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July 16, 2012

Iowa Gov uses clemency power to devise (astute? sinister?) response to Miller for juve LWOPers

A helpful reader from Iowa alerted me to this notable story from the Hawkeye State, headlined "Branstad commutes life sentences for 38 Iowa juvenile murderers."  Here are the interesting details of how one state's governor is taking the lead in responding to last month's SCOTUS ruling in Miller:

Gov. Terry Branstad commuted the life sentences of 38 juveniles Monday, giving them mandatory 60-year prison terms instead. The governor’s action comes in response to last month’s U.S. Supreme Court ruling in Miller v. Alabama, in which the court ruled that states could not require life sentences without the possibility of parole for juveniles found guilty of first-degree murder.

The ruling raised the possibility that anyone sentenced to life without parole before they were 18 could petition the court for a new trial. By using his commutation powers, the governor appears to have taken that option off the table.

“During this process, the victims are all too often forgotten by our justice system and are forced to relive the pain of the tragedies,” Branstad said. “These victims have had their loved ones violently taken away from them. I take this action today to protect these victims, their loved ones’ memories and to protect the safety of all Iowans.”...

In compliance with the Supreme Court decision, Branstad commuted the life without parole sentences to life with the possibility of parole only after 60 years for the 38 people, who were convicted of first-degree murder while juveniles. This action means that they will not have the possibility of parole until they have served 60 years.

“Justice is a balance, and these commutations ensure that justice is balanced with punishment for those vicious crimes and taking into account public safety,” said Branstad. “First-degree murder is an intentional and premeditated crime and those who are found guilty are dangerous and should be kept off the streets and out of our communities.”

This action by Iowa's governor seems like an especially efficient means to deal with Miller issues, though whether it merits praise or criticism on other grounds is surely to be impacted by one's perspective on the virtues and vices of the Supreme Court's ruling in Miller.  In addition, as noted by the helpful reader who alerted me to this story, the legal status of this action is itself perhaps open to question:

[This result] raises questions concerning the constitutionality of such a sentence, given (1) the fact that no individualized hearing as contemplated by Miller would apparently be held (the Iowa Court of Appeals recently reversed and remanded two cases for such hearings in State v. Bennett, 2012 Iowa App. LEXIS 542 (Iowa Ct. App. July 11, 2012) and State v. Lockheart, 2012 Iowa App. LEXIS 531 (Iowa Ct. App. July 11, 2012)), and (2) the potential disparity in sentence with future juvenile murderers since Iowa statutory law would not contemplate such a sentence.

July 16, 2012 at 05:58 PM | Permalink


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It would seem to me a political gambit, nothing more. The governor is free to do what he wants but Miller is binding on courts, not the executive. It's the courts who are responsible for sentencing, not the executive. This decision has no impact on Miller whatsoever. It's not unconstitutional it's simply irrelevant.

Posted by: Daniel | Jul 16, 2012 7:03:36 PM

i have to agree i think the governor is talking out his ass on this one....first one of this bunch to hit a court will rip him a new one and probbly thanks to his stupidity walk out of court free and clear!

Posted by: rodsmith | Jul 16, 2012 8:21:34 PM

barring LWOP isn't like barring DP. is 20 years ok? 40? 60? 80? Does it change with life expectancy?

Posted by: anon | Jul 16, 2012 9:24:20 PM

I'd also add that life expectancy for males is in the mid 70s. 60+16=76. Really cutting it close there , especially if we're talking about black males.

Posted by: anon | Jul 16, 2012 9:25:51 PM

I think it's permissible for Branstad to commute the sentences, but not to commute them to a sentence that fails to give them a "meaningful opportunity for parole." I bet a court will say 60 years is not "meaningful," and will require that they have an opportunity for parole after more like 40 years.

Posted by: dm9871 | Jul 16, 2012 9:52:15 PM

I'd be curious to read Iowa's commutation statutes and the constitutional provision to determine whether the statute permits this type of blanket clemency. Many states have provisions which require the Parole Board to conduct hearings, public notice to be given, and testimony to be taken. Compare this with Mississippi's unsuccessful challenge to the Governor's granting of clemency to his former trustees.

Just curious, is this governor running for reelection in the fall.

Posted by: Stuart Friedman | Jul 16, 2012 10:48:05 PM

Miller by its terms applies to LWOP. These are not LWOP sentences. Now, obviously, where the term of years is significantly past life expectancy, it is effectively a life sentence, and Miller applies.

