[captions Copyright National cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] the permanent law is sunblock. Only those or permanently and cordial may be sentenced to life without parole. In montgomery about formal factfinding has created confusion. But it cannot mean that no determination of permanent incorrigibility whatsoever is required because that would obliterate the crux of the decision. Any rule of law requires deciding if the defendant fits within the rule. But mississippis courts have denied the permanent incorrigibility role rule itself and the state continues that denial in this court stop in remanding this very case for sentencing, the Mississippi Supreme Court did not say a word about the permanent incorrigibility rule and affirmatively misinterpret the law by stating that elwok is unconstitutional if and only if the sentencing judge does not consider youth related circumstances. On remand, the sentencing judge made clear he was weighing aggravate hers and mitigate hers and mitigate his, not assessing permanent incorrigibility. Even under an implicit finding rule that usually assumes the judge knows the law and implicitly finds the defendant incorrigible when imposing a life without parole sentence, there is no implicit findings here. That is white mississippi continues to dispute the permanent incorrigibility rule it itself. The court should enforce the law by remanding for an answer to the decisive question is brett jones who committed a crime just weeks after turning 15 permanently incorrigible . Having aapiro, im little trouble figuring out what exactly it is you are looking for. We know it cannot be a formal finding which you indicated because miller and montgomerys statements and obviously, you want more than just a hearing in which you have an opportunity to raise the arguments but what is it in the middle there . Is it just a statement on the record at some point during a hearing . Is it some kind of informal finding . What exactly do you need . On the most fundamental level, your honor, what we need is a sentencing judge who understands that permanent in cords ability is the dispositive rule and determines whether did just the defendant fits within that rule. There are any number of ways that it could be done. One is through words, not magic words but words that convey in substance the idea that the defendant is permanently incorrigible, going to met more crimes, going to recidivate, etc. One other is that usually, you can presume an implicit finding based on the presumption that the judge knows and implies the law and therefore that a sentence of life without parole implicitly is a determination of permanent incorrigibility, just not here because this is within the context of a safe system that does not recognize the permanent incorrigibility rule to begin with. If they hearing that took lace here that took place here the irreparable corruption was the label they used, that was certainly argued by the council. He said you have to distinguish between the juvenile offender whose crime reflects unfortunate yet transient immaturity and the rare offender whose crime reflects irreparable corruption. The judge certainly referred to miller and said he considered each and every factor that is identifiable in miller and concluded that the petitioner was not entitled to the benefit of the leniency provided in miller. Is the problem really just that the judge did not quote in of passages from miller . He certainly cited it. Know, your honor, thats not the problem. The fundamental problem is that the judge does not appear to have understood that permanent incorrigibility is the rule he needed to apply. In remanding the case, the Mississippi Supreme Court said the sentence is unlawful if and only if the judge does not consider use related youth related factors and that was an affirmative statement of the law and the judge said he was waiting aggravateds and mitigate hers rather than making an assessment of permanent incorrigibility. This is not about a formal declaration, it is about a judge correctly applying the settled rule this court has laid out. Saide evidence of what he at the hearing, is not a finding of a historical fact. You talk about things like intellectual disability and the like. Permanent incorrigibility is different, its more a judgment rather than a specific fact. From that perspective, im not sure what he said is not enough. This court has made it clear that permanent incorrigibility is a capacity for rehabilitation and there is no way i see on the record to conclude that the judge made a conclusion about that, not a finding or even some kind of predictive judgment and he was operating under instructions that affirmatively said he did not have to make that determination, he only needed to consider factors and as long as he did so, the sentence was constitutional. Thank you, counsel, Justice Thomas . Yes, thank you, mr. Chief justice. Counsel, following up on the chief justices line of questioning did exactlyjudge what you said was required and stated on the record that there had to be a finding of permanent on toigibility and went do exactly what was done here . In that it be implicit sentencing that he that the judge made the finding of permanent incorrigibility . Yes, i think so. In this case for the judge to have said that, it would have been contradicting the bytructions that were given a Mississippi Supreme Court in remanding the case which said that all you have to do is consider youth related factors. But the statement your honor just alluded to would make it very clear that the judge understood that he needed to determine permanent incorrigibility and then the sentence of life without parole would