State of Iowa v. Yvette Marie Louisell

IN THE SUPREME COURT OF IOWA
No. 14–0175
Filed June 26, 2015
STATE OF IOWA,
Appellant,
vs.
YVETTE MARIE LOUISELL,
Appellee.
Appeal from the Iowa District Court for Story County, James C.
Ellefson, Judge.
The State appeals the sentence imposed on a juvenile convicted of
first-degree murder, contending the district court lacks authority to
impose it. DISTRICT COURT SENTENCE VACATED AND CASE
REMANDED WITH INSTRUCTIONS.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant
Attorney General, and Stephen H. Holmes, County Attorney, for
appellant.
Gordon E. Allen, Johnston, and Matthew L. Shimanovsky (until
withdrawal), Urbandale, for appellee.
Rita Bettis and Randall C. Wilson, Des Moines, and Ezekiel R.
Edwards and Steven M. Watt, New York, New York, for amici curiae
ACLU of Iowa and ACLU Foundation.
2
HECHT, Justice.
Recent decisions of this court have explored the constitutionality of
criminal sentences for juvenile offenders. See generally State v. Lyle, 854
N.W.2d 378 (Iowa 2014); State v. Ragland, 836 N.W.2d 107 (Iowa 2013);
State v. Pearson, 836 N.W.2d 88 (Iowa 2013); State v. Null, 836 N.W.2d
41 (Iowa 2013). Today we consider the nature and extent of a court’s
discretion in resentencing a juvenile offender convicted of a murder
committed in 1987. Because we conclude the district court lacked
authority to impose a determinate sentence of twenty-five years, but did
have authority to impose a sentence of life in prison with eligibility for
parole, we vacate the sentence and remand with instructions.
I. Background Facts and Proceedings.
In 1988, a jury convicted Yvette Louisell of first-degree murder,
stemming from the 1987 stabbing death of Keith Stilwell. At the time
she committed the crime, Louisell was seventeen years and five months
old and was a student at Iowa State University (ISU).
Louisell’s chaotic family background and home environment
heavily influenced and shaped the seventeen-year-old prior to the
homicide. Louisell’s mother suffered from mental illness, and her father
was often absent from the family home. When he was present, he and
Louisell’s mother were often violent with one another; Louisell’s first
memory is of her parents fighting. At age three, Louisell ingested LSD
she found in the house—not knowing what it was—and experienced
hallucinations. At age four, Louisell’s mother left the home, and soon
after that, Louisell’s parents divorced. During the next few years,
Louisell moved across state lines several different times and was shuttled
between homes in Michigan, Wisconsin, Illinois, and Ohio. Eventually,
Louisell’s grandmother became her legal guardian and primary parental
3
figure. Louisell attended nine different schools and never attended the
same school for two consecutive years until her junior and senior years
of high school in Michigan. Yet despite these difficult circumstances,
Louisell participated in programs for gifted students and even skipped a
grade in elementary school.
Unfortunately, the adversity Louisell faced throughout her
childhood did not dissipate once she reached high school and obtained
some locational stability. Her father remarried, but did not become more
supportive. On one particular occasion, Louisell watched her stepmother
chase her father with a knife and became so afraid of further violence
that she hid all the other knives in the house. Additionally, because she
was younger than her peers and behind them developmentally, Louisell
felt isolated from them.
Despite this considerable cumulative adversity, Louisell graduated
early from high school at age sixteen. She initially contemplated
attending college in Michigan or Indiana, close to home. However, for
financial reasons, she accepted a full tuition scholarship and
immediately enrolled in a summer enrichment program at ISU, hundreds
of miles from home. After Louisell arrived at ISU, she found the sudden
independence of a college student overwhelming. She began to struggle
academically and, with her self-confidence near zero, started drinking
heavily and using marijuana to escape from her emotional stress. As the
fall semester continued, Louisell’s grades continued to slip and she felt
hopeless.
Needing to earn money because she feared ISU would revoke her
scholarship for poor academic performance, Louisell answered an
advertisement seeking a model for art classes at a local art institute. She
initially declined employment because the institute informed her that
4
posing nude was a requirement of the position. However, she eventually
decided she needed the money and agreed to pose nude for one of the
institute’s classes. After she posed for a few sessions at the institute,
Stilwell, one of the students at the institute, befriended Louisell and
hired her to model privately in his home. See Louisell v. Dir. of Iowa
Dep’t of Corr., 178 F.3d 1019, 1021 (8th Cir. 1999). Stilwell was
physically handicapped and could walk only by using canes. See id.
Louisell agreed to the private sessions because Stilwell—an older student
twice Louisell’s age—offered to compensate her at four times the hourly
wage the institute paid her.
After several sessions in Stilwell’s home, Louisell decided she did
not want to continue modeling privately for Stilwell. Accordingly, she
informed Stilwell an upcoming session would be her last. During that
final session, Louisell contended at trial, Stilwell cornered her with a
knife—despite his handicap—and announced he was going to have sex
with her. Reacting instinctively, she claimed she wrested the knife from
Stilwell and stabbed him in self-defense to prevent him from raping her.
She left Stilwell’s home and took Stilwell’s wallet with her. She was later
apprehended while attempting to use Stilwell’s credit card to make a
purchase at a local mall. A jury rejected Louisell’s version of events and
her justification defense, returning a verdict finding Louisell guilty of
first-degree murder.
After Louisell’s conviction, she was sentenced to life imprisonment
without parole, 1 the only sentence authorized in Iowa Code section 902.1
1In this opinion, we use the acronym LWOP when referring to a sentence of life
without parole.
5
(1987) for that crime. 2 She unsuccessfully pursued a direct appeal and
two subsequent applications for postconviction relief in state court. Her
habeas petition filed in federal court was also denied. See Louisell, 178
F.3d at 1021–22, 1024. She has remained in state custody for twenty-
six years since her 1988 conviction and is currently incarcerated at the
Iowa Correctional Institution for Women (ICIW) in Mitchellville, Iowa.
