 

dissent in part.