implicitly reflect that determination. It would be an implicit finding. Im just curious here, would you be able to make your argument had we not decided montgomery . Yes, your honor, i believe so. It is certainly true that montgomery made the rule clearer. The permanent incorrigibility rule in interpreting and construing miller. Its important to note that one of the reasons that you cannot presume implicit understanding of montgomery in this case is that the judge issued the sentence before montgomery was issued. Say onler itself doesnt pages 479480 that the judge has to distinguish between irreparable corruption and transient immaturity and then montgomery repeats that seven times as an indispensable part of its conclusion that miller is retroactive. But didnt miller on its face without the gloss of montgomery, did it actually say that a certain finding or a certain procedure was required . It did not say a certain finding was required. Did say that there has to the judge has to distinguish the transiently immature from the irreparably corrupt. And the only way for that to happen is the court has to decide which side of the line the defendant is on. That can be an implicit determination. It can be a more expletive one. Know that theo judge properly understood the fit, decided whether it with the determination. Ordinarily, you can presume that the judge knows and correctly applies the law but that presumption does not apply here because of the affirmative misstatements of the law i have alluded to. Try at a have one more World Without montgomery. Would you tell me whether or not you think, without the gloss of montgomery, you think that miller is a substantive rule or a procedural rule and if you think it is substance, without the gloss of montgomery, give me an indication of why you think that. I think it is a substantive rule that only permanently incorrigible juveniles can be sentenced to life without parole. Onause the court says 479480 of miller that there has to be a distinguishing between the transiently immature and the irreparably corrupt. I also contend that it follows as a procedural consequence of that that substantive permanent in cordial billy rule, that the judge has to determine whether the defendant is permanently incorrigible. Thank you. Justice breyer . I would double up on Justice Thomas and just say, what if you were writing the opinion for the court in this case, how would you put it . I think is fairly easy. You say in miller, you decided you can only sentence and cannot sentence a juvenile to life without parole unless he is permanently incorrigible. Decidete has leeway to the procedure through which this decision will be made and now what . Yes, your honor. , tould write the decision answer the question, to say that the court has to resolve whether or not the defendant is permanently incorrigible in order to impose the sentence. And that there are different ways to tell if the judge resolved that question. That convey in substance, not magic words, but words that convey an substance that the defendant will commit more crimes or cannot be rehabilitated. The court has options here. We think that that is the better rule that requires some sort of explicit statement, not magic words, but given the gravity of the constitutional interest or the deprivation that is occurring here, we think that is the better rule. The other option the court has is to say there is an implicit finding rule that ordinarily, you presume the judge understands the law, understands the permanent incorrigibility rule, and that the life without parole sentence reflects a determination that the defendant is permanently incorrigible but that presumption does not apply here because of the affirmative misstatements i have alluded to. Either way, the court could make it clear that there is plenty of room for state experimentation and innovation as to the procedure, as to who bears the burden, what is the standard of proof, what is the standard of review, etc. Review isit has to the permanent incorrigibility. Good morning, mr. Shapiro. If you have it in front of you, could you repeat the first sentence of your presentation this morning . Yes, your honor. The first sentence was settled law recognizes the scientific, legal and moral truth that most children, even those who commit grievous crimes are capable of reduction. Yeah, i think this is fascinating. You want to take us and you want us to take the courts of this country into very deep theological and psychological waters. Do you think there are any human beings who are not capable of redemption . Honor, i think there are many psychologists who can very much testify and do testify that a particular individual is permanently incorrigible and cannot be really a bell attended and i cannot be rehabilitated. Courts across the country are resolving the question of permanent encourage ability. , there are a lot of people psychologist may be, but a lot of people think that every human being is capable of redemption. Theres actually a famous quote by gandhi who says exactly that. There are a lot of christians who believe that. You think of the good thief on the cross. The Supreme Court says i have to determine whether this person is capable of redemption, i believe that every human being is capable of redemption. What do you do with that . I think the inquiry is capacity for rehabilitation. I think the judge needs to do what every judge does and is doing in these cases, which is to hear evidence, evidence of criminal record before and after the crime testimony about the perpetrator, the crime itself is very much relevant. And to make a determination as to whether the defendant is going to recidivate or has the capacity