In 2010, the United States Supreme Court held the Eighth
Amendment prohibits LWOP sentences for juveniles who commit
nonhomicide offenses; they must be afforded “some realistic opportunity
to obtain release.” Graham v. Florida, 560 U.S. 48, 82, 130 S. Ct. 2011,
2034, 176 L. Ed. 2d 825, 850 (2010). Seeking to extend Graham’s Eighth
Amendment protections to include juveniles convicted of homicide,
Louisell filed a motion to correct an illegal sentence in 2011. While the
motion was pending, the United States Supreme Court struck down
mandatory sentencing schemes that impose LWOP while failing to afford
juvenile offenders—even those convicted of homicide—an individualized
sentencing determination based on specific factors the Court identified.
Miller v. Alabama, 567 U.S. ___, ___, ___, 132 S. Ct. 2455, 2468, 2475,
183 L. Ed. 2d 407, 423, 430 (2012) (identifying five factors sentencing
courts must consider); Ragland, 836 N.W.2d at 115 n.6 (adopting the
Miller factors).
Louisell’s mandatory LWOP sentence fell within the category of
sentences Miller made invalid. Governor Terry Branstad subsequently
commuted Louisell’s LWOP sentence—along with the sentences of thirty-
seven other juvenile offenders—to life imprisonment with the possibility
2The language from the 1987 version of this statute remains in effect today. See
Iowa Code § 902.1(1) (2015).
6
of parole after sixty years in prison. See Ragland, 836 N.W.2d at 110–12
(reproducing one of the Governor’s commutation orders in its entirety).
Yet, the district court denied Louisell’s motion to correct an illegal
sentence, concluding Miller had only prospective effect. Louisell
appealed.
While Louisell’s appeal was pending, we held that, as applied to
one of the other thirty-seven LWOP sentences imposed on juvenile
offenders, the Governor’s commutation elevated form over substance.
See id. at 121. We explained that although parole was technically
available to the affected inmates after sixty years in prison, the
commuted sentences were “the functional equivalent of life without
parole” because they provided no meaningful opportunity for release. Id.
at 121–22. We also determined that Miller applies retroactively. Id. at
117.
Following our Ragland decision, we summarily vacated Louisell’s
sentence and remanded the case to the district court for an
individualized sentencing hearing. At the hearing, Louisell presented
testimony and exhibits tending to show she has been rehabilitated
during her twenty-six years in prison. For example, the record shows
Louisell completed numerous educational courses and programs while in
prison, including an associate’s degree in 1998 and a bachelor’s degree—
with magna cum laude honors—in 2009. 3 She learned at least one
trade—electrician’s helper—and participated in numerous other artistic,
musical, and religious activities at the prison. Further, Louisell is a
published author who mentors and tutors other incarcerated women.
3According to one of Louisell’s counselors, Louisell is only the second woman in
ICIW’s history to receive a bachelor’s degree while incarcerated.
7
Key players in Louisell’s 1988 murder trial weighed in at the
resentencing hearing. The county attorney who prosecuted Louisell
testified she believes Louisell has served enough time and has been
punished sufficiently. Judge Allan Goode, who presided over Louisell’s
1988 criminal trial, authored a letter in which he opined Louisell could
make positive contributions to the community if she were released from
prison. 4
Louisell presented other evidence at the resentencing hearing
detailing the circumstances awaiting her should she be released from
prison. For example, the record includes a letter confirming she has
received an offer of employment as an apprentice electrical trimmer.
Other evidence was presented to the court describing the support system
standing ready to help Louisell reenter society should she be discharged
from prison. Together, the evidence created an overarching theme: By all
accounts, Louisell is a model inmate who has achieved rehabilitation;
grown from a naïve and impulsive youngster to a mature, accomplished,
and intelligent woman; and accepted full responsibility for the crime she
committed as a juvenile in 1987.
After hearing the testimony and considering the exhibits Louisell
presented, the district court acknowledged significant statutory and
constitutional uncertainty with regard to the court’s sentencing authority
after Miller and Ragland. The court then carefully considered the
evidence in the record and thoroughly analyzed each of the Miller factors.
After doing so, the court resentenced Louisell to a definite term of
twenty-five years with credit for time served, thereby discharging her
4Judge Goode wrote the letter in 2009 to support an application for
commutation Louisell made to then-Governor Chet Culver. Judge Goode passed away
in 2010.
8
from prison immediately and releasing her to correctional supervision, as
if on parole, for no more than two years. Recognizing the possibility an
appellate court might conclude the district court lacked authority to
impose a definite term of years for first-degree murder, the court imposed
an alternative sentence of life in prison with the possibility of parole after
twenty-five years. Under this alternative sentence, the court determined
Louisell is now eligible for parole, but left to the parole board’s discretion
when Louisell should in fact be paroled.
The State appealed and also requested an immediate stay of the
district court’s resentencing order. We granted the stay and retained the
appeal to clarify the district court’s sentencing authority in this evolving
area of law.
II. Scope of Review.
Illegal sentences can be challenged at any time. Iowa R. Crim. P.
2.24(5)(a); State v. Hoeck, 843 N.W.2d 67, 70 (Iowa 2014); Pearson, 836
N.W.2d at 94. A sentence is illegal if it amounts to cruel and unusual
punishment. Hoeck, 843 N.W.2d at 70; Bonilla v. State, 791 N.W.2d 697,
699 (Iowa 2010). Because appeals asserting cruel and unusual
punishment claims require constitutional analysis, our review is typically
de novo. Hoeck, 843 N.W.2d at 70; Ragland, 836 N.W.2d at 113.
