Julio Bonilla v. Iowa Board of Parole

IN THE SUPREME COURT OF IOWA
No. 18–0477

Filed June 28, 2019

JULIO BONILLA,

Appellant,

vs.

IOWA BOARD OF PAROLE,

Appellee.

Appeal from the Iowa District Court for Polk County, Douglas F.

Staskal, Judge.

Julio Bonilla appeals dismissal of his petition for judicial review.

AFFIRMED.

Rita Bettis Austen of ACLU of Iowa Foundation, Des Moines, Steven

Macpherson Watt of ACLU Foundation, New York, New York, Angela L.

Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, and
Gordon E. Allen, Johnston, for appellant.

Thomas J. Miller, Attorney General, and John R. Lundquist,

Assistant Attorney General, for appellee.

Brent Michael Pattison of Drake Legal Clinic, Des Moines, Marsha L.

Levick of Juvenile Law Center, Philadelphia, Pennsylvania, and

Benjamin G. Bradshaw, Kimberly Cullen, and Kendall N. Collins of
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O’Melveny & Myers, LLP, Washington, D.C., for amicus curiae Juvenile

Law Center.

John S. Allen and Bram T.B. Elias of University of Iowa College of

Law Clinical Law Programs, Iowa City, and Sarah French Russell of

Quinnipiac University School of Law Legal Clinic, Hamden, Connecticut,

for amici curiae Juvenile Sentencing Project and Campaign for the Fair

Sentencing of Youth.
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APPEL, Justice.

In this case, Julio Bonilla, the petitioner, convicted of kidnapping

for an act committed when he was sixteen years old, brought a petition for

judicial review in district court pursuant to the Iowa Administrative

Procedures Act, Iowa Code section 17A.19 (2016), challenging the manner

in which the Iowa Parole Board (Board) considers whether persons

convicted of offenses while a juvenile should be granted parole.

Specifically, Bonilla sought a declaratory judgment that a variety of

substantive and procedural rights are required when a juvenile offender is

considered for parole under article I, sections 9 (due process), 10 (right to

counsel), and 17 (cruel and unusual punishment) of the Iowa Constitution

and the Eighth Amendment (cruel and unusual punishment) and the

Fourteenth Amendment (due process) to the Federal Constitution. In

addition, Bonilla sought an order remanding the matter back to the Board

and requiring it to provide him with the procedural rights requested in his

petition. Bonilla further sought attorney fees and costs.

The Board moved to dismiss the petition. The district court denied

the motion to dismiss. The district court later proceeded to rule in favor

of the Board on the merits. Bonilla appeals. For the reasons expressed

below, we affirm.

I. Factual and Procedural Background.

In 2005, Bonilla was convicted of kidnapping in the first degree. His

criminal conviction arose from a New Year’s Eve abduction of a pregnant

sixteen-year-old girl who was grabbed off the street while she walked

home, thrown into Bonilla’s vehicle, and, over a four-hour period, hit,

slapped, hair-pulled, bitten on the face and neck, and raped. After four or

five hours, the victim was ultimately thrown out of the vehicle without her

shoes or underwear, with the shout “Happy New Year.”
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Bonilla was sixteen years old when he committed the crime. He was

sentenced to life in prison without the possibility of parole (LWOP). In

2005, Bonilla began serving his prison sentence at Anamosa State

Penitentiary. In 2008, Bonilla was transferred to Fort Madison after twice

fighting other inmates in gang-related incidents.

Following the elimination of LWOP for juvenile nonhomicide

offenders by the United States Supreme Court in Graham v. Florida, 560

U.S. 48, 74–75, 130 S. Ct. 2011, 2030 (2010), and after this court held

that the principles of Graham apply retroactively to Bonilla, Bonilla v.

State, 791 N.W.2d 697, 700–01 (Iowa 2010), he was resentenced on April

29, 2011 by the district court to life with the possibility of parole. The

district court, however, wrote a letter to the Board that stated,

I am also enclosing for your review my Findings of Fact,
Conclusions of Law and Ruling entered on February 25, 2005.
I would strongly suggest that you carefully review the Findings
of Fact set forth in my ruling paying special attention to what
this defendant and his friends suffered this victim to endure
for approximately 4-5 hours.

After reviewing the matters I have discussed above I am
sure you will understand why I am recommending that under
no circumstances should [Bonilla] be considered for any type
of early release or parole.

After his resentencing in 2011, and beginning in 2012, Bonilla began to

receive annual parole reviews by the Board.

According to Bonilla’s disciplinary summary, he received additional

disciplinary reports after we ordered resentencing in 2010. Bonilla

received additional major reports, including reports for possession of

cocaine, possession of a “hit” note, 1 possession of pornography, bartering

goods, possession of marijuana, STG (security threat group) show of force,

and running a gambling ring. Since 2014, however, Bonilla has not

1The meaning of the phrase hit note is unclear from the record.
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received a new major report. He began to receive glowing accounts of his

activities in prison.

At his annual review on June 24, 2015, Bonilla was denied parole

as in previous years. Among other things, the Board noted,

Your record of major or minor reports suggests you are not
prepared for a successful return to the community. The Board
of Parole needs to see a period of behavior which is free from
institutional reports prior to considering you for an early
release.

As Bonilla approached his annual review date in June of 2016, the

Board prepared a release plan for Bonilla. The release plan noted that his

recent adjustment had been outstanding. The release plan recommended

that Bonilla complete the Sex Offender Treatment Program (SOTP) and the

Thinking for Change program (TFC), along with a significant period of

gradual release, prior to being paroled. The release plan noted that a

psychiatric examination had occurred on April 25, 2016, which revealed

nothing notable.

As his 2016 annual review date approached, Bonilla filed nine

motions in connection with his annual review. In the motions, Bonilla

sought (i) appointment of counsel at state expense, (ii) provision of an
independent psychological evaluation at state expense, (iii) an in-person

parole review hearing and interview, (iv) an opportunity to present

evidence at the parole hearing, (v) access to information related to his

parole review and a right to challenge the information, (vi) exclusion of all

nonverifiable evidence, (vii) proper consideration of mitigation factors of

youth, (viii) access to rehabilitative treatment and programming, and

(ix) establishment of procedures in the event of denial of parole.

The Board’s counsel responded to Bonilla’s motions on June 22.

The Board’s counsel informed Bonilla that the Board agreed to continue
 6

his annual review until July 28. The Board’s counsel noted there was no

motion practice in connection with annual reviews and the Board would

log the filings as correspondence in support of release. The Board’s

counsel also stated, “I consider the constitutional issues raised in those

motion[s] to have been presented to the Board for exhaustion purposes.”

On July 13, the Board produced “copies of records pertaining to

Julio Bonilla . . . that are available to the Iowa Board of Parole for use in

its review of Mr. Bonilla for parole release.” The records produced included

prison disciplinary rulings, other notes related to Bonilla’s conduct in

prison, parole release plans, and psychological and psychiatric

evaluations. The Board declined to produce “any victim statement” and

Bonilla’s presentence investigation report.

In addition to the document disclosure, the Board permitted counsel

for Bonilla to provide a written statement in support of his request for

release. The Board further allowed counsel to appear in person at the

2016 review annual review.

Bonilla’s annual review occurred on July 28. It lasted about thirty

minutes and was transcribed. Bonilla’s counsel directed the Board’s

attention to her client’s rehabilitative progress. She stated that Bonilla

would benefit from SOTP and TFC. She added that Bonilla, a native of

El Salvador, was in a unique position because the immigration authorities

had a detainer on him, and that upon his release, he would be transferred

from custody and removed from the United States “pretty quickly.”

After Bonilla’s counsel’s presentation, the members of the Board

spoke about Bonilla. Three Board members recognized that Bonilla had

shown some great improvement over the past year and a half. Board

members also agreed that he could benefit from SOTP and TFC. But Board

members expressed concern about Bonilla’s high security level at the Iowa
 7

State Penitentiary in Fort Madison. The chair of the Board contrasted

Bonilla with other juvenile offenders convicted of class “A” felonies, noting,

“The big difference between them and Mr. Bonilla is quite frankly that

institutional disciplinary record. Those individuals did not have as lengthy

of an institutional disciplinary record in the immediate past as Mr. Bonilla

has.”

At the conclusion of the review, the Board voted to deny Bonilla

parole. The chair declared that they would “like to see him complete

treatment” and “continued good behavior.” A formal written denial

followed the same day.

On August 24, the Board issued the following ruling concerning

Bonilla’s nine motions:

Offender Bonilla has appealed the Board’s refusal to rule upon
the “motions” Attorney Angela L. Campbell filed on his behalf
on June 17, 2016. The Board’s parole eligibility reviews are
not adversarial proceedings and the Board does not engage in
motion practice during such reviews. No formal ruling is
required nor will be made concerning these filings. Offender
Bonilla’s motions were logged by the Board as correspondence
in support of release and were considered by the Board during
its release deliberations.

. . . . Following the Board’s public deliberations, Offender
Bonilla was denied release (F-7). The Board sent Offender
Bonilla written notice of the Board’s denial ruling and its
reasoning. Offender Bonilla did not appeal the Board’s July
28, 2016 F-7 denial order.

Although Offender Bonilla may have originally questioned the
validity of the Board’s case file review procedures, he has not
timely challenged the resulting denial decision. Accordingly,
the procedural deficiencies Offender Bonilla complains of
through the above-referenced filings have now been mooted
through the Board’s conduct of its June 28, 2016 case file
review and/or his failure to appeal the Board’s July 28, 2016
F-7 denial order.

Bonilla filed a petition for judicial review on September 14, pursuant

to Iowa Code section 17A.19. He challenged the Board’s parole review
 8

practices and regulations as violating article I, sections 9, 10, and 17 of

the Iowa Constitution and the Eighth and Fourteenth Amendments to the

Federal Constitution.

The Board filed a motion to dismiss on October 6. In the motion to

dismiss, the Board argued that Bonilla had not alleged substantial rights

were affected by any claimed error, and therefore any error was harmless.

The Board emphasized that Bonilla unequivocally stated he was not

challenging the outcome of any particular parole release decision

conducted by the Board. The district court denied the motion to dismiss

on January 5, 2017.

Bonilla’s next annual parole review took place on July 27, and was

made part of the administrative record in this case. It lasted approximately

twenty minutes and was transcribed. Bonilla’s counsel was invited to

attend but did not appear, apparently because of a scheduling conflict. At

the outset of the review, the chair remarked,

As we’re moving forward considering these cases, Board
members, I do want to caution you as I always do to make
sure that we are cognizant of the factors that we are to
consider when looking at this special blend of cases that being
these that we’ve deemed the juvenile lifers. Our Supreme
Court has determined that life without parole is rare, or
should be rare and uncommon, for those such as Mr. Bonilla
who commit a class A offense as a juvenile. As the Board we
should be looking toward an eventual release for these
individuals. . . . Now when we’re considering these
individuals, I want you to look at—and you should be looking
at—not as much the crime that they committed, other than to
figure out where they’ve started, but what they’ve done since
they’ve come to prison and how they’ve shown that they’ve
been rehabilitated over the long term period of their
incarceration . . . .

The Board proceeded to discuss Bonilla. One member noted Bonilla

had completed TFC but had not yet received SOTP, which he needed.

There was recognition Bonilla is “moving in the right direction.” Concern
 9

was expressed over Bonilla’s history of major disciplinary reports in prison

for activities that would be criminal even “on the outside.” One Board

member noted that “a lot of the criminal activity [in prison had occurred]

after his twenty-fifth birthday.” As he put it, “[W]e’re looking at an

individual here who’s been really good over the last not quite three

years . . . .” This member concluded, “[T]wenty-five percent of your prison

time being good . . . isn’t sufficient enough for me [to vote for release].” The

Board again voted to deny parole.

On August 2, the chair of the Board wrote the Warden of the Iowa

State Penitentiary concerning the Board’s decision to deny parole. The

letter spoke about Bonilla’s positive accomplishments in prison and added,

He has had no disciplinary reports since his last review but
has a significant history of gang related and gambling reports
spanning nearly ten years while incarcerated. For this reason,
the Board needs to see a longer period of institutional
adjustment before gradual release can be endorsed. This
statement should not be construed as the Board forbidding
movement. Any decision to move Bonilla from [the Iowa State
Penitentiary] to a lower security level facility will be left to the
discretion of the Department of Corrections . . . .

The Board requests that Bonilla complete the Sex Offender
Treatment Program recommended by the Department, Life
Skills and job training before he begins gradual release.
Bonilla may be placed on the waiting lists for any and all
programming for which he is classified. The Board is not
requesting that he be given priority over others who are
already on the applicable waiting lists. Completion of all
recommended treatment programs does not mean Bonilla will
be granted a release. Completion of treatment is only one of
several factors considered by the Board. The Board may
request programming not recommended by the Department.

The Board is encouraged by Bonilla’s recent positive efforts
and he is encouraged to continue to maintain a positive
outlook and perspective while completing programming.
Positive effort, behavior, and attitude [are] a significant
indicator of an individual’s future willingness and ability to be
a law-abiding citizen.

In the Board’s opinion, Bonilla has yet to demonstrate through
his actions sufficient lasting rehabilitation and maturity to
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assure the Board there is a reasonable probability that he is
willing and able to fulfill the obligation[s] for a law-abiding
citizen. The Board voted unanimously to deny parole for one
year. Bonilla will be reviewed again at his next annual.

A copy of this letter will be forwarded to Bonilla, but please
feel free to share it with him[.]

On March 14, 2018, the district court denied the petition for judicial

review on the merits and dismissed the action. At the outset, the district

court declined to disturb its prior ruling on the Board’s motion to dismiss.

