(dissenting).
I respectfully dissent. While the majority opinion is thoughtful and compelling, I refrain from joining in it because sentencing parameters is an area of the law for which courts are required to give great deference to the policies of the legislature as written into sentencing statutes. The individual-assessment approach introduced by the majority in this case will only permit the courts to substitute their judgment for that of the legislature in eases to follow. This approach is contrary to the principles of judicial restraint and separation of powers.
Our legislature has substantially reworked the criminal-sentencing statutes over the last couple of decades in a purported effort to get tough on crime. These amendments have, in many instances, resulted in the imposition of harsh mandatory sentences for criminal offenders as compared to the sentencing scheme of yesteryear. This legislative shift has often frustrated sentencing judges, who previously possessed discretion in many instances to impose a sentence that not only fit the particular criminal act, but the particular offender. Yet, what was for*887merly considered a strength in the judicial branch of government turned into criticism that fueled change in the legislative branch of government. Today, sentencing in criminal cases has increasingly been transformed into the imposition of a predetermined punishment that paints all offenders of a particular crime with a single broad stroke of the brush. The new landscape, while well-intentioned, has come at a huge cost. Ultimately, it visits as much harm on society as it does to the individual offender.
Notwithstanding, the sentencing policies of today are our policies. They are a product of our legislature, as representatives of the people. Courts do not intervene to alter these policies except when the resulting legislative scheme runs contrary to constitutional mandates. In this case, the constitutional principle at stake is the Cruel and Unusual Punishment Clause. This Clause represents one of the basic constitutional values that collectively defines us as a people, which cannot be altered by the legislature through the enactment of a statute. It embodies who we are as a people.
While I agree with the majority that there may be cases in Iowa in which courts may need to apply the Cruel and Unusual Punishment Clause in an individual manner to properly test its application to a particular sentence imposed on a particular offender, this case is not one. Instead, I would place the bar higher. The factors relied upon by the majority in this case do not warrant an as-applied challenge.
First, the nature of the crime does not warrant an as-applied challenge. Rape is a serious crime and is not diminished in any way because the offender committed the crime by playing upon the youthful vulnerabilities of the victim instead of physically overpowering the victim.
Second, the defendant was not sentenced for the conduct he engaged in as a child. Instead, he was sentenced only for his conduct as a twenty-one-year-old adult. It is abundantly clear that recidivism statutes do not punish for past conduct, but punish the conduct represented by the present offense. See Witte v. United States, 515 U.S. 389, 400, 115 S.Ct. 2199, 132 L.Ed.2d 351, 364 (1995) (“In repeatedly upholding such recidivism statutes, we have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense ‘is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes,’ but instead as ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.’ ” (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, 1687 (1948)); accord Ewing v. California, 538 U.S. 11, 25, 123 S.Ct. 1179, 1188, 155 L.Ed.2d 108, 120 (2003)). Thus, the most compelling factor to support a claim for cruel and unusual punishment is actually a red herring. For sure, the defendant was subjected to an enhanced sentence as a consequence of a prior juvenile act, but he was nevertheless only punished for his act as an adult. Our constitution does not contain a cruel and unusual consequence clause. The question in this case is only whether the punishment the defendant received for committing the adult crime of statutory rape was cruel and unusual.
Finally, I agree the consequences visited on the defendant for his juvenile act as a twelve-year-old child are substantial. His sentence is two and a half times longer than it would have otherwise been, and the actual time he will be incarcerated is five to six times longer. Yet, even if the enhancement of the statute was for jaywalking as a juvenile, the question is still whether the sentence of twenty-two years for statutory rape by an adult is cruel and *888unusual punishment. Under our strict test, it is not. A sentence of twenty-two years for rape is not “grossly disproportionate” to the crime, given the great deference that the legislature is entitled to receive. Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382, 391 (1980); see Price v. State, 898 So.2d 641, 655 (Miss.2005) (upholding a forty-year sentence for three counts of statutory rape).
While some constitutional principles might be receptive to defendant’s plight, the Cruel and Unusual Punishment Clause is not among them. Courts must adhere to the constitutional framework, even when the result is difficult to swallow. Furthermore, we must not forget that we are not the only guardians of justice in our government. For example, prosecutors must use sound judgment in charging and prosecuting defendants who may be swept up by broad legislative policies that were not likely intended to capture them. The governor, too, is empowered to commute a sentence viewed to be unjust. Finally, consistent with the one true strength of our democracy, the legislature can repair mistakes.
I would affirm the judgment and sentence of the district court and rely upon the other components of government to mete out justice in this case.
WIGGINS, J., joins this dissent.