(concurring specially).
I concur in the opinion of the court. I agree the new statutory scheme adopted by our legislature for sentencing juvenile offenders convicted of first-degree murder to life without the possibility of parole violates the cruel and unusual punishment clause. See Iowa Const, art. I, § 17. However, I write separately to express my opinion that the statutory scheme is unconstitutional only because it does not permit the sentencing court to retain jurisdiction to reconsider a sentencing' decision that denies eligibility for parole once full brain development has occurred.
The constitutional deficiencies in mandatory life-without-parole sentences for juvenile offenders first observed in Miller v. Alabama, 567 U.S. -, -, 132 S.Ct. 2455, 2471, 183 L.Ed.2d 407, 426 (2012), are not removed when the hearing provided to overcome those deficiencies occurs long before one of the most critical characteristics of youth has unfolded to enable courts to fully assess and' consider that characteristic. A constitutionally mandated hearing must be meaningful. A hearing to determine whether a juvenile offender should spend his or her entire life in prison is not meaningful as a final decision when it occurs before- brain development is completed and before the court is able to best understand and assess the possibility of rehabilitation.
The problem we identify today with the current sentencing scheme wás not observed when the constitutional necessity for a hearing first surfaced in Miller. Instead, we initially addressed the excessive nature of lengthy mandatory sentences in the context of diminished juvenile capacity. See State v. Ragland, 836 N.W.2d 107, 121-22 (Iowa 2013) (finding a sixty-year mandatory minimum as part of a life sentence to be the functional equivalent of life without parole); see also State v. Pearson, 836 N.W.2d 88, 96 (Iowa 2013) (holding a thirty-five-year minimum ignored the diminished culpability of juveniles); State v. Null, 836 N.W.2d 41, 70-71 (Iowa 2013) (finding a mandatory fifty-two and a half year minimum on a term of years sentence to violate the Miller principles). In the process, we established the requirements for a resentencing hearing using the Supreme Court guidance from Miller. See Ragland, 836 N.W.2d at 115 & n. 6. The legislature promptly responded by amending the statute to provide for a hearing and a detailed list of circumstances for the court to consider. See 2015 Iowa Acts ch. 65, §§ 1-2 (codified at Iowa Code § 902.1(2)-(3)). The amendment addressed the constitutional deficiency identified in Miller and in our cases that followed.
Yet, we now observe an inherent deficiency in the information available when sentencing juvenile - offenders in the first instance. In particular, a juvenile offender who is resentenced based on evidence of rehabilitation acquired after full brain development has occurred may present a far better case for parole than an offender who has not completed brain development. Compare State v. Louisell, 865 N.W.2d 590, 594-95 (Iowa 2015) (describing numerous achievements accomplished over twenty-six years in prison to show she was rehabilitated at age forty-six), with Null, 836 N.W.2d at 45-46, 76-77 (resentencing occurring at age twenty, three years into his sentence).
Judicial review tends to develop the law incrementally, and in taking this next step *841now, our obligation is to again apply the constitutional standard of cruel and unusual punishment to the circumstances we face. These circumstances disclose that it is cruel to sentence a youthful offender to life without the possibility of parole at a time when the juvenile has not even had the time to finish maturing. While we strive to uphold the constitutionality of a statute when possible, we do not follow this approach by lowering our expectations for justice or accepting the imperfections we discover as an inevitable part of justice. We must embrace each discovery in each step as an opportunity to bring our law closer to our constitutional values, not find ways to avoid doing so.
It is also important to keep in mind that speculation is inevitably injected into judicial 'decision-making when judges are asked to make decisions before all the necessary information has accumulated. In turn, speculation only enhances the likelihood of inconsistent sentencing decisions for those who have committed the same crime. This can lead over time to patterns and' outcomes that are often inconsistent with the most basic notions of justice. These outcomes need to be curtailed to better ensure fairness in our system of. justice. Certainly, this fairness could not be more important when dealing with the imposition of the most severe punishment allowed by society on a child. Close enough can never be good enough.
The decision by the court today is consistent with our constitutional values and a positive step forward. It advances Iowa in an important area of the law. Yet, the parole board does not need to be the only entity standing between a juvenile offender and a lifetime of imprisonment. The entire sentencing process will best consider the interests of all in society when the final decision as to the eligibility of parole is considered by a court after all relevant information is available.
Accordingly, if a juvenile offender is to be sentenced to life without the possibility of parole, the sentencing court must be given continuing jurisdiction to consider a single subsequent request by the juvenile offender for rehearing once brain development is completed. This approach allows the juvenile offender a full and fair opportunity to show rehabilitation potential and provides the court with a more complete picture in weighing all the interests involved and determining whether the offender is “incorrigible.” See Null, 836 N.W.2d at 63.
This approach mirrors the approach taken under the current statute that allows courts to reconsider a sentence. See Iowa Code § 902.4 (2015) (allowing the court to reconsider a felony sentence within the first year of conviction, excluding mandatoly minimum sentences and class “A” felonies). It would give the courts the information they need for a fair evaluation and juvenile offenders the constitutional protection they deserve. Of course, it should not be overlooked that the decision of the court today also provides meaningful .protection for the youth of our state.