Louisell has not appealed from the new sentence, and we therefore
do not consider whether it is illegal or cruel and unusual. Rather, this
appeal brought by the State requires us to decide whether the district
court had the authority to impose a determinate sentence or a sentence
setting the date when Louisell became eligible for parole. We review
challenges to the legality of a sentence for correction of legal errors. See
Ragland, 836 N.W.2d at 113.
9
III. The Parties’ Positions.
A. The State. The State concedes Louisell’s original LWOP
sentence was unconstitutional under Miller and Ragland, but asserts her
corrected sentence of a determinate term of twenty-five years in prison
must be vacated because it is not authorized by statute and is therefore
illegal. The State insists that no set of facts authorizes a district court to
impose a sentence not found in the Iowa Code. The only sentence for
first-degree murder, the State contends, is life in prison.
The State rests its argument on separation of powers principles.
Our state constitution instructs that “[t]he powers of the government of
Iowa shall be divided into three separate departments . . . and no person
charged with the exercise of powers properly belonging to one of these
departments shall exercise any function appertaining to either of the
others.” Iowa Const. art. III, § 1. According to the State, the legislature
has exclusive power to prescribe punishment for criminal convictions,
while judicial power is limited to judgments imposing the prescribed
punishment. In other words, the State contends a court can only “give
effect to the law as written, not . . . rewrite the law in accordance with
the court’s view of the preferred public policy.” State v. Wagner, 596
N.W.2d 83, 88 (Iowa 1999). The district court’s determination that
Louisell be sentenced to twenty-five years in prison with credit for time
served—and accordingly, that she should now be discharged from
custody—violates these principles, the State asserts, because the
legislature has not authorized such a sentence.
The State identifies three dispositional alternatives that would, in
its view, comport with the court’s constitutional role: (1) uphold the
sentence of sixty years under the Governor’s commutation order; (2)
sever parole ineligibility from Iowa Code section 902.1(1) (2015), leaving
10
intact Louisell’s life sentence but making her immediately eligible for
parole and, therefore, affording her release from prison at such time as
the board of parole may determine; or (3) move downward along the
charging scale to a punishment expressly authorized by the legislature
for a different homicide offense.
As we have already held the commuted sentence offering parole
eligibility after sixty years in prison is unconstitutional because it was
imposed without individualized consideration of the Miller factors,
Ragland, 836 N.W.2d at 122, the State’s first proposed dispositional
option is a nonstarter. The State’s second option is functionally similar
to the district court’s alternative sentence of life in prison with parole
after serving twenty-five years. In both instances, Louisell would
immediately be eligible for parole because she has served more than
twenty-five years in prison, and the parole board would make the
determination of whether and when she will be released on parole. The
State characterizes its third proposed dispositional alternative as
“invasive,” and it therefore discourages us from implementing that
alternative. See Commonwealth v. Brown, 1 N.E.3d 259, 264–66 (Mass.
2013) (refusing to create “an entirely new penalty scheme ad hoc”).
B. Louisell. According to Louisell, the court should not defer to
the legislature as the State urges because deference would merely
perpetuate her illegal LWOP sentence. While she would theoretically be
parole-eligible under the State’s preferred disposition and under the
district court’s alternative sentencing option, she contends the likelihood
of ever receiving parole is negligible given the parole board’s steadfast
refusal to grant juvenile offenders release, even after the decisions in
Graham, Miller, and Ragland were filed. As such, she argues, any
sentence other than the district court’s first alternative leading to
11
immediate discharge would deprive her of a meaningful opportunity to
reenter society and leave her stuck in parole limbo incompatible with the
spirit of Miller, Null, Pearson and Ragland.
In Ragland, we concluded an individualized sentencing hearing
including consideration of the Miller factors “cures the unconstitutional
aspects of [mandatory LWOP] statutes as applied to juvenile offenders
until amended by the legislature to establish a different constitutional
procedure.” Ragland, 836 N.W.2d at 119 n.7. Louisell seizes on the
phrase “until amended by the legislature,” and notes the legislature did
not amend section 902.1 to establish a constitutional sentencing
procedure for juvenile offenders convicted of first-degree murder in the
two legislative sessions held after Miller was decided. 5 Thus, Louisell
asserts, the resentencing court was forced to craft a new sentence
because section 902.1 calls for LWOP and is constitutionally infirm. It
comes down, she asserts, to a choice between judicial discretion or a
punishment we know is cruel and unusual. Louisell insists judicial
discretion must rule the day, and the district court’s conclusion it had
discretion to depart from the strict letter of the unconstitutional statute
and craft an appropriate determinate sentence under the circumstances
presented here should therefore be affirmed.
Addressing the State’s separation-of-powers argument, Louisell
notes the judicial function is to apply constitutional principles to decide
controversies—not simply point them out. And although we must
respect the powers of the legislative and executive departments, Louisell
5At the time of Louisell’s resentencing, only one legislative session had
concluded without passage of legislation addressing individualized sentencing of
juvenile offenders convicted of class “A” felonies involving homicides. A second
legislative session without legislative action on this subject ended prior to the
submission of this appeal.
12
contends the judicial department has inherent power to do justice when
the other departments fail to adopt sentencing and parole regimes
compatible with article I, section 17 of our constitution. Deference to the
other departments in this particular context would, in Louisell’s view,
prevent sentencing judges from exercising their discretion and nullify her
right to be free from cruel and unusual punishment.
IV. Analysis.
A. Determinate Term of Twenty-five Years in Prison. We begin
by noting the well-established principle that sentences imposed without
statutory authorization are illegal and void. State v. Ross, 729 N.W.2d
806, 809 (Iowa 2007); State v. Freeman, 705 N.W.2d 286, 287 (Iowa
2005). “We have upheld this principle even in cases in which the illegal
sentence was more lenient than that allowed by law and when correction
of the sentence would result in an increase in the sentence.” State v.