Turning to the merits, the district court canvassed recent cases involving

juvenile sentencing. The district court concluded that there was no reason

to believe the Board would fail to follow the applicable law in considering

parole. The district court recognized that in Greiman v. Hodges, 79

F. Supp. 3d 933, 944–45 (S.D. Iowa 2015), a federal district court declined

to grant a motion to dismiss filed by the Board challenging a failure to

release the prisoner. The district court emphasized that the value of

Greiman as precedent was reduced because the federal court had to

assume the facts as pleaded were true—namely, that parole was denied

solely as a result of the nature of the offense. See id. at 936.

The district court also considered Diatchenko v. District Attorney, 27

N.E.3d 349 (Mass. 2015). In Diatchenko, the district court noted, the

Massachusetts Supreme Judicial Court found a right to counsel, at state

expense, under the Massachusetts Constitution for juveniles sentenced to
life in prison for homicide offenses. Id. at 361. The district court

concluded there was nothing in Iowa precedent to suggest a likelihood that

the Iowa Supreme Court would come to a similar conclusion under the

Iowa Constitution. Further, the district court concluded that in a parole

determination, the mitigating attributions of youth are no longer the

essential consideration. Instead, according to the district court, the
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offender’s “actual behavior” is most pertinent. The district court

concluded,

[T]here is no authority compelling the concluding that the
matters requested in Bonilla’s nine motions to the Board are
constitutionally mandated and there is no basis on this record
to conclude that the current statutory and regulatory parole
system in Iowa, on its face, denies juvenile offenders a
meaningful opportunity for release.

The district court denied the petition for judicial review. Bonilla filed

a timely appeal. We retained the appeal.

II. Standard of Review.

In attacking the action of the Board, Bonilla cited a number of

provisions of the Iowa Administrative Procedures Act in his petition for

judicial review before the district court. Constitutional issues raised in

agency proceedings are reviewed de novo. Iowa Code § 17A.19(10)(a);

Gartner v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335, 344 (Iowa 2013).

We review the district court’s ruling on a petition for judicial review for

correction of errors at law with respect to challenges to interpretations of

law not clearly vested in the agency, challenges to final agency action on

procedural or process grounds, and claims that the agency did not

consider a relevant and important matter. Iowa Code § 17A.19(10)(c), (d),

(j); Greenwood Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 830

(Iowa 2002). Bonilla also claims a violation of Iowa Code section

17A.19(10)(n), which provides for reversal of agency action in a contested

case that is “arbitrary, capricious, or an abuse of discretion,” which we

also review for errors at law. Greenwood, 641 N.W.2d at 830.

III. Preliminary Issues.

A. Whether Bonilla Satisfies the Prejudice Requirement in Iowa

Code Section 17A.19(8), (10). A person seeking judicial review of agency

action under Iowa Code section 17A.19(10) must demonstrate prejudice
 12

from the agency action. Specifically, a court shall grant relief from agency

action “if it determines that substantial rights of the person seeking

judicial relief have been prejudiced because the agency action is” invalid

for any of fourteen enumerated reasons. Id. “The burden of demonstrating

the required prejudice and the invalidity of agency action is on the party

asserting invalidity.” Id. § 17A.19(8)(a).

The parties dispute whether the required showing of prejudice is a

question of standing or analogous to a harmless error rule. The Board

contends that the prejudice requirement is analogous to a harmless error

rule. In contrast, Bonilla contends that the prejudice requirement is a

question of standing. The district court adopted Bonilla’s view.

The Board is correct that the prejudice requirement is a harmless

error rule. In our leading case on the prejudice requirement, we said,

[T]he “substantial rights” language of s 17A.19(8) has no
bearing on a person or party’s standing to obtain judicial
review. It is, instead, merely a provision analogous to a
harmless error rule. It is a direction to the court that an
agency’s action should not be tampered with unless the
complaining party has in fact been harmed.

City of Des Moines v. Pub. Emp’t Relations Bd., 275 N.W.2d 753, 759 (Iowa

1979).

The question then becomes whether Bonilla can meet his burden to

show prejudice. The Board argues he cannot. The Board first observes

that Bonilla failed to appeal his parole denials. Building on that

observation, the Board contends, “Bonilla necessarily concedes that the

Board arrived at a correct result regardless of any deficient review

procedures.” Consequently, the Board says, Bonilla is unable to show

prejudice.

Bonilla counters that he “suffered and continues to suffer harm to

his constitutional rights resulting from the Board’s failure to consider and
 13

failure to provide the nine safeguards he sought during his parole review

process.” The failure to consider and provide the safeguards, Bonilla

continues, “resulted in violations of his own and other parole-eligible

juvenile offenders’ constitutional right to a review process that afforded

them a realistic and meaningful opportunity to be released on parole.”

Bonilla notes that a federal district court in Iowa denied a motion to

dismiss similar claims. Greiman, 79 F. Supp. 3d at 944–45. Bonilla also

points to a decision of the Massachusetts Supreme Judicial Court

considering constitutional due process claims not in the context of a parole

denial. Diatchenko, 27 N.E.3d at 353–54.

Our leading case on the prejudice requirement in section 17A.19 is

City of Des Moines, 275 N.W.2d at 759. In this case, we reviewed a petition

for declaratory order filed by the city with the Public Employment Relations

Board (PERB). Id. at 755. The city asked PERB if, under a specified

hypothetical fact pattern, the timetables and other aspects of the Public

Employment Relations Act allowed PERB to consider a request for binding

arbitration from an employee organization where the public employer does

not join the request. Id. at 756. PERB issued a ruling adverse to the city,

the city sought judicial review, the district court disagreed with PERB,

PERB appealed, and we agreed with the district court. Id.

Before reaching our ultimate conclusion in City of Des Moines, we

considered the preliminary question on whether the city had standing. Id.

at 759. We said it did because the city’s position as a public employer

demonstrated a specific personal and legal interest in the subject matter

of the decision, while “the fact that it will be involved in future negotiations

affected by the decision of [PERB] in this matter establishes that its

interest has been specially and injuriously affected.” Id.
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We then turned to the prejudice requirement in Iowa Code section

17A.19. Id. We said, “The city’s future recurring involvement in contract

negotiations also serves to meet this requirement.” Id.

We find Bonilla’s argument persuasive in light of City of Des Moines.

Like the city, Bonilla will have “future recurring involvement” in parole

proceedings. See id. The agency actions challenged by both Bonilla and

the city were denials of requested relief concerning the process for the

future proceedings or negotiations. As such, City of Des Moines teaches,

contrary to the Board’s assertion, that Bonilla can show prejudice even

though his petition is not based on appeal of the parole denial.

Bonilla’s argument for prejudice turns on his claim that he “suffered

and continues to suffer harm to his constitutional rights” to due process.

Might these constitutional harms be enough to show prejudice under

section 17A.19? We think the answer is a clear yes. As a result, dismissal

is not appropriate without analysis of the merits of the underlying

constitutional claims.

B. Whether Both Facial and As-Applied Challenges Are Before

Us. A constitutional challenge may be facial or as-applied. See Honomichl

v. Valley View Swine, LLC, 914 N.W.2d 223, 231 (Iowa 2018). “A facial

challenge is one in which no application of the statute could be

constitutional under any set of facts.” Id. But see Janklow v. Planned

Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175, 116 S. Ct. 1582, 1583

(1996) (mem.) (Stevens, J.) (explaining that the “no set of circumstances”

test is inconsistent with the standard for deciding facial challenges and

with a wide array of legal principles (quoting United States v. Salerno, 481

U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987))). By contrast, “an as-applied

challenge alleges the statute is unconstitutional as applied to a particular

set of facts.” Honomichl, 914 N.W.2d at 231. We have joined other courts
 15

and commentators in recognizing that “[t]he distinction between the two

types of challenges appears simple enough, yet it is unclear and ‘more

illusory than the ready familiarity of the terms suggests.’ ” Id. (quoting

Gillian E. Metzger, Facial Challenges and Federalism, 105 Colum. L. Rev.

873, 880 (2005)); see Alex Kreit, Making Sense of Facial and As-Applied

Challenges, 18 Wm. & Mary Bill Rts. J. 657, 658 (2010).

The Board argues that only a facial challenge is presented for our

review. The Board concedes that Bonilla exhausted administrative

remedies and preserved error on his facial challenge. In any case, the

Board notes, exhaustion of administrative remedies is not required where

a petitioner is solely challenging the facial constitutional validity of a

statute under which an agency is proceeding. See Tindal v. Norman, 427

N.W.2d 871, 872–73 (Iowa 1988).

But, in a multipronged attack, the Board contends that Bonilla’s as-

applied challenges are not presented for our review. First, the Board says,

“Timely exhaustion of the Board’s administrative appeal process and

specific presentation of an alleged error is required before a court acquires

authority to hear that claim on judicial review.” In support, the Board

points to Ghost Player, L.L.C. v. State, 860 N.W.2d 323, 326 (Iowa 2015).

The as-applied challenges are not before us, the Board continues, because

Bonilla’s administrative appeal only addressed the Board’s failure to enter

a ruling on his nine procedural motions and predated the 2016 parole

denial. Further, the Board argues, “Bonilla has not appealed the Board’s

conduct of any specific parole review or the results thereof through the

Board’s administrative appeal process.”

Alternatively, the Board argues that Bonilla was required to move to

expand the district court’s ruling through an Iowa Rule of Civil Procedure

1.904(2) motion to preserve error on the as-applied claims. See Meier v.
 16

Senecaut, 641 N.W.2d 532, 537–39 (Iowa 2002). According to the Board,

and quoting part of the district court’s order, “[T]he District Court’s ruling

was limited solely to answering whether ‘the current statutory and

regulatory parole system in Iowa, on its face, denies juvenile offenders a

meaningful opportunity for release.’ ”

Bonilla rejects the Board’s arguments. On the exhaustion issue, he

notes that the Board stated there was no motion practice before the Board

within the context of parole release deliberations and subsequently refused

to consider all nine of the pending motions. After he appealed that

response pursuant to Iowa Administrative Code Rule 205—15.1(17A)

(2015), Bonilla points out, that the Board replied that the motions were

moot in light of his failure to appeal the parole denial. This, Bonilla, says,

was final agency action on the motions.

Bonilla further argues that his case fits within the exception to the

exhaustion requirement for situations “when the administrative remedy is

inadequate or its pursuit would be fruitless.” Riley v. Boxa, 542 N.W.2d

519, 521 (Iowa 1996) (quoting Alberhasky v. City of Iowa City, 433 N.W.2d

693, 695 (Iowa 1988)). The exception applies here, Bonilla contends,

because the Board notified him during the proceedings below, and

maintains on appeal, that his motions were inapposite to parole reviews

and would merely be considered correspondence.

Finally, Bonilla argues he was not required to file a rule 1.904(2)

motion after the district court’s denial of his petition for judicial review.

He contends the district court did not limit its decision to a facial or an as-

applied challenge to the constitutionality of the Board’s procedures. In

support, Bonilla quotes a larger portion of the same language relied on by

the Board:
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In conclusion, there is no authority compelling the
concluding that the matters requested in Bonilla’s nine
motions to the Board are constitutionally mandated and there
is no basis on this record to conclude that the current
statutory and regulatory parole system in Iowa, on its face,
denies juvenile offenders a meaningful opportunity for release.

We first address the issue of exhaustion. “All administrative

remedies must be exhausted before an aggrieved party is entitled to

judicial review of an administrative decision.” Riley, 542 N.W.2d at 521.

“Two conditions must be met before we apply the doctrine: an adequate

administrative remedy must exist for the claimed wrong, and the governing

statutes must expressly or impliedly require the remedy to be exhausted

before allowing judicial review.” Id. “An exception to the doctrine ‘is

applied when the administrative remedy is inadequate or its pursuit would

be fruitless.’ ” Id. (quoting Alberhasky, 433 N.W.2d at 695). For instance,

facial challenges to the validity of a statute are excepted from the

exhaustion requirement because agencies cannot decide issues of

statutory validity. Tindal, 427 N.W.2d at 872–73. Additionally, there is

an exception to the exhaustion requirement for a clear showing of

substantial dimension that “irreparable injury resulting from following the

administrative process would make judicial review of final agency action

an inadequate remedy.” Riley, 542 N.W.2d at 522 (quoting Salsbury Labs.

v. Iowa Dep’t of Envtl. Quality, 276 N.W.2d 830, 837 (Iowa 1979)).

We think the exhaustion requirement does not bar Bonilla’s as-
applied challenges. The Board is correct that, by making his motions and

administratively appealing prior to the parole denial, the motions could

not have been considered by the Board in the factual context presented by

Bonilla’s case. As such, unless an exception applies, the as-applied

challenges fail the exhaustion requirement. However, we think an

exception applies here. As Bonilla points out, the Board repeatedly took
 18

the position that it would not, and does not, consider such motions in

parole review proceedings. The motions were docketed as mere

correspondence. Thus, the parole review process is an inadequate remedy.

See id. at 521.

We now turn to the question of whether Bonilla was required to file

a rule 1.904(2) motion to preserve his as-applied constitutional challenges.

We think it clear that Bonilla presented as-applied challenges to the

district court. Yet, the district court’s order gives no reason to think that

it “considered the issue and necessarily ruled on it.” Lamasters v. State,

821 N.W.2d 856, 864 (Iowa 2012). The district court order focuses on

discussing generally the impacts of recent federal and state jurisprudence

on parole opportunities for persons convicted of crimes committed as

juveniles. Nothing in the court’s order relates to Bonilla’s specific

circumstances. Further, the district court clearly states that its decision

pertains to “the current statutory and regulatory parole system in Iowa,

on its face.” Consequently, Bonilla was required to file a rule 1.904(2)

motion concerning his as-applied challenges. Because he did not do so,

his as-applied challenges are not preserved.

C. Nature of Facial Challenge. We now proceed to examine

Bonilla’s facial challenges. His facial challenges claim that various

standards and procedures are unconstitutional as to all juvenile offenders.

