# State of Iowa v. Denem Anthony Null

> Supreme Court of Iowa · August 16, 2013 · 836 N.W.2d 41

URL: https://www.frixlaw.com/law-library/cases/4249459

## Case

- **Full name:** STATE of Iowa, Appellee, v. Denem Anthony NULL, Appellant
- **Court:** Supreme Court of Iowa
- **Decided:** August 16, 2013
- **Citations:** 836 N.W.2d 41; 2013 Iowa Sup. LEXIS 94; 2013 WL 4250939
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Appel, Mansfield, Waterman, Zager
- **Cited by:** 262 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4249459

## How later opinions describe it (automated extraction)

- stating, in vacating a juvenile’s lengthy sentence and remanding, that “the district court must recognize that because ‘children are constitutionally different from adults,’ they ordinarily cannot be held 14 to the same standard of culpability as adults in criminal sentencing,…
- holding that Miller’s, protections are fully applicable to “a lengthy term-of-years sentence” and require judges sentencing juveniles to recognize: (1) that children are constitutionally different than adults and cannot be held to the same standard of culpability in sentencing…
- holding that Miller’s protections are fully applicable to “a lengthy term-of-years sentence” and require judges sentencing juveniles to recognize: (1) that children are constitutionally different than adults and cannot be held to the same standard of culpability in sentencing;…
- concluding that a 52.5-year sentence was sufficient to trigger Miller because the ―prospect of a geriatric release‖ was not a meaningful opportunity to demonstrate rehabilitation and rejecting the notion that ―the determination of whether the principles of Miller or Graham app…
- stating the rationale is based on (1) recent scientific evidence showing “the human brain continues to mature into the early twenties,” and (2) a finding that young people generally “lack the ability to properly assess risks and engage in adult-style self-control”

## Opinion text

IN THE SUPREME COURT OF IOWA
No. 11–1080

Filed August 16, 2013

STATE OF IOWA,

Appellee,

vs.

DENEM ANTHONY NULL,

Appellant.

Appeal from the Iowa District Court for Linn County, Ian K.

Thornhill, Judge.

A juvenile challenges his sentence as cruel and unusual under the

State and Federal Constitutions. DISTRICT COURT SENTENCE

VACATED AND CASE REMANDED WITH INSTRUCTIONS.

Mark C. Meyer, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, Gerald A. Vander Sanden, County Attorney,

and Jason A. Burns, Assistant County Attorney, for appellee.
2

APPEL, Justice.

By statute, Denem Anthony Null is required to serve at least 52.5

years of his seventy-five-year aggregate sentence for second-degree

murder and first-degree robbery. Because he was sixteen years and ten

months old at the time of his offenses, he will not be eligible for parole

until he attains the age of sixty-nine years and four months. Null argues

his lengthy mandatory prison sentence is invalid under the cruel and

unusual punishment provisions of the Iowa and United States

Constitutions. In the alternative, Null argues the trial court abused its
discretion in imposing consecutive sentences.

Null also raises a number of challenges to his underlying

convictions. According to Null, he was not properly informed of the

elements of the offenses to which he pled guilty and, as a result, his

guilty plea in this case is invalid. Null further argues his counsel

provided ineffective assistance by failing to ensure he knowingly and

voluntarily waived his right to a reverse-waiver hearing. Finally, Null

asks us to preserve for postconviction review his claim that his counsel

provided ineffective assistance by not consulting with Null prior to

withdrawing his request for a transfer of jurisdiction to juvenile court.

For the reasons stated below, we affirm Null’s conviction, but

vacate his sentence and remand the case to the district court for

resentencing consistent with this opinion.

I. Background Facts and Prior Proceedings.

In 2010, the State charged Null with first-degree murder, a class

“A” felony, see Iowa Code § 707.2 (2009), after he shot Kevin Bell with a

handgun during the commission of a robbery at Bell’s apartment. Null
was sixteen years and ten months old at the time. Iowa Code section

232.8(1)(c) required the State to charge Null as an adult in the district
3

court. Null filed a motion to transfer jurisdiction to the juvenile court.

Prior to the hearing, Null withdrew his motion and entered into a plea

agreement with the State. Null agreed to plead guilty to second-degree

murder and first-degree robbery in exchange for dismissal of the first-

degree murder charge.

Second-degree murder carries a maximum sentence of fifty years.

Id. § 707.3. First-degree robbery carries a maximum sentence of twenty-

five years. Id. § 711.2; id. § 902.9(2). Further, convictions for each crime

are subject to mandatory minimum sentences of seventy percent. Id.
§ 902.12(1), (5). Because Null’s alleged actions occurred prior to the

Supreme Court’s decision in Miller v. Alabama, 567 U.S. ___, 132 S. Ct.

2455, 183 L. Ed. 2d 407 (2012), he would have received a mandatory

sentence of life in prison without the possibility of parole if he had pled

guilty to first-degree murder. See Iowa Code § 707.2; id. § 902.1. The

parties further agreed that the State would be allowed to argue at

sentencing that Null’s sentences should run consecutively and that Null

would be allowed to argue that they run concurrently. Thus, the reason

Null took the plea deal is readily apparent—by taking it he gained the

opportunity to be released from prison on parole, albeit not until he

reached the age of sixty-nine years and four months if the court imposed

consecutive sentences.

Null was an only child with a difficult childhood. Null’s

presentence investigation report indicated he had been arrested four

times, dating back to 2004 when he was just eleven years old, once each

for assault and assault causing bodily injury and twice for disorderly

conduct. Though he never received an adjudication of delinquency, he
did successfully complete one informal adjustment, during which he was

placed at Tanager Place, a residential facility providing specialized
4

treatment to children with behavior and psychiatric disorders. The

remainder of his charges was dismissed. The report also indicated Null

dropped out of school in eleventh grade because he left his father’s home.

Prior to that time, however, Null had been expelled from school for

altercations with other students and placed in behavior disorder classes,

which he apparently completed prior to dropping out. The report also

indicated Null did not know whether his parents were working.

Null’s father lived in Kansas City, and although he lived with his

mother, she frequently sent him to live with his grandmother. He
indicated that he did not like either of his parents because they

“constantly put down” the other and that he was closest to his

grandmother. Null’s grandmother indicated Null’s parents never treated

each other or Null well during his childhood and even asserted that Null

and his father were involved in a physical altercation at one point. Null’s

mother, who was diagnosed with bipolar disorder, but did not take

medication, had a history of drug and alcohol abuse, criminal

convictions, and violent behavior. Null indicated he did not get along

well with his father because his father was “always talking down” his

mother. Further, Null had been a child in need of assistance since 2006.

He was subsequently placed in numerous shelters and treatment

programs, but went on the run from most of them. In fact, Null was on

the run at the time he committed the offenses leading to the sentence at

issue here. Null stated he did not drink alcohol even though his mother

taught him to “sip beer” as a baby. Null further stated that though he

had used marijuana twice, he did not use illegal substances.

According to the minutes of testimony, Null stole a .22-caliber
pistol from a friend. At some point thereafter, Null went with his brother

and cousin to Bell’s apartment to steal a pound of marijuana. During
5

the robbery, Null shot Bell in the head. When occupants of another

room in the apartment appeared, Null and the others fled the scene.

At Null’s sentencing hearing, the court stated that it had no

discretion in imposing the fifty-year sentence for second-degree murder

or the twenty-five-year sentence for first-degree robbery, but that it did

have discretion to determine whether the sentences should run

concurrently or consecutively.

The State took exception to the recommendation of the presentence

investigation report.1 In recommending that Null receive consecutive
sentences, the State directed the court to the presentence report. The

State said,

He had a long history of offender interventions that are
located on pages 6 and 7 of the presentence report. He had
informal adjustments and placed at Foundation 2, Tanager
Place, the Linn County Detention Center and just more than
a dozen placements and intervention attempts prior to this
case, Your Honor. In fact, he was on run from Tanager Place
when he committed this murder.

In asking for a concurrent sentence, Null’s counsel referenced the fact

that Null was only sixteen years old at the time of the killing. He stated:

My client, Your Honor, at age 16 made a bad decision.
And like many people that are age 16 they are not capable of
making good decisions sometimes. They are unable to think
about what if, what is beyond this immediate decision that I
am making.

....

As the presentence investigation reports, this was a
one-time occurrence. It’s where a 16-year-old didn’t ask

1The presentence investigation report recommended concurrent sentences for

Null. The report indicated that it took Null’s age into consideration, that the convictions
were based on a single incident, that he would have served a substantial portion of his
fifty-year sentence by the time the twenty-five-year sentence was imposed in the event
of consecutive sentences, and that concurrent sentences would hold Null accountable
while protecting the community.
6
what if and several families have been damaged by this
tragedy.

....

If you look at the biographical information on Mr. Null,
this was almost predetermined. His involvement with the
court system was almost predetermined.

It is not an excuse, because many people have come
from backgrounds such as this and have not found
themselves in this situation.

Mr. Null did not have the mentoring, did not have the
role models, did not have the upbringing that some of us are
fortunate enough to have. He didn’t have the time to learn
how to look beyond his immediate actions to what might
result from those actions.

In sentencing Null, the district court indicated that because it had

the benefit of sentencing Null’s codefendants the week before, it had a

frame of reference with which to evaluate Null’s conduct for sentencing

(each codefendant received twenty-five-year sentences and are eligible for

parole after 17.5 years). The court stated that it had read the

presentence investigation report and that there had been “significant

juvenile court intervention” with Null dating back to early 2005. The

court further found the argument that Null did not receive structure or

mentoring did not carry a lot of weight because the State had attempted

to place Null on numerous occasions and Null ran from them. The court

also noted there had been a comment that Bell “came at” Null just prior

to the shooting, which the court considered “a little bit of a

minimization,” but not a justification. Ultimately, the court ordered Null

to serve his sentences consecutively, but indicated he would still have an

opportunity to seek parole down the road. The court stated it had

considered the nature and circumstances of the offenses, Null’s history

and characteristics, including his age and prior court interventions, and
the recommendation of both counsel. The court concluded,
7
I find the sentence that I have imposed offers [Null] the
maximum opportunity for rehabilitation, balanced against
the interest of the community, not only protecting the
community but also in receiving justice for what can only be
described as a tragedy for all.

II. Scope of Review.

A defendant may challenge his sentence as inherently illegal

because it violates the Iowa or Federal Constitutions at any time. State

v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009). We review Null’s

constitutional challenges to his sentence de novo. Id. at 869.

With respect to Null’s ineffective-assistance-of-counsel claims, Null
may raise them even though he did not file a motion in arrest of

judgment. State v. Keene, 629 N.W.2d 360, 364 (Iowa 2001). Although

we ordinarily preserve ineffective-assistance-of-counsel claims for

postconviction relief actions where a proper record can be developed, “we

will address such claims on direct appeal when the record is sufficient to

permit a ruling.” State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).

III. Ineffective Assistance.

Null raises ineffective-assistance claims with regard to his plea

colloquy and the withdrawal of his request to transfer to juvenile court.

To succeed on a claim of ineffective assistance of counsel, Null must

establish that his trial counsel failed to perform an essential duty and

that prejudice resulted. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa

1999). Null must establish both prongs by a preponderance of the

evidence. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

A. Adequacy of the Plea Colloquy.

1. Positions of the Parties. Null asserts his counsel was ineffective

because his counsel permitted him to plead guilty to murder in the
second degree without an adequate explanation from the district court of

the required element of malice aforethought. Null also claims his
8

counsel was ineffective for allowing him to plead guilty when the district

court had failed to properly advise him on the issue of punishment.

Though Null concedes that the district court indicated the maximum

punishment of each offense and that if the sentences ran consecutively,

his sentence would total seventy-five years, Null argues the district court

did not specifically ensure he understood that by accepting the plea deal

he could be sentenced to serve seventy-five years in prison with no

chance of parole for 52.5 years. See, e.g., State v. White, 587 N.W.2d

240, 246 (Iowa 1998) (holding that the district court must explain to a
defendant the possibility of consecutive sentences).

The State responds that it is not required that the district court

discuss each element of the crime with a defendant to ascertain his

understanding of the nature of the offense. The State, however, seems to

characterize Null’s claim as questioning whether there was substantial

evidence in the record to support the guilty plea to second-degree

murder. In any event, the State argues Null has failed to demonstrate

prejudice. According to the State, Null has failed to show a reasonable

probability he “would have insisted on going to trial.” State v. Tate, 710

N.W.2d 237, 240 (Iowa 2006).

On the issue of length of sentence, the State notes the district

court explained to Null the sentences could run consecutively. The State

points to the district court’s statements that “a consecutive sentence

would be one occurring after the other,” and that because second-degree

murder carries a fifty-year sentence and first-degree robbery carries a

twenty-five-year sentence, “[c]onsecutive would mean, essentially, 75

years in prison.” Under the circumstances, the State contends the
district court did not induce Null to plead guilty and substantially
9

complied with its duty to ensure Null knew about the maximum possible

punishment.

2. Discussion. On the question of malice aforethought, we

conclude the district court gave an adequate explanation. The district

court advised Null that malice was “a state of mind which leads one to

intentionally do a wrongful act for an unlawful purpose.” The court

further advised Null, “And malice aforethought basically just means that

you have this state of mind for some—it can be a brief time prior to

committing the act. It could be hours, minutes, days, or even a split
second.” The court continued, “It just has to be a state of mind that you

had before the shooting.”

We have stated malice aforethought requires a “fixed purpose or

design to do some physical harm to another which exists prior to the act

committed.” State v. Sharpe, 304 N.W.2d 220, 226 (Iowa 1981) (citation

and internal quotation marks omitted). It is true, as Null asserts, that

the district court’s colloquy did not mention “physical harm” but instead

cited a “wrongful act.” While the district court may have somewhat

vaguely referred to a wrongful act, the statement was made in the

context of the shooting. The shooting was obviously an act that caused

physical harm. To be sure, the district court had just informed Null that

the State would have to “show that as a result of the shooting Mr. Bell

died.”