Allen, 601 N.W.2d 689, 690 (Iowa 1999) (per curiam); see State v. Draper,
457 N.W.2d 600, 605–06 (Iowa 1990) (increasing sentences for drug
violations to five years when the district court impermissibly imposed
only three years); State v. Ohnmacht, 342 N.W.2d 838, 842–43, 845 (Iowa
1983) (reinstating prison time because a defendant convicted of first-
degree robbery was not statutorily eligible for the suspended sentence he
received). Sentencing judges exercise discretion in pursuit of a
statutorily mandated goal: to “provide maximum opportunity for the
rehabilitation of the defendant[] and for the protection of the community
from further offenses by the defendant and others.” Iowa Code § 901.5
(2013). But in implementing this goal, judges may only impose
punishment authorized by the legislature within constitutional
constraints. “[L]egislative determinations of punishment are entitled to
13
great deference.” State v. Bruegger, 773 N.W.2d 862, 872–73 (Iowa
2009).
The Code of Iowa does not currently authorize a term-of-years
sentence for a defendant convicted of first-degree murder, even if that
defendant committed the crime as a juvenile. Several sections within
chapter 902 mandate that class “A” felons, and specifically those
convicted of first-degree murder, receive more severe sentences than
persons convicted of lesser crimes. For example, Iowa Code section
902.1(1) states that a convicted class “A” felon shall be committed into
custody for life. 6 Additionally, section 902.3 excludes class “A” felonies
from indeterminate sentencing, reinforcing the idea that life in prison is
the intended punishment for such crimes. Iowa Code § 902.3. Finally,
section 902.4 excludes class “A” felons from the universe of felons whose
sentences may be reconsidered within one year after their conviction. Id.
§ 902.4.
Because there was no statutory authority for the determinate
sentence of twenty-five years in prison for Louisell’s first-degree murder
conviction, that part of the district court’s sentencing order must be
vacated. See Freeman, 705 N.W.2d at 287 (“A sentence is void if the
statute does not authorize [it].”); Draper, 457 N.W.2d at 605 (“Simply
stated, when a sentencing court departs—upward or downward—from
the legislatively authorized sentence for a given offense, the pronounced
sentence is a nullity . . . .”); Ohnmacht, 342 N.W.2d at 842 (“A court has
6Lesser offenses are notably punished less severely. For example, a term-of-
years sentence is prescribed for second-degree murder, a class “B” felony. Compare
Iowa Code § 707.2 (defining first-degree murder as a class “A” felony), and id. § 902.1(1)
(indicating all individuals convicted of class “A” felonies receive life sentences), with id.
§ 707.3 (“Murder in the second degree is a class “B” felony. . . . [T]he maximum
sentence for a person convicted under this section shall be a period of confinement of
not more than fifty years.”).
14
no authority to mitigate punishment by providing for a sentence not
authorized by statute.”).
B. Life with Eligibility for Parole After Twenty-Five Years. We
turn now to the district court’s alternative sentence of life in prison with
parole eligibility after twenty-five years. To determine whether that
sentence was within the district court’s discretion, we again look to the
relevant statutes.
Louisell was originally sentenced under the 1987 edition of the
Code of Iowa. At the time, the section establishing sentences for class
“A” felonies read, in its entirety:
Upon a plea of guilty, a verdict of guilty, or a special
verdict upon which a judgment of conviction of a class “A”
felony may be rendered, the court shall enter a judgment of
conviction and shall commit the defendant into the custody
of the director of the Iowa department of corrections for the
rest of the defendant’s life. Nothing in the Iowa corrections
code pertaining to deferred judgment, deferred sentence,
suspended sentence, or reconsideration of sentence applies
to a class “A” felony, and a person convicted of a class “A”
felony shall not be released on parole unless the governor
commutes the sentence to a term of years.
Iowa Code § 902.1 (1987). In 2011—after Graham was decided but
before the decision in Miller was filed—the legislature amended section
902.1, adding language and renumbering the subsections. 2011 Iowa
Acts ch. 131, § 147. After the 2011 amendment, section 902.1 provided:
1. Upon a plea of guilty, a verdict of guilty, or a
special verdict upon which a judgment of conviction of a
class “A” felony may be rendered, the court shall enter a
judgment of conviction and shall commit the defendant into
the custody of the director of the Iowa department of
corrections for the rest of the defendant’s life. Nothing in the
Iowa corrections code pertaining to deferred judgment,
deferred sentence, suspended sentence, or reconsideration of
sentence applies to a class “A” felony, and a person convicted
of a class “A” felony shall not be released on parole unless
the governor commutes the sentence to a term of years.
15
2. a. Notwithstanding subsection 1, a person
convicted of a class “A” felony, and who was under the age of
eighteen at the time the offense was committed shall be
eligible for parole after serving a minimum term of
confinement of twenty-five years.
b. If a person is paroled pursuant to this subsection
the person shall be subject to the same set of procedures set
out in chapters 901B, 905, 906, and chapter 908, and rules
adopted under those chapters for persons on parole.
c. A person convicted of murder in the first degree in
violation of section 707.2 shall not be eligible for parole
pursuant to this subsection.
Iowa Code § 902.1 (2013). In sum, the 2011 amendment left the 1987
statutory language fully intact, but renumbered it as section 902.1(1).
The amendment also added subsections providing that all juvenile
offenders convicted of class “A” felonies—except first-degree murder—
shall be eligible for parole after serving twenty-five years. Id.
§ 902.1(2)(a), (c).
Sentencing courts confronting unconstitutional sentencing
statutes may choose the remedy of severance in appropriate cases. Iowa
Code § 4.12; Bonilla, 791 N.W.2d at 701–02. Severing constitutionally
infirm provisions “is appropriate if it does not substantially impair the
legislative purpose, if the enactment remains capable of fulfilling the
apparent legislative intent, and if the remaining portion of the enactment
can be given effect without the invalid provision.” Am. Dog Owners
Ass’n, Inc. v. City of Des Moines, 469 N.W.2d 416, 418 (Iowa 1991).