He has not appealed the denial of parole at his various annual reviews and

does not seek reversal of those denials.

To succeed on a facial challenge, the challenger must show that a

statute is “totally invalid and therefore, ‘incapable of any valid

application.’ ” Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001) (emphasis

added) (quoting State v. Brumage, 435 N.W.2d 337, 342 (Iowa 1989)). We

have said a facial challenge to a statute “is ‘the most difficult . . . to mount
 19

successfully’ because it requires the challenger to show the statute under

scrutiny is unconstitutional in all its applications.” Honomichl, 914 N.W.2d

at 231 (emphasis added) (quoting Salerno, 481 U.S. at 745, 107 S. Ct. at

2100). For example, in a facial challenge to a statute requiring payment

of restitution in order to obtain expungement of a criminal offense, we

recently emphasized that the absence of a finding as to the plaintiff’s

ability to pay was irrelevant to her facial challenge. State v. Doe, 927

N.W.2d 656, 661 (Iowa 2019).

The above line of cases stated that facts are irrelevant in a facial

challenge. Here, Bonilla is not challenging the denial of parole in his

annual reviews. He has not appealed the denial of parole in any annual

review based on any of the grounds asserted in his petition in this case.

Our task is not to consider retrospectively whether Bonilla was entitled to

any of the procedural rights he claims he is due in the context of his past

annual reviews.

Rather, Bonilla has presented us in this case only with a

prospective, anticipatory attack. He claims that he will have annual

reviews in the future and that he is entitled to a ruling, in advance of these

future hearings, on whether the procedures offered by the Board are

facially unconstitutional.

Yet, we have also sometimes taken a somewhat different approach.

For example, we have stated that “[i]f a statute is constitutional as applied

to a defendant, the defendant cannot make a facial challenge unless a

recognized exception to the standing requirement applies.” City of Sioux

City v. Jacobsma, 862 N.W.2d 335, 346 (Iowa 2015) (alteration in original)

(quoting State v. Robinson, 618 N.W.2d 306, 311 n.1 (Iowa 2000)

(en banc)); see also State v. Ortiz, 905 N.W.2d 174, 184 (Iowa 2017). If we

applied this approach here, the question would be whether Bonilla has
 20

demonstrated that in his future annual reviews, his rights to due process

are being threatened by a facially invalid statute, regulation, or policy.

As will be seen below, under either approach to a facial challenge,

Bonilla fails to show he is entitled to relief.

IV. Discussion.

A. Overview. In this case, Bonilla challenges both the substance

and the procedures employed by the Board in determining parole eligibility

for juvenile offenders who have been sentenced to life in prison with the

possibility of parole. He raises three separate but overlapping

constitutional claims based upon the cruel and unusual punishment

clauses of the Federal and Iowa Constitutions, U.S. Const. amend. VIII;

Iowa Const. art. I, § 17, the due process clauses of the Federal and Iowa

Constitutions, U.S. Const. amend. XIV; Iowa Const. art. I, § 9, and the

right to counsel clause under the Iowa Constitution, Iowa Const. art. I,

§ 10. All constitutional challenges arise in the context of the recent cruel

and unusual punishment cases of both the United States Supreme Court

and this court invalidating mandatory prison sentences without possibility

of parole for offenders who are juveniles when they commit their crime or

crimes. See Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718,

732 (2016); Miller v. Alabama, 567 U.S. 460, 479, 132 S. Ct. 2455, 2469

(2012); Graham, 560 U.S. at 75, 130 S. Ct. at 2030; Roper v. Simmons, 543

U.S. 551, 569–73, 125 S. Ct. 1183, 1195–97 (2005); State v. Sweet, 879

N.W.2d 811, 832 (Iowa 2016); State v. Seats, 865 N.W.2d 545, 555 (Iowa

2015); State v. Lyle, 854 N.W.2d 378, 400 (Iowa 2014); State v. Ragland,

836 N.W.2d 107, 119, 122 (Iowa 2013); State v. Null, 836 N.W.2d 41, 74

(Iowa 2013). These cases generally stand for the proposition that a juvenile

under a life sentence is entitled to a “meaningful opportunity to obtain
 21

release based on demonstrated maturity and rehabilitation.” Graham, 560

U.S. at 75, 130 S. Ct. at 2030.

First, we consider Bonilla’s claim that the statutory and regulatory

provisions governing the manner in which the Board approaches the

question of whether a juvenile should be released on parole are

inconsistent with the juvenile cruel and unusual punishment cases of this

court and the United States Supreme Court. This substantive challenge

raises a straightforward preliminary issue: is mere eligibility for parole like

any other adult sufficient to satisfy the requirement that a juvenile

offender be provided with a “meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation” or is more required?

If eligibility for parole like any other adult is sufficient, that is the end of

the matter. If, however, more is required, the question arises whether the

statutes and rules governing the Board’s consideration of parole for

juvenile offenders may be interpreted in a fashion to pass constitutional

muster.

Second, we address Bonilla’s multipronged claim that, in applying

the applicable standards under the state and federal caselaw, he is entitled

to the procedural rights sought in his motions before the Board and

litigated before the district court in his appeal of the Board’s action. In

addressing this second set of procedural issues, we are required to

determine whether Bonilla has a “liberty interest” in parole that triggers

traditional due process protections. If there are no due process

protections, any right to procedures has to be based solely on the cruel

and unusual punishment claim. But if the cruel and unusual punishment

cases only require eligibility for parole, there may be no procedural rights

arising from the cruel and unusual punishment clause itself. On the other

hand, if the cruel and unusual punishment claim involves more substance
 22

than mere eligibility for parole, and if a liberty interest is present, Bonilla

will be constitutionally entitled to adequate procedures that give him a

meaningful opportunity to demonstrate maturity and rehabilitation that

would entitled him to release.

In considering these issues, we are mindful that Bonilla raises

claims under both the Federal and Iowa Constitutions. The

interpretations of the Federal Constitution by the United States Supreme

Court, of course, are binding upon us in the interpretation of the Federal

Constitution, but we are free to develop our own independent approach to

constitutional protections under the Iowa Constitution. See State v. Oliver,

812 N.W.2d 636, 650 (Iowa 2012).

B. The Statutory and Regulatory Parole Framework and the

Substantive Constitutional Requirement under Graham–Miller of a

“Meaningful Opportunity to Obtain Release Based on Demonstrated

Maturity and Rehabilitation.”

1. Introduction. In order to consider Bonilla’s substantive claim, we

first explore the statutory and regulatory environment in Iowa for parole

consideration. Second, we provide a brief summary of the positions of the

parties to provide context. Third, we consider the substantive

requirements of “a meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation” under the Federal and Iowa

Constitutions and compare that with the existing statutory and legal

parole framework to determine if the framework on its face violates the

substantive constitutional requirements under Graham–Miller. 2

2. Statutory and regulatory framework of parole and work release.

Iowa Code chapter 906 generally addresses parole and work release. The

2Forconvenience, we refer to the collective developments in cruel and unusual
punishment law as applied to juveniles as Graham–Miller principles.
 23

Board is given the general authority to adopt rules regarding a system of

parole. Iowa Code § 906.3. The Board is required to conduct “at least

annual[]” reviews of each parole-eligible offender. Id. § 906.5(1)(a).

The Board is to “consult with the director of the department of

corrections on rules regarding a system of work release and shall assist in

the direction, control, and supervision of the work release system.” Id.

§ 906.3. The Board is given the authority to determine which persons in

the custody of the department of corrections should be released on parole

or work release. Id. “The grant or denial of parole or work release” is

declared “not a contested case as defined in” the Iowa Administrative

Procedures Act, Iowa Code section 17A.2. Id. § 906.3.

Iowa Code section 906.4(1) establishes a standard for release on

parole or work release. Under the statutory provision,

The board shall release on parole or work release any person
whom it has the power to so release, when in its opinion there
is reasonable probability that the person can be released
without detriment to the community or to the person. A
person’s release is not a detriment to the community or the
person if the person is able and willing to fulfill the obligations
of a law-abiding citizen, in the board’s determination.

Id.

Iowa Code section 906.5(1)(a) directs the Board to establish and

implement a plan for systematic review of the status of each prisoner and

for consideration of the person’s prospects for parole or work release. Iowa

Code section 906.5(1)(b) provides that if the Board conducts a hearing at

which a person in custody will be interviewed, the Board shall notify the

department of corrections, which will, absent certain exceptions, make the

person available for the interview at the person’s institutional residence.
 24

Iowa Code section 906.5(3) relates to information considered when

the Board conducts a review of the status of a committed person.

According to this code section,

At the time of a review . . . the board shall consider all
pertinent information regarding the person, including the
circumstances of the person’s offense, any presentence report
which is available, the previous social history and criminal
record of the person, the person’s conduct, work, and attitude
in prison, and the reports of physical and mental
examinations that have been made.

Id.
Iowa Code section 906.7 addresses the question of information from

other sources. Under this provision, “The board shall not be required to

hear oral statements or arguments either by attorneys or other persons.”

Id. To the extent the Board allows such statements, persons presenting

the statements “shall submit . . . an affidavit stating whether any fee has

been paid or is to be paid for their services in the case, and by whom such

fee is paid or to be paid.” Id.

The Board has enacted rules that implement its statutory authority.

Iowa Admin. Code ch. 205. The rules promulgated by the Board do not

require that a person be given advance notice of an annual review; rather,

the rules only require that notice be provided if the person is to be

interviewed. Id. r. 205—8.8. Nonetheless, the rules provide that “[t]he

board shall normally consider only information that has been reviewed by

the inmate,” except where such inmate review is not feasible because of

the need to protect confidential sources. Id. r. 205—8.11. Information in

inmate reports is “structured so as to separate opinion from factual

information.” Id. r. 205—8.11(3). Opinion information is deemed

confidential, as are psychiatric or psychological test results and diagnoses.

Id. If an inmate is, in the Board’s discretion, interviewed, the Board is
 25

required to give the inmate “ample opportunity to express views and

present materials.” Id. r. 205—8.12.

Two rules address the question of the information that may be

considered by the Board. “The board or board panel may consider the

inmate’s records and other information with respect to history, current

situation, parole and work release prospects, and other pertinent matters.”

Id. r. 205—8.13.

The rules further provide that the Board “may consider” a laundry

list of factors and “others deemed relevant to the parole and work release

decisions.” Id. r. 205—8.10(1). The laundry list of factors are:

a. Previous criminal record;

b. Nature and circumstances of the offense;

c. Recidivism record;

d. Convictions or behavior indicating a propensity for
violence;

e. Participation in institutional programs, including academic
and vocational training;

f. Psychiatric and psychological evaluations;

g. Length of time served;

h. Evidence of serious or habitual institutional misconduct;

i. Success or failure while on probation;

j. Prior parole or work release history;

k. Prior refusal to accept parole or work release;

l. History of drug or alcohol use;

m. A parole plan formulated by the inmate;

n. General attitude and behavior while incarcerated;

o. Risk assessment.
Id.
 26

3. Positions of the parties. Bonilla challenges the notion that the

above statutory and regulatory provisions, which apply generally to all

persons in custody and do not focus on juvenile offenders, are

constitutionally adequate under recent caselaw. Specifically, Bonilla notes

that to satisfy the requirements of the Eighth Amendment, states “must

provide ‘some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.’ ” Miller, 567 U.S. at 479, 132

S. Ct. at 2469 (quoting Graham, 560 U.S. at 75, 130 S. Ct. at 2030).

According to Bonilla, the Supreme Court in Montgomery held that the

Graham–Miller principles apply equally to sentencing and to parole

procedures. 577 U.S. at ___, 136 S. Ct. at 736.

Bonilla claims that the current statutory and regulatory parole

regime does not comport with the constitutional requirement under

Graham–Miller that juveniles who commit crimes be provided with a

“meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” Graham, 560 U.S. at 75, 130 S. Ct. at 2030.

Bonilla asserts that the Iowa statutory and regulatory provisions basically

allow the Board to consider anything it considers appropriate in

determining the issue of parole. Bonilla notes that many of the factors in

Iowa Administrative Code rule 205—8.10(1) focus exclusively on the past

actions of the inmate, including the original offense, rather than on the

current maturity and rehabilitation. The thrust of Bonilla’s argument is

that because nothing in the statutory or regulatory framework explicitly

requires the Board to provide a meaningful opportunity to demonstrate

maturity and rehabilitation, the Iowa approach cannot pass constitutional

muster.

Further, Bonilla argues that nothing in the regulatory scheme

satisfies this court’s repeated admonition that the hallmark factors of
 27

youth must be considered in mitigation of punishment. See, e.g., Seats,

865 N.W.2d at 556 (“The sentencing judge should consider these family

and home environment vulnerabilities together with the juvenile’s lack of

maturity, underdeveloped sense of responsibility, and vulnerability to peer

pressure as mitigating, not aggravating, factors.” (Emphasis added.)); Lyle,

854 N.W.2d at 404 n.10 (discussing factors); Ragland, 836 N.W.2d at 121

(“Miller requires an individualized consideration of youth as a mitigating

factor at a sentencing hearing . . . .” (Emphasis added.)); State v. Pearson,

836 N.W.2d 88, 95 (Iowa 2013) (“[T]he typical characteristics of youth,

such as immaturity, impetuosity, and poor risk assessment, are to be

regarded as mitigating instead of aggravating factors.” (Emphasis added.));

Null, 836 N.W.2d at 75 (“[T]he typical characteristics of youth . . . are to be

regarded as mitigating, not aggravating factors.” (Emphasis added.)).