Under our caselaw, “the court need not review and explain each

element of the crime if it is ‘apparent in the circumstances the defendant

understood the nature of the charge.’ ” State v. Loye, 670 N.W.2d 141,

151 (Iowa 2003) (quoting State v. Smith, 300 N.W.2d 90, 92 (Iowa 1981)).
Considered in the full context of the colloquy, we conclude Null was

reasonably informed of and understood the malice aforethought element.
10

We next consider Null’s claim that the district court did not

adequately explain the potential penalties to him before he pled guilty.

We have held that the district court must adequately explain the

penalties, State v. Boone, 298 N.W.2d 335, 337–38 (Iowa 1980), and

inform the defendant of the difference between concurrent and

consecutive sentences, White, 587 N.W.2d at 246.

At the plea bargain colloquy, the district court advised Null that on

the charge of murder in the second degree, he faced a maximum penalty

of fifty years in prison subject to a requirement that he serve seventy
percent of that sentence before he would be eligible for parole. With

respect to robbery in the first degree, the district court advised Null the

crime carried a twenty-five-year maximum sentence, subject to a

requirement that he serve seventy percent of the sentence before he

would be eligible for parole. The district court then advised Null that

“[c]onsecutive would mean, essentially, 75 years in prison.” Null stated

he understood each statement of the district court.

On this record, we conclude the district court accurately advised

Null of the potential sentence that could result from his plea bargain. It

is true that when the district court described the impact of consecutive

sentences, it did not do the math insofar as explaining that pursuant to

the mandatory minimums Null would be in prison for at least 52.5 years

under the plea agreement. The district court simply said that if the

sentences ran consecutively, it would mean seventy-five years in prison.

Yet, just a few minutes earlier, the district court described the effect of

mandatory minimum sentences for each crime. Null stated on the record

that he understood that the crimes to which he would plead carried
mandatory minimum sentences. There is nothing in the record to
11

contradict Null’s statement. We therefore find that the district court

complied with the requirements of Boone and White.

B. Withdrawal of Motion to Transfer.

1. Positions of the Parties. Null asserts his counsel was ineffective

in connection with the withdrawal of Null’s request to transfer the case to

juvenile court. Under Iowa Code section 232.8(1)(c), certain felony

violations are excluded from the jurisdiction of the juvenile court and are

prosecuted in district court “unless the court transfers jurisdiction of the

child to the juvenile court upon motion and for good cause.” Null claims
that although the right to transfer to juvenile court is statutory, the State

must show a knowing, voluntary, and intelligent waiver of the right.

Further, he asserts the district court, in its colloquy, should have

reviewed waiver of the right. Null asks that we preserve the issues

related to the withdrawal of the motion to transfer for postconviction

review.

The State responds that Null’s claim is essentially a challenge to

the authority of the district court and may be waived. State v. Emery,

636 N.W.2d 116, 123 (Iowa 2003). The State recognizes, however, that

Null raises the claim in the form of an ineffective-assistance-of-counsel

claim for which the normal error preservation rules do not apply. On the

merits, the State contends Null’s counsel was not ineffective because the

motion to transfer was doomed to fail in light of the seriousness of the

offenses and was “not [a claim] worth raising.” Millam v. State, 745

N.W.2d 719, 722 (Iowa 2008) (citation and internal quotation marks

omitted). Further, the State argues that Null has not shown prejudice

and that any claim arising from the transfer issue should be reserved for
possible postconviction relief.
12

2. Discussion. It is, perhaps, conceivable that a motion to transfer

might amount to a claim “worth raising” under Millam as there is no

apparent downside to the motion and considerable advantage to the

defendant should the motion be granted. Yet, the record on this appeal

does not establish the necessary prejudice required to support an

ineffective-assistance claim. See Wills, 696 N.W.2d at 22. As a result,

we decline to address it on this direct appeal.

IV. Validity of Sentence.

A. Introduction. Null argues his 52.5-year mandatory minimum
sentence for crimes committed when he was sixteen years old amounts

to a de facto life sentence in violation of the Cruel and Unusual

Punishments Clause of the Eighth Amendment. In support of his

position, Null cites the trilogy of recent United States Supreme Court

decisions, which, in addition to Miller, includes Roper v. Simmons, 543

U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), and Graham v.

Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). Null

recognizes his sentence is not formally a life sentence, but argues his

potential release after serving 52.5 years is essentially the equivalent of a

life sentence. In support of his claim that his long prison term amounts

to a life sentence, he cites a National Vital Statistics Report indicating the

life expectancy of a twenty-year-old black male is 51.7 years. In any

event, Null argues that even if he were to live to be paroled, release when

he is elderly and infirm to die on the streets after spending all of his

adult years in prison would be little, if at all, better than dying in prison.

In the alternative, Null asks us to find his sentence unlawful under

the cruel and unusual punishment provision of article I, section 17 of the
Iowa Constitution. In support of his argument, he cites Bruegger. In

Bruegger, no party argued that an approach different than the federal
13

standards for cruel and unusual punishment should apply under the

Iowa Constitution. 773 N.W.2d at 883. Nonetheless, in Bruegger we

applied established federal principles in what at the time appeared to be

a more stringent fashion than federal precedent. Id. at 883–86.

Null invites us to take the same type of approach in this case to

provide him with relief under the cruel and unusual punishment

provision of the Iowa Constitution if his federal cruel and unusual

punishment claim fails. As in Bruegger, Null does not invite us to

develop a substantive standard for cruel and unusual punishment
different from that employed by the United States Supreme Court, but

suggests we apply the federal standard independently under the Iowa

Constitution.

Null also challenges the decision of the district court to run his

fifty-year sentence for second-degree murder and his twenty-five-year

sentence for first-degree robbery consecutively rather than concurrently.

Null asserts the district court erred in considering the sentences received

by coparticipants in deciding that Null’s sentences should run

consecutively. He further asserts the district court, in imposing

consecutive sentences, failed to give adequate consideration to his status

as a juvenile and the teachings of Roper, Graham, Miller, and Bruegger.

Null asserts the district court further erred when sentencing Null by

assuming Null had committed first-degree murder when there was no

support for this assumption in the record. Finally, Null claims the

district court erred by claiming Null “has the opportunity down the road

to seek parole” when he would only be eligible near the end of his life

expectancy.
The State responds by urging us to defer to legislative judgments

on the matter of punishment. It notes the holdings in Graham and Miller
14

are limited to “juvenile offenders sentenced to life without parole,” see,

e.g., Graham, 560 U.S. at ___, 130 S. Ct. at 2023, 176 L. Ed. 2d at 838,

and that, as a result, these cases have no applicability to Null who

received a sentence for a term of years. Because Graham and Miller have

no application to Null’s case, the State contends, Null is left with a “gross

proportionality” challenge under Ewing v. California, 538 U.S. 11, 123

S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (plurality opinion), Harmelin v.

Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)

(plurality opinion), and Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77
L. Ed. 2d 637 (1983). Using the gross proportionality formulation of

these cases, the State asserts Null’s sentence falls far short of the

required showing in these cruel and unusual punishment cases.

On the question of running the sentences consecutively rather

than concurrently, the State argues the district court is entitled to broad

discretion. See State v. Wright, 340 N.W.2d 590, 593 (Iowa 1983). The

State notes Null’s documented involvement with the juvenile justice

system, his antisocial behavior, and his lack of remorse. The State

asserts that while the district court must explain its sentencing decision,

the statement may be terse and succinct so long as the brevity “does not

prevent review of the exercise of the trial court’s sentencing discretion.”

State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989). The State observes

that the district court ran the sentences consecutively based upon the

history and characteristics of the defendant, including his age, prior

interventions, lack of remorse, and the facts of the crime, and that the

trial court’s imposition of consecutive sentences cannot be considered an

abuse of discretion.
In order to address the issues raised in this appeal, we begin with

an overview of how juveniles have been treated in our legal system.
15

Against this backdrop, we then consider generally the contours of the

Cruel and Unusual Punishments Clause of the Eighth Amendment as

interpreted by the United States Supreme Court. Next, we tighten our

legal focus by examining recent cases of the United States Supreme

Court dealing with juvenile offenders.

B. Overview of Juveniles, Legal Responsibility, and

Diminished Culpability.

1. Evolution of the treatment of juveniles in American law. At

common law, the notion was that youth under the age of seven lacked
criminal capacity, that youth between seven and fourteen were presumed

to lack criminal capacity, and that youth over fourteen were presumed to

have the capacity to commit criminal acts. Barry C. Feld, Unmitigated

Punishment: Adolescent Criminal Responsibility and LWOP Sentences, 10

J.L. & Fam. Stud. 11, 14 n.11 (2007) [hereinafter Feld]; Andrew

Walkover, The Infancy Defense in the New Juvenile Court, 31 UCLA L.

Rev. 503, 510–11 (1984) [hereinafter Walkover]. Thus, in a prosecution

of a youth aged between seven and fourteen years, the state was required

to overcome the presumption that the youth lacked the mental capacity

to commit crimes “by showing that the child knew the wrongfulness of

his act.” Walkover, 31 UCLA L. Rev. at 511. For the first hundred years

or so after the founding of the United States, juveniles, if they were tried

at all, were tried in adult courts. Feld, 10 J.L. & Fam. Stud. at 13–14.

In the late 1890s, the Progressives began to press for the

establishment of juvenile courts that would seek to promote the welfare

of juvenile offenders. See In re Gault, 387 U.S. 1, 15–16, 87 S. Ct. 1428,

1437, 18 L. Ed. 2d 527, 539 (1967); see also Feld, 10 J.L. & Fam. Stud.
at 15–16. The efforts to establish a separate track for dealing with

juvenile offenders was largely successful. See In re Gault, 387 U.S. at
16

14–15, 87 S. Ct. at 1437, 18 L. Ed. 2d at 539. See generally Feld, 10 J.L.

& Fam. Stud. at 15–18; Sanford J. Fox, Juvenile Justice Reform: An

Historical Perspective, 22 Stan. L. Rev. 1187, 1222–30 (1970).

But the results were not always satisfactory as translating the

rehabilitative model into reality proved difficult. By the 1960s, it became

apparent that the purpose of juvenile court proceedings was no longer

primarily to protect the best interest of the child and was instead

becoming more punitive in nature. As a result, in 1966 the Supreme

Court in Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d
84 (1966), and In re Gault required that many of the protections afforded

adult offenders in the criminal process also applied in juvenile courts.

See In re Gault, 387 U.S. at 33–58, 87 S. Ct. at 1446–60, 18 L. Ed. 2d at

549–63 (requiring notice, a fair hearing, the assistance of counsel, the

opportunity to confront and cross-examine witnesses, the privilege

against self-incrimination, and the right to an appeal); Kent, 383 U.S. at

556–57, 86 S. Ct. at 1055, 16 L. Ed. 2d at 94–95 (requiring procedural

safeguards in judicial waiver proceedings). Though designed to protect

juveniles, Kent and In re Gault may have stimulated a mindset of

increased exposure of youth to adult criminal sentences.

2. The law recognizes adolescents as different. Many areas of the

law reflect the differences between youth and adults. For instance,

adolescents are prohibited by law from engaging in certain behavior

thought to be risky. In Iowa, youth under age twenty-one are not

permitted access to alcohol, Iowa Code § 123.47, or to engage in pari-

mutuel betting, id. § 99D.11(7). Further, those under age eighteen are

not permitted access to tobacco products, id. § 453A.2(2), or to obtain
tattoos, id. § 135.37(2). The transfer of firearms to a minor is a criminal

offense. Id. § 724.22. The State grants graduated driver’s licenses to
17

youth between the ages of fourteen and seventeen under certain

restrictions. Id. § 321.180B.

Youth are also prohibited from engaging in a number of important

transactions and from participating in important aspects of citizenry.

The period of minority generally extends to the age of eighteen, unless

the minor is married. Id. § 599.1. Minors may disavow contracts within

a reasonable period of time after obtaining majority. Id. § 599.2. Minors

may not serve as a fiduciary. Id. § 633.63. Minors may not marry unless

they are sixteen or seventeen years old, have their parents’ consent, and
a judge approves. Id. § 595.2(4), held unconstitutional in part on other

grounds by Varnum v. Brien, 763 N.W.2d 862, 906 (Iowa 2009). Minors

may not vote. Id. § 48A.5(2)(c). Minors may not sit on a jury. Id.

§ 607A.4(1)(a).

Juvenile offenders are generally not held criminally responsible.

Id. § 232.8(1). The criminal law also provides special protection to

adolescents in sexual matters. The commission of a lascivious act with a

minor is a serious misdemeanor. Id. § 709.14. A teacher who commits

sexual conduct with a student is guilty of an aggravated misdemeanor or

class “D” felony depending on the presence of a pattern, practice, or

scheme. Id. § 709.15(5). A person who provides a pass to or who admits

a minor to a premises where obscene material is exhibited, or who sells,

gives, delivers, or provides obscene material to a minor commits either a

serious or aggravated misdemeanor depending on the age of the minor.

Id. § 728.3.

Finally, Iowa law recognizes that juveniles lack judgment to

exercise constitutional rights in legal settings. Iowa Code section
232.45(11)(b) provides that statements made by a juvenile at an intake or
18

waiver hearing are inadmissible in a subsequent criminal trial in the

prosecution’s case in chief.

3. Expanding juvenile sanctions. A perceived increase in juvenile

crime led to dire predictions for the future. Princeton University

Professor John Dilulio, Jr. predicted an onslaught of “tens of thousands

of severely morally impoverished juvenile super-predators.” John J.

Dilulio, Jr., The Coming of the Super-Predators, The Weekly Standard,

November 27, 1995, at 23; see also Feld, 10 J.L. & Fam. Stud. at 31 &

n.108 (citing politicians who warned of the coming generation of “super-
predators”). Criminologist James Alan Fox observed that “ ‘unless we act

today, we’re going to have a bloodbath when these kids grow up.’ ” Brief

of Jeffrey Fagan, et al. as Amici Curiae in Support of Petitioners, at 14 &

n.13, Miller v. Alabama, 567 U.S. ___ (2012) (Nos. 10–9647, 10–9646)

(quoting Laurie Garrett, Murder by Teens Has Soared Since ’85, N.Y.