Because Louisell could not be sentenced to mandatory LWOP, Miller,
Ragland, Null, and Pearson mandate the final clause of section 902.1(1)—
“and a person convicted of a class “A” felony shall not be released on
parole unless the governor commutes the sentence to a term of years”—
be severed. See Bonilla, 791 N.W.2d at 702 (severing the same clause of
section 902.1 on review of a juvenile offender’s LWOP sentence for a class
16
“A” felony kidnapping offense). The district court took this approach in
resentencing Louisell, correctly noting that the clause within section
902.1 purporting categorically to preclude parole for juvenile offenders
convicted of class “A” felonies must be severed.
The district court also correctly concluded subsection 902.1(2)(c)
must be severed in resentencing Louisell. That subsection providing “[a]
person convicted of murder in the first degree . . . shall not be eligible for
parole pursuant to this subsection,” must be severed because it too
would categorically exclude Louisell from the universe of juvenile
offenders entitled to a meaningful opportunity for parole. See Miller, 567
U.S. at ___, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424 (holding the Eighth
Amendment prohibited “a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.”).
After severing from section 902.1 the two provisions discussed
above, we now confront section 902.1(2)(a). This subsection makes
juvenile offenders convicted of class “A” felonies eligible for parole after a
minimum term of confinement of twenty-five years. Iowa Code
§ 902.1(2)(a). The problem here, of course, is that all mandatory
minimum sentences for juveniles violate article I, section 17 of the Iowa
Constitution. Lyle, 854 N.W.2d at 400; see also Richard A. Bierschbach
& Stephanos Bibas, Constitutionally Tailoring Punishment, 112 Mich. L.
Rev. 397, 439–40 (2013) (noting mandatory minimum sentences are
“crude sledgehammers” that do not “tailor punishments to moral
blameworthiness”). Accordingly, Lyle requires that the final clause of
subsection 902.1(2)(a) providing for a mandatory minimum term of
confinement also be severed for purposes of sentencing Louisell. With
strikethrough added to illustrate the severed parts, that subsection
would provide: “Notwithstanding subsection 1, a person convicted of a
17
class “A” felony, and who was under the age of eighteen at the time the
offense was committed shall be eligible for parole after serving a
minimum term of confinement of twenty-five years.” See Iowa Code
§ 902.1(2)(a).
As we have noted, we employ the remedy of severing statutory
provisions in this context if the excised statute (1) does not substantially
impair the legislative purpose, (2) remains capable of fulfilling the
apparent legislative intent, and (3) can be given effect without the excised
language. See Am. Dog Owners Ass’n, 469 N.W.2d at 418. We conclude
the leaner section 902.1 remaining after severance of the constitutionally
infirm provisions comports with these criteria. The legislative purpose of
prescribing the most severe sentences for offenders convicted of murder
in the first degree—including juveniles—is maintained. Although
sentencing courts must have the discretion to decide juvenile offenders
convicted of the most serious of offenses shall be eligible for parole, the
legislature’s power to prescribe the sentence of life in prison is preserved.
Similarly, the severance remedy respects the legislature’s intent in
establishing the most substantial penalty available under Iowa law and
consistent with prevailing constitutional principles for first-degree
murder. The third criterion affecting our determination of whether the
severance remedy should be employed also augurs in favor of its
application here. After constitutionally infirm provisions are severed
from section 902.1, the statute can be given effect. In sentencing
Louisell, the court had discretion to impose a life sentence with eligibility
for parole. 7
7As the Court noted in Miller, however, “given all [the Court] said in Roper,
Graham, and [Miller] about children’s diminished culpability and heightened capacity
for change, we think appropriate occasions for sentencing juveniles to [LWOP] will be
18
Having severed the provisions of section 902.1 affected by the
constitutional infirmity, we conclude the district court had discretion,
after considering the Miller factors, to sentence Louisell to life in prison
with eligibility for parole. Although under the district court’s
resentencing order Louisell would effectively be eligible for parole
immediately because she has already served more than twenty-five years,
we conclude the court’s sentencing discretion under the circumstances
presented here was limited to the question of whether Louisell is eligible
for parole. The district court had discretion to conclude Louisell should
be eligible for parole immediately, but after excising the unconstitutional
statutory provisions detailed above, we conclude the district court did
not have discretion under the remaining sentencing framework to decide
Louisell’s eligibility for parole commenced after serving a specific term of
twenty-five years in prison. 8 See Bonilla, 791 N.W.2d at 702 (severing
from a mandatory LWOP sentence only that which was necessary to
ensure a constitutionally permissible punishment). Accordingly, we also
___________________
uncommon.” Miller, 567 U.S. at ____, 132 S. Ct. at 2469, 183 L. Ed. 2d at 424. The
State does not contend the district court erred in exercising discretion to impose a
sentence making Louisell eligible for parole.
8While this appeal was pending, the legislature passed Senate File 448, and the
governor signed the bill into law. See Governor’s Transmission of Approval (April 24,
2015), available at http://coolice.legis.iowa.gov/linc/86/external/govbills/SF448.pdf.
Senate File 448 authorizes sentencing judges to consider a list of sentencing factors and
select, as the district court did in this case, a minimum term of confinement before
making juveniles convicted of first-degree murder eligible for parole. 2015 Iowa Legis.