to the rehabilitated. Its not a theological conception, its a determination of whether the defendant has the capacity to rehabilitate and not recidivate. In the event the judge does make an error and the persons capacity for rehabilitation is not realized, they are never getting out. They are dying in prison anyway because the ultimate decision is made by the parole board as to whether release actually occurs. You cite miller and montgomery very broadly and there is language in both opinions that you are able to cite. If we look strictly at the holdings in those cases, what miller held, and this is what it said expressly theherefore hold that sentencing scheme that mandates life imprisonment without the possibility of parole goes to all offenders. Montgomery says that we hold that miller set out a substantive rule and what followed from that was that was retroactive. If we just follow the holdings of those cases, we get to a much narrower rule of law than the one you are proposing, isnt that the case . No, your honor, and thats because the holding of a case includes the indispensable reasoning. The only reason that montgomery held that miller was substantive and thus retroactive is that it set out a substantive rule that only permanently incorrigible juveniles can be sentenced to life without parole. Let me ask you one more question before my time has expired. What would you say to members of this court who are concerned that we have now gotten light years away from the original meaning of the eighth amendment and who are reluctant to go any further on this travel into space . I dont think this goes any further, your honor. Has laid down a permanent encourage ability rule , stated it in miller, restated it seven times and montgomery as an indispensable part of this holding and the conclusion. Simply saying that a court has to decide whether a defendant fits within a rule of law already laid down by this court is no journey at all. Thank you very much. Justice sotomayor. Counsel, in your cert petition and your reading, you frame the question presented as a narrow one about the need for an express finding of permanent incorrigibility. Cer on thetseek question of what other procedures miller might require, correct . I think your honor said express finding of permanent incorrigibility and that is not in the question presented. And its mying friends on the others who are trying to load up the case with affirmative express explicit. If you understand that miller, because it said it didnt require an express finding, in sentencing, for , ample, regular Sentencing District Court judge says i have considered the factors in3553a and this is the sentence that i think is adequate. And we say thats enough. I havehe judge said, considered miller and all of the factors it talks about and its just been told that one of them, most importantly, is encourage ability. Is incorrigibility and i dont see the state in that transcript arguing otherwise, meaning that incorrigibility is not significant. Andact, they address it make the argument that he was incorrigible. Under those circumstances, why is it that the beginning and and of this case, the judge made an adequate finding under miller . Honor, isson, your that in remanding the case, the Mississippi Supreme Court said come all you have to do is consider factors and as long as you consider factors, the sentence is constitutional. But the judge went further and said i am considering the Miller Factors, not the state factors. Yes, considering the Miller Factors without treating capacity for rehabilitation, permanent incorrigibility, as a dispositive rule is not sufficient. Then you are getting back to you want magic words. Because i dont see how this is any different than a regular saysncing where a judge ive considered the 3553 factors, we dont question whether they did it or didnt do it. We take them at their word that was the entire argument at the sentencing. Federal sentencing contacts, your honor, it is usually the case that you presume, even though the judge doesnt say it in most cases, that she is imposing a minimum sufficient sentence. That is just implicit and the reason it is implicit is because one assumes the judge correctly understands the law. Was happened in this case that the Mississippi Supreme Court said all you have to do is consider these factors, considering the Miller Factors as a bottomline determination of permanent incorrigibility. It would not be sufficient in an atkins case for the judge to consider intellectual incorrigibility but decide that the defendants intellectual [indiscernible] and its not sufficient to consider the Miller Factors about a bottomline determination of an eligible he rule whether the defendant is capable of rehabilitation or permanently incorrigible. Thank you, counsel. Justice kagan . Mr. Schapiro, you said what i wanted to ask you about. Your argument is that miller and montgomery set out not just a process, not just a rule that youth has to be considered but instead, a rule, a rule of substantive rule, that you can only to aentence small category of people, call them irredeemables or incorrigibles or what have you. And the government and mississippi contests that understanding. I want to get your reaction to their arguments. What the government says is that all this talk about incorrigibles is really just a label for the final judgment that a court reaches after it considers youth during sentencing. What mississippi says in addition is it says the whole just to miller was prevent against the excessive risk of disproportionate punishment but that the essence of it is a procedural requirement about considering youth. Why arent they right . The reason they are not