Bonilla believes, for purposes of parole, the constitutionally required

approach is to adopt a statutory or regulatory framework that

differentiates persons who committed offenses as juveniles from other

offenders. Bonilla points to statutory provisions in California,

Connecticut, and West Virginia that treat parole decisions involving

juvenile offenders differently and ensure consideration of release complies

with the dictates of Graham–Miller. Cal. Penal Code § 4801(c) (West,

Westlaw through ch. 5 of 2019 Reg. Sess.) (requiring parole board to “give

great weight to the diminished culpability of youth as compared to adults,

the hallmark features of youth, and any subsequent growth and increased

maturity of the prisoner in accordance with relevant case law”); Conn. Gen.

Stat. § 54-125a(f)(4) (West, Westlaw through June 18, 2019) (requiring

special consideration for juveniles at parole hearings to ensure focus on

rehabilitation and maturity and recognition of mitigating factors of youth);

W. Va. Code § 62-12-13b(a)–(b) (West, Westlaw through 2019 Reg. Sess.)
 28

(requiring consideration of diminished culpability of juvenile defendants

and consideration of any subsequent growth and increased maturity

during incarceration).

The Board counters that the statutory and regulatory framework

under which it considers persons for release complies with Graham–Miller.

The Board emphasizes that all that is required under Graham–Miller is a

reasonable opportunity to demonstrate maturity and rehabilitation. The

Board emphasizes that the recent caselaw does not guarantee a juvenile

offender’s actual release on parole. See State v. Propps, 897 N.W.2d 91,

101 (Iowa 2017); Sweet, 879 N.W.2d at 839; Seats, 865 N.W.2d at 557.

The Board further argues that the requirements under Graham–

Miller are generally subsumed within the statutory and regulatory release

criteria. The Board notes, quoting Sweet, 879 N.W.2d at 833, “It is

through [the] individualized review of each offender’s unique

circumstances that the Board can account for the fact that ‘children are

constitutionally different from adults.’ ” According to the Board, this time

quoting State v. Roby, 897 N.W.2d 127, 147 (Iowa 2017), through its

individualized review it can “observe the truth of and act upon the maxim

that ‘juveniles are normally more malleable to change and reform in

response to available treatment.’ ” The Board further notes that under the

statute and rules, “treatment, education, and exhibited prison conduct

and behaviors are exactly the things the Board should be considering” and

that such consideration is consistent with the statutory and regulatory

framework.

Additionally, the Board states, the open-ended statutory and

regulatory parole regime does not dictate in any way the weight to be given

to various factors. Thus, the Board contends, it is able to give more weight
 29

to the Graham–Miller factors and to discount other factors that have little

or no relevance to juvenile offenders.

4. Consistency of statutory and regulatory parole framework with the

requirements under Graham–Miller. Before we consider whether the Iowa

statutory and regulatory framework complies with Graham–Miller, we must

first understand what Graham–Miller requires in terms of the standard to

be applied to juvenile offenders seeking release. Once we have established

the substance of the Graham–Miller standard, we can then determine

whether the statutory and regulatory framework can be interpreted in a

fashion that embraces the constitutional requirements. The ultimate

requirement under Graham–Miller, of course, is that the juvenile offender

must be given “some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.” Graham, 560 U.S. at 75, 130

S. Ct. at 2030. The question is what this general requirement means for

authorities considering the parole of juvenile offenders. An examination

of the briefing in this case reveals agreement by the parties on a number

of important Graham–Miller propositions.

First, the standard to be applied by parole authorities considering

the release of a juvenile offender under Graham–Miller is an individualized

determination of whether the juvenile offender has “demonstrated

maturity and rehabilitation.” Id. Graham–Miller requires a parole board

to recognize that the characteristics of youth are transient, that juveniles

are more capable of change than adults, and that character formation is

complete only when an offender turns about twenty-five years of age.

Miller, 567 U.S. at 471–73 & n.5, 132 S. Ct. at 2464–65 & n.5; Graham,

560 U.S. at 68, 130 S. Ct. at 2026; Sweet, 879 N.W.2d at 815–16, 829;

Null, 836 N.W.2d at 74–75. The focus of Graham–Miller is on the dynamic

evolving character of the juvenile offender, not on the static characteristic
 30

of the offense. Miller, 567 U.S. at 471–73, 132 S. Ct. at 2464–65; Graham,

560 U.S. at 68–69, 130 S. Ct. at 2026–27. In considering parole of the

juvenile offender under Graham–Miller, the Board must recognize, for the

above reasons, that “children are different.” Miller, 567 U.S. at 480, 132

S. Ct. at 2469. The Board does not contest the applicability of these

principles to annual reviews conducted by the Board of the juvenile

offenders.

Second, the focus of the decision whether to release a juvenile

offender on parole under Graham–Miller cannot be the heinousness of the

underlying offense. Miller, 567 U.S. at 471–73, 132 S. Ct. at 2464–65.

Indeed, any juvenile who has been waived into adult court has likely

committed heinous offenses. Further, from the beginning of the

development of its recent application of cruel and unusual punishment

concepts to juveniles, the Supreme Court has emphasized that “[a]n

unacceptable likelihood exists that the brutality or cold-blooded nature of

any particular crime would overpower mitigating arguments based on

youth.” Roper, 543 U.S. at 573, 125 S. Ct. at 1197. As emphasized by

Justice Kennedy in plain language, “[C]hildren who commit even heinous

crimes are capable of change.” Montgomery, 577 U.S. at ___, 136 S. Ct. at

736. Thus, even in cases where the juvenile offender has been waived into

adult court because of the seriousness of the underlying crime, most

offenders are redeemable. Instead of focusing on the underlying crime,

parole authorities must focus on the dynamic factors of the development

of youth and the high likelihood of maturity and rehabilitation. Miller, 567

U.S. at 471–73, 132 S. Ct. at 2464–65; Graham, 560 U.S. at 68, 130 S. Ct.

at 2026; Sweet, 879 N.W.2d at 815–16, 829; Null, 836 N.W.2d at 74–75.

The Board does not contest these propositions. Indeed, at oral argument,

the Board recognized that denying parole based on the heinous nature of
 31

the crime where a juvenile offender demonstrated maturity and

rehabilitation would violate Graham–Miller principles.

Third, a parole board must provide a “meaningful opportunity”

under Graham–Miller. Graham, 560 U.S. at 75, 130 S. Ct. at 2030. Parole

authorities cannot require the camel to pass through the needle’s eye.

Indeed, Graham specifically rejected the mere possibility of executive

clemency as sufficient to satisfy constitutional requirements. Id. at 70,

130 S. Ct. at 2027. Were the law otherwise, a recalcitrant parole authority

could convert a potentially valid sentence into the functional equivalent of

an unconstitutional life without possibility of parole. Parole reviews

cannot involve repeated incantations of ritualistic denials. See Beth

Caldwell, Creating Meaningful Opportunities for Release: Graham, Miller

and California’s Youth Offender Parole Hearings, 40 N.Y.U. Rev. L. & Soc.

Change 245, 285 (2016) [hereinafter Caldwell] (asserting that illusory

possibilities of parole do not amount to a realistic opportunity for release

under Graham–Miller). The Board recognizes that the opportunity to show

maturity and rehabilitation must be realistic.

The Board also recognizes that the opportunity for release must be

“timely realized.” Quoting language in Null that “[t]he prospect of geriatric

release, if one is to be afforded the opportunity for release at all, does not

provide a ‘meaningful opportunity’ to demonstrate the ‘maturity and

rehabilitation,’ ” Null, 836 N.W.2d at 71 (quoting Graham, 560 U.S. at 75,

130 S. Ct. at 2030), the Board argues, emphasis ours, that it “indisputably

plays a part in ensuring that a juvenile offender’s ‘meaningful opportunity’

for release based on demonstrated maturity and rehabilitation can in fact

be timely realized.”

When comparing the statute and regulatory framework with

constitutional requirements, we ordinarily strive to reach an interpretation
 32

that passes constitutional muster. State v. Iowa Dist. Ct., 843 N.W.2d 76,

85 (Iowa 2014) (“The doctrine of constitutional avoidance suggests the

proper course in the construction of a statute may be to steer clear of

‘constitutional shoals’ when possible.”); Simmons v. State Pub. Def., 791

N.W.2d 69, 74 (Iowa 2010) (“If fairly possible, a statute will be construed

to avoid doubt as to constitutionality.”).

Applying the principle of constitutional avoidance, we see nothing in

the statute or regulations that prevents the Board from applying each of

the Graham–Miller constitutional principles listed above. The statutes and

rules are open-ended and can be interpreted and applied in a fashion

consistent with Graham–Miller.

For example, the language in Iowa Code section 906.4(1) directing

the Board to release a person on parole or work release “when in its opinion

there is reasonable probability that the person can be released without

detriment to the community or to the person” can be interpreted to require

release when a juvenile offender demonstrates maturity and rehabilitation.

While Iowa Code section 906.5(3) provides that the Board shall consider

“the circumstances of the person’s offense,” in the case of a juvenile

offender, considering the circumstances of the offense is appropriate as a

baseline to determine the degree of maturity and rehabilitation attained by

the offender but the heinousness of the offense cannot be a barrier to

release. Thus, like Iowa Code section 906.4(1), the provisions of Iowa Code

section 906.5(3) can be interpreted in a fashion to satisfy the constitutional

commands of Graham–Miller.

It is true that Iowa Code section 906.5(3) does not specifically

embrace Graham–Miller principles that the transient features of youth

reduce culpability for crimes and that the heinous nature of a crime must

not be allowed to overwhelm the parole release decision. But as suggested
 33

by the Board, the open-ended nature of the statutory and regulatory

criteria may be interpreted and applied in a manner consistent with the

constitutional requirements imposed by Graham–Miller.

As the chair of the Board has observed,

[T]he most important thing when we’re reviewing these cases
[concerning juvenile offenders sentenced to mandatory
imprisonment terms] isn’t the crime they’ve committed, it’s
what they’ve done since then. And are they showing us that
they have been rehabilitated to a point where they can be
released to the community.

Indeed, Bonilla’s case involves a clearly heinous crime, which can only be

described as simply awful. His crime was extremely serious. Bonilla

appears to have been a direct participant. The criminal act extended over

a period of hours. No one can doubt the traumatic impact of the crime on

the victim. In participating in a heinous crime, Bonilla has much in

common with many juvenile offenders sentenced to life in prison in Iowa

and with the criminal defendants in Graham and Miller.

But notwithstanding the heinous crime, and consistent with

Graham–Miller, even juvenile offenders like Bonilla are entitled to a

meaningful opportunity to show maturity and rehabilitation. The record

developed at Bonilla’s annual reviews demonstrates the Board recognizes

Bonilla’s recent outstanding record in prison and completion of at least

some of the rehabilitation programs the Board has required, and the Board

has moved Bonilla closer to a gradual release scenario under the

applicable statutes and rules.

Ultimate release, of course, in not assured, but annual reviews in

Bonilla’s case collectively amount to Exhibit A in demonstrating that the

Board is capable of giving meaning to Graham–Miller within the open-

ended statutory and regulatory framework. As noted in State v. Zarate,

“the statute’s failure to explicitly state that these factors [Graham–Miller
 34

factors] must be treated as mitigating does not render the sentencing

factors unconstitutional.” 908 N.W.2d 831, 854 (Iowa 2018). Indeed, the

entire laundry list of factors to be considered under the Board’s rules may

be viewed, in the case of a juvenile offender, through the Graham–Miller

lens. See Iowa Admin. Code r. 205—8.10(1).

Further, the mere fact that the Board considers the nature of the

offense as suggested by the statute and rules does not mean that such

consideration is contrary to Graham–Miller. For instance, the nature of

the offense establishes a baseline to measure rehabilitation. The Board

may well consider the nature of the offense when determining that a

juvenile offender, before gradual release is considered, must successfully

complete a sexual offender treatment program.

We therefore conclude that, as argued by the Board, the statute and

rules governing the Iowa parole process can be applied in a constitutional

manner if the Board incorporates into its parole review the Graham–Miller

lodestar of “demonstrated maturity and rehabilitation,” does not unduly

emphasize the heinous nature of the crime, and provides a meaningful

opportunity to demonstrate maturity and rehabilitation. In short, the

Graham–Miller requirement that we recognize that “children are different”

can be satisfied by a conscientious parole board by applying the statute

and rules through the constitutionally required Graham–Miller lens. See

Miller, 567 U.S. at 480, 132 S. Ct. at 2469.

C. Procedural Requirements to Provide a “Meaningful

Opportunity to Obtain Release Based on Demonstrated Maturity and

Rehabilitation.”

1. Introduction. We next turn to the question of whether the Board’s

procedures provide juvenile offenders with a “meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation.”
 35

Graham, 560 U.S. at 75, 130 S. Ct. at 2030. Bonilla makes two related

constitutional claims. First, Bonilla claims, because he is entitled to a

“meaningful opportunity” to demonstrate maturity and rehabilitation

under Graham–Miller, the procedural shortcomings of the Board’s process

violate the cruel and unusual punishment clauses of article I, section 17

of the Iowa Constitution and the Eighth Amendment to the Federal

Constitution. Second, Bonilla claims that the procedural defects he has

identified violate due process of law under article I, section 9 of the Iowa

Constitution and the Fourteenth Amendment to the Federal Constitution.

A threshold question for purposes of due process is whether a

juvenile offender has a liberty interest in the Graham–Miller requirement

that the offender be provided a meaningful opportunity to demonstrate

maturity and rehabilitation. If there is a liberty interest, a juvenile offender

is entitled to due process in asserting that interest. The question would

then arise as to what procedures are required to adequately balance the

interest of the juvenile offender and the interests of the state in the parole

context. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903

(1976); Bowers v. Polk Cty. Bd. of Supervisors, 638 N.W.2d 682, 691 (Iowa

2002).

2. Meaningful opportunity of parole as liberty interest. On the

threshold due process question of whether Graham–Miller creates a

constitutionally based liberty interest, Bonilla asserts the answer is yes.

