IN THE SUPREME COURT OF IOWA

No. 15–0175

Filed June 16, 2017

STATE OF IOWA,

Appellee,

vs.

CHRISTOPHER RYAN LEE ROBY,

Appellant.

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Black Hawk County, 

Stephen C. Clarke, Judge. 

Christopher Ryan Lee Roby challenges the district court’s 

imposition of a minimum term of incarceration without the possibility of 

parole following a resentencing hearing in which the district court was to 

consider certain mitigating factors attributable to his youth at the time of 

the offense. DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT SENTENCE VACATED AND CASE REMANDED WITH 

INSTRUCTIONS. 

John Audlehelm of Audlehelm Law Office, Des Moines, for 

appellant. 

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant 

Attorney General, for appellee. 
2

CADY, Chief Justice. 

In this appeal, we must decide if article I, section 17 of the Iowa 

Constitution categorically prohibits any minimum term of incarceration 

without the possibility of parole when imposed on an individual who was 

a juvenile at the time of the offense. If it does not, we must also decide 

whether the district court erred in resentencing Christopher Roby to a 

minimum term of incarceration following a hearing in which the court 

was to consider certain mitigating factors attributable to his youth at the 

time of the offense. In December of 2004, a jury found Roby guilty of two 

counts of sexual abuse for his conduct when he was sixteen and 

seventeen years of age. The court initially sentenced him, as required by 

statute, to twenty-five years with a mandatory minimum of seventeen 

and one-half years for sexual abuse in the second degree and a 

concurrent term of ten years for sexual abuse in the third degree. 

Following our decision in State v. Lyle, 854 N.W.2d 378 (2014), in which 

we held all statutorily imposed mandatory minimums constituted cruel 

and unusual punishment under the Iowa Constitution, the district court 

held a resentencing hearing to determine whether the minimum term of 

incarceration should be imposed. It found it should and issued an order 

detailing its reasoning. Roby appealed, arguing any minimum term of 

incarceration without the possibility of parole is unconstitutional and, in 

the alternative, that the district court failed to properly apply the factors 

we identified in Lyle. The court of appeals disagreed with Roby on both 

matters and affirmed the sentence. We granted further review. On 

further review, we find the Iowa Constitution does not prohibit a district 

court from sentencing a juvenile offender to a minimum term of 

incarceration without the possibility of parole, but we remand for 

resentencing. 
3

I. Factual Background and Proceedings. 

Christopher Roby was convicted following a jury trial of the crimes 

of sexual abuse in the second and third degrees on December 2, 2004. 

He was sixteen and seventeen when he committed the crimes. The 

conviction resulted from Roby’s inappropriate sexual conduct with S.M., 

who was ages eleven through thirteen during the relevant times. 

A. The Offenses. The first incident, for which Roby was not 

prosecuted, but the jury did hear evidence on, was apparently in the 

spring of 1998. Roby was staying at S.M.’s house. S.M.’s parents were 

downstairs, while S.M. and her siblings, along with Roby, were upstairs. 

This was not unusual. Roby was S.M.’s brother’s best friend since 

kindergarten and would often stay overnight. He was considered a 

member of the family and would even accompany them on vacations and

to church. S.M., then ten years old, fell asleep in her parents’ bedroom 

while watching television. She awoke to Roby, then fifteen, forcing his 

hand under her pants and underwear. She immediately left the room, 

went downstairs, and told her parents what had occurred. S.M.’s 

parents were furious and confronted Roby, who left the house with S.M.’s 

brother, and the two walked to a gas station before Roby went home to 

his own parents. S.M.’s parents did not contact the police or Roby’s 

parents at that time. 

After about six to eight weeks, S.M.’s parents allowed Roby back 

into the home. They insisted Roby not be left alone with S.M. Over time, 

however, this precaution eased. Years passed with Roby frequently 

coming and going and staying over, just as he was before the initial 

incident. In March of 2002, Roby, now eighteen, left for the Navy. In 

September of 2002, he returned on leave. That was when S.M., now 

fourteen, confided in her brother’s girlfriend that Roby had been abusing 
4

her ever since being let back into the house. S.M. stated the abuse 

would occur nearly every time Roby had stayed over during the preceding 

three years and that it occurred again with Roby back on leave. Either 

Roby would touch S.M.’s genitals and breasts or he would force S.M. to 

masturbate him. This contact with S.M. was always nonconsensual and 

was severely impacting her mental health. S.M.’s parents learned of the 

abuse, and S.M.’s mother confronted Roby. Roby denied any contact 

occurred. S.M.’s mother then went to the police. 

The police arrested Roby. There is some indication Roby initially 

thought the police were investigating him for stealing a video game or 

maybe thought admitting that crime would deflect them from 

investigating the abuse. During an interrogation, Roby confessed to the 

contact. However, the court ultimately suppressed the interrogation 

because Roby only confessed after the investigator implied he must 

submit to a polygraph for use in court, promised him leniency, and 

threatened greater punishment if he continued to deny the allegations. 

After the interrogation, Roby was charged and released on bond to 

return to the Navy. He served for two years until being discharged to 

answer for this case. The prosecutor had initially charged Roby with one 

count of sexual abuse in the third degree for the alleged conduct while 

Roby was eighteen and S.M. was under fourteen. After a breakdown in 

plea negotiations, the prosecutor charged Roby with four counts, 

delineated by Roby and S.M.’s birthdays: (Count I) sexual abuse in the 

second degree for conduct occurring when S.M. was under twelve and 

Roby was fifteen or sixteen, (Count II) sexual abuse in the third degree 

for conduct occurring when S.M. was under fourteen and Roby was 

under eighteen, (Count III) sexual abuse in the third degree for conduct 

occurring when S.M. was under fourteen and Roby was eighteen, and 
5

(Count IV) sexual abuse in the third degree for conduct occurring when 

S.M. was fourteen and Roby was eighteen. After Roby moved to dismiss 

Count I for alleging conduct while Roby was fifteen and therefore under 

the jurisdiction of the juvenile court, the prosecutor amended Count I a 

second time and confined it to the time after Roby turned sixteen. Thus, 

while the jury heard evidence regarding the initial incident when S.M. 

told her parents Roby was touching her while she was sleeping, he was 

not charged for this event. Instead, he was charged based on S.M.’s 

statements of continuing abuse from that point. 

At trial, the State presented testimony from S.M., her parents, and 

her brother. Roby did not testify. He also did not present witnesses. 

The jury found Roby guilty of Counts I and II. They found him guilty of 

sexual abuse occurring when Roby was sixteen and S.M. was eleven, and 

when Roby was seventeen and S.M. was twelve or thirteen years old. The

jury found Roby not guilty of Counts III and IV, abuse occurring after he 

turned eighteen. 

B. Initial Sentencing. A presentence investigation (PSI) report 

was prepared, and the court held a sentencing hearing with testimony 

from Roby and his parents. Though the record is limited on Roby’s life 

before prison, at least some history appears from trial testimony, this 

hearing, and the PSI. The record shows Roby was born two months 

premature on December 20, 1983. His mother indicated his biological 

father abducted, abused, and neglected him for four years when he was 

very young. Roby’s father eventually returned him to his mother in 

Waterloo, who later married a man who adopted Roby. Roby’s mother 

was a homemaker and his adoptive father worked for a farm implement 

company as a designer. Roby is the middle child of three. He 

maintained a good relationship with his family, despite the absence of his 
6

biological father, but generally felt his childhood was “rough.” He was 

diagnosed with attention-deficit disorder. He completed the tenth grade 

at Expo Alternative Learning Center in Waterloo and reported getting 

along well with his teachers, although he was suspended once for 

fighting. Roby joined the Navy to, in his words, straighten out his life. 

The PSI reported Roby frequently consumed alcohol while in the Navy

and used marijuana. At sentencing, Roby denied any alcohol or drug 

use. Roby had no juvenile record before this case. 

Roby’s mother testified,

It just seems like it’s been one thing after another with 

this kid. . . . This kid has tried and tried and tried to get his 

life on track, and it seems like every time he does, it’s one 

thing after another waitin’ there to knock him back down. 

And now you’re going to take him away from me for 25 years 

or whatever, and I just—I think it’s ridiculous. 

Roby’s adoptive father testified,

I think the penalty for the crime far outweighs the 

crime. It’s absurd and it’s even more absurd that the judge 

is not allowed to make any adjustments to that. I don’t 

think you can take things like that away from the judges. 

Second-degree sexual abuse, you can’t lump all of them into 

one. Chris was a minor when it happened. And like what he 

did get a little therapy, you don’t put them in jail for 25 

years. That’s not going to solve anything. 

Roby also testified. He maintained his innocence and stated, 

“There’s just so many inconsistencies in her story, and I mean, I just—I 

don’t see how one person can—can take another person’s life like this.”

The court sentenced Roby, stating, “The court is sympathetic to the 

feelings of the family, however, as they point out, this is the only 

disposition available to the court under the law[] as it presently stands.” 

The court was statutorily required to, and did, impose the maximum 

sentence of twenty-five years on Count I with a mandatory minimum of 

seventeen and one-half years before eligibility for parole. The court 
7

imposed a concurrent sentence of ten years for Count II. This was in 

January of 2005. Roby had recently turned twenty-one while in jail 

awaiting sentencing. 

C. Resentencing. In 2014, following this court’s holdings in State 

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

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

who was thirty years old, moved to correct an illegal sentence. He 

argued he was entitled to an individualized review under the principles of 

those cases. Around the same time, we issued our opinion in Lyle and 

confirmed juveniles like Roby were entitled to individualized review of 

their statutorily imposed sentences. 854 N.W.2d at 404. Pursuant to 

these opinions, the court held a resentencing hearing to correct the 

statutorily mandated minimum sentence of seventeen and one-half years 

using the five factors identified in Lyle: 

(1) the age of the offender and the features of youthful 

behavior, such as “immaturity, impetuosity, and failure to 

appreciate risks and consequences”; (2) the particular 

“family and home environment” that surround the youth; (3) 

the circumstances of the particular crime and all 

circumstances relating to youth that may have played a role 

in the commission of the crime; (4) the challenges for 

youthful offenders in navigating through the criminal 

process; and (5) the possibility of rehabilitation and the 

capacity for change. 

Id. at 404 n.10 (quoting Miller v. Alabama, 567 U.S. 460, ___, 132 S. Ct. 

2455, 2468 (2012)). On “considering all the relevant factors and facts of 

the case,” the district court had to either “resentence [Roby] by imposing 

a condition that [Roby] be eligible for parole” or, “[i]f the mandatory 

minimum period of incarceration is warranted, . . . impose the sentence 

provided for under the statute, as previously imposed.” Id. 

Roby presented his prison disciplinary and other prison treatment 

records. This was the only exhibit. Roby’s counsel addressed the Lyle
8

factors by first noting Roby was kicked out of his parents’ home, 

indicating a lack of familial support. Roby’s counsel continued, noting 

Roby had no prior criminal record. She argued Roby had difficulties 

navigating the criminal justice system as indicated by the interrogation 

the court ultimately had to suppress. She noted he served two years in 

the Navy. She argued he had the potential to be rehabilitated based on 

his prison disciplinary records, which showed most of his violations 

occurred early on in his incarceration. She also noted he had obtained 

his GED, taken a college course, been a lead person in the science shop, 

worked in the kitchen, and tutored other inmates. Finally, Roby’s 

counsel pointed out that Roby had family in Waterloo willing to assist 

him on release. 

The State countered that Roby’s disciplinary records did not 

indicate rehabilitation potential because they included an infraction for 

inappropriately touching female staff. The State also pointed to Roby’s 

failure to obtain sex-offender treatment, which Roby’s counsel argued 

was due to department of corrections backlog and policy not to treat 

offenders until they are nearing release. The State also argued Roby 

continued to deny responsibility and blame the victim based on 

statements he made while being treated for anxiety and sleeplessness. 