Newsday, Feb. 18, 1995).

During this time frame, states began to enact laws expanding the

exposure of juveniles to criminal sanctions by encouraging the trial of

juvenile offenders in adult rather than juvenile courts. See, e.g., 1995

Iowa Acts ch. 191, § 8 (amending Iowa Code § 232.8 to exclude juveniles

sixteen years of age and older from the jurisdiction of the juvenile court

for the alleged commission of certain offenses). According to one

observer, the politics of criminal law lead to a “one-way ratchet” of ever

increasing criminal penalties without serious legislative consideration of

their overall effect on the criminal justice system. William J. Stuntz, The

Pathological Politics of Criminal Law, 100 Mich. L. Rev. 509, 547–49

(2001).
The fear of juvenile predators may be reflected in sentencing

practices nationwide. According to one study, “in eleven out of the
19

seventeen years between 1985 and 2001, youth convicted of murder in

the United States were more likely to enter prison with a life without

parole sentence than adult murder offenders.” Human Rights Watch &

Amnesty International, The Rest of Their Lives: Life Without Parole for

Child Offenders in the United States 2 (2005). Another study during

approximately the same time frame indicates that for violent, weapons-

related, and other crimes, juvenile offenders transferred to criminal court

were more often sentenced to prison and for longer periods of time than

their adult counterparts. Donna Bishop & Charles Frazier,
Consequences of Transfer, in The Changing Borders of Juvenile Justice:

Transfer of Adolescents to the Criminal Court 227, 234–36 (Jeffrey Fagan

& Franklin E. Zimmering eds., 2000).

4. Developments of modern science. While legislative changes in

the 1990s ensured more juveniles would be treated as adults in the

criminal justice system, developments in social psychology and

neuroscience have reinforced traditional notions that juveniles and

adults are, in fact, quite different. The United States Supreme Court

relied heavily upon the evolving science in its trilogy of recent Eighth

Amendment cases involving juveniles. In Roper, the Court cited scientific

support for its propositions that juveniles and adults differ in significant

ways for the purpose of Eighth Amendment analysis. See 543 U.S. at

569–73, 125 S. Ct. at 1195–97, 161 L. Ed. 2d at 21–24 (citing Laurence

Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence:

Developmental Immaturity, Diminished Responsibility, and the Juvenile

Death Penalty, 58 Am. Psychologist 1009 (2003), and Jeffrey Arnett,

Reckless Behavior in Adolescence: A Developmental Perspective, 12
Developmental Rev. 339 (1992)). In Graham, the Court referenced

amicus briefs pointing out that “developments in psychology and brain
20

science continue to show fundamental differences between juvenile and

adult minds.” 560 U.S. 48, ___, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841.

Finally, in Miller, the Court, again relying on scientific developments,

indicated the scientific underpinnings of Roper and Graham had “become

even stronger.” 567 U.S. at ___, 132 S. Ct. at 2464 n.5, 183 L. Ed. 2d at

419 n.5. As will be set forth below, scientific advances confirmed what

the Court had already known for decades about juveniles. See, e.g,

Johnson v. Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 2668–69, 125 L.

Ed. 2d 290, 306 (1993) (noting a juvenile’s “lack of maturity,” and
“underdeveloped sense of responsibility” that often leads to “impetuous

and ill-considered actions and decisions”); Eddings v. Oklahoma, 455

U.S. 104, 115, 102 S. Ct. 869, 877, 71 L. Ed. 2d 1, 11 (1982) (“[Y]outh is

more than a chronological fact. It is a time and condition of life when a

person may be most susceptible to influence and to psychological

change.”).

While the number of studies cited in the amicus briefs before the

Supreme Court in Miller were quite extensive,2 the unfolding science

relied upon by the United States Supreme Court has been recently

synthesized by law professor Elizabeth S. Scott and psychologist

Laurence Steinberg, whose work, as noted above, was cited extensively

by the Supreme Court in Roper. According to Scott and Steinberg, social

2In particular, the scientific studies were surveyed and synthesized in the Brief
for the American Psychological Ass’n, American Psychiatric Ass’n and National Ass’n of
Social Workers as Amici Curiae in Support of Petitioners, Miller v. Alabama, 567 U.S.
___ (2012) (Nos. 10–9647, 10–9646), the Brief for the American Medical Ass’n and the
American Academy of Child & Adolescent Psychiatry as Amici Curiae in Support of
Neither Party, Miller v. Alabama, 567 U.S. ___ (2012) (Nos. 10–9647, 10–9646), and the
Brief of J. Lawrence Aber, et al. as Amici Curiae in Support of Petitioners, Miller v.
Alabama, 567 U.S. ___ (2012) (Nos. 10–9647, 10–9646). The studies cited in these
briefs support the view expressed in Roper, Graham, and Miller that adolescents are less
capable of mature judgment, more vulnerable to negative external pressure, and have
greater capacity for change and reform than adults.
21

scientists recognized that juveniles achieve the ability to use adult

reasoning by mid-adolescence, but lack the ability to properly assess

risks and engage in adult-style self-control. Elizabeth S. Scott &

Laurence Steinberg, Rethinking Juvenile Justice 34 (2008). The influence

of peers tends to replace that of parents or other authority figures. Id. at

34, 38–39. Risk evaluation is not generally developed. Id. at 34, 40–43.

Adolescents also differ from adults with respect to self-management and

the ability to control impulsive behavior. Id. at 43–44. Finally, identity

development, which is often accompanied by experimentation with risky,
illegal, or dangerous activities, occurs in late adolescence and early

adulthood. Id. at 50–52.

As the body of psychosocial studies grows, so too does the

understanding of the implications of adolescence. For instance, the

human brain continues to mature into the early twenties. Id. at 44.

Much of this development occurs in the frontal lobes, specifically, in the

prefrontal cortex, which is central to “executive functions,” such as

reasoning, abstract thinking, planning, the anticipation of consequences,

and impulse control. Id. (internal quotation marks omitted). Recent

studies show that through adolescence and into early adulthood, the

regions of the brain and systems associated with impulse control, the

calibration of risk and reward, and the regulation of emotions undergo

maturation. Id. at 45. In short, “[t]he research clarifies that substantial

psychological maturation takes place in middle and late adolescence and

even into early adulthood.” Id. at 60.

Further, the science establishes that for most youth, the qualities

are transient. That is to say, they will age out. A small proportion,
however, will not, and will catapult into a career of crime unless

incarcerated. Id. at 53 (estimating that only about five percent of young
22

offenders will persist in criminal activity into adulthood). Unfortunately,

however, it is very difficult to identify which juveniles are “adolescence-

limited offenders,” whose antisocial behavior begins and ends during

adolescence and early adulthood, and those who are “life-course-

persistent offenders” whose antisocial behavior continues into adulthood.

Id. at 54 (internal quotation marks omitted); see also Beth A. Colgan,

Constitutional Line Drawing at the Intersection of Childhood and Crime, 9

Stan. J. C.R. & C.L. 79, 81–85 (2013) (summarizing advances in brain

imaging and social science); Elizabeth S. Scott & Laurence Steinberg,
Social Welfare and Fairness in Juvenile Crime Regulation, 71 La. L. Rev.

35, 64–66 (2010); Elizabeth S. Scott & Laurence Steinberg, Blaming

Youth, 81 Tex. L. Rev. 799, 811–21 (2003).

5. Waves of “superpredators” fail to appear. The predictions of the

mid-1990s that thousands of juvenile superpredators would soon appear

and threaten public safety did not materialize. According to a United

States Surgeon General’s report, there was no support for the conclusion

that youth in the early 1990s—the time when some were predicting an

onslaught of superpredators—were involved in crime more violent or

more vicious than in earlier years. David S. Tanenhaus & Steven A.

Drizin, “Owing to the Extreme Youth of the Accused”: The Changing Legal

Response to Juvenile Homicide, 92 J. Crim. L. & Criminology 641, 643

n.9 (2002) [hereinafter Tanenhaus & Drizin] (citing Dep’t of Health &

Human Servs., Youth Violence: A Report of the Surgeon General 5 (2001)).

By the time Miller reached the United States Supreme Court in 2012,

Professors Dilulio and Fox had recanted their views. They joined an

amicus brief in Miller that recognized Dilulio’s role in predicting a wave of
juvenile superpredators and Fox’s prediction of a “bloodbath when these

kids grow up.” See Brief of Jeffrey Fagan, et al. as Amici Curiae in
23

Support of Petitioners, at 14–19, Miller, 567 U.S. ___. They further

declared that these predictions did not come to pass, that juvenile crime

rates had in fact decreased over the recent decades, that state legislative

actions in the 1990s were taken during “an environment of hysteria

featuring highly publicized heinous crimes committed by juvenile

offenders,” and that recent scientific evidence and empirical data

invalidated the juvenile superpredator myth. Id. at 15, 18–28. Further,

they asserted that neither the absence of a generation of superpredators

nor the decline in juvenile crime rates were due to incarceration of the
purported superpredators or any deterrent effect of harsher criminal

penalties. Id. at 29–36.

6. Question of diminished culpability. The traditional limitations

on juvenile actions and the science presented above suggests that

juveniles as a general matter should have diminished culpability for

criminal activities. As noted in Tison v. Arizona, 481 U.S. 137, 156, 107

S. Ct. 1676, 1687, 95 L. Ed. 2d 127, 143 (1987), “[d]eeply ingrained in

our legal tradition is the idea that the more purposeful is the criminal

conduct, the more serious is the offense . . . .” The American Bar

Association has taken the position for years that juveniles have

diminished culpability that should be recognized in criminal sentencing.

Brief of the ABA as Amicus Curiae in Support of Petitioners, at 6–10, 16,

Miller v. Alabama, 567 U.S. ___ (2012) (Nos. 10–9647, 10–9646). The

question is whether a juvenile’s sentence that does not reflect the

diminished culpability of youth could result in a violation of the cruel

and unusual punishment provisions of either the State or Federal

Constitution.
C. Overview of Cruel and Unusual Punishment Under the

Eighth Amendment.
24

1. Introduction. The Eighth Amendment declares: “Excessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII. As has been noted by

scholars, the opaque phraseology of the Cruel and Unusual Punishments

Clause gives rise to more questions than it answers. Douglas A. Berman,

Graham and Miller and the Eighth Amendment’s Uncertain Future, 27

Crim. Just. 19, 23 (2013). Nonetheless, a few baseline principles emerge

from the cases of the United States Supreme Court.

The Eighth Amendment has long been thought to prohibit torture
or barbaric punishment. See, e.g., Anthony F. Granucci, “Nor Cruel and

Unusual Punishments Inflicted:” The Original Meaning, 57 Cal. L. Rev.

839, 839 (1969); Note, What is Cruel and Unusual Punishment, 24 Harv.

L. Rev. 54, 55–56 (1910); see also In re Kemmler, 136 U.S. 436, 446–47,

10 S. Ct. 930, 933, 34 L. Ed. 519, 523–24 (1890). This strand of Eighth

Amendment jurisprudence is implicated in the current debate over the

use of lethal injection or the electric chair to execute those convicted of

heinous crimes. See Deborah W. Denno, When Legislatures Delegate

Death: The Troubling Paradox Behind State Uses of Electrocution and

Lethal Injection and What it Says About Us, 63 Ohio St. L.J. 63, 65–66,

72–77 (2002).

The Supreme Court for the last century, however, has held that the

Eighth Amendment also embraces a proportionality principle, expressed

in the truism with ancient roots that the punishment should fit the

crime. As noted in Weems v. United States, 217 U.S. 349, 367, 30 S. Ct.

544, 549, 54 L. Ed. 793, 798 (1910), the right to be free from cruel and

unusual punishment flows from the basic “precept of justice that
punishment for crime should be graduated and proportioned to offense.”

Similarly, in Robinson v. California, 370 U.S. 660, 667, 82 S. Ct. 1417,
25

1421, 8 L. Ed. 2d 758, 763 (1962), the Court recognized the

proportionality principle by noting, “Even one day in prison would be a

cruel and unusual punishment for the ‘crime’ of having a common cold.”

Critics have noted that while the Supreme Court has embraced the

notion of proportionality, its application of that general principle has not

been very consistent.3 For example, in Rummel v. Estelle, 445 U.S. 263,

271–76, 100 S. Ct. 1133, 1138–40, 63 L. Ed. 2d 382, 389–92 (1980), the

Court appeared to be on the verge of eliminating proportionality review,

but then revived it shortly thereafter in Solem, 463 U.S. at 284–90, 103
S. Ct. at 3006–10, 77 L. Ed. 2d at 645–49. In Harmelin, the concurring

opinion of Justice Kennedy embraced proportionality, see 501 U.S. at

996–97, 111 S. Ct. at 2702, 115 L. Ed. 2d at 866 (Kennedy, J.,

concurring), but the result in the case allowed a very stiff penalty to

stand for a drug-related crime, at least for the purposes of federal

constitutional law, id. at 996, 111 S. Ct. at 2702, 115 L. Ed. 2d at 865

(plurality opinion). In Ewing, the Court again seemed to embrace

proportionality, but showed great deference to legislative bodies in

upholding a lifetime conviction under California’s three strikes law after

the defendant stole three golf clubs. 538 U.S. at 28–30, 123 S. Ct. at

1189–90, 155 L. Ed. 2d at 122–23 (plurality opinion).