Serv. S.F. 448, § 1 (West 2015). The bill applies to any person “who was convicted of a
class ‘A’ felony prior to, on, or after the [bill’s immediate] effective date . . . and who was
under the age of eighteen at the time the offense was committed.” Id. § 5. However,
although the new statute would appear to authorize a sentence of life with parole after
twenty-five years if Louisell were resentenced today, we conclude the subsequent
legislation does not affect our consideration of whether that sentence was authorized at
the time the district court imposed it. Furthermore, we express no opinion as to the
constitutionality of this new statute.
19
vacate this aspect of the sentence and remand for entry of a sentence of
life in prison with eligibility for parole. 9
C. Meaningful Opportunity for Parole. Our conclusion that the
district court’s discretion allowed it to conclude Louisell should be
parole-eligible does not end our analysis. As we have noted, Louisell
asserts the district court’s choice of a determinate sentence and
discharge from prison should be upheld because, in reality, her eligibility
for parole is illusory, not real. She emphasizes that, since Miller,
Ragland, Null, and Pearson were decided, only one of Iowa’s thirty-eight
juvenile offenders originally sentenced to LWOP has been granted parole.
The only one of these prisoners granted parole was conditionally released
to hospice care for cancer treatment, and the parole board reserved the
right to revisit its decision if her health improved. Grant Rodgers, Dying
Inmate Kristina Fetters Granted Hospice-Only Parole, Des Moines Reg.
(Dec. 3, 2013), http://blogs.desmoinesregister.com/dmr/index.php/
2013/12/03/board-grants-fetters-parole-to-hospice-only/article. 10
This historical data, Louisell contends, should give us little
confidence that the existing parole system establishes a meaningful
opportunity for parole for juvenile offenders serving life sentences. In
other words, Louisell posits if juveniles who committed class “A” felonies
less serious than murder—such as kidnapping or robbery—are
9We emphasize our holding today addresses only the scope of the district court’s
discretion to impose an individualized sentence after considering the Miller factors. The
question whether the sentence of life in prison with eligibility for parole is in this
particular case disproportionate, illegal, or cruel and unusual under either the Eighth
Amendment or article I, section 17 of the Iowa Constitution is neither raised nor
decided in this appeal.
10Fetterspassed away while in hospice care. Daniel P. Finney & Linh Ta, Freed
Inmate Kristina Fetters, Convicted as Juvenile, Dies, Des Moines Reg. (July 28, 2014),
available at http://www.desmoinesregister.com/story/news/crime-and-courts/2014/
07/27/kristina-fetters-dies/13238853/.
20
repeatedly denied parole based on offense severity, there is no realistic
opportunity for her to receive parole, no matter how extensively she has
been rehabilitated. Without a realistic and meaningful opportunity, a
scholar has suggested, “the fact that a teen who was impulsive, reckless,
and without moral grounding[] becomes an adult who has none of these
traits” is wholly (and wrongly) ignored. Samuel H. Pillsbury, Talking
About Cruelty: The Eighth Amendment and Juvenile Offenders After Miller
v. Alabama, 46 Loy. L.A. L. Rev. 885, 926 (2013). The question whether
Louisell—although now eligible for parole—has been denied it in violation
of law is not before us in this appeal. 11
Although the question whether Louisell has been wrongfully denied
parole is not ripe for our decision at this juncture, we reaffirm that under
both the United States Constitution and the Iowa Constitution, juveniles
convicted of crimes must be afforded a “meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation”—if a
sentencing judge, exercising discretion, determines parole should be
available. See Graham, 560 U.S. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d
at 845–46; see also Miller, 567 U.S. at ___, 132 S. Ct. at 2475, 183 L. Ed.
2d at 430 (concluding judges sentencing juveniles convicted of murder
must be able to consider mitigating factors and determine whether parole
should be available); Null, 836 N.W.2d at 67–68. In Null, we
acknowledged
it is unclear what the Supreme Court precisely meant in
Graham by requiring the state to provide “some meaningful
opportunity to obtain release based on demonstrated
11We note, however, that our parole statutes and administrative rules currently
provide the board of parole shall parole an inmate when “there is reasonable probability
that the person can be released without detriment to the community” or to themselves.
Iowa Code § 906.4 (2015) (emphasis added); see also Iowa Admin. Code r. 205–8.1.
21
maturity and rehabilitation.” 560 U.S. at 74, 130 S. Ct. at
2030, 176 L. Ed. 2d at 845–46. It did not indicate when
such an opportunity must be provided or provide guidance
regarding the nature or structure of such a second-look or
back-end opportunity. Instead, the Court left it to the
states “to explore the means and mechanisms for
compliance.” Id. at 75, 130 S. Ct. at 2030, 176 L. Ed. 2d at
846.
Null, 836 N.W.2d at 67–68 (footnote omitted). Since Null, we have not
had occasion to explore more fully the meaning of the phrase
“meaningful opportunity” in this context. To be sure, a meaningful
opportunity must be realistic. Graham, 560 U.S. at 82, 130 S. Ct. at
2034, 176 L. Ed. 2d at 850. But we must leave for another day the
question whether repeated cursory denials of parole deprive juvenile
offenders who have shown demonstrable rehabilitation and maturity of a
meaningful or realistic opportunity for release.
As presently codified, the Iowa Code and the Iowa Administrative
Code enumerate factors the parole board considers when making parole
decisions. Iowa Code § 906.5(3) (2015); Iowa Admin. Code r. 205—
8.10(1). These codified factors do not closely track the Miller factors
pertinent to the parole eligibility of juvenile offenders, nor do they
account for the mitigating attributes of youth that are constitutionally
required sentencing considerations. One scholar has opined that
“[w]ithout . . . particularized assessment, youth sentenced to long prison
terms, even with the possibility of parole, will continue to be denied the
‘meaningful opportunity to obtain release’ promised by Graham and
Miller.” Laura Cohen, Freedom’s Road: Youth, Parole, and the Promise of
Miller v. Alabama and Graham v. Florida, 35 Cardozo L. Rev. 1031,
1055–56 (2014) (emphasis added). “And, if the possibility of parole does
not afford an inmate a true expectation of release, why should it render
valid an otherwise invalid sentence?” Id. at 1059; see also Richard A.
