### IN THE SUPREME COURT OF IOWA

No. 15

– 0175
Filed June 16, 20 17

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 he aring 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 Audlehel m 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
Constitu tion 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 resentenc ing 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
in carceratio n 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 gr anted 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. Fact ual Background and Proceedings. Christopher Roby was convicted following a jury trial of the crimes
of sexual abuse in the secon d 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 co nsidered a member of the family and would even accompany them on vacations and to church. S.M., then ten years ol d, fell asleep in her parent s ’ 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
fourtee n , confided in her brother’s girlfriend that Roby had been abusing4 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 m other 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 adm itting 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
submi t 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 bein g 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 pr osecutor charged Roby with four counts, delineated by Roby and S.M.’s birthdays: ( C ount I) sexual abuse in the second degree for conduct occurring when S.M. was under twelve and Roby was fifteen or sixteen , ( C ount II) sexual abuse in the third degree for conduct occurring when S.M. was under fourteen and Roby was
under eighteen , ( C ount III) sexual abuse in the third degree for conduct occurring when S.M. was under fourteen and Roby was eighteen , and5 ( C ount IV) sexua l ab use in the third degree for conduct occurring when
S.M. was fourteen and Roby was eighteen . After Roby moved to dismiss
C ount I for alleging conduct while Roby was fifteen and therefore under the jurisdiction of the juvenile court, the prosecutor amen ded C ount I a second time and confined it to the time after Roby turned sixteen . Thus, while the jury heard evidence regarding the initial incident whe n 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, t he 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 gui lty of C ounts I and II . T hey 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 C ounts 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 le ast 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 design er . Roby is the middle child of three. He
maintained a good relationship with his family, despite the absence of his6 biological father, but generally felt his childhood was “rough.” He was diagnosed with attention

- deficit disorder. He completed the tenth grade at Expo Alternative L earning 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.
T he PSI reported Roby frequently consum ed alcohol while in the Navy
and used marijuana . A t 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 a nd 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
f eelings 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 C ount I wit h a mandatory minimum of
seventeen and one

- half years before eligibility for parole. The court7 imposed a concurrent sentence of ten years for C ount 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 holding s 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 individual ized 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 identifie d 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 circumstan ces 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, 246 8 (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 Lyle8 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 r ecord. 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 rehabilitat ed based o n 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 inap propriately touching female staff. The State also pointed to Roby’s
failure to o btain 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 S tate 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 a cts 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 tha t he exercised his rights to have the interrogation suppressed. As to rehabilitation, the State again9 argued Roby failed to take responsibility, as shown by his numerous posttrial appeals and motions. Roby testified on his own behalf, stating , Your Ho nor, 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 mak e 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 fa ctor, 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. The10 documents submitted as Defendant’s exhibit 1 show that in an evaluation condu cted 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
gr anted 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 constituti onal 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 appl y 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 , “ W e hav e expressed three different standards of review when a defendant challenges his or her sentence on appeal.” 865 N.W.2d 545, 552 (Iowa 2015). W e review for

an “abuse of discretion,” our most deferential standard, “if the sentence is within the statutory l imits.” Id. We review for “correction of errors at11 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 const itutional 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 el aborate on the use of the abu se

- of

discretion standard in the juvenile sentencing context. We begin by noting an unconstitutional sentence remains unconstitutional even if the district court held a hearing before imposing
it. See Montgomery v. Louisiana , 577 U.S. ___, ___, 136 S. C t. 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 246 9 )). 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 Constitu tion

. Id. at 402. Thus, whe n there is an appropriate sentencing procedure there is no constitutional violation. Under our existing law, if the district court follows the12 sentencing procedure we have identified and a statute authorizes the
sentence ulti mately 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

- discretio n 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 in volved 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 de cision.” Id.
at 57 7

– 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 we ight, 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 th e 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 sentenci ng decision based on a proper hearing.
III. The Categorical Challenge.
Like the United States Supreme Court, we address a categ orical 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, 119213 (2005); Sweet , 879 N.W.2d at 835; Lyle , 854 N.W.2d at 38 6 . 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 judgme nt ” to decide the question. Id