What is truly weird to me is that Miller and the other JLWOP cases effectively constitutionalize parole. First, what is a "meaningful opportunity" for parole? Since parole can be a matter of grace alone, I don't see how its any different from executive clemency. So are we really saying that the constitution requires that there be something like a parole board etc.? That's just dumb. What about systems where the governor can override the parole board? Is that infirm?

Posted by: federalist | Jul 17, 2012 9:02:50 AM

I'm surprised the news story about Brandstad's action makes no mention of the fact that when Governor Brandstad's son was 16 years old, and had only held his driver's license for a cuople of months, he went to pass a car on a two-way road, narrowly missed 2 or 3 cars before hitting a last car, resulting in the death of a couple in their sixties. If memory serves, Branstad's son was never prosecuted, and I seem to recall there was some dispute as to whether the child's blood was tested for the presence of alcohol. I think Governor Brantstad should be asked how justice was balanced for the older couple his son killed as a juvenile, and some investigation conducted to determine if any of the juveniles he's now imposed virtual life without parole against were convicted for murders they did not intend. Surely some member of the Iowa Press is pursuing these question?

Posted by: David | Jul 17, 2012 10:31:49 AM

"barring LWOP isn't like barring DP. is 20 years ok? 40? 60? 80? Does it change with life expectancy?"

The word "like" is vague -- strawberry ice cream isn't like cake in various ways; in other ways it is. But, surely they are different in some ways; the question is if LWOP is bad enough in various cases to be a problem.

The ruling also was based not on the inability to ultimately sentence someone but individualized sentencing required for juveniles. As to length, it is a balancing just like sentencing is usually a balance. When is a fine "excessive"? We can go up the ladder there too and cite factors such as ability to pay. Life expectancy is probably not a major concern though I guess it factors in sentencing at times. Life expectancy does make something like 80 years w/o parole functionally the same as LWOP. Sixty years is pretty close too.

Posted by: Joe | Jul 17, 2012 10:56:21 AM

Stuart Friedman, to answer your questions.

Article IV, Section 16 of the Iowa Constitution gives the power to grant pardons and commutations to the Governor (except for treason and impeachment where the power is in the Legislature). It is "subject to such regulations as may be provided by law."

The Iowa Legislature, however, has not significantly limited the Governor's power. Iowa Code Sec. 914.1 provides: "The power of the governor under the Constitution of the State of Iowa to grant a reprieve, pardon, commutation of sentence, remission of fines and forfeitures, or restoration of the rights of citizenship shall not be impaired."

Other sections of Chapter 914 give convicted felons the right to apply for a pardon/commutation and give authority to the Parole Board to recommend a pardon/commutation. The Governor may, but is not required to, ask the Parole Board to investigate any application for pardon/commutation. The Governor may also ask the Court of conviction and/or the prosecutor to provide a transcript of any proceedings and other information and may hold a hearing on his own. I don't see anything in the Iowa Constitution or Chapter 914 that would prevent Governor Branstad for doing what he did.

The only limits the Legislature has created are that the Governor may not restore gun possession rights to a person convicted of a forcible felony and certain other crimes.

The next election in Iowa for Governor is in 2014.

Posted by: Webb Wassmer | Jul 17, 2012 11:00:25 AM

It's well-established that the power of an executive (president or governor) to commute a sentence means that he may mitigate or lower it; he may not aggravate it.

So, my question is: as a matter of constitutional law, what was the status of these life sentences after Miller was decided? All else equal, wouldn't they have been serving a life sentence, subject to whatever parole statute is in place in Iowa? And if that parole regime would have made them eligible for parole prior to the service of 60 years (which seems likely), then isn't this gubernatorial action subject to challenge for aggravating (rather than mitigating) their existing sentences?

I don't know anything about Iowa law, so I may well be wrong. Maybe they've eliminated parole altogether, but that seems unlikely since the governor's action refers to parole eligibility. Perhaps an Iowa criminal lawyer will weigh in.

Posted by: Sam Morison | Jul 17, 2012 3:56:09 PM

Doug -- thanks so much for posting this and keeping us updated on what states are doing in the wake of Miller. I've linked to it from my latest blog post: http://juvenilejusticeblog.web.unc.edu/2012/07/17/states-respond-to-supreme-court-jlwop-decision/

Posted by: Tamar Birckhead | Jul 17, 2012 5:20:16 PM

Today the Des Moines Register had a good editorial blasting Gov. Branstad's move: http://www.desmoinesregister.com/article/20120718/OPINION03/307180047/0/NEWS01/?odyssey=nav%7Chead

An excerpt:

"Monday’s order is a pre-emptive move designed to preclude these 38 Iowa inmates from being considered for parole until they may be candidates for nursing homes.