In support of his argument, Bonilla cites the recent federal district court

case of Greiman, 79 F. Supp. 3d at 945. In Greiman, the federal district

court explained that Graham–Miller creates an interest sufficient to trigger

due process protections. Id. The Greiman court distinguished a juvenile

offender case from another case involving an adult offender, Greenholtz v.

Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 99 S. Ct. 2100 (1979).
 36

79 F. Supp. 3d at 945. In Greenholtz, a sharply divided Supreme Court

held there was no constitutionally based liberty interest triggering due

process rights where parole is based on the “mere hope” of release. 442

U.S. at 11, 99 S. Ct. at 2105. 3 In distinguishing Greenholtz, the Greiman

court stated,

[A]lthough Graham stops short of guaranteeing parole, it does
provide the juvenile offender with substantially more than a
possibility of parole or a “mere hope” of parole; it creates a
categorical entitlement to “demonstrate maturity and reform,”
to show that “he is fit to rejoin society,” and to have a
“meaningful opportunity for release.”

79 F. Supp. 3d at 945 (quoting Graham, 560 U.S. at 79, 130 S. Ct. at

2032–33).

Although Graham–Miller does not establish the exact nature of the

due process protections required to provide a “meaningful opportunity” to

demonstrate maturity and rehabilitation, Bonilla argues that under

Mathews, 424 U.S. at 335, 96 S. Ct. at 903, he is entitled to procedural

protections appropriate in light of the demands of the particular situation.

In contrast, the Board suggests mere eligibility for parole is good

enough to satisfy any Eighth Amendment or due process concerns. The

3Four members of the Greenholtz court dissented from the holding of the majority

that a constitutionally based liberty interest did not arise in the parole context. 442 U.S.
at 18, 99 S. Ct. at 2109 (Powell, J., concurring in part and dissenting in part); 442 U.S.
at 22, 99 S. Ct. at 2111 (Marshall, J., dissenting in part). Justice Powell would have
found a liberty interest whenever a state established a system of parole, regardless of the
wording of the statute. 442 U.S. at 19, 99 S. Ct. at 2110 (Powell, J., concurring in part
and dissenting in part). Justice Powell wrote that he did not find a satisfactory distinction
between parole revocation, which the majority recognized gives rise to a due process
liberty interest, and parole release. Id. at 19–20, 99 S. Ct. at 2110. Justice Marshall,
writing from himself, Justice Brennan, and Justice Stevens, dissented in part from the
majority. Id. at 22, 99 S. Ct. at 2111 (Marshall, J., dissenting in part). Justice Marshall
thought it “self-evident that all individuals possess a liberty interest in being free from
physical restraint.” Id. at 23, 99 S. Ct. at 2111–12. Like Justice Powell, Justice Marshall
further believed that Morrissey v. Brewer, 408 U.S. 471, 481–82, 92 S. Ct. 2593, 2600–
01 (1972) (finding a liberty interest in proceeding revoking parole), was dispositive. 442
U.S. at 26–27, 99 S. Ct. at 2113–14.
 37

Board cites Montgomery for the proposition that “the mere act” of allowing

juvenile offenders “to be considered for parole ensures that juveniles whose

crimes reflected only transient immaturity—and who have since

matured—will not be forced to serve a disproportionate sentence in

violation of the Eighth Amendment.” 577 U.S. at ___, 136 S. Ct. at 736

(second quotation).

The Board further contrasts a front-end sentencing decision where

the court decides whether to impose LWOP with a back-end parole review

where, the Board suggests, a lesser interest is at stake. The Board also

emphasizes the difference between parole revocation and parole release.

Citing Greenholtz, 442 U.S. at 9–11, 99 S. Ct. at 2105, the Board states,

“An inmate who has gained his freedom through parole is entitled to much

greater due process protection than one who only has a mere expectancy

of someday gaining a parole release.” Because Bonilla has no guaranteed

right to parole, the Board argues, no liberty interest is present under the

authority of Greenholtz.

On the question of whether a juvenile offender has a liberty interest

in a meaningful opportunity to demonstrate maturity and rehabilitation

and thereby gain release, we agree with Bonilla. We come to this

conclusion for a number of reasons.

At the outset, it is important to recognize that there are two ways a

liberty interest protected by due process may arise. A prisoner can have

a liberty interest arising from the Federal or Iowa Constitutions. See, e.g.,

Vitek v. Jones, 445 U.S. 480, 493–94, 100 S. Ct. 1254, 1264 (1980)

(holding that there is a constitutionally protected liberty interest in

avoiding involuntary psychiatric treatment). Alternatively, a prisoner can

have a state-created liberty interest. See, e.g., Wolff v. McDonnell, 418 U.S.

539, 557, 94 S. Ct. 2963, 2975 (1974) (holding that state-created right to
 38

good time engenders liberty interest in avoiding deprivation of the right).

Bonilla focuses on the first method, arguing that a liberty interest arises

because of the constitutional right to a meaningful opportunity to obtain

release based on demonstrated maturity and rehabilitation.

First, unlike a prisoner who is entitled to parole only as a matter of

legislative grace, a juvenile offender under Graham–Miller is

constitutionally entitled to receive the meaningful opportunity to

demonstrate maturity and rehabilitation. Graham, 560 U.S. at 75, 130

S. Ct. 2030. The legislature may abolish parole, as a number of states

have done, but no legislature can override Graham–Miller. While Bonilla

has no right to a guarantee of release, he is constitutionally entitled to a

reasonable channel to demonstrate maturity and rehabilitation. Greiman,

79 F. Supp. 3d at 945. As noted in Diatchenko, Graham–Miller does not

create a constitutional expectation of release through parole;

[r]ather, what is at issue is [the requirement of the
Massachusetts constitutional provision on cruel and unusual
punishment] that a juvenile homicide offender serving a
mandatory life sentence be provided a meaningful opportunity
to obtain release, so that his or her sentence is not effectively
one of straight life in prison—an outcome that [the
Massachusetts Constitution] prohibits. In this context, where
the meaningful opportunity for release through parole is
necessary in order to conform the juvenile homicide offender’s
mandatory life sentence to the requirements of [the
Massachusetts Constitution], the parole process takes on a
constitutional dimension that does not exist for other
offenders whose sentences include parole eligibility.

27 N.E.3d at 357; see also Brown v. Precythe, No. 2:17-CV-04082-NKL,

2017 WL 4980872, at *12 (W.D. Mo. Oct. 31, 2017) (“[T]he juvenile offender

has a liberty interest in a meaningful parole review.”). 4

4A similar result was reached in Hayden v. Keller, 134 F. Supp. 3d 1000, 1009

(E.D.N.C. 2015). In Hayden, the court did not explicitly rely on due process but instead
emphasized the “meaningful opportunity” language in Graham–Miller, thereby resting its
decision on Eighth Amendment grounds. Id.; see also Md. Restorative Justice Initiative v.
 39

Second, the ruling in Montgomery supports Bonilla. In Montgomery,

the Court considered whether Graham–Miller was retroactive. 577 U.S. at

___, 136 S. Ct. at 725. The Montgomery Court answered the question in

the affirmative. Id. at ___, 136 S. Ct. at 734. The rationale for retroactive

application of the requirements of Graham–Miller arose because the

Supreme Court considered the requirement substantive in nature. Id. The

substantive rights that supported retroactive application in Montgomery

are more than a “mere hope” which the Supreme Court held did not give

rise to due process protections in the ordinary parole context. Greenholtz,

442 U.S. at 11, 99 S. Ct. at 2105.

Nothing in Greenholtz is to the contrary. In Greenholtz, while the

majority did not find a constitutionally based liberty interest for adult

offenders, the Supreme Court found that the Nebraska parole statute,

which used mandatory “shall” language, gave rise to a statutory liberty

interest entitled to due process protections. Id. at 12, 99 S. Ct. at 2106.

Likewise, in Board of Pardons v. Allen, 482 U.S. 369, 377–81, 107 S. Ct.

2415, 2420–22 (1987), the Court held that the Montana parole statute

gave rise to a liberty interest based on the mandatory language “shall” and

that the parole board would grant parole when designated findings were

made.

Just as the mandatory language in a parole statute may give rise to

a constitutionally protected liberty interest, a constitutional liberty interest

arises under Graham–Miller that imposes a constitutionally based

Hogan, No. ELH-16-1021, 2017 WL 467731, at *21 (D. Md. Feb. 3, 2017) (“It is difficult
to reconcile the Supreme Court’s insistence that juvenile offenders with life sentences
must be afforded a ‘meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation’ if the precept does not apply to the parole proceedings that
govern the opportunity for release.” (quoting Graham, 560 U.S. at 75, 130 S. Ct. at 2030)).
Additionally, the Hayden court specifically noted that Greenholtz did not consider
whether Nebraska’s parole scheme comported with due process as applied to juveniles.
134 F. Supp. 3d at 1010.
 40

mandatory requirement on the Board to provide a juvenile offender with a

“meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” Graham, 560 U.S. at 75, 130 S. Ct. at 2030.

If the Board determines that a juvenile offender has demonstrated

maturity and rehabilitation, parole or work release is required as a matter

of law. See Montgomery, 577 U.S. at ___, 136 S. Ct. at 736 (“Allowing those

offenders to be considered for parole ensures that juveniles whose crimes

reflected only transient immaturity—and who have since matured—will

not be forced to serve a disproportionate sentence in violation of the Eighth

Amendment.”); Graham, 560 U.S. at 75, 130 S. Ct, at 2030 (“A State is not

required to guarantee eventual freedom to a juvenile offender convicted of

a nonhomicide crime. What the State must do, however, is give defendants

like Graham some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.”). The Board conceded this

point at oral argument stating its “agree[ment] that . . . the Board would

be abusing its discretion in that circumstance if it allowed those [other]

factors . . . to overwhelm the factors of rehabilitation and maturity.”

For the above reasons, we conclude that a juvenile offender has a

liberty interest in the proper application of Graham–Miller principles under

the Due Process Clause in the Fourteenth Amendment to the Federal

Constitution and independently under the due process provision of article

I, section 9 of the Iowa Constitution.

D. Specific Procedural Requirements Under Graham–Miller.

1. Introduction. We now proceed to consider the specific facial

procedural challenges to the parole process identified by Bonilla. In

considering the procedures supported by due process, the parties agree

that we should engage in the balancing test presented by Mathews, 424

U.S. at 335, 96 S. Ct. at 903. See also Bowers, 638 N.W.2d at 691
 41

(applying the balancing test used in Mathews to claims brought under the

Iowa Constitution). Under Mathews, the three factors to be balanced in

determining what process, if any, a person is entitled to when faced with

government action are,

[f]irst, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.

424 U.S. at 335, 96 S. Ct. at 903. As a general matter, due process

requires, at a minimum, notice and an opportunity to be heard. Boddie v.

Connecticut, 401 U.S. 371, 378, 91 S. Ct. 780, 786 (1971). There is,

however, a sliding scale of potential procedures, varying from the relatively

informal exchange of information to the highly structured procedural

rights associated with trial. The question is what process is due when a

juvenile offender is reviewed for parole under Graham–Miller principles.

We must also keep in mind the nature of Bonilla’s claim. He does

not seek to overturn any prior annual parole review on the ground that the

procedures provided to him by the Board were constitutionally deficient.

He has preserved for our consideration only a facial attack that was made

and denied prior to his annual review in 2016. Because he has preserved

only facial challenges, if the processes of the Board can be constitutionally

applied to anyone, his facial challenge fails. Honomichl, 914 N.W.2d at

231. Or, if Bonilla has not made the requisite showing that he was entitled

to the relief he seeks, the facial claim fails under Jacobsma, 862 N.W.2d

at 346. We further must recognize that we generally seek to engage in

interpretations of statutes (and rules) in a fashion that avoids

constitutional difficulties. State v. Nail, 743 N.W.2d 535, 539 (Iowa 2007)
 42

(explaining the court’s approach of avoiding constitutional difficulties

through statutory construction).

2. Facial challenge to rules related to right to review and respond in

writing. Bonilla asserts that due process under the state and federal

constitutions requires that he be afforded the right to review his file prior

to any future annual parole review and the right to respond by offering

relevant evidence or other written submissions. 5 Bonilla argues that

access to materials is necessary in order to have a reasonable opportunity

to review the information and determine whether to submit materials to

the Board. He points to caselaw showing errors in parole files. See, e.g.,

Kohlman v. Norton, 380 F. Supp. 1073, 1074–75 (D. Conn. 1974) (holding

that parole board erred in denying parole based on mistaken indication

that applicant used gun in committing robbery); In re Rodriguez, 537 P.2d

384, 393 n.16, 396 n.19 (Cal. 1975) (en banc) (noting factually

unsupported and incorrect material in parole file regarding violent

tendencies and family rejection), superseded by statute on other grounds,

Cal. Penal Code § 1170, as recognized in People v. Jefferson, 980 P.2d 441,

446 (Cal. 1999); State v. Pohlabel, 160 A.2d 647, 650 (N.J. Super. Ct. App.

Div. 1960) (highlighting that presentence report erroneously showed

prisoner under life sentence in another jurisdiction). See generally

Greenholtz, 442 U.S. at 33 & n.15, 99 S. Ct. at 2117 & n.15 (Marshall, J.,

dissenting in part) (“[R]esearchers and courts have discovered many

substantial inaccuracies in inmate files . . . .”).

5Bonilla does not distinguish between due process under article I, section 9 of the
Iowa Constitution and the Due Process Clause of the Fourteenth Amendment to the
Federal Constitution. Some states have provided more due process protections under
their state constitutions. See, e.g., Conner v. Griffith, 238 S.E.2d 529, 533 (W. Va. 1977)
(recognizing greater protection for parolees under the West Virginia Constitution than
under the Federal Constitution).
 43

Bonilla interprets the Board’s rules narrowly. Bonilla claims the

rules provide an opportunity to express views and present materials only

if the Board has granted the inmate an interview. Iowa Admin. Code r.