that, your honor, is one, montgomery says something very different and two, that it could not have said what they contend and arrived at the conclusion that miller is substantive and thus retroactive. Montgomery reiterates seven times as an indispensable part of its conclusion that there is a substantive and thus retroactive rule and what it is. That substantive rule is that only permanently incorrigible juveniles can be sentenced to life without parole. Considering a group of actors or that is a factors, procedural undertaking. Whether you arrive at a life without parole sentence through a mandatory procedural route or through a discretionary procedural route, that is a procedural question. The substance of the sentence is life without parole and merely considering factors does not fit of thosether substantive rule categories. It does not make certain primary conduct not criminal and it does not take a sentence off the table for a class of people. The only thing that does that is exactly what montgomery says which is that only permanently incorrigible juveniles can be sentenced to life without parole. Mr. Shapiro, this goes back to a question that Justice Thomas ask you. Lets assume you are right about what montgomery says and, as you say, montgomery said it not once or twice but Something Like seven or eight times. Think that thats an ,ggressive reading of miller that although you said on 479, miller says this, was that really the thrust of miller . In fact, montgomery read it quite aggressively and there is a gap between the two. If that is right, you can first time he whether you think thats right, which opinion should we look to and why . Yes, your honor. To the first part, the language speaks of of miller the distinction between the juvenile offender whose crime reflects unfortunate yet transient immaturity and the rear juvenile offender whose crime reflects irreparable corruption. And then it says, although we dont not foreclose a sentence ors availability to make that judgment, that judgment referring to the previous sentence and the distinction between the two classes, although we do not foreclose the sentence ors ability to make that determination, we required to take into account how children are different. I dont think theres anyway way to read that is optional. The court has to distinguish between the permanently incorrigible and the transiently immature. As to the second part of the question, this courts construction of its own press attend is authoritative is precedent of its own precedent is authoritative. Montgomerys construction of toler is absolutely entitled deference and to deny that is to imperil the interest and the stability of the law. Thank you, mr. Shapiro. Justice gorsuch. I would like to pick up more or less where you left off with Justice Kagan. That assume for the moment we might view miller as procedural requirement and a modest one and montgomery as significantly expanding and may be a new substantive right in the process of reportedly doing the teague analysis. What do we do with that . If it created a new right and work with me on that assumption, wouldnt we need a subsequent decision deciding whether that new right should be retroactively applied under the teague plurality analysis . As to whether it should be retroactively applied, i want to first stress, just as gorsuch, that this case is under direct review. Is different than the case that was arm collateral i understand that and i have questions for your collie coming up next on that but if you can stick with my question for the moment. Yes, your honor its not unheard of for the court to construe and interpret precedent in a subsequent case im sorry,ases including cases even on collateral review. Take the whole case which was on collateral review, interpreting the atkins requirement. Tobut it is a little unusual then create a new right and not consider whether it should be applied retroactively. Its a little bit of an anomaly. It raises the next question what about teague . We have been applying this plurality from teague for some time. Its substantive constitutional rules and we wind up turning a procedural rule into a substantive rule in order to have a retroactive effect. It kind of brings to mind Justice Jackson in brown versus allen, secondguessing all these state final judgments. Have two bety do we reconsidering state final judgments this way . The first thing i want to stress in response to that question is that this is a majority rule applied to the vast majority of states. It is really mississippi that is an outlier in refusing to look at this. Question, there is a very long line of cases establishing that this court to reviewauthority state Court Decisions retroactively but again, in this case, which is not on collateral review at all, i dont think it bears a direct relationship. Thank you, counsel. Justice kavanaugh . Thank you, chief justice and good morning mr. Shapiro. You started today by referring to settled law but then you said that the paragraph and montgomery had created confusion. Is paragraph in montgomery part of the law, of course, and i guess i am not seeing it as all that confusing at least on its own. Clear own, it seems very in saying multiple times in that paragraph that a finding of fact about incorrigibility is not required. Do you agreen, that a finding of fact regarding incorrigibility is not required . No, because that paragraph is referring to a formal finding. I know it doesnt use that word throughout the entire prior paragraph but i think it a clear from the paragraph that the court is talking about one thing and not jumping around between different types of findings. , a formaler formal finding is what the court is referring