. In this case, the question is whethe r a twenty

five

- year sentence with a minimum period of incarceration of seventeen
and one

- half years for a juvenile offender convicted of sexual abuse is categorically prohibited under the cruel and unusual punishment clause
of the Iowa Constitution . In other words, the question is whether our constitution requires all juv enile offenders be immediately eligible for parole.
A
. Evidence of C onsensus . W e 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 5 63 , 125 S. Ct. at 119 1 )).
When we decided Lyle , we noted some states had already “limited or abolished mandatory minimums for ju veniles.” 854 N.W.2d at 386 n. 3 (compiling statutes)

. Since then, state legislatures have continued to
reform thei r state’s juvenile justice system s . 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

1 See, 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 Crim ina l 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 worki ng to improve juvenile justice by providing safer facilities 3 and greater access to rehabilitative programs. 4 All the foregoing tells us juvenile justice is undergoing significant and comprehensive reform. However, it also tells us that, in this time of feverish legislative action, no legislature has chosen to require a Miller

type hearing before imposing any minimum term of incarceration, and no legislature has chosen to make all juvenile offenders imme diately eligible for parole.
Yet , we may broaden o ur 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
constitution ally prohibited the practice, and most states permit or require minimum sentences). We are aware of one state supreme court
that ha s since held similarly

. See State v. Houston

- Sconiers , 391 P.3d 409, 420 (Wash. 2017) (“In accordance with Miller , we hold that

2 See, 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); Ne v. 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).

3 See, 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).

4 See, 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 co urt 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 1 031, 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 specif ic 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 ___, 1 36
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 juvenile16 offenders that are shorter in duration than those imposed on their adu lt 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 t he 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 presente ncing 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 “t ransient 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 releas e 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 o ffenders 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 it s 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 “catego rical disapproval” of mandatory penalty provi sions. See Model Penal Code: Sentencing § 6.11A (f) & cmt. f , at 36, 43 ( Am. Law. Inst., T ent. Draft
N o. 2 , 2011 ). This section was approved in 2011, one year prior to the Supreme Court’s guidance in Miller

. See Model Penal Code: Sentencing17

at xii ( Am. Law. Inst., T ent. Draft N o. 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 severit y acts as an effective deterrent of criminal acts.” Model Penal Code: Sentencing § 6.11A cmt. c (5), at 41 (Am. Law. Inst., Tent. Draft No. 2) . The ALI did not, however, discuss parole availability, aside from noting the then

recent Graham case. See id. at 44. Finally, we consider the actions of our own legislature in determining consensus. See Lyle , 854 N.W.2d at 388. The Iowa legislature has recently adopted statutes that permit the sentencing
court to depart from statutory minimums. See 2015 Iowa Acts ch. 65, § 1 ( now codified at Iowa Code § 902.1(2)( a )(2) (2017) ) (authorizing the court to sentence a juvenile convicted of a class “A” felony to “life with the possibility of parole after serving a minimum term of confinement as determined by the cour t”) ; 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 commit ted, 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 rep lete with provisions vesting considerable discretion in
courts to take action for the best interests of the child.” Id. at 388

– 8918 (citing as examples Iowa Code section 92.13; section 232C.3(1), and
section 282.18(5) ) . We can infer from these latest legis lative 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 n ational 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 5 65, 125 S. Ct. at 1193. Similarly, in Gr aham , 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

– 6 4, 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 reauthori zed minimum sentences at the discretion of the sentencing court. This all shows us the individualized hearing process is still being defined, and it
will l ikely not be the last reform.
B. Independent J udgment
. 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 ju venile offenders to a minimum prison term with no opportunity for parole. It is our duty to use this type of consideration , as19 “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 confinemen t”). 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) J uveniles 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 impo sed
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 seriou s consequenc es.’ ”
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 , 5 43 U.S. at 569

