Amended August 16, 2017 State of Iowa v. Bradley Steven Graham ( 2017 )

IN THE SUPREME COURT OF IOWA
No. 15–1464
Filed May 25, 2017
Amended August 16, 2017
STATE OF IOWA,
Appellee,
vs.
BRADLEY STEVEN GRAHAM,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Jeffrey D.
Farrell, Judge.
Defendant seeks further review of a denial of a motion to correct an
illegal sentence. DECISION OF COURT OF APPEALS AND JUDGMENT
OF DISTRICT COURT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Timothy M. Hau and Kevin R.
Cmelik, Assistant Attorneys General, John P. Sarcone, County Attorney,
and Nan Horvat, Assistant County Attorney, for appellee.
2
APPEL, Justice.
In this case, Bradley Graham, a juvenile offender convicted of one
count of sex abuse in the third degree, challenges his lifetime special
sentence of parole and the lifetime requirement that he register as a sex
offender as cruel and unusual punishment under the Eighth Amendment
of the United States Constitution and under article I, section 17 of the
Iowa Constitution. The district court held Graham’s lifetime special
sentence and lifetime registration requirement were not cruel and
unusual punishment because a juvenile offender could petition the Iowa
Department of Corrections for discharge from both the lifetime special
sentence and the lifetime registration requirement.
Graham appealed on the grounds that the special sentence and
registration requirements violated the Cruel and Unusual Punishment
and Due Process Clauses of the United States and Iowa Constitutions.
The court of appeals affirmed the district court. We granted further
review. We now affirm the decision of the court of appeals and the
judgment of the district court.
I. Factual and Procedural Background.
A. Guilty Plea to One Count of Sexual Abuse. Graham was
charged in 2010 with three counts of sexual abuse in the third degree in
violation of Iowa Code sections 709.1 (defining sexual abuse), 709.4(1)
(sexual abuse in the third degree by force or against the will), and
709.4(2)(b) (sexual abuse in the third degree and the other person is
twelve or thirteen years old) (2009) for conduct occurring when Graham
was seventeen years old. These charges related to sex acts that allegedly
occurred involving Graham and T.C. when T.C. was thirteen years of age.
On November 15, 2010, Graham pled guilty to one count of third-
degree sexual abuse as the result of a sex act with T.C. when Graham
3
was seventeen years of age and T.C. was thirteen years of age. See Iowa
Code § 709.4(2)(b). Graham did not plead guilty on the basis of “by force
or against the will” under Iowa Code section 709.4(1). Graham was
immediately sentenced to an indeterminate period not to exceed ten
years. Under Iowa Code section 903B.1, Graham was sentenced to a
special sentence of lifetime supervision by the department of corrections.
Graham was also required to register for life on the sex offender registry
when he was released under Iowa Code section 692A.16.
B. Motion and Hearing on Illegal Sentence. On September 6,
2013, Graham filed a pro se motion to correct an illegal sentence. In the
handwritten explanation accompanying the motion, Graham argued,
among other things, that the special sentence of lifetime parole and
lifetime sex offender registration requirement were “inhumane” because
he was a juvenile at the time of the offense.
A hearing was held on Graham’s motion on September 4, 2014.
The State did not contest whether Graham should receive a resentencing
hearing. The district court ordered a resentencing hearing based on the
agreement of the parties.
Prior to the hearing on resentencing, Graham was discharged from
incarceration and began serving his lifetime special sentence. Pursuant
to the lifetime special sentence, Graham was placed at a work-release
program at the Fort Des Moines Community Corrections Center.
According to an officer at the work-release program, Graham was
participating in sex offender treatment and other support programs while
at the facility.
The resentencing hearing was held on August 18, 2015. Graham’s
appointed counsel did not modify Graham’s original application.
Graham’s counsel also did not file a brief before the district court.
4
At the resentencing hearing, Graham’s counsel argued that under
Iowa Code section 901.5(14) (2015), the judge could suspend any part of
a juvenile’s sentence in whole or in part, including the special sentence
of lifetime parole. Graham’s counsel asked the judge to suspend all but
ten years of the special sentence of lifetime parole. Graham’s counsel
argued the special sentence of lifetime parole was punitive, because if
Graham violated the terms of parole, Graham would face additional
prison time. Graham’s counsel specifically did not challenge a special
sentence of parole of up to ten years. Graham’s counsel challenged the
sentence only to the extent it imposed a lifetime of parole.
Graham’s counsel also argued that “the 2,000-foot rule”
established in Iowa Code section 692A.114 was punitive and the court
had the authority to suspend part of the sentence under section
901.5(14). Graham’s counsel noted that if Graham violated the 2000-
foot rule, new criminal charges may be filed under Iowa Code section
692A.111. Graham’s counsel asked the court to immediately suspend
the 2000-foot rule as it applied to Graham.
In support of his motion for resentencing, Graham offered an
August 17, 2015 email from his parole officer, James Michels. According
to Michels, Graham arrived at the Fort Des Moines Community
Corrections Center on April 15, 2015. He had obtained employment and
was a hard worker. He was attending a sex offender treatment group
and was on time and participating in the group. Since coming to the
facility, Graham had been written up for two major violations, one
involving being out of place and the other for possession or use of
alcohol. Michels concluded that Graham “has been honest when he
made poor choices and accepted the consequences.” Michels expressed
5
the hope “that his special [sentence] can be modified due to his offense
happening when he was 17 years old.”