to in that paragraph. You noted this but it does not use the word formal at least the first two times its used. I would be curious what this things in between a formal finding of fact and in formal finding of fact might be in this serious context. Yes, as to the first part of the question, the specific control is the general and the court should look to the phrase that provides more information about what the court is talking about in that paragraph rather than less information. That phrase is formal factfinding. I think what formal factfinding might require is some particular verbiage or heightened explicitness or formality. Is it wouldsaying certainly be sufficient to satisfy the eighth amendment but also in the ordinary course, you can have a sort of implicit finding where you presume the judge knows the law and that a sentence of permanent incorrigibility implicitly a determination of permanent incorrigibility. Let me ask you this when the sentencing scheme is wont the judge necessarily consider youth, and in particular because defense counsel will invariably raise the defendants youth as a reason not to impose life without parole . Even apart from that, that would be the common sense the situation when youre dealing with someone who has committed a crime at 15. That would be the centerpiece you would think. The judge then determines that the sentence should be life without parole. Make the judge necessarily that informal finding or that judgment or that conclusion that you are seeking . A couple of points your honor the first is, its not enough just to consider the fact that the defendant is young or consider youth. The substantive rule of permanent encourage ability has to be answered, has to be resolved. In this case, the judge didnt resolve it, not implicitly, not explicitly because he was said he was weighing aggravateds and mitigate hers and the state court system does not recognize that permanent incorrigibility is an eligibility rule that has to be resolved. And by analogy to the Death Penalty, mitigating circumstances, there as you know, the court over many years has required consideration against mitigating circumstances but in that context does not require any particular finding of fact or any particular conclusion at least to the sentencer to make that determination. Im putting aside the requirement that there be one aggravating circumstance but beyond that, there is no particular finding necessary. Situation a similar to what we have here . Thats not the case when it is an eligibility rule like we have here. When it is like the atkins eligibility rule based on intellectual disability or the ford eligibility rule based on insanity. In those cases, the Court Requires a determination. It may not be a formal finding and thats not what we are saying is required here, but the judge has to determine whether the defendant fits within the class that can be subjected to the punishment. My time is up, im sorry, thank you. Justice barrett. Good morning, mr. Shapiro. I have a question about an applied eighth amendment challenge. I take it you think mr. Jones can bring such a challenge. I do, yes. Why isnt that the primary protection . If the judge applies the wrong factors, as you say happened here, why isnt then the case that hes better off not challenging the procedure but simply directly challenging the substantive decision he is permanently incorrigible. . In order to challenge the substantive procedure that he is permanently incorrigible, he needs to be proceeding in front of a judge who understands that permanent incorrigibility is a dispositive rule. Here the judge did not understand that that was what he had to decide. Believe that brett is not substantively incorrigible. His grandmother, the wife of the victim, testified on his behalf. A correctional officer spoke of his rehabilitation, his extraordinary record in prison, how he is an incredible worker and try to get along with everyone. Beginning from a kid who had just turned 15 and who committed a murder for the most immature reason possible, a teenage infatuation, there is not extraordinary story here showing that brett is an individual who is fully capable of rehabilitation but because that was not even treated as a subtenant of rule, that is not what the determination the judge was making was about. Why cannot you appeal that . If you argue below that he was not permanently incorrigible and essentially, looking at the trial court, they did not make a finding and say he was permanently incorrigible and you are saying this they violation of the eighth amendment, why cant you just raise that challenge and raise it on appeal . Did, your honor, but the problem is that the mississippi courts dont recognize that permanent incorrigibility is a rule. Your client isat capable of rehabilitation isnt sufficient to demonstrate that the sentence is offlimits for him and thats the very problem in this case. There is no determination that the rule is actually the rule that applies to my client. Case its clear in the that it violates the eighth amendment to sentence a juvenile to life without parole if that juvenile is not permanently in cordial than the law is clear and i still dont understand lets talk about the lateral review. If this goes to a federal court and there is no factual finding for the federal court to defer to, and the law has been misapplied, what about that . Then can you get relief on collateral review . To answer the first part of your question, yes, Going Forward, there is extraordinary evidence to the contrary like i will like i dont care what the Supreme Court says, yes, you would absolutely be able to presume absent evidence to the contrary that the judge correctly