205—8.12. He argues that the rule improperly excludes annual reviews

from its scope. Id. Bonilla claims that the Board’s rules are facially

defective for that reason—in other words, all juvenile offenders must, as a

matter of due process, have access to materials being considered by the

Board in its annual reviews of the juvenile offender and an opportunity to

respond.

In support of his argument, Bonilla cites Eighth Amendment death

penalty cases for the proposition that mitigating evidence must be

considered by a sentencing court. See Boyde v. California, 494 U.S. 370,

377–78, 110 S. Ct. 1190, 1196 (1990) (“The Eighth Amendment requires

that the jury be able to consider and give effect to all relevant mitigating

evidence offered by petitioner.”); Skipper v. South Carolina, 476 U.S. 1, 4,

106 S. Ct. 1669, 1671 (1986) (“[T]he sentencer may not refuse to consider

or be precluded from considering ‘any relevant mitigating evidence.’ ”

(quoting Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S. Ct. 869, 877

(1982))). Bonilla argues that allowing a prisoner access to the file material

and an opportunity to respond would increase the reliability and

legitimacy of the parole process. See Sarah French Russell, Review for

Release: Juvenile Offenders, State Parole Practices, and the Eighth

Amendment, 89 Ind. L.J. 373, 424 (2014) [hereinafter Russell].

The Board asserts the procedures required for an annual parole

review are different from those required at capital sentencing. The Board

notes the interest in a capital sentencing hearing is much greater than at

an annual parole review.
 44

The Board also interprets the applicable rule differently than

Bonilla. The Board asserts that under the applicable rule, “The board shall

normally consider only information that has been reviewed by the

inmate . . . .” Iowa Admin. Code r. 205—8.11. Additionally, the Board

notes, “The inmate shall be given the opportunity to respond to

information.” Id. r. 205—8.11(2). Further, the Board points out, “The staff

of the department of corrections shall discuss the information with the

inmate and disclose to the inmate any factual allegations if the disclosure

can be done in a manner that protects confidential sources.” Id. r. 205—

8.11(1). Finally, although without specific citation to a rule, the Board

states in its appellate briefing that “inmates may submit to the Board in

advance of any parole review or interview such documents or other written

information and statements as they may deem appropriate to correct any

perceived misstatements or to simply supplement their records.”

We regard the basic procedural rights of access to the file and a right

to provide information to the Board as representing the minimum due

process protections. We note that in Greenholtz, 442 U.S. at 15–16, 99

S. Ct. at 2108, the United States Supreme Court considered the

protections afforded to parolees with a statutorily created liberty interest

in parole. In Greenholtz, the Nebraska parole system provided a right of

access to the file in the parole board’s discretion, a right to make written

submissions, and the right to personally appear before the parole board.

Id. at 15 & n.7, 99 S. Ct. at 2108 & n.7. The Greenholtz Court

characterized these procedural requisites as minimum procedural

protections sufficient to pass due process muster. See id. at 16, 99 S. Ct.

at 2108.

These minimal procedural protections identified in Greenholtz are

important to allow a juvenile offender to respond to information in a parole
 45

file that might be inaccurate. As noted by one parole authority, a file may

contain “ ‘soft’ information” or even “unsubstantiated rumors.” Neil P.

Cohen, The Law of Probation and Parole § 6:20 (2d ed.), Westlaw (database

updated June 2018) [hereinafter Cohen]. An inmate would have no

opportunity to correct such erroneous information without access to the

file and a right to respond. Id.

The Utah Supreme Court addressed the question of whether an

offender was entitled to file review in connection with his initial parole

determination hearing in Labrum v. Utah State Board of Pardons, 870 P.2d

902, 903 (Utah 1993). The Labrum court noted the close relationship

between parole and sentencing. Id. at 908. The Labrum court pointed to

a well-known article by criminal law expert Sanford Kadish, who noted,

“Determinations by Boards of Parole whether and when to release the

offender on parole are in some measure equivalent to the sentencing

determinations of the judge.” Id. (quoting Sanford H. Kadish, The Advocate

and the Expert—Counsel in the Peno-Correctional Process, 45 Minn. L. Rev.

803, 812 (1961)). Just as a judge gives the offender an opportunity to

review and respond to a presentence report, the Labrum court concluded,

an inmate is entitled to review the parole file in an original parole grant

hearing under article I, section 7 of the Utah Constitution. Id. at 909. 6

Applying the balancing test of Mathews, we conclude, with respect

to annual parole reviews, a juvenile offender has a due process right to

access the file considered by the Board and an opportunity to present

additional relevant information to the Board. 7 The juvenile offender has a

6In Utah, the hearing sets a presumptive release date and “an inmate has a
reasonable expectation that the term decided upon at the original release hearing will
turn out in fact to be his or her actual prison term.” Id. at 908–09.
7We recognize that the rules of the Board provide that some information in the file
might, for security reasons, be withheld from disclosure to the juvenile offender as
 46

liberty interest, the process will provide some enhancement to the

reliability of the process, and the burden on the state is minimal.

We now examine the rules of the Board to determine whether they

facially comply with the due process requirement of access to the file and

an opportunity to respond. The Board’s rules present some ambiguities

and gaps, but our obligation, if possible, is to give the rules an interpretive

gloss that complies with constitutional requirements. See, e.g., Nail, 743

N.W.2d at 539.

Rule 8.11 provides that “[t]he board shall normally consider only

information that has been reviewed by the inmate, except when the board

deems such review not feasible.” Iowa Admin. Code r. 205—8.11. The

rule does not specifically state whether it applies to annual review hearings

or only interview-type hearings, but we construe the rule to cover annual

review proceedings to avoid constitutional difficulties.

Assuming the rule applies to annual parole reviews of juvenile

offenders, we are concerned about the potential scope of the qualifiers

“normally” and “when . . . feasible.” These open-textured words and

phrases could, perhaps, be applied in a fashion to defeat the rule. For

example, a view that the phrase “normally” vests broad discretion in the

Board to determine whether to release or the scope of release, and a

construction of the phrase “when . . . feasible” as providing a broad

pragmatic exception of convenience to disclosure, would raise serious due

process concerns. A narrow construction, however, to mean that

disclosure may be considered not “normally” available or not “feasible”

only when disclosure could jeopardize the health or safety of the inmate or

confidential. See Iowa Admin. Code r. 205–8.11(1). See generally Duckworth v. Williams,
494 N.E.2d 368, 369 (Ind. Ct. App. 1986) (considering question of whether an inmate was
entitled to confidential file in preparation for parole hearing). No such issue is posed in
this case.
 47

a third party would likely survive constitutional scrutiny in most

circumstances.

We also note that rule 8.11(3) has certain limitations to disclosure.

Id. r. 205—8.11(3). This provision states that the Board is to separate, as

far as possible, opinion from factual information and that “[t]he factual

information shall be made available for review by the inmate; opinion

information shall be confidential.” Id. The rule further states that

“[p]sychiatric or psychological test results or diagnoses shall be deemed

confidential.” Id.

From a due process perspective, failure to disclose opinion

information or psychiatric or psychological test results that may be

considered by the Board in an annual review hearing is problematic. We

note that ordinarily under the Board’s rules, “confidential” information in

an individual’s own records may be disclosed “except for those records that

could result in physical or psychological harm to the individual or others,

and disciplinary reports.” Id. r. 205—6.4(3)(d). The opinion evidence and

the psychiatric or psychological tests results are expressly labeled

“confidential” in rule 8.11(3). Thus, this information may be released to

the inmate unless there is a health or safety issue present.

There is a potential question regarding the scope of permitted

supplementation of the parole file by an inmate. As indicated above, the

Board takes the position that an inmate may offer written supplementation

to correct any errors or perceived misstatements or “to simply supplement

their records.” The Board’s rules expressly state that an inmate being

interviewed by a board panel be given “ample opportunity to express views

and present materials.” Id. r. 205—8.12. This rule, however, does not

seem to apply to annual parole reviews where no interview occurs. There

is, however, a provision in rule 8.11(2) stating that “[t]he inmate shall be
 48

given the opportunity to respond to information” in the Board’s file. Id.

r. 205—8.11(2).

The Board broadly interprets the provisions of rule 8.11(2) to include

a right not simply to directly respond to information in the file but “to

simply supplement their records.” Thus, a juvenile offender inmate is not

limited to providing information to rebut a specific fact in the file, they may

also affirmatively present information tending to show maturity and

rehabilitation. We accept the Board’s interpretation of rule 8.11(2) as

allowing a juvenile offender to supplement the file with, for instance, expert

opinions, statements from third parties, evidence of prison achievement,

and other items that may not rebut a specific piece of factual information

in the Board’s file but which presents a broader picture for the Board’s

consideration.

Given the above gloss on the applicable Board rules, we conclude

that they survive a facial due process challenge. We take no view, of

course, of any specific dispute that may arise under the rules. As a result,

we find no basis for providing Bonilla with relief under Iowa Code section

17A.19.

3. In-person presence at review hearing. Bonilla argues the Board

has refused to allow him to attend his annual reviews, and as a result, he

has been denied the opportunity to engage in a colloquy about the extent

of his rehabilitation. Bonilla cites Goldberg v. Kelly, 397 U.S. 254, 269, 90

S. Ct 1011, 1021 (1970), for the proposition that

written submissions do not afford the flexibility of oral
presentations; they do not permit the recipient to mold his
argument to the issues the decision maker appears to regard
as important. Particularly where credibility and veracity are
at issue, as they must be in many termination proceedings,
written submissions are a wholly unsatisfactory basis for
decision.
 49

Bonilla emphasizes that “written submissions are a particularly

inappropriate way to distinguish a genuine hard luck story from a

fabricated tall tale.” Califano v. Yamasaki, 442 U.S. 682, 697, 99 S. Ct.

2545, 2555 (1979). Further, Bonilla argues that the lack of an in-person

presence is particularly problematic for juvenile offenders as they “often

‘lack the educational attainment necessary to write effectively’ and are

likely to be much more capable of expressing themselves orally.” Russell,

89 Ind. L.J. at 423 (footnote omitted) (quoting Goldberg, 397 U.S. at 269,

90 S. Ct. at 1021).

Bonilla recognizes that the Board is authorized by statute to

interview offenders. Iowa Code § 906.5(1)(b). Further, Bonilla cites the

Board’s rules relating to inmate interviews. Iowa Admin. Code r. 205—8.8

(requiring notice to an inmate “to be interviewed”); id. r. 205—8.12

(providing that the Board “in its discretion” may interview the inmate); id.

r. 205—8.14(2) (stating rules governing conduct of inmate at parole

proceedings). Bonilla asks that the right of juvenile offenders to be present

and make a presentation be extended to annual parole reviews.

The Board counters that the procedures sought by Bonilla are not

constitutionally compelled. According to the Board, the mere fact that a

procedure may seem fairer or wiser does not mean that it is

constitutionally required. Ghost Player, 860 N.W.2d at 330. The Board

asserts that the present procedural regime, which includes interviews of

offenders in the Board’s discretion, is sufficient for the purposes of due

process.

There is some authority that due process also requires that an

inmate being considered for parole has a right to personally appear before

the Board to press the case for release based upon demonstrated maturity

and rehabilitation. In Worden v. Montana Board of Pardons and Parole,
 50

962 P.2d 1157, 1166 (Mont. 1998), and Sage v. Gamble, 929 P.2d 822,

825–26 (Mont. 1996), the Montana Supreme Court held that a prisoner is

entitled to appear personally and verify or refute the accuracy of board

records and present any special considerations in support of parole. But

see Mahaney v. State, 610 A.2d 738, 742 (Me. 1992) (holding that when

review is based primarily on inmate files, due process did not require

personal appearance).

Nonetheless, we do not think the Board’s discretionary approach to

in-person interviews in connection with routine annual reviews of a

juvenile offender’s file is constitutionally infirm. An interview with the

inmate is not constitutionally required in each and every annual meeting

when, in many cases, there may be no important factual disputes of any

kind. For example, a class “A” juvenile offender receiving his first annual

review after turning eighteen ordinarily has little claim that a mandatory

personal appearance is required by due process as the likelihood that a

personal appearance would have impact on the Board’s parole decision

would be extremely remote. While we think a review of the file and

opportunity to respond in writing is an every time constitutional

requirement in the context of annual reviews, we simply cannot say the

same applies to the right to be present at the review itself.

Further, we note that while Bonilla generally states he wishes to

appear in person, he did not in his motion before the Board make a specific

showing of why such an appearance would be helpful or promote the

accuracy or fairness of the process. He did not, for instance, point to any

credibility issues that he wished to challenge through a personal

appearance at a future annual review. Because this is a facial challenge,

we have no occasion to determine whether in some circumstances an in-

person presence of a juvenile offender might be constitutionally required
 51

at an annual review, but we do decide that an in-person presence is not

always required at each and every annual review. As a result, Bonilla’s

facial challenge fails under Honomichl, 914 N.W.2d at 231 (“A facial

challenge is one in which no application of the statute could be

constitutional under any set of facts.”). Further, in the alternative, Bonilla

has failed to make an adequate showing that a refusal of the Board to

grant him an in-person interview is facially unconstitutional as applied to

him, thereby failing to meet the approach to facial challenges of Jacobsma,

862 N.W.2d at 346 (“[I]f a statute is constitutional as applied to a

defendant, the defendant cannot make a facial challenge unless a

recognized exception to the standing requirement applies.”).

Of course, we take no position as to whether, in the future, in the

context of a specific annual review and a specific factual record, Bonilla

might be able to make an as-applied due process challenge to the failure

of the Board to permit him to appear at an annual review. But his

challenge in this case on this record fails.