On the question of whether the special lifetime sentence of parole
was cruel and unusual, the State argued Graham was not without hope.
The State asserted Graham could request the department of corrections
to release him from his special sentence of lifetime parole at any time.
See Iowa Code § 906.15. Likewise, the State argued, Graham could
apply to the department of corrections to be released from the sex
offender registry requirement. See id. § 692A.128.
The State argued the district court could not reduce the lifetime
special sentence to a special sentence of a term of years or suspend the
sex offender registration requirement. According to the State, Graham’s
sole recourse was to request a modification of the special sentence or
registration requirements through the appropriate administrative
channels.
In addition to Michels’s letter, the district court also had before it
Graham’s original presentence investigation and a progress report. The
presentence investigation outlined a history of juvenile and adult
infractions, mostly involving burglary and theft. As a juvenile, Graham
resided for a period of time at the Eldora Training School, earning a high
school diploma there. Graham reported he had been physically abused
by his mother’s boyfriend when he was around seven or eight years old.
He was taken away from his mother at age eight and lived with his
grandmother until she passed away. At that time, he began living with
his mother again and started “getting into trouble.” Graham reported
contact and visits with his father, who was serving a twenty-five-year
prison sentence in Anamosa State Prison.
6
The court progress report dated May 12, 2015, indicated that
Graham had a risk assessment score for violence of “3 (moderate)” and a
victimization score of “4 (moderate/high).” The progress report listed a
number of infractions in prison. Because of scheduling and disciplinary
reasons, he was unable to complete the sex offender treatment program
prior to his release on parole. The progress report indicated that Graham
met diagnostic criteria for substance dependence or abuse related to
marijuana and alcohol. According to assessment tools utilized by the
department of corrections, Graham was categorized in a group that had
“a below average probability of success and an above average chance of
violent criminal activity.” The department of corrections’
recommendations were “for compliance with [an] on-going mental health
treatment plan and continued participation in an intensive sex offender
treatment program.”
After the State concluded its argument, the district court gave
Graham an opportunity to make a statement, which he declined. The
court found that Graham was eligible for parole on the day he began his
special sentence. According to the court, the special sentence did not
carry with it any mandatory minimum. The court emphasized that it did
not believe it had the authority to “stop the special sentence at a certain
point in time.” The court read Iowa Code section 901.5(14) as
authorizing it to enter a suspended sentence or suspend part of a
mandatory sentence, but not to cut off Graham’s special sentence.
The district court did not expressly address the issue of Graham’s
challenge to the 2000-foot rule. But it stated,
And the Sex Offender Registry laws are going to apply to you.
But they apply to anyone that commits a sex offense. And
there’s other case law to suggest that’s not a violation of the
cruel and unusual punishment clause of the Constitution
7
either. So I think that decision is compliant with the law
that governs what I have to do.
After the hearing, the district court entered a written order. The
court ruled the special sentence was not cruel and unusual. Citing State
v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014), the court noted the length of
the sentence was not unconstitutional and the court did not have the
authority to cut the length of the special sentence. The court did not
specifically address in its written order the constitutionality of the 2000-
foot rule of the sex offender registry. The court denied Graham’s motion
to correct an illegal sentence.
Graham appealed. We transferred the case to the court of appeals.
C. Issues Raised on Appeal. As an initial matter, the court of
appeals held that a defendant does not have a right of appeal for a denial
of a motion to correct an illegal sentence. The court therefore chose to
treat Graham’s appeal as a petition for writ of certiorari and granted the
writ. The court declined to extend our juvenile cruel-and-unusual-
punishment cases to lifetime special sentence or sex offender registration
categorically with respect to juveniles. See State v. Sweet, 879 N.W.2d
811 (Iowa 2016); Lyle, 854 N.W.2d 378; State v. Ragland, 836 N.W.2d
107 (Iowa 2013); State v. Null, 836 N.W.2d 41 (Iowa 2013). The court of
appeals also held the special sentence and sex offender registration were
not grossly disproportionate to the gravity of Graham’s offense, especially
given the availability of early discharge and modification. Finally, the
court of appeals held that Graham’s due process challenges to his
sentence were not preserved because they were not raised before the
district court.
Graham applied for further review. We granted Graham’s
application. On appeal, Graham claims (1) a mandatory special sentence
8
of lifetime parole is categorically cruel and unusual punishment and
violates due process when imposed on a juvenile, (2) mandatory lifetime
sex offender registration is categorically cruel and unusual punishment
and violates due process when imposed upon a juvenile, and (3) a
mandatory special sentence of lifetime parole and mandatory lifetime sex
offender registration, as applied to Graham, amount to cruel and
unusual punishment because the punishment is grossly
disproportionate to the underlying offense.
II. Standard of Review.
A defendant may challenge the legality of a sentence at any time.
State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009); accord Lyle, 854
N.W.2d at 382. While we ordinarily review challenges to illegal sentences
for errors at law, we review allegedly unconstitutional sentences de novo.
Lyle, 854 N.W.2d at 382; Ragland, 836 N.W.2d at 113. Statutes are
presumed constitutional—to rebut this presumption, one must prove the
statute unconstitutional beyond a reasonable doubt. State v. Wade, 757
N.W.2d 618, 622 (Iowa 2008); State v. Seering, 701 N.W.2d 655, 661
(Iowa 2005). A statute is unconstitutional beyond a reasonable doubt if
one refutes “every reasonable basis upon which the statute could be
found to be constitutional.” Seering, 701 N.W.2d at 661 (quoting State v.
Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002)).
III. Challenge to a Special Sentence of Lifetime Parole for a
Juvenile Offender.
A. Introduction. In this case, Graham seeks to build on our
cruel and unusual punishment caselaw for juvenile offenders. In Sweet,
we declared categorically that a juvenile offender cannot be sentenced to
life without the possibility of parole. 879 N.W.2d at 839. In Lyle, we
9
held that mandatory minimum sentences cannot be imposed without an
individualized hearing. 854 N.W.2d at 404.
B. Relevant Constitutional and Statutory Provisions.
1. Constitutional provisions. The Eighth Amendment to the United
States Constitution provides, “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”
U.S. Const. amend. VIII. Article I, section 17 of the Iowa Constitution
provides, “Excessive bail shall not be required; excessive fines shall not
be imposed, and cruel and unusual punishment shall not be inflicted.”
Iowa Const. art. I, § 17. Although state supreme courts are free to
develop their own cruel and unusual punishment jurisprudence
independent of federal law and some have done so, parties often decline
to advance a different standard under state constitutions. Even so, we
do not necessarily apply the federal standards in a fashion identical to
the United States Supreme Court. State v. Pals, 805 N.W.2d 767, 771–
72 (Iowa 2011); Bruegger, 773 N.W.2d at 883; Racing Ass’n of Cent. Iowa
v. Fitzgerald, 675 N.W.2d 1, 5 (Iowa 2004).
2. Relevant statutory provisions. The relevant statutory provision
with respect to Graham’s challenge to his special sentence is Iowa Code
section 903B.1. Under this Code provision, a person convicted of certain
sex offenses, including the offense to which Graham pled guilty, is
subject
to a special sentence committing the person into the custody
of the director of the Iowa department of corrections for the
rest of the person’s life, with eligibility for parole as provided
in chapter 906. The board of parole shall determine whether
the person should be released on parole or placed in a work
release program.
Id. § 903B.1. This special sentence in essence provides for a lifetime
supervision involving either parole or work release for the offender. Iowa
10
Code section 903B.1 further provides that the sentence commences upon
completion of the sentence imposed under any criminal sentencing
provisions for the underlying criminal offense. Id.
A person serving a special sentence is placed on the corrections
continuum in chapter 901B. Id. The terms and conditions of the special
sentence, including violations, are subject to the same set of procedures
as other violations of parole and work release in ordinary sentencing. Id.
A revocation of release for violation of the provision of the special
sentence shall not be for a period greater than two years for the first
revocation and five years for any subsequent revocation. Id.
A person serving a mandatory special sentence of lifetime parole,
however, is eligible for early release. According to Iowa Code section
906.15, “If a person has been sentenced to a special sentence under
section 903B.1 . . . , the person may be discharged early from the
sentence in the same manner as any other person on parole.” However,
a person convicted of certain crimes including Iowa Code section 709.4
“shall not be discharged from parole until the person’s term of parole
equals the period of imprisonment specified in the person’s sentence,
less all time served in confinement.” Id. § 906.15.
C. Positions of the Parties. Graham argues under the principles
of Lyle, we should declare that a mandatory lifetime special sentence of
parole is cruel and unusual as applied to juvenile offenders. See 854
N.W.2d at 390–96. Graham recognizes that previous Iowa cases rejected
constitutional challenges to the lifetime special sentence of parole. See
Wade, 757 N.W.2d at 624; State v. Sallis, 786 N.W.2d 508, 518 (Iowa Ct.
App. 2009); State v. Harkins, 786 N.W.2d 498, 508 (Iowa Ct. App. 2009);
State v. Jorgensen, 785 N.W.2d 708, 717 (Iowa Ct. App. 2009). Graham
argues, however, that these cases did not involve juveniles and were
11
decided prior to the United States Supreme Court cases of Roper v.
Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005), Graham v. Florida, 560
U.S. 48, 130 S. Ct. 2011 (2010), and Miller v. Alabama, 567 U.S. 460,
132 S. Ct. 2455 (2012), and our juvenile cases. Graham urges that we
take a fresh look at the issues in light of evolving caselaw. Specifically,
he draws our attention to State v. Dull, 351 P.3d 641 (Kan. 2015). In
Dull, the Kansas Supreme Court held that mandatory lifetime
supervision of juvenile sex offenders violated the Eighth Amendment. Id.
at 660. The same problem that we identified with mandatory life without
the possibility of parole for juvenile offenders in Ragland, Null, and State
v. Seats, 865 N.W.2d 545 (Iowa 2015), Graham asserts, infects
mandatory lifetime special sentences. According to Graham, under Iowa
Code section 903B.1, the sentencing court has no discretion in imposing
a less severe sentence after factoring in the individual characteristics of
the juvenile offender.
In response to the State’s argument that he failed to exhaust
administrative remedies, Graham asserts he is not challenging a parole
decision, but rather the automatic imposition of a criminal punishment.
Additionally, Graham argues, the State waived the exhaustion issue by
failing to raise the argument before the district court.
The State initially argues that Graham has failed to exhaust his
administrative remedies with the board of parole. Under Iowa Code
section 906.15, the State points out, a special sentence is governed by
the same rules as parole. According to the State, the decisions regarding
parole continuance, modification, and revocation are parole decisions
and not sentencing decisions. The State argues that an administrative
action is the exclusive means that Graham has in challenging parole
decisions under the Iowa Administrative Procedures Act.