22
Bierschbach, Proportionality and Parole, 160 U. Pa. L. Rev. 1745, 1761–
62 (2012) (asserting that, just as the possibility of commutation or
clemency does not provide a meaningful opportunity for release, a
possibility of parole that is only remote is not meaningful).
V. Conclusion.
The district court did not have authority to sentence Louisell to a
determinate term of twenty-five years in prison for murder in the first
degree. Although the district court did have authority upon
consideration of the Miller factors to resentence Louisell to life in prison
with eligibility for parole, the court did not have authority at the time of
resentencing to order commencement of Louisell’s eligibility for parole to
begin after serving twenty-five years in prison. Accordingly, we vacate
the sentencing order and remand for entry of the sentence of life in
prison with eligibility for parole.
DISTRICT COURT SENTENCE VACATED AND CASE
REMANDED WITH INSTRUCTIONS.
All justices concur except Mansfield, Waterman, and Zager, JJ.,
who concur in part and dissent in part.
23
#14–0175, State v. Louisell
MANSFIELD, Justice (concurring in part and dissenting in part).
I join the court’s well-reasoned opinion with the exception of part
IV.B, where I respectfully dissent. In part IV.A, the court recognizes the
legislature’s right to determine appropriate sentences, subject to
constitutional constraints. However, in part IV.B, the court disregards
the lesson of part IV.A and resentences Louisell itself, instead of giving
effect to current law. I believe it is wrong not to give the 2015 legislation
its intended effect, and wrong not to apply it to Yvette Louisell’s case.12
As noted by the majority in a footnote, our general assembly recently
amended the law relating to sentencing of juveniles convicted of first
degree murder. The law now provides:
[A] defendant convicted of murder in the first degree in
violation of section 707.2, and who was under the age of
eighteen at the time the offense was committed shall receive
one of the following sentences:
(1) Commitment to the director of the department of
corrections for the rest of the defendant’s life with no
possibility of parole unless the governor commutes the
sentence to a term of years.
(2) Commitment to the custody of the director of the
department of corrections for the rest of the defendant’s life
with the possibility of parole after serving a minimum term of
confinement as determined by the court.
(3) Commitment to the custody of the director of the
department of corrections for the rest of the defendant’s life
with the possibility of parole.
12One initial comment: While my review of the record for most part confirms the
court’s statement of background facts, the court has largely presented Louisell’s version
of the 1987 stabbing death of Stilwell. The jury rejected this version in finding her
guilty of first-degree murder. We do not have the trial transcript in the present record,
but the court of appeals opinion affirming her conviction presents additional facts that
support Louisell’s guilt. See State v. Louisell, No. 88–1601 (Iowa Ct. App. Apr. 24,
1990). This is not to deny Louisell’s difficult upbringing, or her achievements in prison.
24
2015 Iowa Legis. Serv. no. 76 (S.F. 448) (West 2015) (to be codified at
Iowa Code § 902.1).
Thus, the legislature has now established three sentencing
options—life without parole, life with parole, and life with parole
eligibility after service of a term of years. Id. § 1. This law applies to “a
person who was convicted of a class ‘A’ felony prior to, on, or after the
effective date of this Act and who was under the age of eighteen at the
time the offense was committed.” Id. § 5. Hence, by its terms, the law
applies to Louisell.
Generally, of course, criminal defendants are sentenced based on
the law that was in effect at the time the crime was committed. However,
Iowa Code section 4.13(2) provides that if the punishment for an offense
is reduced, then punishment “if not already imposed shall be imposed
according to the statute as amended.” Iowa Code § 4.13(2) (2015); see
State v. Chrisman, 514 N.W.2d 57, 61, 63 (Iowa 1994) (holding that
where legislation reducing the punishment became effective after the
crime was committed but before sentencing, the new legislation applied).
The legislature’s 2015 amendment amounts to a reduction in the prior
mandatory life-without-parole (LWOP) sentence. Thus, with respect to
any juvenile homicide defendant who has not yet been sentenced, or
whose LWOP sentence has been vacated and has not yet been
resentenced, section 4.13(2) would apply—not to mention the fact
(already noted) that the 2015 legislation itself says that it applies
retroactively. See 2015 Iowa Legis. Serv. no. 76 (S.F. 448) § 5.
Our colleagues in Nebraska recently had to sort through similar
issues. In 2013, responding to the United States Supreme Court’s
decision in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed.
2d 407 (2012), the Nebraska legislature eliminated mandatory LWOP for
25
juveniles who commit first-degree murder and provided a sentencing
range of forty years to life. See State v. Castaneda, 842 N.W.2d 740, 759
(Neb. 2014). The Nebraska Supreme Court then had to address the case
of a defendant who had been sentenced to LWOP before Miller but whose
appeal was still pending at the time of the 2013 amendment. Id. at 760.
The defendant argued his LWOP sentence should be struck down and he
should be given the sentence for second-degree murder as it existed
when he committed the offense. Id. at 760–61. The state maintained the
defendant should be resentenced under the 2013 legislation. Id. at 760.
The court agreed with the state. Id. at 761–62. The court found
no ex post facto violation because the new law was ameliorative—it
reduced the sentence for first-degree murder. Id. And the court found
that application of the new law was supported by a Nebraska principle of
legal interpretation similar to Iowa Code section 4.13(2), which provided
that “[w]here a criminal statute is amended by mitigating the
punishment, after the commission of a prohibited act but before final
judgment, the punishment is that provided by the amendatory act unless
the Legislature has specifically provided otherwise.” Id. at 762 (internal
quotation marks omitted). Thus, the court directed that the defendant
be resentenced for first-degree felony murder under the 2013 sentencing
legislation. Id.; see also State v. Taylor, 842 N.W.2d 771, 780–81 (Neb.