– 70, 125 S. Ct. at 1195. As noted in20

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 legisla ture or the court, a juvenile’s diminished culpability means it risks being
excessive.
T he second principle , diminished penological justifications, is less
comp elling when a court is given discretion to impose a minimum
sentence . For example, statutoril y 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 i rrational 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 incar cerate 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 s uffering.’ ” 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 death21 penalty that may deter them from committing a crime, there is no reason to believe a comparatively minor sent ence 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 inf luences 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: Juvenil e 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 th e 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
ninet eenth 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 with22 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 statutoril y 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 p rohibit 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 th at 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 juvenil e 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 40 4 n.10. In sum, applying the two

- step inquiry we use for categorical challenges, we can conclude , at this tim e, (1) t here is no national or community consensus against imposing minimum terms of incarceration without the possibility of parole on juvenile s, provided they have the23 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 D ifficulties. 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
ef

ficacy of the parole board and the procedural difficulties of challenging the action or inaction of the parole board.
The li nchpin of the constitutional protection provided to juveniles is individualized sentencing. We have on numerous occasions discuss ed 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

– 7 5. We endorse the five
factors identified in Miller as gu ideposts 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 th at practice has
prove n 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 re cognition 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 growin g body of scientific research and represent our current and best understanding of the distinct features of human development. Our laws24 have always sought to give special consideration to youth. Our ability to integrate this consideration into the law sim ply 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 C onstitution. 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

– 2 8, 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.
W e 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 identify ing and adopt ing additional subst antive and procedural protections to further the constitutional recognition that “children are
different.” See Seats , 865 N.W.2d at 55 5 (quoting Miller , 567 U.S. at ___,
132 S. Ct. at 2469) . For example, our legislature has already acted to
authorize sen tencing 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 f or 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, 71 2. Thus, we too now turn25 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 fac tors 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 di fferent 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. Ob jective 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 th e 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. Additio nally, 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 i d. 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 (“Fi rst 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 an d 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
sentencin g hearing to show the offender had more or less maturity, deliberation of thought, and appreciation of risk

- taking than normally exhibited by juveniles. T his factor is most meaningfully applied when
based on qualified professional assessments of the offen der’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 integr ate [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 “developmental27 changes .

. . continue into the early twenties”). When the Miller Court referred to “chronological age” in identifying the n eed to distinguish the criminal sentencing of children from adult s , 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 chi ldren from
adults. See id. The court recognized that children within this unit have

“ signature qualities ” of “immaturity, irresponsibility, ‘ impetuo u s ness[,]
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 sentenc ing 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 fact or 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 w ill best assess how the family and home environment may28

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

. E xpert testimony will be helpful to understand the complexity behind the
circumsta nces 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 mea n 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 a ggravating29

circumstances of a crime that suggest an adult offender is depraved may only reveal a juve nile 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 short sightedness of thought tied to juvenile behavior in the commission of a crime can also surface in their subsequent dealings in the lega l 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 gen eral 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 comp lete

. 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. T he 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, t he 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 a n uncommon result. Second, the factors must not normally be used to i mpose a minimum sentence of incarceration without parole unless expert evidence support s the use of the factors to reach such a result. Third,
t he factors cannot be applied detached from the evidence from which they were created and must not be applied so lely through the lens of the background or culture of the judge charged with the responsibility to apply the m . Perceptions applicable to adult behavior cannot normally be used to draw conclusions from juvenile behavior. In the end, this case shows how t he factors can be misused. The
district court in this case mis used 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 phy sical contact with the victim. T his evidence does not in any way undermine the recognized failure of juveniles to appreciate risk s 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 fact or . 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. Th e 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 dis trict court in this case did not consider the fourth factor

— legal in competency. 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 d uring 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 you th. 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 not32

make him amenable to rehabilitation. While thi s 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 par ole 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 of fender 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 of fender, 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
abandon ment 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 i n this case, we are33 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
INSTRUC TIONS. 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 committe d 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 offend ers.” 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 f ocusing 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 a ttributes 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 exp ressed “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 rare35 circumstances” justifying a denial of an opportunity for parole for juveni le 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 rehabilitati on, 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 l esser 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 seven teen 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 a jar, 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 4 1, 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 measur es 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
M iller 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 t estimony about whether a youth has a psychopathic personality disorder.” Id. (quoting Gina M. Vincent et al., Juvenile Psychopathy: Appropriate and Inappropriate Uses37 in Legal Proceedings in APA Handbook of Psychology and Juvenile Justice 219 (Kirk Heilbr un 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 se ntence 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 j oin 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