3See, e.g., Ian P. Farrell, Gilbert & Sullivan and Scalia: Philosophy,
Proportionality, and the Eighth Amendment, 55 Vill. L. Rev. 321, 322 & n.11 (2010)
(noting the justices’ “chronic disagreement about the precise contours” of
proportionality); Donna H. Lee, Resuscitating Proportionality in Noncapital Criminal
Sentencing, 40 Ariz. St. L.J. 527, 530 (2008) (characterizing Supreme Court as
“fractiously divided” in its approach to proportionality); Youngjae Lee, The Constitutional
Right Against Excessive Punishment, 91 Va. L. Rev. 677, 679–81, 695–99 (2005)
(explaining the Court’s “conceptual confusion over the meaning of proportionality”);
Wayne A. Logan, Proportionality and Punishment: Imposing Life Without Parole on
Juveniles, 33 Wake Forest L. Rev. 681, 693–706 (1998) (tracking evolution of
proportionality principle in Supreme Court cases involving life-without-parole
sentences).
26

The Court has recognized its difficulties in the area, noting in

Lockyer v. Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 1173, 155 L. Ed.

2d 144, 155 (2003), that “we have not established a clear or consistent

path for courts to follow.” Nonetheless, regardless of controversies over

the degree of deference to legislative bodies or the number of prongs in a

proper test, there can be little doubt proportionality analysis is integral

to Eighth Amendment analysis.
In determining whether a criminal penalty amounts to an Eighth
Amendment violation, the Supreme Court looks to contemporary norms,
or, in the court’s phraseology, from “the evolving standards of decency
that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S.
86, 101, 78 S. Ct. 590, 598, 2 L. Ed. 2d 630, 642 (1958) (plurality
opinion); accord Miller, 567 U.S. at ___, 132 S. Ct. at 2463, 183 L. Ed. 2d
at 417; Graham, 560 U.S. at ___, 130 S. Ct. at 2021, 176 L. Ed. 2d at
835; Kennedy v. Louisiana, 554 U.S. 407, 419, 128 S. Ct. 2641, 2649,
171 L. Ed. 2d 525, 538, opinion modified on denial of reh’g, 554 U.S. 945,
129 S. Ct. 1, 171 L. Ed. 2d 932 (2008); Roper, 543 U.S. at 560–61, 125
S. Ct. at 1190, 161 L. Ed. 2d at 16; Stanford v. Kentucky, 492 U.S. 361,
369–70, 109 S. Ct. 2969, 2974–75, 106 L. Ed. 2d 306, 317–18 (1989),
abrogated on other grounds by Roper, 543 U.S. at 574, 125 S. Ct. at
1198, 161 L. Ed. 2d at 25; Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct.
285, 290, 50 L. Ed. 2d 251, 259 (1976). Although some justices have
disagreed with this interpretation, see Ewing, 538 U.S. at 31–32, 123 S.
Ct. at 1190–91, 155 L. Ed. 2d at 124 (Scalia, J., concurring), the
Supreme Court has thus repeatedly rejected a narrow originalist or
historical approach to the Eighth Amendment. As was noted by Justice
O’Connor in Roper,

It is by now beyond serious dispute that the Eighth
Amendment’s prohibition of “cruel and unusual
27
punishments” is not a static command. Its mandate would
be little more than a dead letter today if it barred only those
sanctions—like the execution of children under the age of
seven—that civilized society had already repudiated in 1791.

543 U.S. at 589, 125 S. Ct. at 1206–07, 161 L. Ed. 2d at 39 (O’Connor,

J., dissenting).

Finally, it is clear that the Eighth Amendment is designed to curb

legislative excesses. Its very function is, at the margins, to prevent the

majoritarian branches of government from overreaching and enacting

overly harsh punishments. As the Court noted in Trop, “We cannot push

back the limits of the Constitution merely to accommodate challenged

legislation.” 356 U.S. at 104, 78 S. Ct. at 600, 2 L. Ed. 2d at 644. If the

Eighth Amendment was not judicially enforceable, it would amount to

“ ‘little more than good advice.’ ” Furman v. Georgia, 408 U.S. 238, 269,

92 S. Ct. 2726, 2742, 33 L. Ed. 2d 346, 366 (1972) (Brennan, J.,

concurring) (quoting Trop, 356 U.S. at 104, 78 S. Ct. at 599, 2 L. Ed. 2d

at 644). As noted by Justice Powell, “[O]ur system of justice always has

recognized that appellate courts do have a responsibility—expressed in

the proportionality principle—not to shut their eyes to grossly

disproportionate sentences that are manifestly unjust.” Hutto v. Davis,
454 U.S. 370, 377, 102 S. Ct. 703, 707, 70 L. Ed. 2d 556, 562 (1982)

(Powell, J., concurring). While the power of judicial review does not

mean that we should blue pencil every sentence, we do have a

constitutional obligation to ensure sentences remain within

constitutional boundaries. In engaging in the determination of whether a

sentence is cruel or unusual, the United States Supreme Court has

recognized that, at the end of the day, a court must exercise its

independent judgment. Graham, 560 U.S. at ___, ___, 130 S. Ct. at 2022,
2026, 176 L. Ed. 2d at 837, 841; Kennedy, 554 U.S. at 421, 128 S. Ct. at
28

2650–51, 171 L. Ed. 2d at 539–40; Roper, 543 U.S. at 564, 125 S. Ct. at

1192, 161 L. Ed. 2d at 18.

2. Death penalty jurisprudence: death is different. Alongside its

gross proportionality cases, the Supreme Court also developed Eighth

Amendment doctrine in the context of the death penalty. After struggling

with the issue of whether the death penalty could ever be imposed, see,

e.g., Gregg v. Georgia, 428 U.S. 153, 176–87, 96 S. Ct. 2909, 2926–32,

49 L. Ed. 2d 859, 876–83 (1976) (plurality opinion); Furman, 408 U.S. at

239–40, 92 S. Ct. at 2727, 33 L. Ed. 2d at 350 (per curiam), the Court
ultimately settled on two approaches to death penalty cases—a

categorical approach and an individualized approach.

First, the Supreme Court has taken a categorical approach in

which it has determined the Cruel and Unusual Punishments Clause

prohibits the death penalty in certain classes of cases or for particular

types of offenders. For example, in Coker v. Georgia, 433 U.S. 584, 600,

97 S. Ct. 2861, 2870, 53 L. Ed. 2d 982, 994 (1977) (plurality opinion),

although no one line of reasoning commanded a majority, the Court

concluded the death penalty could not be imposed for the rape of an

adult woman. Similarly, in Enmund v. Florida, 458 U.S. 782, 798, 102 S.

Ct. 3368, 3377, 73 L. Ed. 2d 1140, 1152 (1982), the Court held the

death penalty could not be imposed upon a person who did not take a

life, attempt to take a life, or intend to take a life even though he had

been convicted of first-degree murder under the felony-murder rule.

The Court has also prohibited the death penalty for particular

classes of offenders. For example, in Thompson v. Oklahoma, 487 U.S.

815, 838, 108 S. Ct. 2687, 2700, 101 L. Ed. 2d 702, 720–21 (1988)
(plurality opinion), a plurality of the Court held contemporary standards

of decency categorically prohibited the death penalty for offenders under
29

the age of sixteen at the time of the crime. Two years later, however, a

divided Supreme Court in Stanford rejected the claim that capital

punishment could never be imposed on juveniles over the age of sixteen,

but under the age of eighteen. 492 U.S. at 380, 109 S. Ct. at 2980, 106

L. Ed. 2d at 325. On the same day as Stanford, the Supreme Court

decided Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d

256 (1989). In Penry, the Court held the Eighth Amendment did not

categorically bar the death penalty against mentally retarded defendants.

Id. at 340, 109 S. Ct. at 2958, 106 L. Ed. 2d at 292. Thirteen years later,
however, the Supreme Court reversed course and held that the death

penalty categorically could not be imposed on the mentally retarded.

Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 2252, 153 L. Ed.

2d 335, 350 (2002).

With respect to cases that did not trigger a categorical approach,

the Supreme Court developed a requirement of a careful, individualized

determination prior to imposition of the death penalty. In Woodson v.

North Carolina, 428 U.S. 280, 303–04, 96 S. Ct. 2978, 2991, 49 L. Ed. 2d

944, 960–61 (1976) (plurality opinion), a plurality required that

sentencing authorities consider the characteristics of the offender and

the details of the offense, including any mitigating factors, before

imposing a death sentence. The Court elaborated further on the

contours of individualized sentencing in subsequent cases. See, e.g.,

Johnson, 509 U.S. at 367–68, 113 S. Ct. at 2668–69, 125 L. Ed. 2d at

305–07; Sumner v. Shuman, 483 U.S. 66, 73–76, 107 S. Ct. 2716, 2721–

23, 97 L. Ed. 2d 56, 64–66 (1987); Eddings, 455 U.S. at 110–12, 102 S.

Ct. at 874–75, 71 L. Ed. 2d at 8–9; Lockett v. Ohio, 438 U.S. 586, 604–05,
98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973, 990 (1978) (plurality opinion).

According to the Court,
30
“[T]he Eighth and Fourteenth Amendments require that the
sentencer . . . not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.”

Eddings, 455 U.S. at 110, 102 S. Ct. at 874, 71 L. Ed. 2d at 8 (quoting

Lockett, 438 U.S. at 604, 98 S. Ct. at 2964–65, 57 L. Ed. 2d at 990

(footnotes omitted)).

D. Application of Cruel and Unusual Punishment Concepts to

Juvenile Offenders Under the Eighth Amendment.

1. Introduction. For many years, the Supreme Court has

recognized the difference between adults and juveniles. For example, in

Haley v. Ohio, 332 U.S. 596, 599, 68 S. Ct. 302, 304, 92 L. Ed. 224, 228

(1948) (plurality opinion), four justices emphasized that courts should

take “special care” in considering a confession obtained from a juvenile

due to the “great instability which the crisis of adolescence produces.”

The Court took a similar approach in Gallegos v. Colorado, 370 U.S. 49,

54, 82 S. Ct. 1209, 1212–13, 8 L. Ed. 2d 325, 329 (1962), where it

declared a juvenile “cannot be compared with an adult in full possession

of his senses and knowledgeable of the consequences of his admissions.”

In Bellotti v. Baird, 443 U.S. 622, 635, 99 S. Ct. 3035, 3044, 61 L. Ed. 2d

797, 808 (1979), the Court noted that “during the formative years of
childhood and adolescence, minors often lack the experience,

perspective, and judgment to recognize and avoid choices that could be

detrimental to them.”

In Eddings, the Court recognized that “youth is more than a

chronological fact” because “[i]t is a time and condition of life when a

person may be most susceptible to influence and to psychological
damage.” 455 U.S. at 115, 102 S. Ct. at 877, 71 L. Ed. 2d at 11.

Elaborating, the Court noted that youth, “particularly in the early and
31

middle teen years, are more vulnerable, more impulsive, and less self-

disciplined than adults.” Id. at 115 n.11, 102 S. Ct. at 877 n.11, 71 L.

Ed. 2d at 11 n.11 (citation and internal quotation marks omitted). Thus,

adolescents “deserve less punishment because adolescents may have less

capacity to control their conduct and to think in long-range terms than

adults.” Id.

Finally, in Johnson, the Court noted the “lack of maturity and an

underdeveloped sense of responsibility” of youths “often result in

impetuous and ill-considered actions and decisions.” 509 U.S. at 367,
113 S. Ct. at 2668–69, 125 L. Ed. 2d at 306. The Court required a

sentence to consider “youth as a mitigating factor” because “the

signature qualities of youth are transient; as individuals mature, the

impetuousness and recklessness that may dominate in younger years

can subside.” Id. at 368, 113 S. Ct. at 2669, 125 L. Ed. 2d at 306–07.

While the special features of adolescence have long been

recognized in the Court’s jurisprudence, the unique features of youth

came into focus in Roper, Graham, and Miller. These three cruel and

unusual punishment cases have worked a major change in the Court’s

approach to juvenile justice.

2. Roper: Recognition of constitutionally significant differences

between juveniles and adults through law and science in the death

penalty context. The first case of the recent juvenile sentencing trilogy is

Roper. There, the Supreme Court granted certiorari to review the striking

decision of the Supreme Court of Missouri that Stanford was no longer

good law because of an evolving national consensus against the

imposition of the death penalty on juveniles. Roper, 543 U.S. at 559–60,
125 S. Ct. at 1189–90, 161 L. Ed. 2d at 15; see also State ex rel.

Simmons v. Roper, 112 S.W.3d 397, 399, 413 (Mo. 2003) (en banc).
32

The Supreme Court affirmed. Roper, 543 U.S. at 578–79, 125 S.

Ct. at 1200, 161 L. Ed. 2d at 28. In an important opinion by Justice

Kennedy, the Court first noted a distinct trend in the states away from

imposing the death penalty on juveniles. Id. at 564–68, 125 S. Ct. at

1192–94, 161 L. Ed. 2d at 18–21. Further, the Court emphasized that

the Eighth Amendment applies “with special force” to death penalty

cases. Id. at 568, 125 S. Ct. at 1194, 161 L. Ed. 2d at 21.

The Court next recognized three important differences between

youth under the age of eighteen and adults, all of which had been noted
in prior cases. First, the Court relied upon Johnson’s recognition that

youths’ lack of maturity and underdeveloped sense of responsibility often

combine to result in impulsive decision making and, in turn, reckless

behavior. Id. at 569, 125 S. Ct. at 1195, 161 L. Ed. 2d at 21 (citing

Johnson, 509 U.S. at 367, 113 S. Ct. at 2668–69, 125 L. Ed. 2d at 306);

see also Eddings, 455 U.S. at 116, 102 S. Ct. at 877, 71 L. Ed. 2d at 12

(“Even the normal 16-year-old customarily lacks the maturity of an

adult.”). Second, the Court noted youth “are more vulnerable or

susceptible to negative influences and outside pressures, including peer

pressure.” Roper, 543 U.S. at 569, 125 S. Ct. at 1195, 161 L. Ed. 2d at

22 (citing Eddings, 455 U.S. at 115–16, 102 S. Ct. at 877, 71 L. Ed. 2d at

11–12). Third, the Court noted that “the character of a juvenile is not as

well formed as that of an adult.” Id. at 570, 125 S. Ct. at 1195, 161 L.