understands the law and that the sentence reflects an implicit finding of permanent incorrigibility. As to the collateral review context, this is a substantive rule, a permanent incorrigible he rule, knowing all the way back to miller. It is the majority rule among the states and statutes of limitations [indiscernible] thank you. Mr. Shapiro, do you want to take a minute to wrap up . Thank you, mr. Chief justice. Mississippi and its courts do not recognize the permanent incorrigibility rule. In this very case, the state Supreme Courts remand opinion did not mention that rule and instead said that a life without parole sentence is lawful so long as the Sentencing Court considers youth related factors. Brett never really had a chance to show that he wasnt permanently incorrigible in any meaningful way because the court had been told that it doesnt need to resolve that question against him in order to sentence him to life without parole. To allow the permanent incorrigibility rule to be flouted is to discard miller and montgomery and undermine protects. And what it this court does not announce rules for them to be ignored so whatever form the determination should take, mississippis courts need to answer the question they have evaded is brett jones permanently incorrigible . Thank you. Thank you, counsel. Ms. Noble . Inmay it please the court, 2013, the jones mandatory life without pro sentence for the brutal murder of his grandmother was set aside after the Mississippi Supreme Court held that miller versus alabama announce the substantive role of constitutional law prior to this Court Holding the same in montgomery versus louisiana. Miller held that mandatory juvenile life without parole unconstitutional. The constitutional flaw is that they make use and all that accompanies it irrelevant. To address that flaw, senators must sentence ors must diminish thethey communication. After miller, petitioner jones received an enter an individual sentencing hearing. They exercise discretion to impose a life without parole sentence. Jones received with this court and the eighth minute requires. Jones now contends it is still unconstitutional because the sentiment court did not also make a finding that joneses permit in cordial over that premise is wrong for three main reasons. Miller implicitly holds and monk from a number implicitly states that finding in cordial ability is not required. What jonessates position is unavailing and lastly, whether a crime reflex permanent incorrigibility or transient immaturity is not a separate inquiry apart from the consideration of youth. Instead, this court has use this terminology descriptively as a way to describe a crime, the circumstances of which either do or do not make a life without parole sentence grossly disproportionate. As the court explained in kansas versus carr, weather mitigating circumstances exist to sufficiently warrant a lesser sentence is a judgment call or perhaps a value call. It is a normative judgment reached after the miller judgment and the process was i asked mr. Shapiro starting out what exactly it was he was looking for and i have to say it didnt seem like very much. I think one sentence articulating the holding of miller and another sentence saying thats what i have determined or thats what i find. As i understand him anyway, i think that would be enough. Why isnt that acceptable to the states . The question is, have they applied miller. Sentencing judges all the time refer to like findings that are required and we dont question their statements that they have considered those. I think the primary disagreement we have with petitioner joness argument is he continuously relates this to atkins and ford that permanent incorrigibility in the abstract is an objective type of fact and it isnt. It is a way to describe what is a grossly disproportionate sentence. This court always anchors whether something is permit the incorrigible to whether or not the crime reflex that. If you look at the transcript of the hearing, it seems to me that what the judge is doing is the kind of sentencing way of considering a variety of factors. Miller, ittors in doesnt sound like the consideration of a specific direction from miller. Long think miller goes a way to answering that and does answer this question on page 473. The court tells sentence or is what they must do and why they must do it. They must consider the way mitigating sent sentences may weaken the rationale for punishment and thats exactly with the court did here and thats what our trial courts are used to doing. They consider mitigating circumstances and try to determine whether or not all of the circumstances would make a lesser sentence appropriate. Thank you, counsel, Justice Thomas . Thank you, mr. Chief justice. Counsel, do you think you can reconcile montgomery and miller . I think that we have tried in good faith to reconcile both of them. To quarrel with either decision. They announced the substantive rule three years prior and the way to do that is the substantive right at issuing miller is the protection against grossly disproportionate punishment. The question becomes, what is the process miller prescribes for reducing the risk of a grossly disproportionate and its not by words or a transcript, its by individualized sentencing. What miller adds to gross disproportionality is the consideration of youth. If you read page 734 montgomery which petitioner cite often to describe grossly just proportion of punishment come i think that can be reconciled. I think you can see this because the court vacillates between various adjectives, crime reflex permanent in cordial ability, irreparable corruption, transient immaturity which shows that the court is