12
The State also argues that a lifetime special sentence is not cruel
and unusual punishment. Under United States and Iowa juvenile
offender caselaw, the problem with life without parole or mandatory
minimum sentences is, the State asserts, the lack of opportunity for
parole. “[P]arole eligibility,” the State stresses, “cures the constitutional
violation.” In the case of special sentences, the special sentence itself is
parole. Additionally, this special sentence may be discharged when the
offender demonstrates that he can abide by society’s laws without
supervision. The “lifetime” special sentence is not necessarily for life.
D. Overview of Application of Cruel and Unusual Punishment
for Juvenile Offenders. The Cruel and Unusual Punishment Clause
“embraces a bedrock rule of law that punishment should fit the crime.”
Bruegger, 773 N.W.2d at 872; see also Weems v. United States, 217 U.S.
349, 367, 30 S. Ct. 544, 549 (1910) (“[I]t is a precept of justice that
punishment for crime should be graduated and proportioned to [the]
offense.”). The notion that punishment should fit the crime, however, is
an abstract generality. The United States Supreme Court has struggled
to develop a coherent framework to implement that generality.
Three recent United States Supreme Court cases have explored the
application of the Cruel and Unusual Punishment Clause to juvenile
offenders. In Roper, the Court held the Eighth Amendment categorically
prohibited the imposition of the death penalty on defendants who were
juveniles at the time of the offense. 543 U.S. at 578, 125 S. Ct. at 1200.
The Roper Court analyzed “the evolving standards of decency that mark
the progress of a maturing society” by seeking evidence of a national
consensus and by bringing its own independent judgment to bear on the
question. Id. at 561, 563, 125 S. Ct. at 1190, 1192 (quoting Trop v.
Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 598 (1958) (plurality opinion)).
13
The Court also articulated the broad areas of fundamental difference
between juvenile and adult defendants. Id. at 569–70, 125 S. Ct. at
1195–96. Juveniles lack maturity and often have “an underdeveloped
sense of responsibility . . . [which] often result[s] in impetuous and ill-
considered actions and decisions.” Id. at 569, 125 S. Ct. at 1195
(quoting Johnson v. Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 2668–69
(1993)). “[J]uveniles are more vulnerable or susceptible to negative
influences and outside pressures, including peer pressure.” Id. Finally,
“the character of a juvenile is not as well formed as that of an adult. The
personality traits of juveniles are more transitory, less fixed.” Id. at 570,
125 S. Ct. at 1195.
These fundamental differences mean that juveniles lack the same
moral responsibility as adults and are less likely to have an “irretrievably
depraved character” due to the transitory nature of youth. Id. at 570,
125 S. Ct. at 1195–96. Because of this, some penological justifications
apply with less force to juvenile defendants—retribution, because
juveniles lack the same moral culpability, and deterrence, because
juveniles often do not engage in a cost-benefit analysis that attaches any
real weight to punishment. Id. at 571–72, 125 S. Ct. at 1196. In a later
case, the Court also explained that the goal of incapacitation applies with
less force toward juveniles, because very few juveniles are truly
incorrigible and it is exceedingly difficult to determine which rare juvenile
is so. Graham, 560 U.S. at 72–73, 130 S. Ct. at 2029 (holding juvenile
offenders who did not commit homicide may not be sentenced to life
without the possibility of parole); see also Miller, 567 U.S. at 489–90, 132
S. Ct. at 2475 (holding mandatory juvenile life without possibility of
parole cruel and unusual); cf. Sweet, 879 N.W.2d at 830–32
(summarizing the United States Supreme Court caselaw).
14
Our cases have extended the reasoning of Roper, Graham, and
Miller under the Iowa Constitution, article I, section 17. See, e.g., Sweet,
879 N.W.2d at 839; Seats, 865 N.W.2d at 558; Lyle, 854 N.W.2d at 404;
Ragland, 836 N.W.2d at 122; State v. Pearson, 836 N.W.2d 88, 97 (Iowa
2013); Null, 836 N.W.2d at 76; Bruegger, 773 N.W.2d at 886. As we
explained in Sweet, our cases have embraced the general principles of
the Roper–Graham–Miller trilogy and have applied them to de facto life
sentences, very long sentences, and relatively short sentences. 879
N.W.2d at 834.
In Lyle, we held that mandatory minimum prison sentences which
deprived courts of the discretion to consider the youth of the offender as
a mitigating factor were cruel and unusual punishment under the Iowa
Constitution, no matter the length of the mandatory minimum. 854
N.W.2d at 404. Lyle did not declare that minimum prison sentences
per se were unconstitutional, but only that the mandatory imposition of
minimum adult prison sentences on juvenile offenders violated the cruel
and unusual punishment clause of article I, section 17 of the Iowa
Constitution. Id. According to Lyle, some juveniles might deserve the
same minimum prison sentence as an adult, but others, because of their
youth, may be less culpable. Id. at 403. But, as stated in Null, the
Miller-factors must be considered at an individualized sentencing hearing
before a judge may sentence a juvenile to a minimum adult prison term.
