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

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.
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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.
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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.