The State concluded as to the first Lyle factor, “It would cut against him 

because of the multiple acts that were involved in this case.” The State 

continued its arguments on the Lyle factors, noting Roby’s home 

environment was the same as the victim’s. As to the circumstances of 

the crime, the State noted Roby’s actions were not sexual exploration, 

but abuse. As to navigating the criminal process, the State noted Roby 

had to be taken from the Navy and that he exercised his rights to have 

the interrogation suppressed. As to rehabilitation, the State again 
9

argued Roby failed to take responsibility, as shown by his numerous 

posttrial appeals and motions. 

Roby testified on his own behalf, stating,

Your Honor, over the last ten years, I’ve tried to better 

myself while I was in there. I was told when I was getting my 

GED, one of the teachers told me that if you fail to plan, you 

plan to fail. So everything I’ve done since I’ve been in there 

has been to make it so I’ll be a better person when I get out, 

Your Honor. I’ve gotten my GED. I’ve taken any courses 

that’s been available to me. I’ve learned job skills. I’ve 

learned trades. I’ve helped other people bettering 

themselves, teaching them how to do a cover letter, a 

resume, how to use a computer. 

I’m sorry for all of this, Your Honor. I just—I hope that 

after ten years I can get my life back. 

Approximately a month later, the court issued its ruling. 

As to the first Lyle factor, the court found, 

The acts that resulted in the jury’s guilty verdicts were 

not merely based on the defendant’s immaturity, impetuosity 

and failure to appreciate the risks and consequences. In this 

case this defendant had been confronted at an earlier time 

about improper touching of this victim. Notwithstanding 

that, the defendant continued to sexually abuse his victim. 

As to the second factor,

While the defendant’s family and home environment 

were obviously not the best, the victim’s family attempted to 

step in and provide a home for him. It was during this time 

that the defendant took advantage of the child victim. 

For the third,

The defendant’s participation in the conduct that 

resulted in his conviction was not the result of any familial 

or peer pressure. It was conduct freely chosen by the 

defendant with no care at all for the victim and less care for 

the victim’s family that was giving him a home. 

The court did not address the fourth factor, but noted as to the fifth,

While the court may have been hopeful that a period of 

incarceration would have led the defendant to some remorse 

for his behavior, it is apparent that this is not the case. The 
10

documents submitted as Defendant’s exhibit 1 show that in 

an evaluation conducted in May of 2005 at the Iowa 

Medication and Classification Center the defendant again 

denied any sexual contact ever occurring with the victim. In 

a note entitled “Psychological Encounter” showing an 

encounter date of October 12, 2012, while explaining his 

sleep problems, it was reported, “He noted that he does not 

understand how his case has not been overturned because 

he was not in Iowa at the time of the crime.” 

The victim stance taken by the defendant does not 

bode well for rehabilitation. After 10 years the defendant 

has yet to confront his own behavior or even begin to be able 

to empathize with the victim of his acts. 

Thus, the court found a mandatory minimum sentence was 

appropriate. Roby appealed, and the court of appeals affirmed. We 

granted further review to address Roby’s two arguments: (1) that the 

Iowa Constitution categorically prohibits all minimum terms of 

incarceration without the possibility of parole when imposed on 

juveniles, and in the alternative, (2) that the district court erred in its 

analysis of the Lyle factors. 

II. Standard of Review. 

We review a constitutional challenge to a sentence de novo. See 

State v. Sweet, 879 N.W.2d 811, 816 (Iowa 2016). Roby’s first argument 

is a categorical one, and therefore, we apply de novo review. See, e.g., id.

at 816–17; see also Lyle, 854 N.W.2d at 382–83. However, the parties 

dispute the appropriate standard of review on Roby’s second challenge, 

and we have not yet established the standard of review for appeals 

following a juvenile’s resentencing hearing. 

As we recently noted in State v. Seats, “We have expressed three 

different standards of review when a defendant challenges his or her 

sentence on appeal.” 865 N.W.2d 545, 552 (Iowa 2015). We review for 

an “abuse of discretion,” our most deferential standard, “if the sentence 

is within the statutory limits.” Id. We review for “correction of errors at 
11

law,” an intermediate standard, “when the defendant challenges the 

legality of a sentence on nonconstitutional grounds.” Id. at 553. Finally, 

we apply de novo review, our least deferential standard, to constitutional 

challenges. Id. 

Roby reasons the individualized hearing requirement is 

constitutional in origin, and therefore, an appeal from such a hearing is 

on constitutional grounds subject to de novo review. The State argues 

the sentence imposed is within the statutory limits, and therefore, our 

review is for an abuse of discretion. The court of appeals in this case 

reviewed Roby’s resentencing hearing for an abuse of discretion. We 

affirm this approach, but would elaborate on the use of the abuse-ofdiscretion standard in the juvenile sentencing context. 

We begin by noting an unconstitutional sentence remains 

unconstitutional even if the district court held a hearing before imposing 

it. See Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 734 

(2016) (“Even if a court considers a child’s age before sentencing him or 

her to a lifetime in prison, that sentence still violates the Eighth 

Amendment for a child whose crime reflects ‘unfortunate yet transient 

immaturity.’ ” (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2469)). 

However, we have not yet categorically declared all minimum sentences 

of incarceration unconstitutional when imposed on juvenile offenders. 

See Lyle, 854 N.W.2d at 403 (“[T]he holding in this case does not prohibit

judges from sentencing juveniles to prison for the length of time 

identified by the legislature for the crime committed . . . .”). Instead, we 

have held it is the “absence of a sentencing procedure” that offends 

article I, section 17 of the Iowa Constitution. Id. at 402. Thus, when

there is an appropriate sentencing procedure there is no constitutional 

violation. Under our existing law, if the district court follows the 
12

sentencing procedure we have identified and a statute authorizes the 

sentence ultimately imposed, then our review is for abuse of discretion; 

we ask whether there is “evidence [that] supports the sentence.” Seats, 

865 N.W.2d at 553. 

However, we agree with a recent decision from a Michigan 

appellate court that “the abuse-of-discretion standard requires further 

explanation in this context.” See People v. Hyatt, 891 N.W.2d 549, 576 

(Mich. Ct. App. 2016). Although the Michigan court was reviewing the 

imposition of a sentence of life without parole, we find the special 

considerations involved in sentencing a juvenile offender to an adult 

sentence similarly mean that, “even under this deferential standard, an 

appellate court should view such a sentence as inherently suspect,” and 

“cannot merely rubber-stamp the trial court’s sentencing decision.” Id.

at 577–78. We too import this guidance from the Eighth Circuit: 

A discretionary sentencing ruling, similarly, may be [an 

abuse of discretion] if a sentencing court fails to consider a 

relevant factor that should have received significant weight, 

gives significant weight to an improper or irrelevant factor, or 

considers only appropriate factors but nevertheless commits 

a clear error of judgment by arriving at a sentence that lies 

outside the limited range of choice dictated by the facts of 

the case. 

Id. at 578 (alteration in original) (quoting United States v. Haack, 403 

F.3d 997, 1004 (8th Cir. 2005)). In sum, while the review is for abuse of 

discretion, it is not forgiving of a deficiency in the constitutional right to a 

reasoned sentencing decision based on a proper hearing. 

III. The Categorical Challenge. 

Like the United States Supreme Court, we address a categorical 

constitutional challenge to a sentencing practice by using a two-step 

analysis. See Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 2022 

(2010); Roper v. Simmons, 543 U.S. 551, 564, 125 S. Ct. 1183, 1192 
13

(2005); Sweet, 879 N.W.2d at 835; Lyle, 854 N.W.2d at 386. Under this 

analysis, we first “look to whether there is a consensus, or at least an 

emerging consensus,” to guide our consideration of the question. Sweet, 

879 N.W.2d at 835. “Second, we exercise our independent judgment” to 

decide the question. Id. In this case, the question is whether a twentyfive-year sentence with a minimum period of incarceration of seventeen 

and one-half years for a juvenile offender convicted of sexual abuse is 

categorically prohibited under the cruel and unusual punishment clause

of the Iowa Constitution. In other words, the question is whether our 

constitution requires all juvenile offenders be immediately eligible for 

parole.

A. Evidence of Consensus. We recognize the presence or 

absence of a national consensus is normally indicated by the actions of 

legislatures. See, e.g., Graham, 560 U.S. at 61, 130 S. Ct. at 2022 (“The 

Court first considers ‘objective indicia of society’s standards, as 

expressed in legislative enactments and state practice,’ to determine 

whether there is a national consensus against the sentencing practice at 

issue.” (quoting Roper, 543 U.S. at 563, 125 S. Ct. at 1191)). 

When we decided Lyle, we noted some states had already “limited 

or abolished mandatory minimums for juveniles.” 854 N.W.2d at 386 n.3

(compiling statutes). Since then, state legislatures have continued to 

reform their state’s juvenile justice systems. For example, many 

jurisdictions have reconsidered “the more sweeping question of whether 

too many juveniles are being tried in ‘adult’ court.”1 Brief of the 

1See, e.g., Cal. Penal Code § 1170.17(b)(2)(A)–(E) (West, Westlaw current through 

ch. 9 of 2017 Reg. Sess.); Colo. Rev. Stat. Ann. § 19-2-517(1)–(3), (6)–(10) (West, 

Westlaw current through Laws effective April 28, 2017); Ind. Code. Ann. § 31-30-1-4(c) 

(West, Westlaw current through 2017 First Reg. Sess.) 

 
14

Charles Hamilton Houston Inst. for Race & Justice and Criminal Justice 

Inst. as Amici Curiae in Support of Neither Party, Montgomery, 136 S. Ct. 

718 (No. 14–280), 2015 WL 4624172, at *11. Others have shortened the 

minimum term of incarceration juveniles must serve before parole 

eligibility.2 Still others are working to improve juvenile justice by 

providing safer facilities3 and greater access to rehabilitative programs.4 

All the foregoing tells us juvenile justice is undergoing significant and 

comprehensive reform. However, it also tells us that, in this time of 

feverish legislative action, no legislature has chosen to require a Millertype hearing before imposing any minimum term of incarceration, and no 

legislature has chosen to make all juvenile offenders immediately eligible 

for parole. 

Yet, we may broaden our inquiry to consider rapid changes in 

constitutional protections. See Lyle, 854 N.W.2d at 387. The State of 

Iowa was the first to prohibit sentencing juveniles to statutorily imposed 

mandatory minimums. See id. at 386 (noting no court has 

constitutionally prohibited the practice, and most states permit or 

require minimum sentences). We are aware of one state supreme court 

that has since held similarly. See State v. Houston-Sconiers, 391 P.3d 

409, 420 (Wash. 2017) (“In accordance with Miller, we hold that 

2See, e.g., Cal. Penal Code § 3051(b)(1)–(3) (West, Westlaw current through ch. 9 

of 2017 Reg. Sess.); Conn. Gen. Stat. Ann. § 54-125a(f)(1) (West, Westlaw current 

through May 31, 2017); Del. Code Ann. tit. 11, § 4204A(d)(1) (West, Westlaw current 

through 81 Laws 2017, chs. 1–15); Nev. Rev. Stat. Ann. § 213.12135(1)(a)–(b) (West, 

Westlaw current through 79th Reg. Sess. 2017); W. Va. Code Ann. § 61-11-23(b) (West, 

Westlaw current with 2017 Reg. Sess. through March 14, 2017). 

3See, e.g., Conn. Gen. Stat. Ann. § 17a-22bb(f)–(g) (West, Westlaw current 

through May 31, 2017); Kan. Stat. Ann. § 75-7023(d)–(f) (West, Westlaw current 

through May 18, 2017). 

4See, e.g., Mich. Comp. Laws Ann. § 791.262d(3)(a)–(b) (West, Westlaw current 

through No. 42 of the 2017 Reg. Sess.). 

 
15

sentencing courts must have complete discretion to consider mitigating 

circumstances associated with the youth of any juvenile defendant . . . .” 

(Emphasis added.)). We also note courts are still in the midst of defining 

the new system of individualized hearings, with little uniformity emerging 

as to either when the hearing is required and what it should look like. 

Compare Landrum v. State, 192 So. 3d 459, 467 (Fla. 2016) (concluding a 

Miller-type hearing is required before a sentencing court may impose a 

discretionary sentence of life without parole), with Foster v. State, 754 

S.E.2d 33, 37 (Ga. 2014) (finding Miller-type hearing inapplicable to 

discretionary sentence of life without parole). Compare Casiano v.