This is commutation in reverse: Instead of using his constitutional authority to shorten a prison sentence, Branstad’s order would guarantee life in prison for most if not all of these convicts. It was an audacious move, and a cheap way to score popularity points. It is easy to be in favor of justice for crime victims; it is challenging to care about justice for convicted criminals."

Posted by: Tamar Birckhead | Jul 18, 2012 9:57:10 PM


Your presentation of this story really stinks. I see you are trying to be "evenhanded," but by being even-handed about a cynical, constitutionally indefensible action like this, you are actually taking a side, by adding credibility to a non-credible position.

The Governor presumably swore an oath to uphold the Federal Constitution. That constitution includes a supremacy clause, meaning Miller is authoritative as to all state actors, not just the state courts. Miller requires that a juvenile may only receive a sentence that does not allow for a meaningful opportunity of release if the sentencer first considers mitigating factors, etc. That did not happen here. And a sentence of 60 years before parole eligibility transparently does not allow for a meaningful opportunity of release. Thus the Governor is commuting these cases to illegal sentences, and attempting to preclude any possibility of a court imposing a legal sentence.

It doesn't get any more cynical than that. The Supreme Court says individual consideration is required, but the Gov says anyone who commits first-degree murder should never get out, period. This is pure refusal to accept the authority of the Supreme Court. Interposition, school-house door stuff. To suggest otherwise is to give it more dignity than it deserves.

And to suggest that whether you agree with the Governor's action depends on your view of Miller is an insult to those who disagree with Miller. There is a difference between disagreeing with a result in a particular case and advocating for open defiance of the Court's authority whenever it does something you don't like.

Posted by: Anon | Jul 20, 2012 2:34:35 PM

One other thing: If you were kept in prison from 16 to 75, then released from prison with no savings, no life skills, probably few remaining family/friends on the outside, -- and if this was your unavoidable fate even if by, say, age 30 or 40 or 50 you had become a fully rehabilitated, mature and remorseful person -- would you consider that to be a "meaningful opportunity" to reenter society and have a chance at a life on the outside?

Assuming you had changed and grown up, become rehabilitated and thoughtful and remorseful, etc., by age 35 or 40, what is the maximum age where you could be released from prison and still have a chance to build what you would think of as a real life on the outside?

It is a hard line to draw, but I know it is *way* before 75. You have to have a chance to demonstrate reform and rehabilitation while it could still matter. Dumping you broken and doddering onto the streets/a nursing home after 60 years does not count, and anyone who took the Court's reasoning in Graham and Miller seriously could see that.

Posted by: Anon | Jul 20, 2012 2:47:57 PM

Wouldn't each of these juveniles have a right to an individual sentencing? Why are they being commutted as a group? I think the Iowa government system panicked thinking these juveniles would be resentenced based on the violation of their Eighth Amendment right so they commutted them to 60 years instead. This seems to be yet another violation of their human rights. Thanks for reminding me why I didn't vote for the mustache! Juveniles should never be convicted of LWOP. They should be personally evaluated and sentenced based on their individual crime. Being an accomplice to an unplanned murder does not merit LWOP in my opinion. Convict based on individual roles of crimes. Free the JLWOP!!!

Posted by: M | Apr 25, 2013 2:15:22 PM

Does Gov. Branstad give pardons to anyone other than those you spoke of, and Turkey's? @nd application for Pardon, 1st filed privately, 2nd via Lawyer. Both denied, 1st said no volunteer work for past 17 yrs - Denied. 2nd said indicated nature of crime a reason. Crime..Sales of 1oz Marijuana approx. 50 yrs ago, 2 yr probation, Citizen & Firearms restored a few yrs later. No further criminal offenses. In both cases my Denial was signed by 'legal council' in Gov Office. Wouldn't the Governor be required to actually read and with a decision, sign any acceptance or denial? Was this even SEEN by the Governor? And if so, Pardons for some with far more serious offences? Ever fill out an application for ANYTHING, seen the question "ever been convicted of a felony", ans. YES & your application is denied, Work, School, practically anything. Lie & ans. NO, you've just committed another crime.

Posted by: Robert McCullough | Mar 21, 2017 7:28:53 PM

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