4. Right to verifiable information. Bonilla asks us to declare that due

process prohibits the Board from considering unverified information such

as generic notes and behavioral logs. Bonilla points out that generic notes

are not subject to a fact-finding process or refutation by the offender at

the time the notes are generated. As a result, Bonilla contends, a parole

determination could be based on unreliable information that the inmate

has no realistic chance to rebut. Bonilla thus asks that the Board cull

unverified information from the annual review file.

The Board counters, citing Propps, 897 N.W.2d at 102, that it is in

the best position to determine whether an individual has benefitted from

opportunities for maturation and rehabilitation. The Board suggests that

in order for it to be best informed, there should be no categorical
 52

elimination of its access to “generic notes” or other “unverified”

contemporaneous observations of the behavior of the inmate or others.

The Board notes that under Iowa Code section 906.5(3), it is to consider

“all pertinent information.” The Board argues that generic notes and

behavioral logs can provide information on the ability of an inmate to

positively interact with correctional officers and fellow inmates. The Board

further notes that under the policy of the department of corrections, such

notes are to be objective and based on professional judgment. Information

is to be marked as “alleged” if not verified. See Iowa Dep’t of Corr., Policy

and Procedures, No. AD-IS-05, ICON Generic Notes at 2 (effective May

2016), https://doc.iowa.gov/sites/default/files/ad-is-05_icon_generic_

notes.pdf.

We do not find that due process requires the Board to exclude

contemporaneous “generic notes” or similar information from the annual

review file of a juvenile offender. Parole boards are generally permitted to

consider reliable hearsay evidence. See Cohen § 6:19. The lack of the

ability of an inmate to contemporaneously challenge observations in the

generic notes and the like go to the weight, if any, the Board may give the

information. Further, by granting Bonilla access to the file and an

opportunity to respond, the risk that the Board will rely upon harmful but

erroneous unverified information is reduced. Further, as noted above,

intraagency appeal and resort to an appeal under the Iowa Administrative

Procedures Act provide further protection against the potential reliance on

erroneous information in the files. See Larson v. City of Fergus Falls, 229

F.3d 692, 697 (8th Cir. 2000).

For the above reasons, we do not believe the Board has a

responsibility to scour its file and remove all information that Bonilla or

any other inmate considers “unverified.” If the Board is unreasonable in
 53

its reliance on speculative and unsubstantiated information in the file, the

inmate may launch a challenge to the parole decision under Iowa Code

chapter 17A. The district court properly refused to grant declaratory relief

to Bonilla on the ground that the Board allowed “unverified” information

to remain in the file.

5. Adequate notice of future hearings and written guidance. Bonilla

asserts that in order to have a meaningful opportunity to be heard, “the

Board must provide him with a timely, comprehensive written decision

from the Board detailing the reasons for denying him release.” Such a

written decision, according to Bonilla, is to include a discussion of all

appropriate mitigating factors and specific guidelines and

recommendations for programming and treatment that will assist in his

rehabilitation.

In support of his argument, Bonilla cites Swarthout v. Cooke, 562

U.S. 216, 131 S. Ct. 859 (2011). Bonilla maintains that Swarthout stands

for the proposition that due process is satisfied where inmates “were

allowed to speak at their parole hearings and to contest the evidence

against them, were afforded access to their records in advance, and were

notified as to the reasons why parole was denied.” Id. at 220, 131 S. Ct.

at 862.

The Board asserts that a detailed written ruling is not required to

inform Bonilla and other offenders of the reasons they were denied parole.

The Board notes that in Greenholtz the Supreme Court observed, “To

require the parole authority to provide a summary of the evidence would

tend to convert the process into an adversary proceeding and to equate the

Board’s parole-release determination with a guilt determination.” 442 U.S.

at 15–16, 99 S. Ct. at 2108.
 54

Upon review of the record, we conclude that Bonilla has failed to

mount a sustainable facial challenge to the Board’s policies or practices.

The record in this case does not establish that the Board as a matter of

policy declines to advise an inmate of the fact that parole has been denied

or fails to provide the general reason for the denial. Indeed, the record

suggests that Bonilla has multiple avenues to communicate with the

department of corrections and the Board related to his status. For

example, the Board prepares a parole release plan that the inmate can

review and seek to modify. The parole release plan then becomes part of

the information that the Board may rely upon in its annual review. There

is no categorical due process requirement that after every review the Board

issue what Bonilla seems to desire, namely, detailed findings of fact or

conclusions of law with respect to the denial of parole.

We do not suggest, however, that boilerplate statements are

sufficient. Repeated use of boilerplate generalities will not suffice. U.S. ex

rel. Scott v. Ill. Parole and Pardon Bd., 669 F.2d 1185, 1191 (7th Cir. 1982),

overruled on other grounds by Heidelberg v. Ill. Prisoner Review Bd., 163

F.3d 1025, 1027 (7th Cir. 1998). What are required are sufficient reasons

to facilitate appellate review. State v. Tillinghast, 609 A.2d 217, 218 (R.I.

1992) (per curiam) (“[A] denial of parole should be accompanied by a

statement of reasons for the board’s action that is sufficient to enable a

reviewing court to determine if parole has been withheld for permissible

reasons.”); State v Ouimette, 367 A.2d 704, 710 (R.I. 1976.).

As a result, we think the district court did not err in declining to

provide Bonilla with relief on this ground.

6. Programming and treatment. Bonilla claims that lack of access

to programing and treatment that would aid his rehabilitation deprives

him of a meaningful opportunity to obtain release in violation of his rights
 55

to due process and to be free from cruel and unusual punishment. Bonilla

challenges what he characterizes as a “Catch 22,” namely, that he cannot

be considered seriously for parole until he completes the sex offender

treatment program, or SOTP, but he cannot gain access to SOTP until he

is being seriously considered for parole. Bonilla notes that at least one

federal court has ordered that “no prisoner sentenced to life imprisonment

without parole for a crime committed as a juvenile will be deprived of any

educational or training program which is otherwise available to the general

prison population.” Hill v. Snyder, No. 10-14568, at 2 (E.D. Mich. Nov. 26,

2013), https://www.aclu.org/sites/default/files/field_document/

hillorderrequiringparoleprocess.pdf. He further notes that a number of

state legislatures have enacted provisions that require parole authorities

to make available appropriate programming to prepare a juvenile offender

for return to the community. See Cal. Penal Code § 3041(a)(1); Wash. Rev.

Code Ann. § 10.95.030(3)(e) (West, Westlaw through ch. 412 of 2019 Reg.

Sess. 2019).

The Board counters with authorities that it claims stand for the

proposition that there is no constitutional right to any specific treatment

program while in prison. Wishon v. Gammon, 978 F.2d 446, 450 (8th Cir.

1992); Stewart v. Davies, 954 F.2d 515, 516 (8th Cir. 1992). Yet, the Board

recognizes in Belk v. State, 905 N.W.2d 185, 191 (Iowa 2017), we held that

Iowa Code chapter 822 provided the proper procedural vehicle for an

inmate to assert a claim that a delay in providing sex offender treatment

unconstitutionally deprived him of a protected liberty interest in accessing

parole. The Board argues, however, that the proper party to any alleged

delay in treatment is the department of corrections, not the Board.

As noted in Graham, “[i]n some prisons . . . the system itself becomes

complicit in the lack of [a juvenile offender’s] development” through the
 56

withholding of education and rehabilitation programs. 560 U.S. at 79, 130

S. Ct. at 2032–33. According to Graham, “[D]efendants serving life without

parole sentences are often denied access to vocational training and other

rehabilitative services that are available to other inmates.” Id. at 74, 130

S. Ct. at 2030. Building on Graham, one commentator has noted that

“[p]roviding access to these kinds of programs is . . . central to creating

realistic opportunities for release.” Caldwell, 40 N.Y.U. Rev. L. & Soc.

Change at 291.

If the state, through the Board, wishes to condition release upon

successful completion of certain programing such as SOTP, the

department of corrections cannot unreasonably withhold such

programming from a juvenile offender. Otherwise, the state could

effectively deprive a juvenile offender of a meaningful opportunity to show

maturity and rehabilitation by establishing release criteria that the state

prevents the juvenile offender from meeting. The department of

corrections does not have a pocket veto over the release of a juvenile

offender through the withholding of services required by the Board for the

release of a juvenile offender.

It may be, however, that the Board has limited direct authority over

the department of corrections. If the department of corrections fails to act

reasonably in light of the communication from the Board regarding

programming, the juvenile offender may file a claim against the

department under Iowa Code chapter 822, alleging that by denying

reasonable access to the programming necessary to obtain an opportunity

for release, the state is failing to live up to the requirements of Graham–

Miller. See Belk, 905 N.W.2d at 191.

7. Right to counsel. Bonilla asserts that he is entitled to appointed

counsel at his annual parole reviews under article I, sections 9, 10, and
 57

17 of the Iowa Constitution and under the Eighth and Fourteenth

Amendments to the Federal Constitution. According to Bonilla, appointing

counsel for indigent juvenile offenders would assist them in obtaining a

meaningful opportunity to demonstrate maturity and rehabilitation under

Graham–Miller.

Bonilla claims that Iowa Code section 906.7, which provides that

“[t]he board shall not be required to hear oral statements or arguments

either by attorneys or other persons,” fails to pass constitutional muster

as applied to juvenile offenders for several reasons. Bonilla notes that

article I, section 10 of the Iowa Constitution extends the right to counsel

to cases involving life or liberty and that an annual parole review falls

within the protection of the “cases” clause. State v. Young, 863 N.W.2d

249, 278 (Iowa 2015). Citing Morrissey v. Brewer, 408 U.S. 471, 481–82,

92 S. Ct. 2593, 2600–01 (1972), Bonilla also claims that the due process

clause attaches to parole reviews and that counsel should be appointed to

protect the liberty interest involved in Graham–Miller.

The Board responds that there is no statutory authority under Iowa

law for the provision of the right to counsel at state expense. The Board

states that inmates facing prison disciplinary proceedings have no right to

either retained or appointed counsel even if the accrual of good time is

jeopardized. Giles v. State, 511 N.W.2d 622, 627 (Iowa 1994). The Board

sees a parole hearing as akin to a prison disciplinary hearing. If there is

no right to counsel in a prison disciplinary hearing where good time credit

is lost, the Board contends, there should be no right to counsel in an

annual parole review.

We first consider the applicability of article I, section 10 of the Iowa

Constitution. In an early case, we noted that the confrontation clause in

article I, section 10 of the Iowa Constitution affords “a personal right
 58

limited to proceedings in criminal prosecutions, or where the life or liberty

of the citizen is involved.” State v. Polson, 29 Iowa 133, 135 (1870).

Another early case held that the Iowa right to jury provision in article I,

section 10 applies to contempt proceedings. Ex parte Grace, 12 Iowa 208,

213–14 (1861) (holding that while the cases clause of article I, section 10

may have been “intended to meet the case of a fugitive slave,” there is “no

reason in the nature of things, nor in the language employed, to justify the

conclusion that white men were not also entitled to the benefit of it” in a

contempt proceeding). We have also held that the right to counsel extends

beyond the filing of a formal criminal prosecution. State v. Green, 896

N.W.2d 770, 777 (Iowa 2017). Bonilla now seeks to extend the right to

counsel under article I, section 10 to annual reviews by the Board. In

order to be applicable, however, the proceeding must involve a case. We

turn now to the meaning of that term.

Ordinarily, the term “case” refers to an adversary proceeding where

parties present conflicting views for determination by a neutral

adjudicator. See Case, Black’s Law Dictionary (11th ed. 2019) (defining

“case” as “[a] civil or criminal proceeding, action, suit, or controversy at

law or in equity”). The purpose of the right to counsel is to ensure, among

other things, that an individual is not overpowered by the resources of the

state and has a reasonable opportunity to present arguments of fact and

law to a neutral decision-maker. Green, 896 N.W.2d at 776 (noting that

the right to counsel “is ‘indispensable to the fair administration of our

adversary system of criminal justice,’ ” and that “[o]ur founders provided

it because the system is balanced only when both the state and the

accused have the professional assistance of counsel” (quoting Brewer v.

Williams, 430 U.S. 387, 398, 97 S. Ct. 1232, 1239 (1977))); State v.

Peterson, 663 N.W.2d 417, 426 (Iowa 2003) (recognizing that the
 59

constitutional guarantee of counsel “maintains the fair administration of

our criminal justice system by assuring aid to the accused when

confronted by the government adversary”).

For instance, in In re Brewer, 224 Iowa 773, 774, 276 N.W. 766, 766

(1937), we considered whether a person adjudged insane by a commission

is entitled to a jury when appealing to the district court. We said the

appeal was statutorily classified a “special action” because

there is no party plaintiff who demands anything against the
other party . . . or who seeks the enforcement or protection of
a private right or the prevention or redress of a private wrong.
The proceeding is brought against one alleged to be mentally
sick, for the purpose of restraining that individual until she
has recovered.

Id. at 775, 276 N.W. at 766. We then applied this reasoning to the

constitutional requirement for a jury trial in article I, sections 9 and 10 of

the Iowa Constitution. Id. at 780, 276 N.W. at 769. We held that no

constitutional right was violated because an inquisition of insanity was

not a criminal proceeding and because the purpose of the proceeding was

to aid and assist the individual, to provide means whereby the
state may protect its unfortunate citizens, to furnish
hospitalization and treatment so that the insane will have an
opportunity to rehabilitate and readjust themselves into
useful and happy citizens.

Id.