Comm’r of Corr., 115 A.3d 1031, 1044 (Conn. 2015) (concluding Miller 

applies to juvenile offenders sentenced to the “functional equivalent” of 

life without parole), with State v. Ali, ___ N.W.2d ___, ___, 2017 WL 

2152730, at *1 (Minn. 2017) (holding Miller only applies to the specific 

sentence of life without parole). Compare State v. Charles, 892 N.W.2d 

915, 922–23 (S.D. 2017) (finding a resentencing hearing satisfied the 

standard announced in Miller), with People v. Berg, 202 Cal. Rptr. 3d 

786, 795 (Cal. Ct. App. 2016) (finding a resentencing hearing failed to 

satisfy Miller). The Supreme Court has intervened only to say that parole 

eligibility is the simplest way to cure an otherwise constitutionally 

impermissible juvenile sentence. See Montgomery, 577 U.S. at ___, 136 

S. Ct. at 736. In all, we can foresee these challenges will continue, with 

frequency, for some time before the Constitution’s role in sentencing 

juveniles is clarified. 

We may also consider changes in professional opinion and 

scholarly commentary in finding consensus. See Sweet, 879 N.W.2d at 

835–36. Many academics appear comfortable with the idea of either 

individualized sentencing or “a system of minimum sentences for juvenile 
16

offenders that are shorter in duration than those imposed on their adult 

counterparts.” Elizabeth Scott et al., Juvenile Sentencing Reform in a 

Constitutional Framework, 88 Temp. L. Rev. 675, 708 (2016) [hereinafter 

Scott]. But others assert the time has come to refocus on rehabilitative 

efforts, with a heavy emphasis on the availability of parole. See Martin 

Gardner, Youthful Offenders and the Eighth Amendment Right to 

Rehabilitation: Limitations on the Punishment of Juveniles, 83 Tenn. L. 

Rev. 455, 495 (2016) (“Rather than either parole release or individualized 

presentencing hearings, the best reading of Roper/Graham/Miller

requires both.”). As one commentator explains, 

Given the Court’s acknowledgment of the pre-sentence 

impossibility of precisely distinguishing those juveniles 

whose crimes are one-time products of “transient 

immaturity” and those “rare [offenders] whose crime[s] reflect 

irreparable corruption,” rehabilitation programs within 

prison with parole release are necessary to effectuate a 

youthful offender’s right to a “meaningful opportunity to 

obtain release based on demonstrated maturity and 

rehabilitation.” Moreover, because rehabilitation can occur 

at any time and requires immediate release from prison upon 

its occurrence, it follows that mandatory minimum 

sentences can no longer be imposed on juvenile offenders if 

Graham is followed to its logical conclusions. 

Id. at 495–96 (alterations in original) (footnotes omitted) (quoting

Graham, 560 U.S. at 68, 75, 130 S. Ct. at 2026, 2030). In addition, the 

American Law Institute (ALI), in section 6.11A of its Model Penal Code: 

Sentencing, proposes the court must always have the “authority to 

impose a sentence that deviates from any mandatory-minimum term of 

imprisonment under state law,” in keeping with its “categorical 

disapproval” of mandatory penalty provisions. See Model Penal Code: 

Sentencing § 6.11A(f) & cmt. f, at 36, 43 (Am. Law. Inst., Tent. Draft 

No. 2, 2011). This section was approved in 2011, one year prior to the 

Supreme Court’s guidance in Miller. See Model Penal Code: Sentencing 
17

at xii (Am. Law. Inst., Tent. Draft No. 4, 2016). Even then, the ALI 

recognized the lessened blameworthiness of juvenile offenders, their 

potential for rehabilitation, and the lack of “persuasive empirical support 

for the proposition that increased punishment severity acts as an 

effective deterrent of criminal acts.” Model Penal Code: Sentencing 

§ 6.11A cmt. c(5), at 41 (Am. Law. Inst., Tent. Draft No. 2). The ALI did 

not, however, discuss parole availability, aside from noting the thenrecent Graham case. See id. at 44. 

Finally, we consider the actions of our own legislature in 

determining consensus. See Lyle, 854 N.W.2d at 388. The Iowa 

legislature has recently adopted statutes that permit the sentencing 

court to depart from statutory minimums. See 2015 Iowa Acts ch. 65, 

§ 1 (now codified at Iowa Code § 902.1(2)(a)(2) (2017)) (authorizing the 

court to sentence a juvenile convicted of a class “A” felony to “life with 

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

determined by the court”); 2013 Iowa Acts ch. 42, § 14 (now codified at 

Iowa Code § 901.5(14)) (“Notwithstanding any provision . . . prescribing a 

mandatory minimum sentence for the offense, if the defendant . . . was 

under the age of eighteen at the time the offense was committed, the 

court may suspend the sentence in whole or in part, including any 

mandatory minimum sentence . . . .”). We give substantial “deference to 

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

sentencing” because it “can be ‘the most reliable objective indicator[] of 

community standards for purposes of determining whether a 

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

State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009)). We find “the Code 

in general is replete with provisions vesting considerable discretion in 

courts to take action for the best interests of the child.” Id. at 388–89
18

(citing as examples Iowa Code section 92.13; section 232C.3(1), and

section 282.18(5)). We can infer from these latest legislative 

developments that the Iowa legislature has embraced the notion of court 

discretion when initially sentencing juveniles. To contrast, there is no 

indication the Iowa legislature would forbid the court from imposing a 

minimum sentence. 

In all, no national or community consensus readily emerges to 

support Roby’s claim. This “gives us pause.” Sweet, 879 N.W.2d at 836. 

In Roper, the Court observed “even in the 20 States without a formal 

prohibition on executing juveniles, the practice is infrequent.” Roper, 

543 U.S. at 564, 125 S. Ct. at 1192. The rate of legislative change, too, 

was significant. Id. at 565, 125 S. Ct. at 1193. Similarly, in Graham, the 

Court found the ability to impose life without parole on juveniles existed 

widely, but was seldom used except in certain jurisdictions. See 

Graham, 560 U.S. at 62–64, 130 S. Ct. at 2023–24. After Graham, many 

states acted to forbid the practice. See Sweet, 879 N.W.2d at 835. In 

contrast apparently every state permits a minimum sentence. Moreover, 

the growing body of constitutional challenges and professional criticism 

is still being tested. And finally, our legislature has recently reauthorized 

minimum sentences at the discretion of the sentencing court. This all 

shows us the individualized hearing process is still being defined, and it 

will likely not be the last reform. 

B. Independent Judgment. Since consensus is not dispositive of 

our inquiry, we turn to our own independent judgment. See id. at 836. 

By that, we mean we carefully consider if available information and 

evidence would support the categorical elimination of the practice of 

sentencing juvenile offenders to a minimum prison term with no 

opportunity for parole. It is our duty to use this type of consideration, as 
19

“Iowans have generally enjoyed a greater degree of liberty and equality 

because we do not rely on a national consensus regarding fundamental 

rights without also examining any new understanding.” Lyle, 854 

N.W.2d at 387. To this, we note the “watershed”-like change in juvenile 

justice over the last decade is not complete. Id. at 390; Cara H. Drinan, 

The Miller Revolution, 101 Iowa L. Rev. 1787, 1825 (2016) [hereinafter 

Drinan] (addressing “three areas ripe for reform in the wake of Miller: (1) 

juvenile transfer laws; (2) presumptive sentencing guidelines as they 

apply to children; and (3) juvenile conditions of confinement”). In many 

ways, we are still understanding how brain science can make our 

juvenile justice system better. However, the State argues the opportunity 

to be eligible for parole provides the needed bulwark against overly harsh 

mandatory minimum sentences, and we have reached this particular 

watershed’s common outlet. We turn to our body of cases to see if more 

can be found to support Roby’s categorical argument. 

In Lyle, we found our constitution prohibited statutorily imposed 

mandatory minimums. See Lyle, 854 N.W.2d at 404. Our reasoning 

began with twin principles: (1) Juveniles have diminished culpability, 

and (2) penological justifications are less applicable to them. Id. at 393–

94. We look to see if these principles also prohibit judicially imposed 

minimum sentences. We find the first is equally applicable to every 

juvenile, whether subjected to a statutorily or judicially imposed 

minimum sentence. Juveniles “are not fully equipped to make 

‘important, affirmative choices with potentially serious consequences.’ ” 

Id. at 397 (quoting Bellotti v. Baird, 443 U.S. 622, 635, 99 S. Ct. 3035, 

3044 (1979)). They lack maturity and the ability to make reasoned 

decisions, they are susceptible to outside influence, and they will likely 

change. See Roper, 543 U.S. at 569–70, 125 S. Ct. at 1195. As noted in 
20

Miller and Lyle, nothing about this is crime or punishment specific. 

Miller, 567 U.S. at ___, 132 S. Ct. at 2465; Lyle, 854 N.W.2d at 399. 

Therefore, whether the punishment is handed down by the legislature or 

the court, a juvenile’s diminished culpability means it risks being 

excessive. 

The second principle, diminished penological justifications, is less 

compelling when a court is given discretion to impose a minimum 

sentence. For example, statutorily imposed mandatory minimums are 

not appropriate retribution because “attempting to mete out a given 

punishment to a juvenile for retributive purposes irrespective of an 

individualized analysis of the juvenile’s categorically diminished 

culpability is an irrational exercise.” Lyle, 854 N.W.2d at 399. But 

judicially imposed mandatory minimums only follow a hearing on “the 

culpability of the offender in addition to the harm the offender caused.” 

Id. at 398. Thus, it may be appropriate retribution to incarcerate a 

juvenile for a short time without the possibility of parole. Additionally, a 

sentencing judge could properly conclude a short term of guaranteed 

incarceration is necessary to protect the public. 

On the other hand, although we used the phrase “statutorily 

mandated,” we have recognized incarceration “[a]fter the juvenile’s 

transient impetuosity ebbs and the juvenile matures and reforms . . . 

becomes ‘nothing more than the purposeless and needless imposition of 

pain and suffering.’ ” Id. at 400 (quoting Coker v. Georgia, 433 U.S. 584, 

592, 97 S. Ct. 2861, 2866 (1977)). Therefore, even a judicially imposed 

minimum may quickly exceed the sentence necessary to punish the 

juvenile offender. Additionally, the justification of deterrence will

normally be irrelevant to all juveniles. See id. at 399 (“If a juvenile will 

not engage in the kind of cost-benefit analysis involving the death 
21

penalty that may deter them from committing a crime, there is no reason 

to believe a comparatively minor sentence of a term of years subject to a 

mandatory minimum will do so.”). 

Finally, we note all minimum sentences tend to obstruct 

rehabilitation. Studies show incarcerating juveniles increases the risk of 

recidivism by depriving the juvenile of positive influences during a crucial 

time for development. See id. at 400 (“Juvenile offenders who are placed 

in prison at a formative time in their growth and formation can be 

exposed to a life that can increase the likelihood of recidivism.” (Citation 

omitted.)). Perhaps the initial shock of incarceration may scare some 

juveniles “straight,” but the damaging effects of the prison environment 

on juvenile development are well documented and severe. See, e.g., 

Katherine Hunt Federle, The Right to Redemption: Juvenile Dispositions 

and Sentences, 77 La. L. Rev. 47, 59–64 (2016) (identifying increased 

recidivism, higher rates of abuse and health problems, reduced 

opportunities, and delayed maturation as collateral consequences of 

incarcerating juvenile offenders). This is true of all juveniles held with 

minimum sentences and is likely made worse by apparent Iowa 

Department of Corrections policy leaving them ineligible for rehabilitative 

treatment until they near their discharge date. 