Null, 836 N.W.2d at 75. As noted in Null, however, there is no guarantee
of release, only a “ ‘meaningful opportunity’ to demonstrate rehabilitation
and fitness to return to society.” Id. (quoting Graham, 560 U.S. at 75,
130 S. Ct. at 2030).
E. Empirical Studies Related to Recidivism Rates of Juvenile
Offenders. There have now been several decades of empirical research
15
on the recidivism rates of juvenile sex offenders. The literature suggests
most juvenile offenders who commit sex offenses will outgrow their
behavior and that juveniles adjudicated delinquent for sex offenses have
extremely low rates of recidivism generally and even lower rates of sexual
reoffending. See Amy E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1,
14–15 (2013) [hereinafter Halbrook].
In 2006 and 2007, Franklin Zimring and his associates conducted
two studies designed to examine the risk of recidivism among people
adjudicated delinquent for sex offenses. See Franklin E. Zimring et al.,
Investigating the Continuity of Sex Offending: Evidence from the Second
Philadelphia Birth Cohort, 26 Just. Q. 58 (2009) [hereinafter Zimring,
Philadelphia]; Franklin E. Zimring et al., Sexual Delinquency in Racine:
Does Early Sex Offending Predict Later Sex Offending in Youth and Young
Adulthood?, 6 Criminology & Pub. Pol’y 507 (2007) [hereinafter Zimring,
Racine]. The studies showed juvenile sex offenders pose little risk of
recidivism, especially in adulthood. Zimring, Philadelphia, 26 Just. Q. at
65–67; Zimring, Racine, 6 Criminology & Pub. Pol’y at 526–28; see also
Halbrook, 65 Hastings L.J. at 13–14. Similarly, a study by Michael
Caldwell of 265 juveniles released from a secure facility found that
during a period of about six years, the prevalence of new sex offenses for
those previously adjudicated for sex offenses was 12.1% compared to
11.6% for those previously adjudicated for non-sex offenses. Michael F.
Caldwell et al., An Examination of the Sex-Offender Registration and
Notification Act as Applied to Juveniles: Evaluating the Ability to Predict
Sexual Recidivism, 14 Psychol., Pub. Pol’y, & L. 89, 96–97, 101 (2008).
Finally, studies by Elizabeth Letourneau and her associates in 2008 and
2009 showed that juvenile sex offender reconviction rate for sexual
offenses was less than one percent. Elizabeth J. Letourneau & Kevin S.
16
Armstrong, Recidivism Rates for Registered and Nonregistered Juvenile
Sex Offenders, 20 Sexual Abuse: J. Res. & Treatment 393, 400 (2008);
see Halbrook, 65 Hastings L.J. at 15 n.96.
F. Iowa Caselaw on Special Sentences of Lifetime Parole for
Adults. We have not had occasion to consider the application of cruel
and unusual punishment principles to the imposition of lifetime parole
sentences on juvenile offenders. We have, however, considered the
question in connection with adult offenders.
In State v. Lathrop, we considered whether a special sentence of
lifetime parole could be applied retroactively to crimes which occurred
shortly before Iowa Code section 903B.1 went into effect. 781 N.W.2d
288, 291 (Iowa 2010). In concluding that application of the newly passed
special sentence of lifetime parole was a violation of the ex post facto
clause, Lathrop held that a special sentence of lifetime parole was a
punishment. Id. at 297. According to Lathrop, the special sentence of
lifetime parole was punishment because the special sentence would
begin after an offender’s release from incarceration, would impose
affirmative restraints and disabilities similar to or greater than
traditional parole, and was imposed without any finding that the offender
posed a risk to the safety of others at the time of release from
incarceration. Id. at 296.
In State v. Wade, we considered whether an adult offender’s
challenge to a ten-year special sentence of parole for indecent exposure,
a serious misdemeanor, amounted to cruel and unusual punishment.
757 N.W.2d 618, 622 (Iowa 2008). Wade argued that the ten-year special
sentence, with the possibility of imprisonment for two or five-year terms
for violations, was grossly disproportionate to the maximum sentence for
serious misdemeanors. Id. at 623. In Wade, we cited Seering, 701
17
N.W.2d 670, where the court held that a two-year sentence for violating
the sex offender registration law was not cruel and unusual. Id. at 624.
The Wade court then summarily concluded the special sentence was not
grossly disproportionate to the crime of indecent exposure because any
additional imprisonment would only result if Wade violated the terms of
the special sentence. Id.
In State v. Tripp, an adult offender challenged a lifetime special
sentence of parole as cruel and unusual as applied to a conviction for
sexual assault in the third degree. 776 N.W.2d 855, 857 (Iowa 2010). At
the time of the case, Tripp was serving five years of probation, so had not
yet begun his special sentence. Id. at 858. We held the issue was not
ripe for our review. Id. at 859. The Tripp court stated, “We do not know
the terms of his parole and the extent to which those terms may be
onerous. Although standard parole terms exist, any or even all of those
terms may be deleted.” Id. at 858. We further said,
It is also significant that the special sentence is not
necessarily for life. Section 903B.1 provides for the
possibility of release from parole under chapter 906 if the
parole board determines that the offender is “able and willing
to fulfill the obligations of a law abiding citizen without
further supervision.”
Id. (quoting Iowa Code § 906.15). We emphasized that we could not
know whether or not Tripp might be released from parole at any time. Id.