Ed. 2d at 22; see also Johnson, 509 U.S. at 368, 113 S. Ct. at 2669, 125

L. Ed. 2d at 306.

In addition to citing the recognitions of its precedents, the Court

relied upon recent scientific advances shedding light on the reasons
underlying the differences between youth and adults. In particular, the

Court, relying upon the work of Scott and Steinberg, noted that
33

“juveniles have less control, or less experience with control, over their

own environment” and that risky and antisocial behavior often end as a

teenager matures, which leads to the conclusion that “only a relatively

small proportion of adolescents who experiment in risky or illegal

activities develop entrenched patterns of problem behavior that persist

into adulthood.” Roper, 543 U.S. at 569–70, 125 S. Ct. at 1195–96, 161

L. Ed. 2d at 22 (citation and internal quotation marks omitted). The

Court further relied on Scott and Steinberg for the proposition that “[i]t is

difficult even for expert psychologists to differentiate between the juvenile
offender whose crime reflects unfortunate yet transient immaturity, and

the rare juvenile offender whose crime reflects irreparable corruption.”

Id. at 573, 125 S. Ct. at 1197, 161 L. Ed. 2d at 24. Finally, the Court

indicated that because this difficulty underlies the rule forbidding

psychiatrists from diagnosing any patient under the age of eighteen with

antisocial personality disorder, states should similarly refrain from

asking jurors to impose the death penalty. Id. Based on these scientific

revelations, the Court found that, like the mentally retarded in Atkins,

juveniles were less culpable for their offenses than adults and that the

death penalty was less likely to have a deterrent effect. Id. at 571–73,

125 S. Ct. at 1196–97, 161 L. Ed. 2d at 23–24.

The Court concluded a categorical prohibition was necessary

because “[t]he differences between juvenile and adult offenders are too

marked and well understood to risk allowing a youthful person to receive

the death penalty despite insufficient culpability.” Id. at 572–73, 125 S.

Ct. at 1197, 161 L. Ed. 2d at 24. The Court continued, “An unacceptable

likelihood exists that the brutality or cold-blooded nature of the crime
would overpower mitigating arguments based on youth as a matter of

course . . . .” Id. at 573, 125 S. Ct. at 1197, 161 L. Ed. 2d at 24. In
34

addition, the Court noted, with some prescience, that some prosecutors

may even use youth as an aggravating, rather than mitigating, factor. Id.

To avoid these difficulties, the Court adopted a categorical rule

prohibiting the imposition of the death penalty for crimes committed by

persons under eighteen years of age. Id. at 578–79, 125 S. Ct. at 1200,

161 L. Ed. 2d at 28.

The Court concluded with the observation that the United States

was the only country in the world that officially sanctioned the juvenile

death penalty. Id. at 575, 125 S. Ct. at 1198, 161 L. Ed. 2d at 25.
Although it acknowledged that international norms were not controlling,

the Court recognized that the laws of other countries and international

authorities have often been regarded as instructive in Eighth Amendment

interpretation. Id. at 575–76, 125 S. Ct. at 1198–99, 161 L. Ed. 2d at

25–26. According to the Court, international consensus against the

death penalty for juveniles rested in large part “on the understanding

that the instability and emotional imbalance of young people may often

be a factor in the crime.” Id. at 578, 125 S. Ct. at 1200, 161 L. Ed. 2d at

27.

To sum up, in Roper the Court recognized that juveniles have

lessened culpability than adults because juveniles have immature

judgment, are more susceptible to negative peer and environmental

influences, and have transitional identities in comparison with their fully

biologically developed adult counterparts. See Barry C. Feld, A Slower

Form of Death: Implications of Roper v. Simmons for Juveniles Sentences

to Life Without Parole, 22 Notre Dame J.L. Ethics & Pub. Pol’y 9, 26–43

(2008) (reviewing the developmental psychological research that bolstered
the Supreme Court’s conclusion in Roper). Roper broke new ground

regarding the application of the Eighth Amendment against juvenile
35

offenders. When the decision was rendered, seventy-three juveniles

faced execution in the United States. Clayton A. Hartjen, Youth, Crime &

Justice: A Global Inquiry 121 (2008). In addition to directly affecting

these youths, however, there was a substantial question whether the

approach in Roper would extend to contexts other than the death penalty

where incarcerated juveniles claimed their imprisonment amounted to

cruel and unusual punishment in violation of the Eighth Amendment. In

other words, was Roper simply a death penalty case, which rested on the

slogan “death is different,” or did Roper have wider implications for cruel
and unusual punishment cases involving juveniles?

3. Graham: A constitutionally required “second look” for

nonhomicide juvenile offenders sentenced to life in prison without parole.

The wider view of Roper was vindicated when the Supreme Court decided

Graham just five years later. In Graham, the Court considered whether

life without parole could be imposed against a juvenile defendant for a

nonhomicide offense. 560 U.S. at ___, 130 S. Ct. at 2017–18, 176 L. Ed.

2d at 832. The Court’s answer: No. Id. at ___, 130 S. Ct. at 2030, 176 L.

Ed. 2d at 845.

The Court first concluded there was a developing national

consensus against life-without-parole sentences for juveniles convicted of

nonhomicide offenses. Id. at ___, 130 S. Ct. at 2026, 176 L. Ed. 2d at

841. The Court next moved to exercise its independent judgment

regarding the sanction. As in Roper, the Court cited developments in

psychology and neuroscience that continued to show fundamental

differences between juvenile and adult brains, such as that “the parts of

the brain involved in behavior control continue to mature through late
adolescence.” Id. at ___, 130 S. Ct. at 2026–27, 176 L. Ed. 2d at 841–42.

As a result, the Court noted the actions of juveniles were less likely to
36

reflect an “ ‘irretrievably depraved character’ ” than are actions by an

adult. Id. at ___, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841 (quoting Roper,

543 U.S. at 570, 125 S. Ct. at 1195, 161 L. Ed. 2d at 22).

Again relying on the differences between juveniles and adults, the

Court concluded the penological justifications of life-without-parole

sentences were undermined. Id. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d

at 845. With respect to retribution, the Court noted that a juvenile

nonhomicide offender was less culpable than other offenders. Id. at ___,

130 S. Ct. at 2028, 176 L. Ed. 2d at 843–44. The Court concluded
deterrence has less validity because of the “impetuous and ill-

considered” nature of juvenile decision making. Id. at ___, 130 S. Ct. at

2028–29, 176 L. Ed. 2d at 844 (citation and internal quotation marks

omitted). The Court dismissed incapacitation as a justification for the

punishment based on Roper’s doubt that sentencers can “make a

judgment that the juvenile is incorrigible” when it is difficult for expert

psychologists to make such a determination. Id. at ___, 130 S. Ct. at

2029, 176 L. Ed. 2d at 844. Of particular note, the Supreme Court

pointed to a state court, which had concluded that “ ‘incorrigibility is

inconsistent with youth.’ ” Id. (quoting Workman v. Commonwealth, 429

S.W.2d 374, 378 (Ky. 1968)). Finally, the Court concluded a sentence of

life without parole can never be justified on rehabilitation grounds

because the offender, by definition, will never be released into society.

Id. at ___, 130 S. Ct. at 2029–30, 176 L. Ed. 2d at 845.

In evaluating whether to categorically prohibit the sentence, the

Court concluded a case-by-case approach was undesirable because such

an approach would not “with sufficient accuracy distinguish the few
incorrigible juvenile offenders from the many that have the capacity for

change” or account for the “special difficulties encountered by counsel”
37

in representing juveniles. Id. at ___, 130 S. Ct. at 2032, 176 L. Ed. 2d at

847–48. Such difficulties, including juveniles’ mistrust of adults,

impulsiveness, limited understanding of the criminal justice system, and

lessened likelihood working effectively with their lawyers, put juveniles

“at a significant disadvantage in criminal proceedings” as compared to

adults. Id. at ___, 130 S. Ct. at 2032, 176 L. Ed. 2d at 848. In addition,

the Court noted a categorical rule ensured all juvenile nonhomicide

offenders a chance to demonstrate maturity and reform. Id. Finally, the

Court, as in Roper, surveyed international law and found that the
practice of sentencing juveniles to life in prison without parole for

nonhomicide offenses was rejected the world over. Id. at ___, 130 S. Ct.

at 2033–34, 176 L. Ed. 2d at 848–49.

In categorically prohibiting life without parole for a juvenile who

does not commit a homicide offense, the Court was careful to point out

the Eighth Amendment requires only “some meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation.” Id.

at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845–46. The Eighth

Amendment does not, according to the Court, require release. Id. at ___,

130 S. Ct. at 2030, 176 L. Ed. 2d at 846. Thus, the Court noted a key

distinction between the opportunity for parole and the complete

forswearing of that opportunity altogether.

4. Miller: differences between juveniles and adults prohibit

mandatory life in prison without parole for homicide offenders. As was the

case after Roper, the question after Graham was whether the rationale in

Graham should be limited to its factual setting of nonhomicide crimes or

whether it would have broader implications. In Miller, the Supreme
Court considered two cases in which fourteen-year-old criminal

defendants received sentences of life in prison without parole following
38

murder convictions. 567 U.S. at ___, 132 S. Ct. at 2460, 183 L. Ed. 2d at

414. In order to explore Miller, we begin with a brief survey of the facts of

each case and then examine how the Supreme Court resolved the legal

issues.

The first case considered in Miller was that of Kuntrell Jackson.

Jackson came from a family life of violence. Id. at ___, 132 S. Ct. at

2468, 183 L. Ed. 2d at 423. Both his mother and grandmother had

previously shot other individuals. Id. Prior to the incident giving rise to

his life-without-parole sentence, Jackson had been arrested for
shoplifting and several incidents of car theft. Id. at ___, 132 S. Ct. at

2461, 183 L. Ed. 2d at 415.

When he was fourteen, Jackson and two other boys decided to rob

a video store. Id. One of the boys carried a sawed off shotgun concealed

under his coat. Id. At first, Jackson refused to enter the store, but later

changed his mind while the robbery was in progress. Id. After he

entered the store, Jackson apparently made a comment, either

addressing the clerk stating, “[w]e ain’t playin,” or addressing his

comrades stating, “I thought you all was playin’.” Id. (internal quotation

marks omitted). While Jackson was inside the store, the boy with the

shotgun shot and killed a store clerk who threatened to call police. Id.

The boys fled the scene empty-handed. Id.

The State of Arkansas charged Jackson with capital felony murder

and aggravated robbery. Id. The district court refused to transfer his

case to juvenile court. Id. After the jury convicted Jackson, the district

court sentenced him to life in prison without parole, the statutory

minimum sentence. Id.
The other case concerned Evan Miller, who was also fourteen at

the time of his crime. Id. ___, 132 S. Ct. at 2462, 183 L. Ed. 2d at 416.
39

Miller had been in and out of foster care because his drug-addicted,

alcoholic mother neglected him and his stepfather abused him. Id. at

___, ___, 132 S. Ct. at 2462, 2469, 183 L. Ed. 2d at 416, 423. Miller

regularly used drugs and alcohol and had attempted suicide four times

beginning when he was six years old. Id. at ___, 132 S. Ct. at 2462, 183

L. Ed. 2d at 416. His prior criminal record, however, was limited to just

two instances of truancy and one of second-degree criminal mischief. Id.

at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 423–24.

Miller was at home with a friend when a neighbor arrived to make
a drug deal with Miller’s mother. Id. at ___, 132 S. Ct. at 2462, 183 L.

Ed. 2d at 416. After the drug deal, the boys followed the neighbor home

to his trailer, where the three smoked marijuana and drank alcohol. Id.

After the neighbor passed out, Miller and his friend proceeded to rob him

of his wallet. Id. When the neighbor unexpectedly awoke, a fight ensued

and Miller repeatedly struck the neighbor with a baseball bat. Id.

Toward the end of the struggle, Miller placed a sheet over the neighbor’s

head and told him, “I am God, I’ve come to take your life.” Id. He then

delivered one more blow. Id. Miller and his friend left the trailer, but

later decided to cover up evidence of the crime by burning it down. Id.

The neighbor died from his injuries and smoke inhalation. Id.

Miller was originally charged as a juvenile, but his case was

transferred to adult court. Id. at ___, 132 S. Ct. at 2462, 183 L. Ed. 2d

at 416–17. The State of Alabama charged Miller with murder in the

course of arson. Id. at ___, 132 S. Ct. at 2462–63, 183 L. Ed. 2d at 417.

After a jury found Miller guilty, he was sentenced to the mandatory

minimum sentence of life without parole. Id.
In an opinion by Justice Kagan, the Court canvassed its recent

precedents. The case implicated two strands of the Court’s precedent
40

under the Cruel and Unusual Punishments Clause. Id. at ___, 132 S. Ct.

at 2463, 183 L. Ed. 2d at 417. The first strand involved categorical bans

as in Roper, Graham, and Atkins, where the Court found a mismatch

between the culpability of the offender and the severity of the penalty.

Id. The second strand, individualized sentencing cases such as Woodson

and Lockett, prohibited mandatory imposition of capital punishment

without consideration of the characteristics of the defendant and the

details of the offense. Id. at ___, 132 S. Ct. at 2463–64, 183 L. Ed. 2d at

417–18.
The Court reiterated the distinctive characteristics of juveniles

identified in Roper and Graham—the lack of maturity, the vulnerability to

peer pressure, and the lack of a well-formed character—as well as the

underpinnings provided by science, social science, and common sense

(“on what ‘any parent knows’ ”), “diminish penological justifications for

imposing the harshest sentences on juvenile offenders, even when they

commit terrible crimes.” Id. at ___, 132 S. Ct. at 2464–65, 183 L. Ed. 2d

at 418–20. It then determined these considerations applied with equal

force when a juvenile was convicted of homicide:

To be sure, Graham’s flat ban on life without parole applied
only to nonhomicide crimes, and the Court took care to
distinguish those offenses from murder, based on both moral
culpability and consequential harm. But none of what it
said about children—about their distinctive (and transitory)
mental traits and environmental vulnerabilities—is crime-
specific.