Thus, “[i]f rehabilitation were the sole proper goal, it would follow 

that all sentences for juveniles should come with immediate parole 

eligibility.” Seats, 865 N.W.2d at 580–81 (Mansfield, J., dissenting). This 

has not been the approach since the progressive reformers of the late 

nineteenth century. See Lyle, 854 N.W.2d at 390 (“To ameliorate the 

harshness and inequity of trying children in adult courts . . . , reformers 

advocated for the establishment of a system less concerned with 

ascertaining the child’s guilt or innocence and more concerned with 
22

determining what was in the child’s best interests based upon the child’s 

unique circumstances.”); see also Null, 836 N.W.2d at 52 (noting juvenile 

courts were originally intended to “promote the welfare of juvenile 

offenders”). While many may believe it is time for a complete 

restructuring of the juvenile justice system to return us to that 

understanding, we have never indicated such a change was 

constitutionally mandated. 

Instead, we repeatedly limited our holding in Lyle to statutorily 

imposed minimums. We stated expressly,

It is important to be mindful that the holding in this 

case does not prohibit judges from sentencing juveniles to 

prison for the length of time identified by the legislature for 

the crime committed, nor does it prohibit the legislature from 

imposing a minimum time that youthful offenders must 

serve in prison before being eligible for parole. Article I, 

section 17 only prohibits the one-size-fits-all mandatory 

sentencing for juveniles. Our constitution demands that we 

do better for youthful offenders—all youthful offenders, not 

just those who commit the most serious crimes. Some 

juveniles will deserve mandatory minimum imprisonment, 

but others may not. A statute that sends all juvenile 

offenders to prison for a minimum period of time under all 

circumstances simply cannot satisfy the standards of 

decency and fairness embedded in article I, section 17 of the 

Iowa Constitution. 

Lyle, 854 N.W.2d at 403. We expressly authorized our judges to 

“sentence those juvenile offenders to the maximum sentence if warranted 

and to a lesser sentence providing for parole if warranted.” Id. at 404. In 

fact, “[i]f the mandatory minimum period of incarceration is warranted,” 

we commanded them to impose the sentence. See id. at 404 n.10. 

In sum, applying the two-step inquiry we use for categorical 

challenges, we can conclude, at this time, (1) there is no national or 

community consensus against imposing minimum terms of incarceration 

without the possibility of parole on juveniles, provided they have the 
23

opportunity to appear before a neutral decision-maker for an 

individualized review; and (2) in our independent judgment article I, 

section 17 does not yet require abolition of the practice. 

C. Practical Difficulties. Notwithstanding, Roby argues the 

practical difficulties in applying the Lyle factors are so substantial that 

we should abandon the practice in favor of a categorical prohibition that 

would require immediate eligibility for parole. He also points to the 

efficacy of the parole board and the procedural difficulties of challenging 

the action or inaction of the parole board. 

The linchpin of the constitutional protection provided to juveniles 

is individualized sentencing. We have on numerous occasions discussed 

the nature of this sentencing and the role of the court in imposing the 

sentence. See e.g., Seats, 865 N.W.2d at 555–56 (majority opinion); Lyle, 

854 N.W.2d at 404 n.10; Null, 836 N.W.2d at 74–75. We endorse the five 

factors identified in Miller as guideposts for courts to follow. Lyle, 854 

N.W.2d at 404 n.10. Yet, as this case and others illustrate, difficulties in 

applying the factors are obvious. See Sweet, 879 N.W.2d at 838. 

Nevertheless, we are not prepared to conclude that practice has 

proven the five factors to be unworkable. Instead, the difficulties in 

applying the factors are a call for clearer guidance to permit them to 

supply the required protection demanded by our constitution. This 

observation is not a criticism in any way, but a recognition that justice 

advances in steps. 

The five factors were drawn from the reasons that created the 

fundamental constitutional proposition that harsh criminal sentences 

are no longer appropriate for juvenile offenders. They are woven from the 

growing body of scientific research and represent our current and best 

understanding of the distinct features of human development. Our laws 
24

have always sought to give special consideration to youth. Our ability to 

integrate this consideration into the law simply gets better over time as 

our understanding improves. The change that results from this 

understanding is what a justice system gives a democracy when it is 

doing its job under the Constitution. It is what the Supreme Court did 

fifty years ago in In re Gault when it changed the historic approach to 

dealing with juvenile offenders and recognized that youthful offenders are 

constitutionally entitled to the same type of procedural protections 

provided to other criminal offenders. 387 U.S. 1, 27–28, 87 S. Ct. 1428, 

1444 (1967). It reached this conclusion based in large measure on 

research showing procedural fairness promotes rehabilitation and 

reform. See id. at 26, 87 S. Ct. at 1443.

We also recognize that our constitution establishes a baseline, and 

courts are not alone in developing new standards to protect juvenile 

offenders from overly harsh sentencing. The legislature is uniquely 

suited to identifying and adopting additional substantive and procedural 

protections to further the constitutional recognition that “children are 

different.” See Seats, 865 N.W.2d at 555 (quoting Miller, 567 U.S. at ___, 

132 S. Ct. at 2469). For example, our legislature has already acted to 

authorize sentencing courts to suspend or defer the sentences of 

juveniles. See Iowa Code § 901.5(14). We would call attention to other 

efforts advocated by leading scholars in this area, such as reforming 

juvenile transfer laws, establishing appropriate facilities for juvenile 

confinement, sealing and expunging juvenile criminal records, and 

expanding access to educational and treatment programs while 

incarcerated, to name a few. See Drinan, 101 Iowa L. Rev. at 1825–26, 

1828–31; Scott, 88 Temp. L. Rev. at 708–09, 712. Thus, we too now turn 
25

back to understand why the factors have led to difficulties and to 

consider what can be done to provide greater guidance. 

In doing so, we begin by emphasizing some basic propositions we 

have previously described. First, the factors generally serve to mitigate 

punishment, not aggravate punishment. Lyle, 854 N.W.2d at 402 n.8. 

Second, juvenile sentencing hearings are not entirely adversarial. The 

goal is to craft a “punishment that serves the best interests of the child 

and of society.” Id. at 402. Third, the default rule in sentencing a 

juvenile is that they are not subject to minimum periods of incarceration. 

See Null, 836 N.W.2d at 74 (“First, the district court must recognize that 

because ‘children are constitutionally different from adults,’ they 

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

criminal sentencing.” (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 

2464)). 

Finally, we note these factors have unique challenges on 

resentencing. Objective indicia of a juvenile’s relevant characteristics 

may be difficult or impossible to obtain ten or twenty years later. 

However, the factors do not lose relevance. There are baseline “average 

developmental characteristics of youth of the age that the prisoner was 

when he or she committed the offense,” which the parties can then use 

as evidence of the juvenile’s conduct after the offense to show the 

juvenile “conformed to or departed from developmental norms.” Scott, 88 

Temp. L. Rev. at 702. Additionally, while objective indicia may be 

elusive, it may still be available in the form of contemporaneous medical 

records or school and disciplinary reports. Id. Interviews of relevant 

individuals’ recollection, as opposed to their current perception, may also 

be helpful. See id. Applied to this record, we are not prepared to assume 

these inquiries were made but returned nothing.
26

D. The Individualized Hearing. Accordingly, we turn to analyze 

each factor to provide greater understanding of its role in juvenile 

sentencing. Properly applied, these factors ensure the constitutional 

guarantee against cruel and unusual punishment is satisfied. 

1. Age and features of youthful behavior. The first factor is the 

“age of the offender and the features of youthful behavior.” Lyle, 854 

N.W.2d at 404 n.10 This factor is the basis for the core constitutional 

protection extended to juvenile offenders. See id. at 398 (“First and 

foremost, the time when a seventeen-year-old could seriously be 

considered to have adult-like culpability has passed.”). The features of 

age that give rise to this protection include “immaturity, impetuosity, and 

[a] failure to appreciate risks and consequences.” Id. at 404 n.10

(quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2468). The factor draws 

upon the features expected to be exhibited by youthful offenders that 

support mitigation and allows for the introduction of evidence at the 

sentencing hearing to show the offender had more or less maturity, 

deliberation of thought, and appreciation of risk-taking than normally 

exhibited by juveniles. This factor is most meaningfully applied when 

based on qualified professional assessments of the offender’s decisional 

capacity. See Scott, 88 Temp. L. Rev. at 696–97 (describing use of 

“validated assessment methods,” review of “the youth’s facility under 

real-life conditions,” and an expert’s “developmental and clinical 

knowledge and experience to integrate [the] information”). 

Additionally, age is not a sliding scale that necessarily weighs 

against mitigation the closer the offender is to turning eighteen years old 

at the time of the crime. See Elizabeth S. Scott et al., Young Adulthood 

as a Transitional Legal Category: Science, Social Change, and Justice 

Policy, 85 Fordham L. Rev. 641, 647 (2016) (noting “developmental 
27

changes . . . continue into the early twenties”). When the Miller Court 

referred to “chronological age” in identifying the need to distinguish the 

criminal sentencing of children from adults, it did not suggest that a 

seventeen-year-old child is more deserving of adult punishment than a 

sixteen-year-old child, or a fifteen-year-old child more deserving than a 

fourteen-year-old child. See Miller, 567 U.S. at ___, 132 S. Ct. at 2467 

(“[Y]outh is more than a chronological fact.” (quoting Eddings v. 

Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 877 (1982))). It referred to 

“chronological age” as a unit of age that distinguishes children from 

adults. See id. The court recognized that children within this unit have 

“signature qualities” of “immaturity, irresponsibility, ‘impetuousness[,]

and recklessness.’ ” Id. (alteration in original) (quoting Johnson v. Texas, 

509 U.S. 350, 368, 113 S. Ct. 2658, 2669 (1993)). Thus, minority status 

is the designated factor that supports the special sentencing

consideration and expert evidence may be used to conclude any 

particular juvenile offender possessed features of maturity beyond his or 

her years. This is not to say judges cannot and should not be alert to 

circumstances that might suggest the age of a particular offender might 

not support mitigation. Yet, categorical age groups do not exist for 

children to justify using age alone as a factor against granting eligibility 

for parole. 

2. Family and home environment. The second factor is “the 

particular ‘family and home environment’ that surround the youth.” 

Lyle, 854 N.W.2d at 404 n.10 (quoting Miller, 567 U.S. at ___, 132 S. Ct. 

at 2468). This factor seeks to identify any familial dependency and 

negative influences of family circumstances that can be ingrained on 

children. Scott, 88 Temp. L. Rev. at 698. As with the first factor, expert 

testimony will best assess how the family and home environment may 
28

have affected the functioning of the juvenile offender. Id. (describing the 

use of “psychometric measures,” including “ ‘social maturity scales’ . . . 

[that] assess the youth’s degree of independence and self-direction in 

everyday functioning”). This factor does not rely on general perceptions, 

but specific measures of the degree of functioning. Furthermore, it is not 

limited to extremely brutal or dysfunctional home environments, but 

considers the impact of all circumstances and all income and social 

backgrounds. 

3. The circumstances of the crime. The third factor considers the 

circumstances of the crime. Lyle, 854 N.W.2d at 404 n.10. Within these 

circumstances, attention must be given to the juvenile offender’s actual 

role and the role of various types of external pressure. Thus, this factor 

is particularly important in cases of group participation in a crime. 

Expert testimony will be helpful to understand the complexity behind the 

circumstances of a crime when influences such as peer pressure are not 

immediately evident and will aid the court in applying the factor properly. 

See Scott, 88 Temp. L. Rev. at 698. Yet, the prominence of peer pressure 

in the analysis of this factor does not mean the factor cannot support

mitigation for crimes committed alone. See id. (“[P]eer influence can play 

a more subtle role in adolescent behavior, as when teenagers engage in 

behavior that they think will win peer approval (‘showing off,’ for 

example), or simply encourage one another through group interaction.”). 

Likewise, the circumstances of the crime do not necessarily weigh 

against mitigation when the crime caused grave harm or involved 

especially brutal circumstances. As the Court said in Miller, the special 

analysis for juveniles is not “crime-specific.” 567 U.S. at ___, 132 S. Ct. 

at 2465. Mitigation normally is warranted in all crimes. The aggravating 
29

circumstances of a crime that suggest an adult offender is depraved may 

only reveal a juvenile offender to be wildly immature and impetuous. 