G. Caselaw from Other State Jurisdictions. The Supreme Court
of Kansas recently considered whether a lifetime special sentence of
parole was cruel and unusual. See Dull, 351 P.3d 641. In Dull, the
defendant brought an Eighth Amendment challenge to a special sentence
imposing lifetime postrelease supervision on an offender who was
convicted of “aggravated indecent liberties with a child,” a felony, and
who was a juvenile at the time of the offense. Id. at 647–48. The Dull
18
court canvassed the Roper–Graham–Miller United States Supreme Court
caselaw, before applying the two-prong Graham analysis for categorical
challenges under the Eighth Amendment. Id. at 650.
After a lengthy analysis, including a comprehensive review of state
law on lifetime supervision, the Dull court concluded that Dull had failed
to show a national consensus against lifetime postrelease supervision for
juvenile offenders. Id. at 660. Yet, after applying its own judgment, the
Kansas court concluded that mandatory lifetime supervision for juvenile
offenders was cruel and unusual because (1) juveniles have diminished
moral culpability because of all the characteristics of juveniles described
in Miller and (2) mandatory lifetime supervision is a severe sentence in
and of itself because the supervision restricts the juvenile’s liberty and
severely restricts the juvenile’s life. Id.
The Supreme Court of Nebraska, however, came to a contrary
result in State v. Boche, 885 N.W.2d 523 (Neb. 2016). Under Nebraska
law, certain sex offenders are subject to lifetime community supervision,
but unlike the Kansas provision, the level of supervision for each
offender is tailored to the individual after a risk assessment, with a
requirement that the restrictions imposed be the least restrictive
available based on the risk of recidivism and public safety. Id. at 532–
33. The offender has a right to appeal the conditions and argue that less
restrictive conditions are available and should be imposed. Id. at 533.
Additionally, the restrictions imposed were reviewed on a yearly basis
and would be modified as warranted. Id. at 538.
After a lengthy analysis, the Boche court held that the lifetime
postrelease supervision was not cruel and unusual under the Eighth
Amendment. Id. at 538–39. Of particular importance to the Nebraska
court was the individualized nature of the restrictions imposed on
19
offenders by the lifetime community supervision. Id. at 537–38.
Additionally, the fact that restrictions may be appealed and revised as
needed throughout the offender’s life rendered the sentencing scheme
flexible enough to pass Miller muster. Id. at 538.
The Boche court also explained,
We recognize that the Kansas Supreme Court recently
held that mandatory lifetime postrelease supervision is cruel
and unusual punishment when applied to a juvenile sex
offender. In doing so, that court explicitly found the
provisions of Kansas’ supervision were “more severe than
most other jurisdictions” and recognized that the provisions
resulted in a “sentence that restricts the juvenile’s liberty for
life without any chance, hope, or legal mechanism of having
those restrictions lifted or even reduced.”
Id. (footnotes omitted). Finding the Nebraska statute’s community
supervision requirements “differ significantly and materially” from the
Kansas statute, the Boche court did not find the Kansas court’s opinion
helpful. Id.
H. Analysis of Cruel and Unusual Punishment in This Case.
We note at the outset that under the statute, Graham is eligible for
release from his special mandatory lifetime sentence of parole. The
statute is like that in Boche, 885 N.W.2d 523, where the Nebraska
Supreme Court found the statute did not violate cruel and unusual
punishment.
Graham claims there is reason to suspect the parole board may be
reluctant to discharge an offender from the special sentence, no matter
the original characteristics of the juvenile offender or the offender’s
demonstration of rehabilitation. But Graham has offered little to no
evidence to support this possibility. On appeal, Graham’s brief cites a
report to the general assembly from the Iowa Sex Offender Research
Council from January 2014, which provides general data about the
20
number of adult and juvenile offenders receiving a special sentence, but
there is no data about requests for discharge.
We faced a similar situation in State v. Louisell, 865 N.W.2d 590
(Iowa 2015). In Louisell, the appellant challenged her sentence of life
without parole for her first-degree murder conviction, which she
committed as a juvenile. Id. at 594. In the district court, she presented
evidence that she completed numerous educational courses and
programs while in prison, including obtaining an associate’s degree and
a bachelor’s degree; that she learned the trade of electrician’s helper; that
she was in numerous musical and religious activities in the prison; and
that she was a published author who mentored and tutored other
incarcerated women. Id. at 594–95. She presented letters of support
from the prosecuting attorney and judge that presided over her criminal
trial. Id. at 595. She also presented evidence she had a job if she was
released and a support system to help her reenter society upon her
discharge. Id.
The district court—after acknowledging it might not have the
statutory authority—held that Louisell’s sentence of life without parole
was illegal without a Miller-type hearing. Id. The district court
concluded after a Miller-type hearing that Louisell was entitled to the
possibility of parole. Id. The court further held, however, on the record
presented, that Louisell’s term in prison should be reduced to a term of
twenty-five years and that Louisell was entitled to release. Id.
In Louisell, the state conceded that Louisell’s original sentence
without a Miller-type hearing was invalid, but the State challenged the
district court’s ruling reducing Louisell’s prison term to twenty-five years
and ordering her release. Id. at 596. The gist of the state’s position was
21
that the parole board, and not the court, should make the determination
as to whether Louisell was entitled to release. Id.
On the record in Louisell, we sided with the state. Id. at 601. We
did not question that Louisell made a compelling showing regarding her
rehabilitation. Id. at 595. Nonetheless, we held there was no statutory
authority for the district to reduce her sentence to twenty-five years. Id.
at 597–98.