sen tences 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 C onstitution 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 senten cing 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 directl y, 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 m itigation 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 cou rt 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 t o 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 i d. All such sentences were deemed cruel and unusual. To its credit, the majority acknowledged in40 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 sta tutory 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 a dolescents (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 juvenile s 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 sh ould 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 otherwis e41 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 no t 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, th e 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 sen tencing 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 S tate 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 o ur 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, t he 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 cond uct,” 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 at43 399 (“We add that a dete rrence 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 decis ion 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 juv eniles.” 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 cour t’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
fo reclose 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 s upported 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 ju dgments of proportionality. The seriousness of the44 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 Ly le 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 “uncom mon” 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 w hen 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 t akes 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 punis hment, as the Court did45

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 c ontrast 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 Doe s 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 Tem p. 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 reg ard 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 withou t 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 Incarce ration, 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

– 0 833, 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
doe s 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 t he 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 feature s 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 age s 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 chil dren 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
sevent een

- 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 im pose 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 weig ht 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 in48 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 thems elves. 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 a nalyzed 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 neigh borhood 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 to49 which peer or family pressure affected a juvenile, even when the juvenile
acted alone. Sco tt, 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 guida nce 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
exp erience 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 o f 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 necessit y 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 counsel50 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 juveni le’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 57 3, 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
of fender 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
distri ct 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 distric t 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 unde rlying sentence required any mandatory sentence or not. As I and several of my colleagues have repeatedly argued, if this is the direction the court wants51 to take, then be direct enough to just say it. Let’s stop wasting all the time, resources, and mone y 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 rece ntly 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 y ounger ages.” Model Penal Code: Sentencing § 6.11A(a), at 215. This is more in
line with the mandates of Miller than today’s ruling. In Miller , the court noted that both of the defendants were fourteen years old

— a different
situation than if both had been seventeen. Miller , 567 U.S. at ___, 132
S. Ct. at 2468. The Model Penal Code approach preserves this common

sense approach, that the fourtee n

- 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 sh ould be judged less blameworthy for their criminal acts than older offenders

— and age

- based mitigation should increase in correspondence with the youthfulness of individual defendants.”). Age alone, however, need not always be a mitigating factor. Id. cmt

. c , at 218. “[A] sentencing judge might find an offender unusually culpable

— despite his [or her] youth

— if guilty of a violent offense committed only for a thrill, or for sadistic purposes, or out of racial animus.” Id.
The Model Penal Code acknowledges that peer pressure is a concern that should be weighed, but not a mitigating factor in every case.
Id. at 219.52 While normally developing human beings possess a moral sense of morality from their early years, important capacities of abstract moral judgment , impulse control, and self

direction in the face of peer pressure, continue to solidify into early adulthood. The developmental literature suggests that offenders under 18 may be held morally accountable for their criminal actions in most cases, but asse ssments 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 defen dants 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 rehab ilitative 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
essenti ally impossible to send a juvenile who commits a crime to prison53 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 d etriment 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 so on 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 onl y 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 respons ible 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 the54 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 whol e 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 bod y 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

5 Sweet , 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 r ehabilitation have been provided.”).55 rule change s 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 attem pting 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 Ser ious 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 acco unt 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 th e 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
conti nued incarceration. Each hearing will reopen the wounds scarred56 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 eigh teen: “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 reachi ng 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 resenten cing 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 period57 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 h is 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 un der 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, Rob y’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

occur red 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 h is 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
misbeh avior in prison after turning age twenty

- five, when his brain was58 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 behavi or. 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 amoun t 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 a m 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 refor ms to date. An important next step would be to reduce the mandatory minimum for59 most class “B” felonies to something l ess 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 I owa 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, n o matter how horrific the crime; yet (3) may have uni ntended consequences that actually harm juveniles. For all these reasons, I dissent. Waterman and Mansfield, JJ., join this dissent.