4. Legal incompetency. The fourth factor is the legal incompetency 

associated with youth. Lyle, 854 N.W.2d at 404 n.10. It mitigates 

against punishment because juveniles are generally less capable of

navigating through the criminal process than adult offenders. See Scott, 

88 Temp. L. Rev. at 699. Thus, the same shortsightedness of thought 

tied to juvenile behavior in the commission of a crime can also surface in 

their subsequent dealings in the legal process. These juvenile 

deficiencies can play out in general competency to stand trial or relate 

more specifically to cognitive or other incapacities to withstand police 

interrogation. See id. The relevance of this factor ultimately relates to 

the general proposition that youthful offenders are less able to confront 

the legal process. Whether a particular youth would be more capable 

than most would normally be a matter for expert testimony. 

5. Rehabilitation. The final factor is the possibility of rehabilitation 

and the capacity for change. Lyle, 854 N.W.2d at 404 n.10. This factor 

supports mitigation for most juvenile offenders because delinquency is 

normally transient, and most juveniles will grow out of it by the time 

brain development is complete. See Scott, 88 Temp. L. Rev. at 700. 

Additionally, juveniles are normally more malleable to change and reform 

in response to available treatment. Id. at 701. The seriousness of the 

crime does not alter these propositions. Id. at 700. Thus, judges cannot

necessarily use the seriousness of a criminal act, such as murder, to 

conclude the juvenile falls within the minority of juveniles who will be 

future offenders or are not amenable to reform. Again, any such 

conclusion would normally need to be supported by expert testimony. Id.

at 701. 
30

6. Discretion exercised by the district court. We appreciate the 

difficulty judges can often face when called upon to decide if juvenile 

offenders should be eligible for parole. Yet, the factors used to apply the 

constitutional principle at stake in this decision will best serve their 

purpose if sentencing courts remain committed to several key 

observations. First, the five factors identify the primary reasons most 

juvenile offenders should not be sentenced without parole eligibility. A 

sentence of incarceration without parole eligibility will be an uncommon 

result. Second, the factors must not normally be used to impose a 

minimum sentence of incarceration without parole unless expert 

evidence supports the use of the factors to reach such a result. Third, 

the factors cannot be applied detached from the evidence from which 

they were created and must not be applied solely through the lens of the 

background or culture of the judge charged with the responsibility to 

apply them. Perceptions applicable to adult behavior cannot normally be 

used to draw conclusions from juvenile behavior. 

In the end, this case shows how the factors can be misused. The 

district court in this case misused the first factor—age and the features 

of youthful behavior—by considering the evidence at trial that Roby 

continued to engage in sexual abuse after he was confronted about his 

improper physical contact with the victim. This evidence does not in any 

way undermine the recognized failure of juveniles to appreciate risks and 

consequences and their tendency to make immature and impetuous 

decisions. Thus, the finding by the district court could have only been 

based on the court’s own observation that the features of youth are 

overcome by the warning Roby received. No such evidence supported 

this finding. 
31

The district court addressed the second factor—family and home 

environment—with evidence that Roby sexually abused the victim during 

the time the victim’s family was providing him with a home. Again, this 

evidence does not undermine what the second factor seeks to convey—

that family and home environment often can affect the functions of a 

juvenile. Thus, the finding by the district court was essentially unrelated 

to the factor. The district court seemed to suggest Roby acted with a 

sinister disposition by abusing the victim while the victim’s family was 

helping provide him with a home. 

The district court addressed the third factor—the circumstances of 

the crime—with evidence that the crime was not the result of peer 

pressure, Roby exhibited no concern for harm caused to the victim, and 

he betrayed the kindness of the victim’s family. The role of peer pressure 

in juvenile crime does not make the absence of peer pressure an 

aggravating circumstance. Furthermore, a sentencing judge cannot 

normally draw such conclusions from the circumstances of the crime 

without expert testimony. 

The district court in this case did not consider the fourth factor—

legal incompetency. If this factor had been considered, the evidence 

showed Roby initially thought or pretended to think he was being 

investigated for stealing a video game, confessed to police during an 

interrogation that was subsequently suppressed by the court as 

involuntary, and may not have been adequately communicating on trial 

strategy with his attorney. All of this could be evidence of the legal 

incompetency we normally associate with youth. 

Finally, the court addressed the fifth factor—rehabilitation—with 

evidence that Roby never admitted his criminal actions and has 

continued to deny committing a crime. It concluded this attitude did not 
32

make him amenable to rehabilitation. While this evidence is relevant, no 

evidence was presented that Roby ever received any treatment to aid in 

rehabilitation. Overall, the evidence at sentencing was insufficient to 

support a conclusion that Roby was within the small group of juvenile 

offenders that never aged out of his delinquent conduct or was not 

amenable to rehabilitation. 

7. Summary. On our review of the five factors identified in Lyle, 

bolstered by the recommendations of leading legal and medical 

professionals in this area, we conclude the district court abused its 

discretion by imposing a sentence of incarceration without parole

eligibility. The evidence presented at the sentencing hearing could not, 

as a matter of law, support the imposition of incarceration without an 

opportunity for parole under the five factors that must be observed at 

sentencing to ensure that the punishment does not violate article I, 

section 17 of the Iowa Constitution. The district court applied the 

factors, but not in the manner required to protect the juvenile offender 

from cruel and unusual punishment. 

IV. Conclusion. 

We conclude article I, section 17 of the Iowa Constitution does not 

categorically prohibit the imposition of a minimum term of incarceration 

without the possibility of parole on a juvenile offender, provided the court 

only imposes it after a complete and careful consideration of the relevant 

mitigating factors of youth. We recognize the difficulties of individualized 

hearings, but decline at this time to hold our constitution requires 

abandonment of the practice. Instead, we take this opportunity to 

provide additional guidance to our courts, attorneys, and juveniles on the 

use of the factors and the content of a sentencing hearing. While we 

conclude the district court abused its discretion in this case, we are 
33

confident the additional direction provided by this case will lead to 

sentencing more consistent with our constitutional principles. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT SENTENCE VACATED AND CASE REMANDED WITH 

INSTRUCTIONS. 

Wiggins and Appel, JJ., join this opinion. Hecht, J., files a 

concurring opinion. Appel, J., files a separate concurring opinion in 

which Wiggins, J., joins. Zager, J., files a dissenting opinion in which 

Waterman, and Mansfield, JJ., join. 
34

#15–0175, State v. Roby

HECHT, Justice (concurring specially).

I concur in the determination that Christopher Roby’s prison 

sentence must be vacated. I write separately, however, to express my 

view that article I, section 17 of the Iowa Constitution prohibits a 

mandatory term of incarceration for any offense committed by a juvenile 

offender. 

In State v. Lyle, 854 N.W.2d 378 (Iowa 2014), we concluded “a 

mandatory minimum sentencing schema . . . violates article I, section 17 

of the Iowa Constitution when applied in cases involving conduct 

committed by youthful offenders.” 854 N.W.2d at 402. We reasoned that 

a statute that “sends all juvenile offenders to prison for a minimum 

period of time under all circumstances simply cannot satisfy the 

standards of decency and fairness embedded in [our constitution].” Id. at 

403. Our decision in Lyle left room, however, for the possibility that 

“[s]ome juveniles will deserve mandatory minimum imprisonment, but 

others may not,” id., and left this differentiation to the district court with 

due consideration of the Miller factors focusing upon “youth and its 

attendant circumstances as a mitigating factor.” Id. at 402 n.8, 404

(citing Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012)). We 

noted the “keystone of our reasoning is that youth and its attendant 

circumstances and attributes make a broad statutory declaration 

denying courts this very discretion categorically repugnant to article I, 

section 17 of our constitution.” Id. at 402–03.

In my subsequent concurring opinion in State v. Seats, 865 

N.W.2d 545 (Iowa 2015), I expressed “my lack of confidence in [this 

court’s] ability to conceive—or in sentencing courts’ ability to apply 

consistently—a principled standard for identifying the uncommon or rare 
35

circumstances” justifying a denial of an opportunity for parole for 

juvenile offenders sentenced to life in prison. 865 N.W.2d at 560

(Hecht, J., concurring). In that opinion, I explained why several of the 

Miller factors are not helpful in assessing the relative capacities of 

juvenile offenders for maturation and rehabilitation, and I concluded 

article I, section 17 mandates prohibition of life-without-parole sentences 

for all juveniles convicted of homicide offenses. Id. at 561–62, 563.

The infirmities of the Miller factors led me to reject them in Seats

as a framework for identifying the rare juvenile offenders convicted of 

homicide who lack the capacity to mature and be rehabilitated. I now 

conclude the infirmities are no less profound when applied by judges 

sentencing juvenile offenders convicted of lesser offenses. Like the

Supreme Judicial Court of Massachusetts, I believe the “back end” 

parole-board mechanism better accommodates juveniles’ capacity for 

change than a “front end” irrevocable determination of eligibility for 

parole. See Diatchenko v. Dist. Att’y, 1 N.E.3d 270, 282–85 (Mass. 2013). 

The compelling reasons counseling against mandatory statutory 

deprivations of juvenile offenders’ opportunities for parole should lead us 

to conclude there is no constitutionally sound basis for empowering 

judges to make calls on eligibility of juvenile offenders for parole based 

on unsound predictive criteria. 

Consistent with this conclusion, I concur with the majority’s 

conclusion that the sentence rendering Roby ineligible for parole for a 

term of seventeen and one-half years violated article I, section 17 of the 

Iowa Constitution. 
36

#15–0175, State v. Roby

APPEL, Justice (concurring specially).

I join in the court’s opinion but write separately to emphasize why.

The court’s opinion leaves the door ajar, at least in theory, that a 

juvenile offender might be sentenced to a lengthy adult minimum 

sentence. But, as we have now repeatedly stated, “children are 

constitutionally different” when it comes to sentencing for crimes. State 

v. Null, 836 N.W.2d 41, 65 (Iowa 2013) (quoting Miller v. Alabama, 567 

U.S. 460, ___, 132 S. Ct. 2455, 2464 (2012)); accord State v. Seats, 865 

N.W.2d 545, 556 (Iowa 2015); State v. Lyle, 854 N.W.2d 378, 395 (Iowa 

2014). The multifactored Miller test, as shaped by this court, powerfully 

drives the analysis toward a finding that children are constitutionally 

different and therefore, as a general proposition, juvenile offenders 

cannot be sentenced to mandatory adult minimums.

Although we have not expressly said so, the State in theory may 

overcome these factors by presenting what amounts to a case of 

psychopathy demonstrating, among other things, resistance to change 

and a stunting of the ordinary maturation process. But so far, 

psychopathy measures during adolescence that have been developed by 

experts have unacceptable false positive rates when used to make 

individualized predictions. See Thomas Grisso & Antoinette Kavanaugh, 

Prospects for Developmental Evidence in Juvenile Sentencing Based on 

Miller v. Alabama, 22 Psychol., Pub. Pol’y, & L. 235, 240 (2015). 

According to a recent comprehensive review of the literature, available 

measures of psychopathy in adolescents “have not established a 

sufficiently high level of stability . . . to warrant testimony about whether 

a youth has a psychopathic personality disorder.” Id. (quoting Gina M. 

Vincent et al., Juvenile Psychopathy: Appropriate and Inappropriate Uses 
37

in Legal Proceedings in APA Handbook of Psychology and Juvenile Justice

219 (Kirk Heilbrun et al., eds., 2016)).

As a result, I do not think as a practical matter there is much 

difference between the court’s approach and the categorical approach in 

State v. Sweet, 879 N.W.2d 811, 839 (Iowa 2016). The seventeen and 

one-half-year mandatory sentence in this case is less draconian than a 

life-without-the-possibility-of-parole sentence in Sweet, but the crimes 

are less serious, too. Although the stakes are lower, I think there are 

solid reasons to extend the categorical approach of Sweet to this case. 

Once again, of course, such an approach would not be an entitlement to 

early release, but only to a meaningful opportunity to show rehabilitation 

prior to the expiration of a seventeen and one-half-year mandatory 

sentence.