We next considered the district court’s alternate determination that
Louisell should be released on parole. Id. at 601. Louisell recognized
that ordinarily the parole board makes the determination, but argued
that her eligibility for parole was illusory, not real. Id. at 601–02. She
presented a newspaper article that suggested that since Miller, Ragland,
Null, and Pearson were decided, only one of thirty-eight juvenile offenders
originally sentenced to life without the possibility of parole had been
granted parole. Id. at 601.
We held, however, that her claim was not ripe. Id. at 602.
Because her life without the possibility of parole had just been vacated,
the parole board had not yet had an opportunity to consider whether she
should be released. Id. We stressed, however, that the meaningful
opportunity for parole must be realistic. Id. We left for another day
whether repeated cursory denials of parole of offenders who had shown
rehabilitation or maturity would evince that a meaningful or realistic
opportunity for release as required under our caselaw is illusory. Id.
We think Louisell is instructive in this case. With respect to the
possibility of release from parole, the statute here vests the parole board
with authority to make those decisions in the first instance.
We do note that under Iowa Code section 906.15, there is a
mandatory minimum period of parole. Specifically, the statute requires
22
that Graham’s parole extends at least as far as the maximum of his
underlying sentence or, in this case, ten years. We note, however, that
Graham twice specifically declined to attack a ten-year period of
probation at the district court in this postconviction-relief proceeding.
Instead, he focused his fire solely on the imposition of lifetime parole.
For that reason, we are not called upon to address the narrower question
of whether a minimum period of parole may be imposed on juvenile
offenders.
In our decision today, however, we do not consider the
constitutionality of a de facto refusal of the parole board to ever consider
release of lifetime parole for juvenile sex offenders. We have no occasion
to consider whether a blanket refusal to consider release from parole of a
class of juvenile offenders without a risk assessment that takes into
account the vicissitudes of youth and the opportunity to show
rehabilitation and maturity. If the parole board were to adopt such an
approach, then a question similar to that posed in Dull might be
presented. 351 P.3d at 660. We have no occasion to confront such an
issue today.
I. Conclusion. For the above reasons, and on the record
developed below, we conclude that Graham is not entitled to relief from
his sentence as cruel and unusual based on the limited claim related to
mandatory lifetime parole presented to the district court in this case.
IV. Challenge to Lifetime Sex Offender Registration as Cruel
or Unusual.
On appeal, Graham challenges his sentence of lifetime sex offender
registration under Iowa Code chapter 692A. The issue of the application
of lifetime sex offender registration to juvenile offenders has received
attention from commentators and in the courts. See, e.g., Catherine L.
23
Carpenter, Throwaway Children: The Tragic Consequences of a False
Narrative, 45 Sw. L. Rev. 461, 489–94 (2016); Heather Ellis Cucolo &
Michael L. Perlin, “They’re Planting Stories in the Press”: The Impact of
Media Distortions on Sex Offender Law and Policy, 3 U. Denv. Crim. L.
Rev. 185, 205–06 (2013); Phoebe Geer, Justice Served? The High Cost of
Juvenile Sex Offender Registration, 27 Dev. Mental Health L. 34, 38–50
(2008); Alex Duncan, Note, Calling a Spade a Spade: Understanding Sex
Offender Registration as Punishment and Implications Post-Starkey, 67
Okla. L. Rev. 323, 346–49 (2015).
In support of his argument, Graham cites In re C.P., 967 N.E.2d
729 (Ohio 2012). In In re C.P., the Ohio Supreme Court held lifetime sex
offender registration was unconstitutional as applied to juveniles under
the United States and Ohio Constitutions on cruel and unusual
punishment and due process grounds. Id. at 750. The Ohio Supreme
Court noted although states were required to conform with the provisions
of the Federal Sex Offender Registration and Notification Act (SORNA) or
risk loss of federal funds, many states engaged in foot-dragging,
particularly because of the inclusion of juveniles on registries. Id. at
738–39. The Ohio Supreme Court found a shift against the policy that
Ohio imposed to conform with SORNA. Id. at 739. Further, exercising
independent judgment, the Ohio Supreme Court considered the
culpability of juvenile offenders, the nature of the offenses, the severity of
punishment, and the application of the Graham factors. Id. at 740–46.
In contrast to In re C.P., the Supreme Court of Nebraska came to a
contrary conclusion in Boche, 885 N.W.2d 523. The Nebraska Supreme
Court noted that under its precedents, lifetime registration was not
punitive in nature. Id. at 531. It declined to revisit its past precedent on
the lifetime registration issue. Id. at 531–32.
 24
In the past, however, we have held, at least as applied to adults,
lifetime sex offender registration was not punitive under statutes then in
existence. Seering, 701 N.W.2d at 669; State v. Pickens, 558 N.W.2d
396, 400 (Iowa 1997). We have also held that an offender failed to show
that the 2000-foot rule was effectively banishment as applied to him, and
therefore punitive. Formaro v. Polk County, 773 N.W.2d 834, 844 (Iowa
2009). And, while a federal district court in Iowa concluded that lifetime
sex offender registration under Iowa Code chapter 692A was punitive
after the development of a thorough record in Doe v. Miller, 298 F. Supp.
2d 844, 871 (S.D. Iowa 2004), a divided United States Court of Appeals
for the Eighth Circuit reversed. Doe v. Miller, 405 F.3d 700, 723 (8th Cir.