An annual review of the Board does not ordinarily involve a

traditional adversarial proceeding. The state is not represented by the

advocacy of legal counsel advocating a particular result based on fact and

law. Instead, the Board assembles information to assist it in determining

the progress of an offender and whether an offender should be placed on

work release or parole. While the precise scope of the right to counsel

under the distinctly worded provision of Iowa Constitution article I, section
 60

10 may be subject to debate, the Iowa right to counsel under the “cases”

clause does not extend beyond “cases.” As a result, we conclude that

ordinarily the right to counsel under article I, section 10 of the Iowa

Constitution does not extend to annual review proceedings conducted by

the Board.

We now turn to the question of whether due process requires that a

juvenile offender’s liberty interest in a meaningful opportunity to

demonstrate maturity and rehabilitation requires the assistance of

counsel in proceedings such as the annual review conducted by the Board.

The United States Supreme Court has considered due process

implications in cases involving parole or probation in four seminal cases.

In Morrissey, 408 U.S. at 472, 92 S. Ct. at 2596, the Supreme Court found

that due process applied to a parole revocation hearing, id. at 482, 92

S. Ct. at 2601, but did not decide the question of whether due process

required the right to counsel in a parole revocation proceeding, id. at 489,

92 S. Ct. at 2604.

The next case in the due process line involves the revocation of

probation. In Gagnon v. Scarpelli, 411 U.S. 778, 779, 93 S. Ct. 1756, 1758

(1973), the Supreme Court considered what process is due in a case

involving a revocation of probation. The Gagnon Court found that there

was no distinction between the revocation of parole and the revocation of

probation for purposes of determining whether an offender facing

revocation had a liberty interest protected by due process. Id. at 782, 93

S. Ct. at 1759. The Gagnon Court then proceeded to address the question

finessed in Morrissey, namely, whether an indigent probationer or parolee

is entitled to appointment of counsel in revocation hearings. Id. at 783,

93 S. Ct. at 1760.
 61

The Gagnon Court concluded that there was no across-the-board

rule regarding the right to appointed counsel in cases involving probation

revocation. Id. at 787–90, 93 S. Ct. at 1762–63. Among other things, the

Gagnon Court feared that the introduction of counsel for the offender into

revocation proceedings would change the nature of the proceeding. Id. at

787–88, 93 S. Ct. at 1762–63. If counsel for the offender appears, the

Gagnon Court reasoned, the state would also want counsel. Id. at 787, 93

S. Ct. at 1762. The process may, as a result, become an adversarial

process less attuned to the rehabilitative needs of the individual

probationer or parolee. Id. at 787–88, 93 S. Ct. at 1762–63.

As a result, the Gagnon Court decided that the right to appointed

counsel in a probation or parole revocation proceeding can be determined

only on a case-by-case basis. Id. at 790, 93 S. Ct. at 1763. The Gagnon

Court stated that it was “neither possible nor prudent to attempt to

formulate a precise and detailed set of guidelines . . . to meet the applicable

due process requirements.” Id. at 790, 93 S. Ct. at 1764. Yet the Gagnon

Court suggested that counsel presumptively should be provided where the

probationer or parolee makes a timely request and claims that he or she

did not commit the alleged violation or that there are substantial reasons

in mitigation and that the reasons are complex or otherwise difficult to

develop or present. Id. at 790–91, 93 S. Ct. at 1764. In doubtful cases,

the Gagnon Court urged the authorities to consider whether the

probationer appears capable of speaking effectively for himself. Id.

The third seminal due process case involved prison discipline. In

Wolff, 418 U.S. at 542–43, 94 S. Ct. at 2968, the Supreme Court

considered whether a prisoner facing disciplinary proceedings that could

lead to loss of good time, and thereby extend his incarceration, was entitled

to the assistance of counsel in the disciplinary proceeding. The Wolff
 62

Court approached the issue gingerly. According to the Wolff Court, “At

this stage of the development of these [disciplinary] procedures we are not

prepared to hold that inmates have a right to either retained or appointed

counsel in disciplinary proceedings.” Id. at 570, 94 S. Ct. at 2981. The

Wolff Court, however, noted that “[w]here an illiterate inmate is involved”

or where “the complexity of the issue makes it unlikely that the inmate will

be able to collect and present the evidence necessary for an adequate

comprehension of the case,” the inmate “should be free to seek the aid of

a fellow inmate, or . . . to have adequate substitute aid in the form of help

from the staff or from a sufficiently competent inmate designated by the

staff.” Id. at 570, 94 S. Ct. at 2982. The Wolff Court closed its discussion

by indicating that its conclusions were “not graven in stone.” Id. at 571–

72, 94 S. Ct. at 2982.

Three justices dissented in part in Wolff. Id. at 580, 94 S. Ct. at

2986 (Marshall, J., concurring in part and dissenting in part); id. at 593,

94 S. Ct. at 2993 (Douglas, J., dissenting in part and concurring in the

result in part). On the issue of right to counsel, Justice Marshall noted

that in Gagnon, counsel would be available in some cases and that the

same principle should apply to disciplinary proceedings. Id. at 591, 94

S. Ct. at 2992 (Marshall, J., concurring in part and dissenting in part).

Justice Marshall agreed with the majority, however, that counsel was not

required in every case and that counsel substitutes such as law students

might be available to assist in a prisoner’s defense. Id. at 591–92, 94 S. Ct.

at 2992.

Finally, in Greenholtz, 442 U.S. at 3, 99 S. Ct. at 2102, the United

States Supreme Court considered whether a prisoner seeking a grant of

parole is entitled to due process protections. The Greenholtz majority

determined that a prisoner did not have a constitutionally based liberty
 63

interest in parole release. Id. at 7, 99 S. Ct. at 2104. In reaching this

conclusion, the Greenholtz Court distinguished between parole revocation

and parole release. Id. at 9, 99 S. Ct. at 2105. The Greenholtz Court noted

that a prisoner seeking release is confined and thus has a lesser interest

in liberty than a parolee who has already been released. Id. Further, the

revocation of parole or probation, according to the Greenholtz Court, had

a fact-based element that was absent in the decision to grant parole. Id.

at 9–10, 99 S. Ct. at 2105.

The above federal cases demonstrate the difficulty in determining

when due process (fundamental fairness) requires that an offender be

provided with legal counsel in a variety of contexts. The United States

Supreme Court has been tentative, guarded, and flexible on the issue. It

seems clear, however, that where an inmate is facing deprivation of a

liberty interest but is not capable of self-representation, either as a result

of limited abilities or as a result of the complexity of the issues, the

Supreme Court as a matter of fundamental fairness may be more open to

providing the inmate with some kind of assistance, even if only through a

counsel substitute.

The Massachusetts Supreme Court in Diatchenko has addressed the

question of whether a juvenile offender is entitled to counsel in an initial

parole hearing. 27 N.E.3d at 356. According to the Diatchenko court, the

task of parole authorities in an initial parole hearing is “far more complex

than in the case of an adult offender because of ‘the unique characteristics’

of juvenile offenders.” Id. at 360 (quoting Diatchenko v. Dist. Att’y, 1 N.E.3d

270, 286 (Mass. 2013), superseded by statute on other grounds, Mass.

Gen. Laws ch. 279, § 24 (2016), as recognized in Commonwealth v. Perez,

106 N.E.3d 620, 627–28 (Mass. 2018)). Further, at the initial parole

hearing in Massachusetts, notice is given to the attorney general,
 64

government officials, the district attorney, and the victims. Id. at 359. As

a result, the Diatchenko court held that a juvenile offender is entitled to

legal representation at least at the initial parole hearing. Id. at 361.

Bonilla’s facial challenge is that counsel must be provided at every

annual review of a juvenile offender’s parole status. We do not agree.

There are certainly situations where annual reviews are relatively

uncomplicated and no contested factual or legal issues are present. Even

in Diatchenko, the right to counsel arose at an initial review hearing after

fifteen years of mandatory imprisonment. There is no suggestion in

Diatchenko that counsel is required each and every year under procedures

that include an annual parole review.

Because we conclude there is no right to counsel in each and every

annual review hearing for all juvenile offenders, Bonilla cannot prevail on

his facial attack under Honomichl, 914 N.W.2d at 231. Further, Bonilla in

his motion before the Board failed to show how due process would

necessarily require that appointed counsel be provided to him. Bonilla

had counsel in prior hearings, and although the claim was made in the

motion that Bonilla was indigent, it is not clear that Bonilla would need

appointed counsel in future hearings. Further, Bonilla in his motion

before the Board did not show any particularized reason why counsel was

essential to ensure fundamental fairness in his annual review but only

generally asserted that counsel was required to assure a meaningful

opportunity to demonstrate maturity and rehabilitation. Even assuming

the Morrissey–Gagnon–Wolff line of cases has applicability in the context

of annual reviews of juvenile offenders, Bonilla has not shown that the

Board’s policy is unconstitutional as applied to him. Therefore, Bonilla’s

claim also fails under Jacobsma, 862 N.W.2d at 346. We express no view
 65

as to whether there might be a right to counsel under other circumstances

with a different factual showing.

8. Right to independent experts. Bonilla claims he is entitled to

independent experts at government expense to support his claim that he

is entitled to parole based on demonstrated maturity and rehabilitation.

Bonilla recognizes that, under Iowa Administrative Code rule 205—

8.10(2), the Board may, in its discretion, “request a complete psychiatric

or psychological evaluation of an inmate.” However, Bonilla emphasizes,

the rule does not address the need for independent expert opinion in cases

involving juvenile offenders when they are being considered for parole.

Although the department of corrections has engaged in very brief

psychological and psychiatric evaluations of Bonilla, he notes, none of

these focus on the question of whether he has been rehabilitated or how

he has developed since the commission of the underlying crime.

According to Bonilla, an evaluation by a licensed psychologist with

specific expertise in juvenile brain development is essential to show

maturity and rehabilitation under Graham–Miller. In support, he cites

Roby, 897 N.W.2d at 143–48, where this court emphasized the essential

role that experts play in evaluating juveniles and cautioned against

applying past, generalized attitudes about criminal behavior.

Bonilla observes that in the context of capital sentencing, due

process entitles a defendant to an independent psychological evaluation,

at least where the defendant claims insanity. Ake v. Oklahoma, 470 U.S.

68, 82, 105 S. Ct. 1087, 1096 (1985). By analogy, Bonilla argues, he is

entitled to an independent expert to assist the Board in making a

meaningful assessment of his maturity and rehabilitation.

The Board counters that offenders like Bonilla have been repeatedly

evaluated by mental health experts. According to the Board, the in-house
 66

evaluations conducted by the department of corrections are sufficient to

establish an adequate baseline from which the Board can measure

maturity and rehabilitative growth. Further, the Board argues,

speculation regarding future development or growth is not a replacement

for real time observations of contemporary conduct, which the Board is in

a position to evaluate. See Sweet, 879 N.W.2d at 838–39. The Board also

emphasizes that because Board membership includes a lawyer and a

social worker “knowledgeable in correctional procedures and issues,” Iowa

Code § 904A.2, the Board has a wide range of expertise that can evaluate

the eligible offender’s maturity and rehabilitation.

The question of appointment of a qualified expert was raised in

Diatchenko. The Diatchenko court noted that expert testimony regarding

youth development might explain past conduct and assess future risks.

27 N.E.3d at 361–62. The Diatchenko court observed that while the

assistance of a psychologist or other expert may not be necessary in every

case, in some cases, the assistance might be crucial to the juvenile’s ability

to obtain a meaningful chance of release. Id. at 362.

In Roby, we emphasized the role of qualified experts in evaluating

juvenile offenders for purposes of sentencing. 897 N.W.2d at 143–48.

However, the Board is correct that in evaluating a juvenile offender for

parole, the Board is in a position to evaluate additional facts not available

to a sentencing court, namely, objective facts related to the adjustment

and behavior of the inmate over a period of years of incarceration. As

noted in Sweet, the Board “will be better able to discern whether the

offender is irreparably corrupt after time has passed, after opportunities

for maturation and rehabilitation have been provided, and after a record

of success or failure in the rehabilitative process is available.” 879 N.W.2d

at 839. Because the Board will necessarily have a greater information base
 67

to make its assessment, the need for expert testimony on juvenile

development is diminished.

Further, as suggested in Diatchenko, the question of the

appointment of an independent expert is generally a discretionary call for

the decision-maker. There are surely circumstances where the

appointment of an independent expert might make little sense. For

example, the appointment of an expert makes little sense where a juvenile

offender serving life in prison who is still under the age of twenty comes

up for annual review because, in such circumstances, the Board has not

yet had an adequate opportunity to evaluate the maturity and

rehabilitation of a person whose character has not yet been completely

formed. See Null, 836 N.W.2d at 55 (“[T]he human brain continues to

mature into the early twenties.”). Conversely, the Board may be entirely

convinced that a juvenile offender has demonstrated the maturity and

development sufficient to support release but may want to initiate release

gradually in order to limit the risks and to promote a successful outcome.

Independent expert juvenile development testimony in these types of cases

may not be necessary or even helpful.

We thus conclude that there is no categorical right to appointed

expert testimony at every annual review of a juvenile offender. As a result,

the facial claim fails under Honomichl, 914 N.W.2d at 231. Further, in this

litigation, Bonilla in his motion before the Board has failed to meet his

burden of showing he is entitled to an appointed expert. Jacobsma, 862

N.W.2d at 346. His motion generally claimed that a comprehensive

psychological evaluation was required to demonstrate maturation and

rehabilitation. We do not view such a generalized request as sufficient,

particularly where the Board is not relying on any adverse or negative

psychological evaluation and where Bonilla appears to be making progress
 68

toward release. We of course express no view as to whether there is a right

to appointment of an independent psychologist or any other type of expert

under other facts and circumstances. But Bonilla has failed in his motion

before the Board to demonstrate the sufficient need to trigger a facial right

to an expert on due process grounds.

V. Conclusion.

For all the above reasons, the district court judgment in this case is

affirmed.

AFFIRMED.