Nonetheless, for now I join the court’s opinion. If implementation 

of this decision proves inconsistent, confusing, difficult, or unworkable, 

the obvious solution would be to move to the analysis in Sweet and 

categorically eliminate the application of adult mandatory minimum 

sentences to juvenile offenders.

Wiggins, J., joins this special concurrence.
38

#15–0175, State v. Roby

ZAGER, Justice (dissenting).

The court giveth and the court taketh away. In part III.A–B of its 

opinion, the court correctly concludes that the Iowa Constitution does 

not categorically prohibit a district judge, after a hearing on all relevant 

factors, from sentencing a juvenile who commits a serious felony such as 

rape, armed robbery, or murder, to a minimum period of incarceration 

before the juvenile is eligible for parole. However, this correct but limited 

conclusion in III.A–B is subsequently undermined by other aspects of the 

opinion.

The court introduces a number of statements that go beyond what 

this court has decided in its prior juvenile sentencing opinions. For 

example, the court declares that minimum periods of incarceration need 

to be “short” and “uncommon.” These statements can, and I expect will, 

be seized upon in future cases to strike down any minimum term of 

incarceration.

More directly, in part III.C–D, the court restates the relevant 

factors in a way that will make it difficult, if not practically impossible, 

for a sentencing judge to ever impose any minimum term of 

incarceration. These significant, practical implications are another

impediment to our district court judges who expend substantial time and 

energy exercising their discretion in sentencing. Every application of 

every factor must weigh in favor of the defendant. I have repeatedly 

cautioned that this approach, in effect, removes any sentencing 

discretion from the district court and “bestows upon our appellate courts 

the freedom to impose their members’ judgments about the 

appropriateness of a sentence.” State v. Lyle, 854 N.W.2d 378, 412 (Iowa 

2014) (Zager, J., dissenting).
39

Moreover, it is now apparent that expert testimony will be required 

on both sides before a juvenile can be sentenced to any minimum period 

of incarceration. The court’s opinion thus endorses and perpetuates the 

cottage industry that has developed for mitigation experts—a burden not 

only for the district court judges and the State, but also for the juvenile 

defendants themselves, many of whom are represented by a public 

defender or who may otherwise be constrained by costs. In short, while 

the court has technically not invalidated all minimum terms of 

incarceration for juveniles, today’s opinion will have that effect in the real 

world in which our district courts must operate. And the question that 

must be asked is: will the sentence of the district court be any more valid 

or constitutional? I don’t believe so.

The majority opinion takes our state even farther away from the 

national consensus, but it provides no adequate justification for this 

continued extension in juvenile sentencing. The restatement of the 

relevant factors does not make sense, and the court’s continued push to 

shift authority from our district court judges to the parole board will not 

achieve the outcomes it would like to see.

I. Today’s Extensions of Lyle Move Us Farther Away from 

Other Jurisdictions.

Today’s decision pulls Iowa farther away from the rest of the 

nation. In 2014, this court declared unconstitutional any sentencing law 

requiring individuals under the age of eighteen who committed felonies to 

be incarcerated for any mandatory minimum period of time. See Lyle,

854 N.W.2d at 400 (majority opinion). This rule applied no matter how 

heinous the crime, such as first-degree murder, or how short the period 

of incarceration, such as one year. See id. All such sentences were 

deemed cruel and unusual. To its credit, the majority acknowledged in 
40

Lyle the uniqueness of its decision. “[W]e recognize no other court in the 

nation has held that its constitution or the Federal Constitution prohibits 

a statutory schema that prescribes a mandatory minimum sentence for a 

juvenile offender.” Id. at 386.

Three years have passed since Lyle was decided. Not surprisingly, 

criminal defense lawyers in other jurisdictions have urged their states to 

follow Lyle. None have accepted the invitation. See, e.g., State v. Imel, 

No. 2 CA–CR 2015–0112, 2015 WL 7373800, at *3 (Ariz. Ct. App. Nov. 

20, 2015) (“[W]e disagree with Lyle’s characterization of the Court’s 

holding in Miller [v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012)].”);

People v. Rigmaden, No. C071533, 2015 WL 5122916, at *18 (Cal. Ct. 

App. Sept. 1, 2015) (declining to follow Lyle while observing that “policy 

arguments about sentencing juveniles in light of current research on the 

developing brains of adolescents (neuroscience)” are “more properly 

directed to the Legislature”); People v. Applewhite, 68 N.E.3d 957, 964 

(Ill. App. Ct. 2016) (“[W]e are not persuaded by the defendant’s reliance 

on an Iowa Supreme Court case finding that all mandatory minimum

juvenile sentences are unconstitutional.”); State v. Anderson, No. 26525, 

2016 WL 197122, at *11 (Ohio Ct. App. Jan. 15, 2016) (“The only 

authority Anderson cites directly supporting the proposition that all 

mandatory minimum sentences imposed on juveniles tried in adult court 

constitute cruel and unusual punishment is [Lyle]. . . . Upon review, we 

decline to adopt the majority approach in Lyle.”); State v. Barbeau, 883 

N.W.2d 520, 533–34 (Wis. Ct. App. 2016) (declining to follow Lyle).

In fairness, it should be noted the Washington Supreme Court 

recently held that under the Eighth Amendment, a trial court sentencing 

juveniles in the adult criminal justice system “must be vested with full 

discretion to depart from the sentencing guidelines and any otherwise 
41

mandatory sentence enhancements, and to take the particular 

circumstances surrounding a defendant’s youth into account.” State v. 

Houston-Sconiers, 391 P.3d 409, 426 (Wash. 2017). Yet, the Washington 

court did not rely on its state constitution, did not mention Lyle, and did 

not hold that the trial court has an affirmative obligation to hold a 

hearing covering all the Miller factors in every case (as opposed to simply 

receiving and considering such evidence when it was offered). Id. at 419–

20 Also, the Washington court confirmed that the trial court sentencing 

juveniles in the adult criminal justice system must be vested with “full 

discretion” to depart from prescribed sentences. Id. at 421 I have not 

seen such a confirmation of discretion in our sentencing judges in any of 

our juvenile sentencing opinions. While the Washington Supreme Court 

may have reached a “similar conclusion,” it did not cite to our opinion.

In light of Lyle’s negative reception in other states, I think a more 

cautious approach is appropriate. Instead, today’s opinion extends Lyle. 

Consider the following examples. In Lyle, we said “juveniles can still be 

sentenced to long terms of imprisonment, but not mandatorily.” 854 

N.W.2d at 401 (emphasis added). Just one year ago, in State v. Sweet, 

this court assured everyone that even doing away with the option of life 

without parole was only a “marginal” change because juveniles who 

committed murder would still serve “a substantial period of 

incarceration.” 879 N.W.2d 811, 835 (Iowa 2016) (emphasis added). The 

majority now takes the opposite approach, walking away from its 

previously stated position. The majority says instead that “it may be 

appropriate retribution to incarcerate a juvenile for a short time without 

the possibility of parole” and “a sentencing judge could properly conclude 

a short term of guaranteed incarceration is necessary to protect the 

public.” So “long” and “substantial” have now been replaced by “short.” 
42

If we keep changing the standards, how can we expect our district court 

judges to reliably apply any sentencing factors?

In Lyle, we said that “[s]ome juveniles will deserve mandatory 

minimum imprisonment, but others may not.” 854 N.W.2d at 403. We 

added, 

[Trial] judges will do what they have taken an oath to do. 

They will apply the law fairly and impartially, without fear. 

They will sentence those juvenile offenders to the maximum 

sentence if warranted and to a lesser sentence providing for 

parole, if warranted.

Id. at 404. But today we announce that “[a] sentence of incarceration 

without parole will be an uncommon result.” In other words, the district 

court’s discretion to do what is warranted by the facts in front of it must 

give way to a mandate that, except in rare and yet undefined 

circumstances, the juvenile must be immediately parole eligible. In 

reality, the majority’s opinion makes the district court’s sentencing 

discretion merely illusory.

In Lyle, we distinguished between “inane juvenile schoolyard 

conduct” and “cold and calculated adult conduct,” recognizing that some 

juvenile conduct was subject to deterrence. Id. at 401. Today, though, 

the majority concludes that “the justification of deterrence will normally 

be irrelevant to all juveniles.” I strongly disagree. Both this court and 

the Supreme Court have continuously acknowledged that, while 

deterrence has less weight in the analysis of the penological justifications 

for juvenile sentencing due to the impetuosity of juvenile decision 

making, it still has some weight in every case. Roper v. Simmons, 543 

U.S. 551, 570, 125 S. Ct. 1183, 1196 (2005) (“[T]he same characteristics 

that render juveniles less culpable than adults suggest as well that 

juveniles will be less susceptible to deterrence.”); Lyle, 854 N.W.2d at 
43

399 (“We add that a deterrence rationale is actually even less applicable

when the crime . . . is lesser.”); State v. Null, 836 N.W.2d 41, 63 (2013) 

(“The [Supreme] Court concluded deterrence has less validity because of 

the ‘impetuous and ill-considered’ nature of juvenile decision making.” 

(quoting Graham v. Florida, 560 U.S. 48, 72, 130 S. Ct. 2011, 1028–29 

(2010))).

Now, we have again changed the standards and concluded that 

instead of simply having less weight in our analysis, deterrence is now 

“normally irrelevant to all juveniles.” In practice, what does this mean? 

How is “less weight” different from “normally irrelevant,” and how are our 

district court judges supposed to realistically apply this penological goal 

when the goalposts have shifted yet again? I think the court’s 

observation on the irrelevance of deterrence would surprise most parents 

who believe that deterrence can be effective with their children. Indeed, 

there is a sense in which this court’s ever-expanding juvenile 

jurisprudence demeans the great majority of youth who do not commit 

serious felonies.

This approach also moves us away from the Model Penal Code: 

Sentencing approach to juvenile sentencing. While the Model Penal Code

gives priority to rehabilitation and reintegration into society, it does not 

foreclose the use of the penological goal of deterrence. Model Penal Code: 

Sentencing § 6.11A(b), at 215 (Am. Law Inst., Proposed Final Draft 2017); 

id. cmt. (c)(5), at 220–21. Thus, the Model Penal Code would allow for 

“the judge’s ability to find, when supported by the facts, that an offender 

under 18 acted with an unusually high degree of personal 

blameworthiness.” Id. at 218. It adds that courts “must also attend to 

the ‘gravity of offenses’ and the ‘harms done to crime victims’ when 

reaching final judgments of proportionality. The seriousness of the 
44

victim injuries does not diminish when their assailants were underage.” 

Id. Notably, the Model Penal Code is, as its name states, a model for 

adoption by legislatures, not a constitutional minimum. Yet even with 

this model, the consensus of the American Law Institute is that other 

considerations besides rehabilitation may enter into juvenile sentencing.

II. There Is No Jurisprudential Basis for the Majority’s 

Extensions of Lyle.

These extensions of Lyle find no support in the text of article I 

section 17, which only prohibits “cruel and unusual punishment[s].” 

Iowa Const. art. I, § 17. Ordering a sixteen- or seventeen-year-old who 

commits a rape, an armed robbery, or a murder to serve some amount of 

time before being eligible for parole is neither cruel nor unusual.

Nor do the majority’s statements find support in established 

jurisprudence. For example, Miller indicated that the “harshest possible 

penalty,” i.e., life without parole, should be “uncommon” for juvenile 

homicide offenders. 567 U.S. at ___, 132 S. Ct. at 2469 (“[W]e think 

appropriate occasions for sentencing juveniles to this harshest possible 

penalty will be uncommon.” (Emphasis added.)). Today, as noted above, 

the court says that minimum prison terms of any length for juveniles 

should be uncommon. This twists words to give the impression that the 

court is simply following in the tracks of Miller when in reality, it is not.

To give another example, Miller said that juveniles are “less likely 

to consider potential punishment” before committing crimes. Id. at ___, 

132 S. Ct. at 2465. As a general statement, that is probably true. But 

the majority takes Miller to an extreme by stating that “deterrence will 

normally be irrelevant to all juveniles.” There is a big difference between 

holding that the less developed brain of juveniles should make it rare 

and difficult to give them the most serious punishment, as the Court did 
45

in Miller, and holding that it should make it rare and difficult to punish 

them at all, which is the gist of today’s decision.