Id. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 420 (citation omitted). In

other words, the Court considered whether the rationale of Roper and

Graham was limited by their factual settings and concluded it was not.

According to the Court, Roper and Graham establish “that children are
41

constitutionally different from adults for sentencing purposes.” Id. at

___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418.4

The Court, however, found it unnecessary to decide whether to

impose a categorical ban on life in prison without parole for juveniles,

choosing instead to take a narrow route. The Court drew upon Graham’s

comparison of a life-without-parole sentence for a juvenile to the death

penalty, a penalty “reserved only for the most culpable defendants

committing the most serious offenses.” Id. at ___, 132 S. Ct. at 2466–67,

183 L. Ed. 2d at 421; see also Graham, 560 U.S. at ___, 130 S. Ct. at
2027, 176 L. Ed. 2d at 842–43. It also drew upon the reasoning of

Woodson and its progeny that a mandatory scheme imposing the death

penalty was flawed because it did not take into account “the possibility of

compassionate or mitigating factors.” Miller, 567 U.S. at ___, 132 S. Ct.

at 2467, 183 L. Ed. 2d at 421 (internal quotation marks omitted). The

Court cited Johnson and Eddings, pre-Roper death penalty cases, where

it had emphasized the need to consider the youthful characteristics of

juvenile defendants. Id. at ___, 132 S. Ct. at 2467, 183 L. Ed. 2d at 422;

see also Johnson, 509 U.S. at 367, 113 S. Ct. at 2668–69, 125 L. Ed. 2d

at 306; Eddings, 455 U.S. at 115–16, 102 S. Ct. at 877, 71 L. Ed. 2d at

11–12. Reasoning by analogy of the pre-Roper individualized sentencing

cases, Roper, and Graham, the Court concluded life without parole could

not be imposed on a juvenile for a homicide offense without an

4The Supreme Court in Miller did not expressly cite to peer-reviewed studies in
reaching its conclusion, but citing the briefs of amici, noted “the science and social
science supporting Roper’s and Graham’s conclusions have become even stronger.”
Miller v. Alabama, 567 U.S. ___, ___ n.5, 132 S. Ct. 2455, 2464 n.5, 183 L. Ed. 2d 407,
419 n.5 (2012). Those briefs are chock-full of peer-reviewed studies. See generally
Brief for the Am. Psychological Ass’n, Am. Psychiatric Ass’n & Nat’l Ass’n of Social
Workers as Amici Curiae in Support of Petitioners, at 7–31, Miller, 567 U.S. ___; Brief
for Am. Med. Ass’n and Am. Acad. of Child & Adolescent Psychiatry as Amici Curiae in
Support of Neither Party, at 5–36, Miller, 567 U.S. ___; Brief of J. Lawrence Aber, et al.
as Amici Curiae in Support of Petitioners, at 14–36, Miller, 567 U.S. ___.
42

individualized consideration of the appropriateness of the sentence in

light of the nature of the crime and the characteristics of the juvenile

offender. Miller, 567 U.S. at ___, 132 S. Ct. at 2468–69, 183 L. Ed. 2d at

422–24.

As a result, the Court did not consider the alternative argument

that the Eighth Amendment categorically bans life without parole for

juveniles. Id. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. But the

Court did not simply leave matters there. It stated that in light of the

teaching of Roper, Graham, and the Miller case itself, “appropriate
occasions for sentencing juveniles to this harshest possible penalty will

be uncommon.” Id. The Court held this belief in light of the difficulty of

“distinguishing at this early age between ‘the juvenile offender whose

crime reflects unfortunate yet transient immaturity, and the rare juvenile

offender whose crime reflects irreparable corruption,’ ” as well as a

requirement that a sentencer “take into account how children are

different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Id. (emphasis added) (quoting

Roper, 543 U.S. at 573, 125 S. Ct. at 1197, 161 L. Ed. 2d at 24).

5. Implications of the Roper–Graham–Miller trilogy. Roper,

Graham, and Miller directly settled a number of controversies. After

these cases, it is clear that the Eighth Amendment prohibits the

imposition of the death penalty for crimes committed by juvenile

defendants, that life in prison without parole cannot be imposed on a

juvenile nonhomicide offender, and that mandatory life without parole

cannot be imposed on a juvenile who commits homicide without

consideration of the mitigating characteristics of youth. All of these
results rested on the notion that juveniles are constitutionally different

from adults for purposes of the imposition of harsh punishments.
43

One of the questions not answered in Miller is whether life without

parole can ever be imposed for crimes committed by a juvenile. The

notion that the Eighth Amendment provides a categorical ban to life-

without-parole sentences for juveniles even in homicide cases was urged

by the American Bar Association based on its decades-long involvement

in juvenile and criminal justice matters. Brief of ABA as Amicus Curiae

in Support of Petitioners, at 6–7, Miller, 567 U.S. ___. The Supreme

Court fell just short of a categorical ban in Miller, content to declare that

to the extent such sentences could constitutionally be imposed, such
cases would be rare or “uncommon.” 567 U.S. at ___, 132 S. Ct. at 2469,

183 L. Ed. 2d at 424. Whether the Supreme Court will ultimately

foreclose the possibility of life-without-parole sentences for juveniles will

have to await further caselaw.

Neither Roper, Graham, nor Miller involved a sentence for a lengthy

term of years that was not life without parole. Some commentators

emphasize that Graham’s conclusion that the Eighth Amendment

requires “some meaningful opportunity to obtain release based on

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

2030, 176 L. Ed. 2d at 845–46, is inconsistent with long mandatory

sentences. See, e.g., Cara H. Drinan, Graham on the Ground, 87 Wash.

L. Rev. 51, 54, 62–63 (2012); Leslie Patrice Wallace, “And I Don’t Know

Why It Is That You Threw Your Life Away”: Abolishing Life Without Parole,

the Supreme Court in Graham v. Florida Now Requires States to Give

Juveniles Hope for a Second Chance, 20 B.U. Pub. Int. L.J. 35, 53–64

(2010) [hereinafter Wallace].

Miller also does not expressly address to what extent a mandatory
minimum sentence for adult crimes can automatically be imposed on a

juvenile tried as an adult without allowing the juvenile to seek a lesser
44

sentence based on the reasoning of Roper, Graham, and Miller. The

notion that the reasoning of Roper was limited to the death penalty cases

was proven wrong in Graham, and the notion that Graham’s reasoning

was limited to nonhomicide cases was proven wrong in Miller. Further,

the Supreme Court in Miller specifically declared that what it said about

juveniles in Roper, Graham, and Miller is not “crime-specific.” Miller, 567

U.S. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 420. As a result, it can

be argued that the diminished culpability of juveniles must always be a

factor considered in criminal sentencing. See, e.g., Feld, 10 J.L. & Fam.
Stud. at 62, 70–76 (arguing that “no principled bases exist by which to

distinguish the diminished responsibility that bars the death penalty

from adolescents equally reduced culpability that warrants shorter

sentences for all serious crimes” and calling for a categorical “youth

discount” in sentencing); Martin Guggenheim, Graham v. Florida and a

Juvenile’s Right to Age-Appropriate Sentencing, 47 Harv. C.R.-C.L. L. Rev.

457, 489–93 (2012) (arguing juveniles may never be automatically

sentenced to generally applicable mandatory minimums); Emily C. Keller,

Constitutional Sentences for Juveniles Convicted of Felony Murder in the

Wake of Roper, Graham & J.D.B., 11 Conn. Pub. Int. L.J. 297, 322

(2012) (arguing mandatory adult sentences deprive trial courts of their

discretion to consider mitigating factors); Tanenhaus & Drizin, 92 J.

Crim. L. & Criminology at 697–98 (calling for a “youth exception to . . .

one size fits all sentences”); see also Wallace, 20 B.U. Pub. Int. L.J. at 71

(calling for legislation requiring periodic reviews of juvenile sentences

even where they are sentenced to a generally applicable mandatory

minimum). Following this view, the State of Washington has abolished
imposing mandatory adult sentences on juveniles convicted in adult

court. See Wash. Rev. Code Ann. § 9.94A.540 (West, Westlaw current
45

with 2013 Legislation eff. through Aug. 1, 2013). Yet, an argument can

be made that Roper, Graham, and Miller, despite their protean rationales,

should be limited to the specific factual settings of the cases themselves

and not used as a source of law in other contexts.

In any event, it is unclear what the Supreme Court precisely meant

in Graham by requiring the state to provide “some meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation.” 560 U.S. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at

845–46. It did not indicate when such an opportunity must be provided
or provide guidance regarding the nature or structure of such a second-

look or back-end opportunity.5 Instead, the Court left it to the states “to

explore the means and mechanisms for compliance.” Id. at ___, 130 S.

Ct. at 2030, 176 L. Ed. 2d at 846.

E. Developments in State Constitutional Law.

1. Cruel and unusual punishment development in other states.

Nearly all state constitutions have a provision limiting the scope of

punishments that may be imposed on criminal defendants. Richard S.

Frase, Limiting Excessive Prison Sentences Under Federal and State

Constitutions, 11 U. Pa. J. Const. L. 39, 64–65 (2008) [hereinafter Frase].

5The American Academy of Child and Adolescent Psychiatry (AACAP), which filed
amicus briefs in Roper, Graham, and Miller pointing out biological differences between
juvenile and adult brains, has urged that juveniles serving life-without-parole sentences
receive an initial sentencing review within five years or by the age of twenty-five,
whichever occurs first. Am. Acad. of Child & Adolescent Psychiatry, Policy Statement:
Juvenile Life Without Parole: Review of Sentences (April 2011), available at
http://www.aacap.org/cs/root/policy_statements/juvenile_life_without_parole_review_
of_sentences. Such a sentence review, according to the AACAP, must include “a review
of educational and court documents as well as a comprehensive mental health
evaluation, conducted by a child mental health professional.” Id.; see also Gerard
Glynn & Ilona Vila, What States Should Do To Provide a Meaningful Opportunity for
Review and Release: Recognize Human Worth and Potential, 24 St. Thomas L. Rev. 310,
323 (2012).
46

Many of them are worded differently in material ways from the Eighth

Amendment, while others are closely parallel. Id.; accord 2 Jennifer

Friesen, State Constitutional Law: Litigating Individual Rights, Claims and

Defenses § 13.02[2], at 13–4 to 13–5 (4th ed. 2006) [hereinafter Friesen].

Unlike other areas of law such as search and seizure, where there

are hundreds of state law cases that substantially depart from federal

interpretations of the Fourth Amendment, there has not been a large

body of independent state constitutional law in the area of cruel and

unusual punishment. Frase, 11 U. Pa. J. Const. L. at 63–64. There are,
however, a few cases in which state courts have been in the vanguard.

Id. at 67–69.

For example, in Workman the Kentucky Court of Appeals, then the

highest court in the state, held a sentence of life without parole imposed

upon a fourteen-year-old rape offender violated the Kentucky

Constitution. 429 S.W.2d at 378. The Workman majority noted juveniles

are deprived of many benefits of the law because of their immaturity and

concluded that because life imprisonment without parole is designed for

“dangerous and incorrigible individuals who would be a constant threat

to society,” such judgments were “inconsistent with youth.” Id. at 377–

78. The United States Supreme Court cited Workman forty-two years

later in Graham. 560 U.S. at ___, 130 S. Ct. at 2029, 176 L. Ed. 2d at

844. Twenty years before Graham, the Supreme Court of Nevada in

Naovarath v. State, 779 P.2d 944, 944, 948–49 (Nev. 1989), held a

sentence of life in prison without parole for a thirteen year old who pled

guilty to murder was cruel and unusual under both the Nevada and

Federal Constitutions. The Nevada court observed, “We may possibly
have in the child before us the beginning of an irremediably dangerous

adult human being, but we certainly cannot know that fact with any
47

degree of certainty now.” Id. at 947. Finally, in People v. Miller, 781

N.E.2d 300, 308–10 (Ill. 2002), the Supreme Court of Illinois concluded a

mandatory life-without-parole sentence for a fifteen year old who was

convicted of two counts of first-degree murder, but who only acted as a

lookout, enlisted to help the triggerman at the last minute, violated the

Illinois Constitution and “shock[ed] the moral sense of the community.”

These juvenile cases in state courts set the stage for later development

on similar issues by the United States Supreme Court.

With respect to generally applicable proportionality tests, most
states employ them, though some have yet to develop a standard

independent of that articulated by the United States Supreme Court in

Solem. 2 Friesen at § 13.04[1][b], at 13–35 to 13–40; see, e.g., People v.

Bullock, 485 N.W.2d 866, 875 (Mich. 1992) (adopting Solem factors under

the Michigan Constitution, but applying them in a fashion to reject the

result of Harmelin). But see State v. Stirens, 506 N.W.2d 302, 305 (Minn.

1993) (stating cruel or unusual punishments clause of the Minnesota

Constitution has not been held to guaranty proportionality of

sentencing). Others employ more flexible approaches, such as a shock-

the-conscience test. 2 Friesen at § 13.04[1][b], at 13–39 & n.190; see,

e.g., Miller, 781 N.E.2d at 307 (employing a “shock the moral sense of the

community” test as one form of proportionality review under the Illinois

Constitution); State v. Glover, 355 S.E.2d 631, 639 (W. Va. 1987)

(employing a shock-the-conscience test prior to any proportionality

analysis).