2005).
In the district court, however, his counsel only attacked one aspect
of Iowa Code chapter 692A, namely, the application of the 2000-foot rule.
For instance, no claim was made that the lifetime registration
requirement was cruel and unusual because of its stigmatization of
juvenile offenders, and no claim was made that the requirement that
registrants personally appear periodically before the sheriff every three
months under threat of criminal prosecution was disproportionate. The
sole issue presented at the hearing was the viability of the 2000-foot rule.
At the outset, we note that no record was developed before the
district court on the impact of the 2000-foot rule on Graham. The case
is thus strikingly different than Doe, where plaintiffs presented the
federal district court with an elaborate record including testimony from
experts on supervision of sex offenders, maps showing the impact of the
2000-foot rule on available housing, and detailed testimony and
affidavits from sixteen offenders. 298 F. Supp. 2d at 849–65. Here, no
such presentation was made. As we noted in State v. Groves, when a
25
party chooses not to present evidence regarding the impact the statute
has on the party, we are unable to determine whether a residential
statute precludes the party from residing in a fashion that violates
constitutional norms. 742 N.W.2d 90, 93 (Iowa 2007).
Further, on the question of application of the 2000-foot rule to
juvenile offenders, Graham has not shown any injury in fact. At the time
of the hearing, he was a resident at the Fort Des Moines Community
Corrections Center. He did not choose his residency. It was chosen for
him. His choice of residency had nothing to do with the 2000-foot rule,
and he has not demonstrated any harm arising from it. As a result,
Graham has not demonstrated any injury in fact to entitle him to relief.
See Godfrey v. State, 752 N.W.2d 413, 419 (Iowa 2008); Alons v. Iowa
Dist. Ct., 698 N.W.2d 858, 868 (Iowa 2005).
V. Bruegger-Type Cruel and Unusual Punishment Challenge.
In addition to his categorical challenge, Graham argues the
mandatory lifetime special sentence of lifetime parole and the mandatory
lifetime registration are unconstitutional as applied to him under
Bruegger, 773 N.W.2d 862. In Bruegger, we held that an offender may
claim that a criminal sentence, though not necessarily facially invalid,
could be grossly disproportionate as applied to the specific offender and
thus violate the Cruel and Unusual Punishment Clauses of the United
States and Iowa. Id. at 873.
Because Graham lacks injury in fact with respect to the validity of
the 2000-foot residential restriction, we do not consider his as-applied
attack on it. But Graham has preserved and presented us with his
Bruegger-type challenge to his lifetime special sentence of parole. In
considering his challenge to his lifetime of parole, we must consider his
26
current status—namely that he is subject to parole but may be relieved
of parole obligations sometime in the future by the parole board.
At this time, based on the record before us, we cannot speculate
regarding what action the parole board may take in the future. See
Tripp, 776 N.W.2d at 858–59. What is before us is the narrow question
of whether the current parole restrictions amount to cruel and unusual
punishment as applied to Graham.
On the specific issue before us, Graham’s Bruegger-type argument
fails. Graham did not offer into evidence a copy of his parole conditions,
so we are hampered in our review. We have no way of assessing whether
particular parole conditions are problematic, but can only assess the
general framework of supervision provided when an offender is on parole.
We can look at the few records that were before the district court.
The presentence investigation report on Graham showed an extensive
juvenile offense history involving thefts and burglaries prior to his sexual
offense. He participated in anger management programming while in
juvenile placement. He was suspended and expelled from Newton High
School. He later received a high school diploma while in placement at
the Iowa Training School for Boys at Eldora.
The department of correction’s progress report that is part of the
record in this case indicates that Graham is assessed as having a
“moderate” risk of violence and a “moderate/high” risk of victimization.
According to the progress report, Graham meets the DSM-IV diagnosis
for substance dependence. His Jesness Inventory placed Graham in a
category of persons who “have a below average probability of success and
an above average chance of violent criminal activity.” The department of
corrections recommendations were for ongoing mental health treatment
27
and continued participation in an intensive sex offender treatment
program. Graham has not attacked any of these findings.
The record contains an email from Graham’s current parole officer.
The email indicates that while at the Fort Des Moines facility, Graham
has been employed and continues to attend a sex offender treatment
group daily. Graham’s parole officer indicates that Graham has had two
major written reports at the Fort Des Moines facility, one for being out of
place of assignment and the other for possession or use of alcohol. The
parole officer concludes by noting, “I am hopeful that his special
[sentence] can be modified due to his offense happening when he was 17
years old.”
Graham was discharged from prison in April 2015. At the time of
the district court hearing in this case, he had been on parole for a year
and a half. Given the factual record presented at the hearing, we see no
basis to interfere with his current parole status based on a claim that his
parole status violates the Cruel and Unusual Punishment Clauses of the
United States or Iowa Constitutions. Graham simply does not present
the kind of grossly disproportionate punishment based on his current
parole status to support a cruel and unusual punishment claim with
respect to his parole.
VI. Due Process Challenge.
Graham on appeal challenges his sentence on due process
grounds. The due process issue, however, was not raised in the district
court. We decline to address it on appeal. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002); Metz v. Amoco Oil Co., 581 N.W.2d 597,
600 (Iowa 1998).
28
VII. Conclusion.
For the above reasons, we conclude the decision of the court of
appeals and the judgment of the district court should be affirmed.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.