As before, the majority draws heavily on law review articles as a 

basis for today’s decision. In stark contrast to how it has been received 

by actual courts, the court’s Lyle decision has been enthusiastically 

welcomed by law review writers. See, e.g., Cara H. Drinan, The Miller 

Revolution, 101 Iowa L. Rev. 1787, 1817 (2016); Lindsey E. Krause, One 

Size Does Not Fit All: The Need for a Complete Abolition of Mandatory 

Minimum Sentences for Juveniles in Response to Roper, Graham, and

Miller, 33 Law & Ineq. 481, 493 (2015); Elizabeth Scott et al., Juvenile 

Sentencing Reform in a Constitutional Framework, 88 Temp. L. Rev. 675, 

707–08 (2016) [hereinafter Scott].

To be clear, legal scholarship plays a vital and necessary role in 

germinating new concepts, fusing other disciplines to law, and knocking 

down badly reasoned judicial opinions. But it is one thing to regard a 

nonpeer-reviewed law review article as a source of ideas and quite 

another to regard it as authority. Unlike a court, which in a meaningful 

way must live with its decision, law review writers have no skin in the 

game. They can freely expound without bearing the responsibility for an 

actual decision that (like Lyle) has real-world consequences.

III. The Court Has Redefined the Miller Factors in a Way That 

Will Make It Practically Very Difficult to Sentence a Juvenile to Any 

Minimum Amount of Incarceration, Regardless of the Crime and the 

Characteristics of the Person Who Committed It.

Over the last three years, Lyle has led to hundreds of sentencings 

and resentencings. District judges, prosecutors, and defense lawyers 

have worked countless hours to do what we asked them to do. 

Furthermore, the court of appeals has undertaken appellate review of 

numerous Lyle sentencings and resentencings. See, e.g., State v. White, 
46

No. 15–0829, 2016 WL 4801436 (Iowa Ct. App. Sept. 14, 2016); State v. 

Null, No. 15–0833, 2016 WL 4384614 (Iowa Ct. App. Aug. 17, 2016);

State v. Zarate, No. 15–0451, 2016 WL 3269569 (Iowa Ct. App. June 15, 

2016); State v. Chany, No. 15–0340, 2016 WL 1705160 (Iowa Ct. App. 

Apr. 27, 2016); State v. Tuecke, No. 15–0617, 2016 WL 1681524 (Iowa

Ct. App. Apr. 27, 2016); State v. Bullock, No. 15–0077, 2016 WL 1130311 

(Iowa Ct. App. Mar. 23, 2016); State v. Wise, No. 15–0192, 2016 WL 

894377 (Iowa Ct. App. Mar. 9, 2016); State v. Davis, No. 14–2156, 2016 

WL 146528 (Iowa Ct. App. Jan. 13, 2016); State v. Giles, No. 15–0021, 

2015 WL 9450810 (Iowa Ct. App. Dec. 23, 2015); State v. Hajtic, No. 15–

0404, 2015 WL 6508691 (Iowa Ct. App. Oct. 28, 2015).

What our judges need and want from this court is an intelligent 

and practical roadmap to guide them in their sentencing decisions—that 

is, an illustration of a sentencing or resentencing that complies with this 

court’s opinions and allows them the discretion to provide appropriate 

juvenile offenders with a minimum period of incarceration. But the court 

does not provide such a roadmap. Again, this court simply redefines the 

Miller factors in a way that will make it extraordinarily difficult to 

sentence a juvenile to any minimum term of imprisonment, regardless of 

the individual factors related to the person or any consideration of the 

crime he or she committed. The majority continues to focus on the 

defendant’s potential for rehabilitation without giving any weight to 

public safety, deterrence, or incapacitation. Indeed, the majority’s 

analysis only uses the word “victim” when quoting the district court. 

These newly redefined factors are not only unfair to our district court 

judges, but also unworkable.

A. Chronological Age. The first Miller factor is “the ‘chronological 

age’ of the youth and the features of youth, including ‘immaturity, 
47

impetuosity, and failure to appreciate risks and consequences.’ ” State v. 

Ragland, 836 N.W.2d 107, 115 n.6 (Iowa 2013) (quoting Miller, 567 U.S. 

at ___, 132 S. Ct. at 2468). Yet, today’s opinion provides a subtle 

change. The word “chronological” has been dropped. So, whereas Miller

specifically distinguished between the seventeen-year-old and the 

fourteen-year-old, and emphasized that the cases before it involved 

fourteen-year-olds, according to today’s opinion all ages under eighteen 

are a mitigating factor unless the State introduces “expert evidence [that 

the] offender possessed features of maturity beyond his or her years.” 

This renders the age factor meaningless. We do not live in a fictional 

world where all children are above average. If all juveniles receive the 

same mitigation, unless the State offers expert evidence of 

superannuated wisdom, then in a real sense no one receives mitigation. 

The fourteen-year-old cannot be treated more leniently than the 

seventeen-and-a-half year-old who commits the same crime.

B. Family and Home Environment. The second Miller factor is 

the juvenile’s “family and home environment.” 567 U.S. at ___, 132 

S. Ct. at 2468. Miller asked the court to consider the juvenile’s “family

and home environment . . . no matter how brutal or dysfunctional.” Id. 

Now, instead of analyzing the extent a brutal or dysfunctional family 

situation “from which [a juvenile] cannot usually extricate himself [or 

herself],” id., the majority seeks to impose the requirement of expert 

testimony to “assess how the family and home environment may have 

affected the functioning of the offender.” Rather than allowing the 

district court to exercise its intellect and discretion in determining the 

mitigating weight of a particular juvenile’s home environment, the 

majority now requires expert testimony based on “social maturity 

scales . . . [that] assess the degree of independence and self-direction in 
48

everyday functioning” in every juvenile sentencing—even if the juvenile 

may come from a seemingly well-functioning family background. Scott, 

88 Temp. L. Rev. at 698. The Supreme Court’s decision in Miller focused 

on the extreme—a brutal or dysfunctional family environment from 

which a juvenile cannot extricate themselves. See Miller, 567 U.S. at ___, 

132 S. Ct. at 2468. As mitigating evidence, the Court found relevant that 

Evan Miller’s stepfather abused him, that his mother was an alcoholic 

and a drug addict, and that he spent years in and out of the foster care 

system. Id. at ___, 132 S. Ct. at 2469. The majority takes away the 

district court’s ability to make an informed decision based on its own 

observations and perceptions. Instead of allowing a dysfunctional home 

environment to serve as a mitigating factor, every juvenile’s home 

environment must be analyzed by an expert to offer an opinion on the 

degree of dysfunction. Why must a juvenile’s home and family 

environment always count as a mitigating factor? What about the case of 

“affluenza” where a juvenile raised by a loving family in a wealthy 

neighborhood commits a heinous crime?

C. The Circumstances of the Crime and Family or Peer 

Pressures. The third Miller factor asks the court to consider “the 

circumstances of the homicide offense, including the extent of [the 

youth’s] participation in the conduct and the way familial and peer 

pressures may have affected [the youth].” Id. at ___, 132 S. Ct. at 2468. 

From this, we have applied the factor across the board to any crime 

committed by a juvenile. In the cases the Supreme Court considered in 

Miller, neither of the juveniles acted alone when they committed their 

crime, which illustrated the extent to which peer pressure can affect a 

juvenile in the moment. Id. at ___, 132 S. Ct. at 2468–69. However, the 

majority now asks our district court judges to analyze the extent to 
49

which peer or family pressure affected a juvenile, even when the juvenile 

acted alone. Scott, 88 Temp. L. Rev. at 698 (“[P]eer influence can play a 

more subtle role in adolescent behavior, as when teenagers engage in 

behavior that they think will win peer approval . . . .”). How is a district 

court judge to do this? This court offers no guidance on a principled 

application.

The court concludes with the observation that “[m]itigation 

normally is warranted in all crimes.” So, as with the age factor, every 

circumstance apparently serves as mitigation. Again, this has the 

unfortunate side effect of treating the juvenile who was truly pressured 

into committing his or her crime the same as the juvenile who committed 

a solo, cold-blooded offense.

D. Incompetence of Youth as It Affects the Legal Process. The 

fourth Miller factor considers the ways a juvenile’s age may affect his or 

her ability to deal with police officers, prosecutors, or their own attorney. 

Miller, 567 U.S. at ___, 132 S. Ct. at 2468. Here, too, rather than 

focusing on the facts of the case before it and the juvenile’s actual

experience with police, prosecutors, and his attorney, the majority 

imposes the requirement of expert testimony to determine whether “a 

particular youth would be more capable than most” in navigating the 

legal process. While I can certainly see the benefit of expert testimony in 

limited circumstances, I think our sentencing judges can often look at 

the facts and circumstances involving the juvenile, and make an 

informed determination of this issue in the exercise of their full 

discretion, without the necessity of expert testimony.

Additionally, how is this factor to be applied when we are dealing 

with an initial sentencing rather than a resentencing? Once a juvenile 

has been convicted of, for example, a forcible felony, does trial counsel 
50

then need to present expert testimony on how the youth navigated the 

just-completed trial in front of the district court judge? If so, doesn’t trial 

counsel need to withdraw so there can be new counsel for sentencing?

E. Rehabilitation. The last Miller factor is the juvenile’s 

“possibility of rehabilitation.” Id. This factor takes into consideration 

whether a juvenile’s actions demonstrate the transient immaturity of 

youth rather than “irreparable corruption.” Id. at ___, 132 S. Ct. at 2469 

(quoting Roper, 543 U.S. at 573, 125 S. Ct. at 1197). Notably, the 

concept of “irreparable corruption” originated in Roper in the context of 

capital punishment and continued with life-without-parole sentences at 

issue in Miller. It really has no bearing on cases where the juvenile 

offender will be released after a period of years. The issue is simply 

whether the sentencing judge can prescribe some amount of time the 

juvenile must serve before being parole eligible.

Again, however, the majority cushions its language to make the 

district court’s job nearly impossible—it “cannot necessarily use the 

seriousness of a criminal act, such as murder, to conclude the juvenile 

falls within the minority of juveniles who will be future offenders.” This 

leaves the question open as to when, if ever, a district court can use the 

seriousness of a criminal act as anything other than a mitigating factor.

From the above review of the Miller factors, and the new 

restrictions and guidance provided by the majority, it seems abundantly 

clear that the district court still has no sensible direction as to how to 

effectively apply the Miller factors in its sentencing decisions. In effect, 

the majority is imposing a de facto, categorical ban on any minimum 

prison sentence for a juvenile offender, whether the underlying sentence 

required any mandatory sentence or not. As I and several of my 

colleagues have repeatedly argued, if this is the direction the court wants 
51

to take, then be direct enough to just say it. Let’s stop wasting all the 

time, resources, and money on a sentencing approach that is impractical 

and unworkable. It is a burden on our court system and a burden on 

our district court judges who look to our opinions for guidance.

F. Model Penal Code: Sentencing. The Model Penal Code: 

Sentencing has recently been drafted to submit to the American Law 

Institute. It specifically addresses some of the factors discussed above.

As it pertains to an offender’s age, it notes that “age shall be a 

mitigating factor, to be assigned greater weight for offenders of younger 

ages.” Model Penal Code: Sentencing § 6.11A(a), at 215. This is more in 

line with the mandates of Miller than today’s ruling. In Miller, the court 

noted that both of the defendants were fourteen years old—a different 

situation than if both had been seventeen. Miller, 567 U.S. at ___, 132 

S. Ct. at 2468. The Model Penal Code approach preserves this commonsense approach, that the fourteen-year-old offender is different from the 

seventeen-year-old offender. It still, however, preserves the idea that 

juveniles of all ages are still less blameworthy than adults. Model Penal 

Code: Sentencing § 6.11A, cmt. c, at 217 (“[O]ffenders under 18 should 

be judged less blameworthy for their criminal acts than older offenders—

and age-based mitigation should increase in correspondence with the 

youthfulness of individual defendants.”). Age alone, however, need not 

always be a mitigating factor. Id. cmt. c, at 218. “[A] sentencing judge 

might find an offender unusually culpable—despite his [or her] youth—if 

guilty of a violent offense committed only for a thrill, or for sadistic 

purposes, or out of racial animus.” Id.