When it comes to post-Miller cases involving challenges to penalties

imposed on juveniles, there has been little development of state
constitutional law. Most recent state court decisions have claimed to

follow the Roper–Graham–Miller framework under their state
48

constitutions. For instance, in Commonwealth v. Batts, 66 A.3d 286, 299

(Pa. 2013), the Supreme Court of Pennsylvania concluded the

Pennsylvania Constitution, which contains a clause prohibiting “cruel

punishments,” did not provide the basis for a different approach under

the facts of the case. See also People v. Taylor, No. 4–11–0926, 2013 WL

164909, at ¶¶ 45, 49 (Ill. App. Ct. Jan. 9, 2013) (unpublished opinion)

(finding the sentencing court considered the juvenile’s age under the

Eighth Amendment and the proportionate-penalties clause of the Illinois

Constitution); People v. Eliason, 833 N.W.2d 357, 374, (Mich. Ct. App.
2013) (Gleicher, P.J., concurring in part and dissenting in part) (finding a

sentence to be in violation of the United States and Illinois Constitution

utilizing Graham and Miller principles).

2. Cruel and unusual punishment under the Iowa Constitution.

Article I, section 17 of the Iowa Constitution, in a similar manner to its

federal counterpart, provides that “cruel and unusual punishment shall

not be inflicted.” Defendants generally have not suggested any

distinction between the analysis applicable to the state clause and the

federal clause. See State v. Musser, 721 N.W.2d 734, 748 n.8 (Iowa

2006); In re Det. of Garren, 620 N.W.2d 275, 280 n.1 (Iowa 2000). As a

result, the potential development of an independent path in the area of

cruel and unusual punishment has been limited by the nature of the

advocacy.

In Bruegger, we considered an important question regarding the

applicability of Roper concepts outside the death penalty context. There,

an adult offender received a lengthy enhanced sentence as a result of a

previous conviction that occurred when he was twelve years old. 773
N.W.2d 867. Under federal precedent, such offenders were to be treated

as adults, not juveniles. Id. at 879. While we recognized that Roper was
49

a death penalty case, we concluded that the reasoning in Roper, namely,

that juveniles are materially different from adults for the purposes of

assessing criminal culpability, had broad applicability outside the death

penalty context. Id. at 883–84. As a result, we held under the cruel and

unusual punishment provision of article I, section 17 of the Iowa

Constitution that Bruegger was entitled to launch an as-applied

challenge to his lengthy prison sentence arising in part as a result of a

previous juvenile conviction. Id. at 884. Bruegger thus stands for the

proposition that under the Iowa Constitution, the concept embraced in
Roper—that juveniles have less culpability than adults—has broad

application outside the death penalty context.6

F. Application of Cruel and Unusual Punishment Principles.

1. Introduction. As indicated above, Null challenges his sentence

under the Eighth Amendment to the United States Constitution and

article I, section 17 of the Iowa Constitution. In this case, Null urges

that we take the principles of Miller and apply them under the facts of

this case under the Iowa Constitution. See id. at 883 (applying

principles espoused in Roper in a more stringent fashion under the Iowa

Constitution than had been explicitly adopted by the Supreme Court

under the United States Constitution). As explained at length below, we

are persuaded that Miller’s principles are sound and should be applied in

6See Beth Caldwell, Twenty-Five to Life for Adolescent Mistakes: Juvenile Strikes
as Cruel and Unusual Punishment, 46 U.S.F. L. Rev. 581, 615 (2012) (“The reasoning
employed in Bruegger is bolstered by the Graham decision, which extended Roper to a
non-death penalty case.”); see also Christopher J. Walsh, Comment, Out of the Strike
Zone: Why Graham v. Florida Makes it Unconstitutional to Use Juvenile Convictions as
Strikes to Mandate Life Without Parole Under § 841(B)(1)(A), 61 Am. U. L. Rev. 165, 186–
204 (2011) (urging the extension of Graham to prohibit enhancement of sentences to
mandatory life without parole based on juvenile-age prior convictions for defendants
convicted of drug trafficking in violation of 21 U.S.C. § 841).
50

this case. As in Bruegger, we reach our conclusion independently under

article I, section 17 of the Iowa Constitution.7

2. Applicability of the principles underlying Roper, Graham, and

Miller. Null received a lengthy term-of-years sentence based on the

aggregation of his sentences for second-degree murder and first-degree

robbery. A threshold question is whether a 52.5-year minimum prison

term for a juvenile based on the aggregation of mandatory minimum

sentences for second-degree murder and first-degree robbery triggers the

protections to be afforded under Miller—namely, an individualized
sentencing hearing to determine the issue of parole eligibility. We think

it does. We come to this conclusion for several reasons.

First, we note that Miller emphasizes that nothing said in Roper,

Graham, or Miller is “crime-specific.” Miller, 567 U.S. at ___, 132 S. Ct. at

2465, 183 L. Ed. 2d at 420. Certainly the notions that juveniles have

less-developed judgment, that juveniles are more susceptible to peer

7A decision of this court to depart from federal precedent arises from our

independent and unfettered authority to interpret the Iowa Constitution. State v.
Baldon, 829 N.W.2d 785, 790 (Iowa 2013) (“[O]ur right under principles of federalism to
stand as the final word on the Iowa Constitution is settled, long-standing, and good
law.”). When a state constitutional issue is raised by a party, we have a duty to engage
in independent analysis of the claim. In considering state constitutional claims, we
consider federal precedent as well as the precedents from other states for their
persuasive power. See, e.g., id. at 791 & n.1 (“[T]he Supreme Court’s jurisprudence
regarding the freedom from unreasonable searches and seizures under the Fourth
Amendment—or any other fundamental, civil, or human right for that matter—makes
for an admirable floor, but it is certainly not a ceiling.”); State v. Ochoa, 792 N.W.2d
260, 267 (Iowa 2010) (“[W]hile United States Supreme Court cases are entitled to
respectful consideration, we will engage in independent analysis of the content of our
state search and seizure provisions. A Fourth Amendment opinion of the United States
Supreme Court, the Eighth Circuit Court of Appeals, or any other federal court is no
more binding upon our interpretation of article I, section 8 of the Iowa Constitution
than is a case decided by another state supreme court under a search and seizure
provision of that state’s constitution.”). We recognize this framework as the Tonn–Ochoa
analysis. Baldon, 829 N.W.2d at 791. Any decision to depart from federal precedent is
no more “value-laden,” to use the terminology of the dissent, than a decision to follow
federal precedent. See, e.g., State v. Breuer, 577 N.W.2d 41, 44–45 (Iowa 1998)
(applying federal constitutional principles under article I, section 8 of the Iowa
Constitution).
51

pressure, and that juveniles’ characters are not fully formed applies to

this and any other case involving a juvenile defendant. Thus, the notions

in Roper, Graham, and Miller that “children are different” and that they

are categorically less culpable than adult offenders apply as fully in this

case as in any other. The approach of Roper, Graham, and Miller is

consistent with other areas of the law where the differences between

juveniles and adults are well recognized.

Second, we believe that while a minimum of 52.5 years

imprisonment is not technically a life-without-parole sentence, such a
lengthy sentence imposed on a juvenile is sufficient to trigger Miller-type

protections. Even if lesser sentences than life without parole might be

less problematic, we do not regard the juvenile’s potential future release

in his or her late sixties after a half century of incarceration sufficient to

escape the rationales of Graham or Miller. The prospect of geriatric

release, if one is to be afforded the opportunity for release at all, does not

provide a “meaningful opportunity” to demonstrate the “maturity and

rehabilitation” required to obtain release and reenter society as required

by Graham. 560 U.S. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845–

46.
We recognize that the evidence in this case does not clearly
establish that Null’s prison term is beyond his life expectancy. A
generalized mortality table submitted in the district court suggests that
Null’s sentence may closely come within two years of his life expectancy,
but not exceed it. It may be, as some have suggested, that long-term
incarceration presents health and safety risks that tend to decrease life
expectancy as compared to the general population. See, e.g., People v.
J.I.A., No. G040625, 2013 WL 342653, at *5 (Cal. Ct. App. Jan. 30, 2013)
(unpublished opinion) (determining it is reasonable to conclude that a
52

prisoner’s life expectancy is considerably shorter than indicated on
standard mortality tables); People v. Lucero, __ P.3d ___, ___, 2013 WL
1459477, at *4 (Colo. App. 2013) (recognizing argument, but rejecting it
for failure to press in district court). In any event, while some courts
have concluded that whether potential release might occur within a
defendant’s life expectancy is a key factual issue, see, e.g., People v.
Caballero, 282 P.3d 291, 295 (Cal. 2012) (holding a minimum 110-year
sentence following three convictions of attempted murder violated the
Eighth Amendment); see also State v. Ragland, 836 N.W.2d 107, 120
(Iowa 2013) (discussing the split in authority over whether Graham
applies to a de facto life sentence), we do not believe the determination of
whether the principles of Miller or Graham apply in a given case should
turn on the niceties of epidemiology, genetic analysis, or actuarial
sciences in determining precise mortality dates. In coming to this
conclusion, we note the repeated emphasis of the Supreme Court in
Roper, Graham, and Miller of the lessened culpability of juvenile
offenders, how difficult it is to determine which juvenile offender is one of
the very few that is irredeemable, and the importance of a “meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation.” Graham, 560 U.S. at ___, 130 S. Ct. at 2030, 176 L. Ed.
2d at 845–46. We also note that in the flurry of legislative action that
has taken place in the wake of Graham and Miller, many of the new
statutes have allowed parole eligibility for juveniles sentenced to long
prison terms for homicides to begin after fifteen or twenty-five years of
incarceration.8

8See, e.g., Cal. Penal Code § 1170(d)(2) (West, Westlaw current through ch. 70 of
2013 Reg. Sess.) (offering juvenile offenders sentenced to life without parole several
opportunities to ask for a reduced sentence of twenty-five years to life beginning after
fifteen years imprisonment); Del. Code Ann. tit. 11 § 4209A (West, Westlaw current
through 79 Laws 2013, chs. 1–61) (providing the possibility of parole eligibility to
53

We conclude that Miller’s principles are fully applicable to a lengthy

term-of-years sentence as was imposed in this case because an offender

sentenced to a lengthy term-of-years sentence should not be worse off

than an offender sentenced to life in prison without parole who has the

benefit of an individualized hearing under Miller. We recognize that some

courts have viewed Miller more narrowly, holding that it applies only to

mandatory sentences of life without parole. See, e.g., People v. Sanchez,

No. B230260, 2013 WL 3209690, at *6 (Cal. Ct. App. June 25, 2013)

(unpublished opinion) (holding Miller does not apply to a mandatory
minimum prison term of fifty years, which stemmed from a homicide

conviction); People v. Perez, 154 Cal. Rptr. 3d 114, 120 (Ct. App. 2013)

(holding Miller does not apply to a mandatory thirty-year minimum

______________________
juveniles convicted of first-degree murder after twenty-five years); N.C. Gen. Stat. Ann.
§ 15A-1340.19A (West, Westlaw current through S.L. 2013–128, 130–144 of the 2013
Reg. Sess.) (providing parole eligibility for juveniles convicted of first-degree murder
after twenty-five years imprisonment); 18 Pa. Cons. Stat. Ann. § 1102.1(a) (West,
Westlaw current through Reg. Sess. Act 2013–11) (providing parole eligibility for
juveniles age fifteen and older convicted of homicide after thirty-five years and for those
under fifteen years of age after twenty-five years); Utah Code Ann. §§ 76-5-202(3)(e), 76-
3-207.7 (West, Westlaw current through 2013 Gen. Sess.) (providing that juveniles
convicted of first-degree murder are eligible for parole after serving twenty-five years);
Wyo. Stat. Ann. § 6-10-301(c) (West, Westlaw current through 2013 Gen. Sess.)
(providing parole eligibility for juveniles convicted of first-degree murder after twenty-
five years imprisonment); see also H.R. 1993, 89th Gen. Assemb., Reg. Sess. (Ark. 2013)
(amending Arkansas Code section 5–10–101(c) to provide that juveniles convicted of
first-degree murder may be sentenced to life in prison without possibility of parole for
twenty-eight years); H.R. 152, 2013 Reg. Sess. (La. 2013) (providing, in newly enacted
section 15.574.4(E) of Louisiana Revised Statutes, the possibility of parole eligibility for
juveniles convicted of first or second-degree murder after thirty-five years
imprisonment); L. 44, 103d Leg., 1st Sess. (Neb. 2013) (giving a trial court discretion to
impose a term-of-years sentence ranging from forty years to life after considering
specific factors related to youth); S. 239, 2013 Leg. Assemb., 88th Sess. (S.D. 2013)
(granting a trial court discretion to impose a sentence less than life without parole on a
juvenile convicted of first or second-degree murder following consideration of specific
factors related to youth and providing that life without parole “should normally be
reserved for the worst offenders and the worst cases”).
54

sentence for rape and committing a forcible lewd act); James v. United

States, 59 A.3d 1233, 1236–38 (D.C. 2013) (holding Miller does not apply

to a thirty-year-to-life sentence for first-degree murder); People v.

Richards, No. 4–11–1051, 2012 WL 7037330, at *5 (Ill. App. Ct. Nov. 26,

2012) (unpublished opinion). We think these cases seek to avoid the

basic thrust of Roper, Graham, and Miller by refusing to recognize the

underlying rationale of the Supreme Court is not crime specific. See

Miller, 567 U.S. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 420.

Further, our holding today is consistent with our approach in Bruegger,
where we applied Roper concepts in a cruel and unusual punishment

challenge to a term-of-years sentence. See 773 N.W.2d at 883–84.

We also recognize that some courts have held Miller does not apply

where the lengthy sentence is the result of aggregate sentences. See,

e.g., Bunch v. Smith, 685 F.3d 546, 550–51 (6th Cir. 2012) (holding Miller

does not apply to an eighty-nine-year sentence resulting from

consecutive fixed-term sentences for multiple nonhomicide offenses),

cert. denied, 569 U.S. ___, 133 S. Ct. 1996 (2013); Walle v. State, 99 So.

3d 967, 972–73 (Fla. Dist. Ct. App. 2012) (holding Miller does not apply

where the defendant received a ninety-two-year aggregate sentence). Cf.