2014) (going through the same analysis for another defendant who had
been convicted and sentenced to life without parole pre-Miller for a first-
degree murder committed as a juvenile); State v. Ramirez, 842 N.W.2d
694, 711–13 (Neb. 2014) (same).
Florida has similarly determined that its new sentencing law for
juveniles, passed in response to Miller, should apply to defendants whose
sentences became unconstitutional as a result of Miller. See Horsley v.
26
State, 160 So. 3d 393, 405, 408 (Fla. 2015). In Horsley, the defendant
had been sentenced pre-Miller to life in prison without the possibility of
parole for first-degree felony murder under a mandatory sentencing
scheme. Id. at 395–96. In 2014, the Florida legislature enacted curative
legislation in response to Miller with an effective date of July 1, 2014. Id.
at 394–95. Horsley filed a motion to correct his sentence, which had
become unconstitutional following Miller. See id. at 396. The
intermediate appellate court certified the question of how it should
resentence Horsley to the Florida Supreme Court. Id. at 397.
The Florida Supreme Court determined that rather than reviving
and partially rewriting a previous version of the law, the sentencing court
should resentence Horsley under the 2014 legislation. See id. at 405–08.
It decided that reviving the prior statute was not consistent with
legislative intent in light of the new law. See id. at 405–06. It also
rejected the idea that application of the 2014 legislation would violate the
state constitution’s savings clause, which precludes retroactive
application of criminal statutes. Id. at 406. It noted that the savings
clause was meant to “require the statute in effect at the time of the crime
to govern the sentence an offender receives.” Id. Yet, in the case of the
juvenile sentencing law, “the statute in effect at the time of the crime is
unconstitutional under Miller and the federal constitution, so it cannot,
in any event, be enforced.” Id. The court concluded that “[o]n remand,
the trial court should hold an individualized sentencing hearing
pursuant to [the 2014 law].” Id. at 408; see also Falcon v. State, ___ So.
3d ___, ___, 2015 WL 1239365, at *8–9 (Fla. Mar. 19, 2015) (concluding
Miller should apply retroactively and any defendant whose sentence is
invalidated by the retroactive application of Miller should be resentenced
under the 2014 Florida legislation pursuant to Horsley); Cruz v. State,
27
___ So. 3d ___, ___ , 2015 WL 2137783, at *1 (Fla. Dist. Ct. App. May 8,
2015) (applying the Horsley analysis to a defendant who had been
sentenced to life without parole pre-Miller and remanding for
resentencing consistent with the 2014 Florida legislation); Mares v. State,
___ So. 3d ___, ___, 2015 WL 2078179, at *1 (Fla. Dist. Ct. App. May 6,
2015) (same); Maize v. State, ___ So. 3d ___, ___, 2015 WL 2078212, at *1
(Fla. Dist. Ct. App. May 6, 2015) (same); Davis v. State, ___ So. 3d ___,
___, 2015 WL 2078277, at *1 (Fla. Dist. Ct. App. May 6, 2015) (same);
Moran v. State, ___ So. 3d ___, ___, 2015 WL 2078374, at *1 (Fla. Dist. Ct.
App. May 6, 2015) (same).
Washington has reached the same conclusion. Following Miller, its
legislature enacted a “Miller fix” that “explicitly applies retrospectively to
acts that occurred before its enactment.” In re McNeil, 334 P.3d 548,
588–91 (Wash. 2014) (en banc). The fix authorized a sentencing range of
twenty-five years to life without parole. Id. at 589. Petitioners who had
been convicted and sentenced before Miller argued that they could only
receive a sentence that was both on the books and constitutional at the
time of their crimes, which was a determinate twenty-year sentence. Id.
at 591. The Washington Supreme Court unanimously disagreed and
found the new law applied. Id. at 593; id. at 596–97 (McCloud, J.,
concurring).
The same analysis utilized by the Nebraska, Florida, and
Washington supreme courts applies here. If Louisell’s existing sentence
is invalid and she must be resentenced, the resentencing should take
place under the 2015 legislation.
The majority engages in no analysis on these points. Instead, it
simply says in a conclusory way, without providing authority or
reasoning:
28
[A]lthough the new statute would appear to authorize a
sentence of life with parole after twenty-five years if Louisell
were resentenced today, we conclude the subsequent
legislation does not affect our consideration of whether that
sentence was authorized at the time the district court
imposed it.
This sentence contradicts itself. If Louisell’s 2014 sentence wasn’t
authorized at the time the district court imposed it, then she is being
resentenced today. And this means the 2015 law applies. We should not
be performing surgery on the unconstitutional 1987 sentencing law now
that the legislature has spoken. Instead, we should follow the range of
sentencing options provided by the 2015 sentencing law.
The close question for me is not whether we can sentence Louisell
on our own to life with parole. Clearly, we cannot do this. We are not a
sentencing court. The close question for me is whether we should affirm
the district court’s backup sentence of life with parole eligibility after
twenty-five years, or remand for resentencing in accordance with the
2015 law. I can see reasonable arguments for both approaches. The
district court’s alternative sentence of life with parole eligibility after
twenty-five years is authorized under the 2015 legislation. So, by
affirming that backup sentence, we would be upholding a sentence that
the legislature has approved.
However, the district court did not have the benefit of the 2015 law
when it imposed Louisell’s sentence. Normally, the prudent and fairer
course of action would be to remand the case to the district court for
resentencing under the 2015 legislation. At that point, the district court
would have a number of options, but would presumably select one that
makes Louisell available for parole now. In summary, I do not think we
can simply resentence Louisell ourselves based on our edits to a
superseded law.
29
Waterman and Zager, JJ., join this concurrence in part and
dissent in part.