The Model Penal Code acknowledges that peer pressure is a 

concern that should be weighed, but not a mitigating factor in every case. 

Id. at 219.
52

While normally developing human beings possess a moral 

sense of morality from their early years, important capacities 

of abstract moral judgment, impulse control, and selfdirection in the face of peer pressure, continue to solidify 

into early adulthood. The developmental literature suggests 

that offenders under 18 may be held morally accountable for 

their criminal actions in most cases, but assessments of the 

degree of personal culpability should be different for older 

offenders.

Id. at 219–20. In other words, if peer pressure is an issue in the case, it 

should certainly be weighed as a mitigating factor. We saw this in Miller, 

where both defendants acted with peers when they committed their 

crimes. However, the majority takes it one step too far by proposing that 

peer pressure is at issue in every case, even when the defendant acted 

alone.

The Model Penal Code also places a premium on the goal of 

rehabilitation for juvenile offenders. Id. at 219–21. However, it does so 

without foreclosing the possibility that rehabilitation will not work in 

every case, for every offender. Id. at 220.

Many believe that adolescents are more responsive to 

rehabilitative sanctions than adult offenders. While the 

evidence for this proposition is mixed, it is clear that some 

rehabilitative programs are effective for some juvenile 

offenders. Success rates are at least comparable to those 

among programs tailored to adults.

Id. While society has a “greater moral obligation” to attempt to 

rehabilitate juvenile offenders, common sense tells us that rehabilitation 

will not work for every offender.

IV. Replacing Trial Judge Discretion with Parole Board 

Discretion Does Not Necessarily Mean Fairer Sentences.

Lyle eliminated legislative control over how long a juvenile who 

committed a serious felony could be incarcerated. Today’s decision 

effectively eliminates judicial control over juvenile sentences by making it 

essentially impossible to send a juvenile who commits a crime to prison 
53

for any minimum amount of time. Now, control is vested exclusively in 

the parole board.

The parole board has a statutory duty to release a person under 

the following circumstances:

The board shall release on parole or work release any person 

whom it has the power to so release, when in its opinion 

there is reasonable probability that the person can be 

released without detriment to the community or to the 

person. A person’s release is not a detriment to the 

community or the person if the person is able and willing to 

fulfill the obligations of a law-abiding citizen, in the board’s 

determination.

Iowa Code § 906.4(1) (2017). In other words, the board is obligated to 

release an individual as soon as the individual is rehabilitated. This 

explains the court’s preference for parole board discretion: whereas 

district court judges can and do consider all the traditional goals of 

sentencing—including punishment and deterrence—the parole board 

may only consider whether the individual has been rehabilitated.

On paper, this should work in the juvenile’s favor. In practice, I 

am not so sure. The parole board has five members; only two of them 

work full-time. See id. § 904A.1. These members are responsible for 

making all parole decisions in Iowa. Id. § 904A.4(1). Collectively, in 

FY2016, they completed 11,468 deliberations resulting in 3767 paroles 

and 1611 work releases. See Iowa Bd. of Parole, Annual Report Fiscal 

Year 2016, https://www.legis.iowa.gov/docs/publications/DF/804753.

pdf, at 2. It is simply unfair and unrealistic to expect the parole board to 

devote the same time and attention, on average, to a particular offender 

that a district court judge does in its consideration of an appropriate 

sentence for a juvenile offender.

Furthermore, the parole board’s determination will be influenced 

heavily by the defendant’s behavior in prison, as reported by the 
54

department of corrections. See Iowa Code § 906.5(3); Iowa Admin. Code 

r. 205—8.6. One of the main points the court makes today is that a 

juvenile’s conduct as a juvenile has limited value in predicting the 

person’s capacity for future law-abiding behavior. According to the 

court, we need to see the person as an adult—i.e., how the person acts in 

prison. This focus on an offender’s behavior in a prison environment will 

benefit some defendants, but hurt others.

Additionally, there is no right to counsel at parole hearings as 

there was at sentencing. See Iowa R. Crim. P. 2.28(1). So the former

juvenile will not have the benefit of a lawyer to help them make his or her 

case, as he or she did at sentencing.

Also, given this court’s view that juveniles who commit serious 

crimes should not face societal punishment, but only be detained until 

rehabilitation is demonstrated to the parole board, it makes little sense 

for district court judges to be concerned about the maximum time to be 

served. Thus, while the legislature has given courts discretion to 

suspend that maximum sentence in whole or in part, why make that 

difficult decision if the person can be released anyway as soon as the 

parole board deems him or her rehabilitated?

While I respect the herculean efforts of the parole board, I continue 

to doubt that it is a more appropriate body to determine whether a 

juvenile warrants incarceration rather than our district court judges.5 

Most significantly, the parole board considers a number of other factors 

in making its decision to release someone. Some of these factors include 

5Sweet, 879 N.W.2d at 852–53 (Zager, J., dissenting) (“Last, with all due respect, 

I question whether the board of parole is better able to discern whether the juvenile 

offender is irreparably corrupt after time has passed, and after opportunities for 

maturation and rehabilitation have been provided.”).

 
55

rule changes or overcrowding. There may be political or budgetary 

considerations that may affect release decisions. Therefore, these 

decisions may be made based on factors completely unrelated to Miller, 

which this court has spent considerable time and effort attempting to 

define—and redefine. Ultimately, I continue to believe the majority 

improperly delegates sentencing duties and responsibilities to the parole 

board, when this is a duty that is properly vested with the district court.

V. Juveniles Who Commit Serious Crimes Should Be Subject 

to Punishment for Those Crimes.

Throughout all of our cases on juvenile sentencing reform, we have 

never sought to excuse the behavior of a juveniles’ criminal act, but 

rather to impose punishment in a way that takes into account the lesser 

culpability and greater capacity for change of juvenile offenders. See, 

e.g., Null, 836 N.W.2d at 75 (“[W]hile youth is a mitigating factor in 

sentencing, it is not an excuse.”). “The constitutional analysis is not 

about excusing juvenile behavior, but imposing punishment in a way 

that is consistent with our understanding of humanity today.” Lyle, 854 

N.W.2d at 398. In other words, this analysis requires that we consider 

both the crime and the punishment. Tying the district court’s hands by 

making the factors nearly impossible to apply in a principled manner 

disproportionately weighs the analysis so the district court is only able to 

consider the juvenile’s age and lessened culpability. Completely lost is 

any consideration of the harm the juvenile offender caused to his or her 

victim. Another downside to immediate parole eligibility in place of a 

discretionary minimum prison term is that many victims and their family 

members will feel compelled to attend the parole hearings to urge 

continued incarceration. Each hearing will reopen the wounds scarred 
56

over from the defendant’s crime and thereby revictimize the victims and 

their families.

There are a number of objectives that must be weighed when 

sentencing an offender under the age of eighteen: “offender 

rehabilitation, general deterrence, incapacitation of dangerous offenders, 

restitution to crime victims, preservation of families, and reintegration of 

offenders into the law-aiding community.” Model Penal Code: Sentencing 

§ 6.11A, cmt. (c), at 218. Proportionality does not require that these 

objectives be ranked in any particular hierarchy; rather, the district 

court must analyze the circumstances before it and weigh the gravity of 

the offense and the harm done to the victim before reaching a final 

judgment of sentence. Id. Generally, however, rehabilitation and 

reintegration will have priority over the other goals. Id. at 218–19. An 

exception remains for dangerous or unusual criminal offenses. Id. at 

219. This is consistent with the approach we have taken in the past, 

where we have noted that the lessened culpability of juvenile offenders 

must be taken into account during sentencing, but the harm caused to a 

victim should not be left out of the equation. See, e.g., Lyle, 854 N.W.2d 

at 398. What the majority’s opinion fails to appropriately acknowledge is 

that “[t]he seriousness of victim injuries does not diminish when their 

assailants were underage.” Model Penal Code: Sentencing § 6.11A, cmt. 

c, at 218.

As applied to the resentencing of Christopher Roby, the district 

court weighed each of the Miller factors. The district court noted that 

Roby committed the sexual abuse against his victim when he was sixteen 

and seventeen years of age. Additionally, he had been caught improperly 

touching his victim and even banned from the victim’s house for a period 
57

of time. These factors weigh against the impetuosity and immaturity of 

youth.

The district court also considered Roby’s family and home 

environment. The district court noted that his family and home 

environment were “not the best,” but the victim’s family stepped in and 

attempted to provide a stable home for him. Despite this support, Roby 

chose to repeatedly take advantage of his victim in her home.

The district court considered peer pressure in its sentencing 

decision. Roby acted alone—indeed, Roby continued to pressure his 

victim to keep his abuse secret. Additionally, Roby was living with the 

family of the victim and keeping his abuse quiet, which is the opposite of 

acting under peer or family pressure.

The district court did not consider Roby’s ability to deal with 

police, prosecutors, or his attorney on resentencing. However, his victim 

did not report the abuse until after Roby had turned eighteen. Because 

of his age, Roby’s contact with the legal system and his communication 

with his own attorney did not occur until he was an adult.

Last, the district court noted that Roby displayed a concerning lack 

of rehabilitation. Although the sexual abuse perpetrated by Roby 

occurred at ages sixteen and seventeen, the district court found he 

expressed no remorse for his actions as an adult. Pertinently, even after 

ten years of incarceration, Roby maintains that the court is only 

punishing him and that he deserves to “get on with his life,” with no 

remorse or empathy for his victim.

A good indicator of Roby’s prospects for rehabilitation is his 

behavior in prison. He received twenty-eight disciplinary infractions 

before his resentencing hearing. Most troubling is his sexual 

misbehavior in prison after turning age twenty-five, when his brain was 
58

fully developed according to the social science relied on in State v. 

Bruegger, 773 N.W.2d 862, 879 n.5 (Iowa 2009). He acted out sexually 

by inappropriately touching a female prison guard. His inability to 

behave in a controlled environment, even at age twenty-five, foretells an 

inability to behave if he is released into society. The majority opinion 

does not require the sentencing court to turn a blind eye to Roby’s 

postsentencing behavior. In the next resentencing hearing, the State 

should supplement the record with Roby’s prison disciplinary history 

since the last hearing. The State should also update the court as to 

whether Roby has remained ineligible for the sex offender treatment 

program based on his continuing refusal to admit guilt.

On resentencing Roby, the district court imposed the identical 

sentence originally imposed. The court weighed the Miller factors while 

also recognizing the significant impact on the victim. After weighing all 

of the necessary factors, and noting Roby’s complete lack of remorse, the 

district court concluded the original sentence, including the mandatory 

minimum sentence, was appropriate. The district court did exactly what 

we asked of it. No amount of redefinition by this court, or the 

requirement of expert testimony on each issue, will dissuade me that the 

district court, in its broad discretion, entered an appropriate sentence. I 

would affirm the district court resentencing.

VI. Conclusion.

I am no admirer of our state’s existing mandatory minimum 

sentencing laws. In my view, some of the minimums are far too long 

and, as a result, they treat many offenders unfairly. I would like to see 

our legislature revise these laws beyond the limited reforms to date. An 

important next step would be to reduce the mandatory minimum for 
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most class “B” felonies to something less than the existing seventeen and

one-half years—the sentence Roby has been serving.

But my criticism of these laws is not age-specific. These 

sentencing laws are unfair for all ages. Amendment of these laws for 

everyone would be preferable to today’s decision which effectively 

invalidates all minimum prison terms of any juvenile offender. 

Unfortunately, today’s decision (1) isolates Iowa even further in this area 

of the law; (2) redefines the Miller factors in a way that will likely deter 

our district court judges from trying to impose any kind of minimum 

prison term on a juvenile, no matter how horrific the crime; yet (3) may 

have unintended consequences that actually harm juveniles. For all 

these reasons, I dissent.

Waterman and Mansfield, JJ., join this dissent.