Henry v. State, 82 So. 3d 1084, 1089 (Fla. Dist. Ct. App. 2012) (holding

Graham does not apply to an aggregate term-of-years sentence totaling

ninety years). We think it does for multiple reasons. First, we note that

in Miller, one of the juvenile offenders was convicted of multiple crimes.

567 U.S. at ___, 132 S. Ct. at 2461, 183 L. Ed. 2d at 415. The Supreme

Court, however, offered no indication in Miller that his convictions for

multiple crimes affected the analysis. Further, after Miller, the Supreme
Court in several cases involving aggregate crimes granted certiorari,

vacated the sentence, and remanded for consideration in light of Miller.
55

See Blackwell v. California, 568 U.S. ___, ___, 133 S. Ct. 837, 837, 184 L.

Ed. 2d 646, 646 (2013) (granting, vacating, and remanding People v.

Blackwell, 134 Cal. Rptr. 3d 608, 618 (Ct. App. 2011) (upholding

discretionary life-without-parole sentence for first-degree murder,

burglary of an inhabited dwelling, and attempted robbery of an inhabited

dwelling)); Mauricio v. California, 568 U.S. ___, ___, 133 S. Ct. 524, 524,

184 L. Ed. 2d 335, 335 (2012) (granting, vacating, and remanding People

v. Mauricio, No. B224505, 2011 WL 5995976, at *9 (Cal. Ct. App. Nov.

28, 2011) (unpublished opinion) (upholding three life-without-parole
sentences for one juvenile convicted on three counts of first-degree

murder)); Bear Cloud v. Wyoming, 568 U.S. ___, ___, 133 S. Ct. 183, 183–

84, 184 L. Ed. 2d 5, 5 (2012) (granting, vacating, and remanding Bear

Cloud v. State, 275 P.3d 377, 402 (Wyo. 2012) (upholding life-without-

parole sentence for juvenile convicted of first-degree murder, conspiracy

to commit aggravated burglary, and aggravated burglary)); Whiteside v.

Arkansas, 567 U.S. ___, ___, 133 S. Ct. 65, 66, 183 L. Ed. 2d 708, 708

(2012), (granting, vacating, and remanding Whiteside v. State, 383

S.W.3d 859, 866 (Ark. 2011) (upholding juvenile’s sentence of life-

without-parole for capital murder and thirty-five-years for aggravated

robbery)). While we think the fact that the defendants were convicted of

multiple crimes may well be relevant in the analysis of individual

culpability under Miller, we agree with appellate courts that have

concluded the imposition of an aggregate sentence does not remove the

case from the ambit of Miller’s principles. See, e.g., People v. Cerda, Nos.

B232572, B235674, 2013 WL 3778240 (Cal. Ct. App. July 18, 2013)

(unpublished opinion) (vacating a sentence of 410 months to life for one
second-degree murder conviction and twenty-three premeditated

attempted murder convictions under Miller); People v. Thomas, 150 Cal.
56

Rptr. 3d 361, 363, 382–83 (Ct. App. 2012) (vacating, in light of Miller, a

sentence of one hundred ninety-six years to life following convictions on

two counts of murder, three counts of attempted murder, and two counts

of shooting at an occupied motor vehicle and remanding for

resentencing); People v. Argeta, 149 Cal. Rptr. 3d 243, 245 (Ct. App.

2012) (vacating, under Miller and Caballero, a juvenile’s minimum

aggregate sentence totaling one hundred years for aiding and abetting in

one count of murder and in five counts of attempted murder and

remanding for resentencing).
3. Content of sentencing requirements in juvenile cases. Having

determined the rationale of Miller applies to this case, we now consider

what the district court is required to do in deciding whether a juvenile

defendant should be sentenced to a half century in prison. The Supreme

Court has directed that a trial court must undertake an analysis of

“[e]verything [it] said in Roper and Graham” about youth. Miller, 567 U.S.

at ___, 132 S. Ct. at 2467, 183 L. Ed. 2d at 422.

We think the direction from the Supreme Court that trial courts

consider everything said about youth in Roper, Graham, and Miller

means more than a generalized notion of taking age into consideration as

a factor in sentencing. See People v. Araujo, Nos. B235844, B240501,

2013 WL 840995, at *5 (Cal. Ct. App. March 7, 2013) (unpublished

opinion) (indicating the district court’s passing reference to the

defendant’s “tender age” in sentencing hearing does not eliminate need to

vacate sentence and remand in light of Miller requirements); People v.

Rosales, No. F061036, 2012 WL 4749427, at *24 (Cal. Ct. App. Oct. 5,

2012) (unpublished opinion) (“Miller changed the law on what factors are
applicable by elaborating extensively on the ways in which a defendant’s

youth is relevant . . . .”). Instead, we conclude article I, section 17
57

requires that a district court recognize and apply the core teachings of

Roper, Graham, and Miller in making sentencing decisions for long prison

terms involving juveniles. See, e.g., Araujo, 2013 WL 840995, at *5

(remanding for on-the-record findings where pre-Miller record did not

demonstrate consideration of Miller factors); State v. Simmons, 99 So. 3d

28, 28 (La. 2012) (per curiam) (remanding to the district court for

reconsideration of the defendant’s sentence of life imprisonment at hard

labor without possibility of parole imposed in 1995 in light of Miller and

requiring the court to make findings on the record); State v. Fletcher, 112
So. 3d 1031, 1036 (La. Ct. App. 2013) (finding that while sentencing

court considered some of the factors enumerated in Miller, the court’s

consideration lacked depth); Bear Cloud, 294 P.3d at 47–48 (vacating a

sentence and detailing Miller factors to be considered by the sentencing

court on remand).

First, the district court must recognize that because “children are

constitutionally different from adults,” they ordinarily cannot be held to

the same standard of culpability as adults in criminal sentencing. Miller,

567 U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418; see also

Ragland, 836 N.W.2d at 119. The constitutional difference arises from a

juvenile’s lack of maturity, underdeveloped sense of responsibility,

vulnerability to peer pressure, and the less fixed nature of the juvenile’s

character. Miller, 567 U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at

418; see also Graham, 560 U.S. at ___, 130 S. Ct. at 2026, 176 L. Ed. 2d

at 841; Roper, 543 U.S. at 569–70; 125 S. Ct. at 1195–96, 161 L. Ed. 2d

at 21–22.

If a district court believes a case presents an exception to this
generally applicable rule, the district court should make findings

discussing why the general rule does not apply. See, e.g., Simmons, 99
58

So. 3d at 28; Fletcher, 112 So. 3d at 1036–37. In making such findings,

the district court must go beyond a mere recitation of the nature of the

crime, which the Supreme Court has cautioned cannot overwhelm the

analysis in the context of juvenile sentencing. See Graham, 560 U.S. at

___, 130 S. Ct. at 2032, 176 L. Ed. 2d at 847; Roper, 543 U.S. at 572–73,

125 S. Ct. at 1197, 161 L. Ed. 2d at 24. Further, the typical

characteristics of youth, which include immaturity, impetuosity, and

poor risk assessment, are to be regarded as mitigating, not aggravating

factors. Miller, 567 U.S. at ___, 132 S. Ct. at 2467–69, 183 L. Ed. 2d at
422–24.

Second, the district court must recognize that “[j]uveniles are more

capable of change than are adults” and that as a result, “their actions

are less likely to be evidence of ‘irretrievably depraved character.’ ”

Graham, 560 U.S. at ___, 130 S. Ct. at 2026, 176 L. Ed. 2d at 841

(quoting Roper, 543 U.S. at 570, 125 S. Ct. at 1195, 161 L. Ed. 2d at 22);

accord Miller, 567 U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418.

While some juvenile offenders may be irreparably lost, it is very difficult

to identify juvenile offenders that fall into this category. As the Supreme

Court noted, even expert psychologists have difficulty making this type of

prediction. Graham, 560 U.S. at ___, ___, 130 S. Ct. at 2026, 2029, 176

L. Ed. 2d at 841, 844; Roper, 543 U.S. at 573, 125 S. Ct. at 1197, 161 L.

Ed. 2d at 24. Further, the district court must recognize that most

juveniles who engage in criminal activity are not destined to become

lifelong criminals. Miller, 567 U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed.

2d at 419; Graham, 560 U.S. at ___, 130 S. Ct. at 2029, 176 L. Ed. 2d at

844; Roper, 543 U.S. at 570, 125 S. Ct. at 1195–96, 161 L. Ed. 2d at 22.
The “ ‘signature qualities’ of youth are all ‘transient.’ ” Miller, 567 U.S. at

___, 132 S. Ct. at 2467, 183 L. Ed. 2d at 422 (quoting Johnson, 509 U.S.
59

at 368, 113 S. Ct. at 2669, 125 L. Ed 2d at 306). Because “incorrigibility

is inconsistent with youth,” care should be taken to avoid “an irrevocable

judgment about [an offender’s] value and place in society.” Miller, 567

U.S. at ___, 132 S. Ct. at 2465, 183 L. Ed. 2d at 419 (citation and

internal quotation marks omitted).

Finally, and related to the previous discussion, the district court

should recognize that a lengthy prison sentence without the possibility of

parole such as that involved in this case is appropriate, if at all, only in

rare or uncommon cases. Miller, 567 U.S. at ___, 132 S. Ct. at 2469, 183
L. Ed. 2d at 424; see also Rosales, 2012 WL 4749427, at *24 (remanding

for sentencing court determination of whether the case presents the rare

or uncommon juvenile offender whose crime reflects incorrigible

corruption).

At the same time, it bears emphasis that while youth is a

mitigating factor in sentencing, it is not an excuse. See Miller, 567 U.S.

at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424; Graham, 560 U.S. at ___,

130 S. Ct. at 2030, 176 L. Ed. 2d at 845–46; Roper, 543 U.S. at 570, 125

S. Ct. at 1196, 161 L. Ed. 2d at 22; see also Atkins, 536 U.S. at 320, 122

S. Ct. at 2252, 153 L. Ed. 2d at 349–50; Johnson, 509 U.S. at 368, 113

S. Ct. at 2669, 125 L. Ed. 2d at 306. Nothing that the Supreme Court

has said in these cases suggests trial courts are not to consider

protecting public safety in appropriate cases through imposition of

significant prison terms. Further, it bears emphasis that nothing in

Roper, Graham, or Miller guarantees that youthful offenders will obtain

eventual release. All that is required is a “meaningful opportunity” to
60

demonstrate rehabilitation and fitness to return to society. Graham, 560

U.S. at ___, 130 S. Ct. at 2030, 176 L. Ed. 2d at 845–46. 9

4. Application in this case. In this case, it is important to point out

that the district court did not have the benefit of Miller or this opinion

during sentencing. Miller extended the reasoning of Roper and Graham

outside the settings of the death penalty and nonhomicide offenses, and

we have concluded that the analysis of Miller, and by implication that of

Roper and Graham, applies to the very lengthy mandatory minimum

sentence without the possibility of parole at issue in this case. Now that
we and the Supreme Court have provided clearer guidance on the

considerations to be given in sentencing, the appropriate course is to

vacate the sentence imposed on Null and remand the case to the district

court. Because Miller and our opinion offer guidance regarding the

sentencing proceeding, the district court on remand should reopen the

9Some have suggested a lack of “certainty” in our disposition. The demand for

certainty, however, is a double-edged sword. In Miller, as here, more certainty could
have been achieved by a categorical approach—one saying that life without parole or its
equivalent can never be imposed on a juvenile offender. Categorical or rule-based
solutions may have the advantage of clarity, but they also have a countervailing
disadvantage, namely, that they limit case-by-case consideration of facts that might be
crucial to a satisfactory outcome. In other words, categorical rules are almost always
overinclusive, underinclusive, or both. The teaching of Miller is that the assumption
that juveniles should be treated as adults for the purposes of life-without-parole
sentences is dramatically overinclusive and constitutionally unacceptable. At the same
time, Miller declined to adopt the opposite rule-based approach, namely, that juveniles
can never be subject to life in prison without parole. We utilize the Miller approach in
this case.
Further, slippery-slope arguments, like arguments seeking certainty, are two-
way streets. Frederick Schauer, Slippery Slopes, 99 Harv. L. Rev. 361, 381 (1985) (“[I]n
virtually every case in which a slippery-slope argument is made, the opposing party
could with equal formal and linguistic logic also make a slippery slope claim.”). One
could plausibly employ a slippery-slope argument to suggest the elimination of the
Cruel and Unusual Punishments Clauses of the State and Federal Constitutions by
deferring to other branches of government.
61

record to allow the parties to make additional evidentiary presentation.

Bruegger, 773 N.W.2d at 885–86.

Because of our disposition of this case, it would be premature at

this time to consider issues that need not be decided today. For

instance, we do not consider whether the sentence in this case would be

cruel and unusual under a gross proportionality or any other type of

proportionality analysis. Any proportionality question will be considered

only after the district court applies the principles of Miller to Null’s

sentence. Further, we do not decide whether mandatory minimum
sentences for adults may be automatically imposed upon juveniles

without consideration of the diminished culpability of juvenile

defendants. Similarly, like in Miller, we do not decide whether lengthy

sentences of fifty years in prison or more are categorically banned. We

simply conclude that under article I, section 17 of the Iowa Constitution,

this case must be remanded to the district court for resentencing in light

of the requirement of Miller that the district court consider all that was

said in Roper and its progeny about the distinctive qualities of youth. We

emphasize that the sole issue on remand is whether Null may be

required to serve 52.5 years in prison before he is eligible for parole

consideration.

We recognize that upon remand, one of the issues the district court

will need to consider is the question of whether Null’s sentences for

second-degree murder and first-degree robbery will run concurrently or

consecutively. Ordinarily, such a determination rests within the sound

discretion of the district court. Here, however, the district court must

consider whether the imposition of consecutive sentences would result in
a prison term of such length that it cannot survive under the cruel and
62

unusual punishment provision of the Iowa Constitution. Cf. People v.

Keough, 120 Cal. Rptr. 817, 825–26 (Ct. App. 1975).

V. Conclusion.

For the reasons expres

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4249459. Public record. Not legal advice.