using these terms as a shorthand descriptor. As is the fact that the Court Rejects the notion that a finding of incorrigibility is required on page 735. Fact that it the would not have been retroactive if montgomery had not been decided, if the reasoning, if montgomery was not on the books, would miller have changed your procedures much . No, your honor, if i understand the question correctly that the state would have been applying miller. It certainly changed the procedures after miller because this would be determined by the Mississippi Supreme Court. They said the state had a mandatory sentencing and now the state has done what miller required. I think our bottomline conclusion, you can look at it this way, the 15 jurisdictions that miller highlights as what is constitutional in footnote 10, none of them required a finding a finding of permanent in cordial ability. What we are saying is that the constitutional regime that miller set is constitutional and mississippi is in line with those regimes. Thank you. Justice breyer . It seems to me now there are two questions. Miller after montgomery say to sentence a juvenile to life without parole . He must be incorrigible, permanently incorrigible. Did the court say that . I think yes so assume im right on that, yes that is a substantive rule. But then my question is the same as justice barrett. Why isnt that the end of the case . Judges to decide substantive rules all the time. Well, didestion is, they get the rule right . Lawyer held the judge to rule and hes an adequate if he didnt and the judge starts talking about alan finkel factors and then the Supreme Court starts talking about balancing factors in that state, they havent got the law right its substantive law. In the same thing happens, you do it on again under the right law, and of case. That whats wrong with what i just said . I think the beginning of the proposition that permanent incorrigibility somehow, in the abstract, not anchored to the crime, somehow became a substantive rule. I know that you disagree with that. I have to assume that. Assume i am right on that. If your honor is right on that, then i would still say that the substantive law here was applied correctly because what we are concerned about, even in a permanent incorrigibility context, is a grossly disproportionate sentence. Im sorry to interrupt you but what im interested in is on the assumption there is an absolute rule, no one cordial ability, no life without parole, absolute rule. , state, enforce that rule like you enforce any other rule of law. Look at what the judge said, you go look at the conditions and you say he has the law right does mind when he did that and however mississippi chooses to do that within their realm of reason, thats up to mississippi. I agree at that point that the procedure to enforce the rule would be up to mississippi. And here, i think it would argue specifically if you look on joint appendix 144, specifically the jones argument was that transient immaturity quite likely was involved here and the judge rejected that. I think what we are arguing over here is more of a procedural issue but if that is a substantive issue, mississippi applied it. Thank you, counsel. Justice alito . Counsel, my problem with this case goes deeper than these procedural questions that have rightly occupied most of the argument. I dont understand exactly what we are talking about. There are a lot of statements in miller and montgomery. One of them, which a lot of the argument has focused on, is the statement that a judge has to determine whether a particular defendants crime, particular minors crime, reflects transient incorrigibility, as if those are the opposite sides of the same coin but they are not. Transientuld reflect a crime could reflect a transient immaturity. Be completely mature and yet capable of being rehabilitated. What are we talking about . Keep in mind that of the three purposes of punishment that the court identified and applied in miller and montgomery, the first am a is retribution, had nothing whatsoever to do with rehabilitation. I think the best way montgomery puts it is on page 734. Its that miller requires a sentence or to consider a juveniles youth and attendant characteristics before determining a life without parole is a proportionate sentence. If you look at the substantive right meaning the protection against grossly disproportionate, the way we understand page 734 of montgomery is to say that a crime reflects transient immaturity. That simply describes a crime, the circumstances of which make a life without parole grossly disproportionate. But miller is in all things competitor just considered type of analysis. It doesnt focus on one particular fact or piece of evidence. That will not make a life without parole proper or improper. It truly is and all Things Considered and see if mitigating circumstances are going to diminish all of the penological justifications for the punishment. Thank you, counsel. Justice sotomayor . Counsel, montgomery says repeatedly on 734 and in other miller did more than require a sentence or to consider a juvenile offenders youth before life without parole. Merely considering youth cannot be enough under montgomery. It established that the penological justification for life without parole collapses in light of the distinction of the distinctive attributes of youth. More than once it says, even if a Court Considers a childs age before sentencing him or her to a lifetime in prison, that sentence still violates the eighth amendment for a child whose crime reflects unfortunate , yet transient immaturity. Proportionality of sentencing looks at the nature of the crime , but miller and montgomery have made very clear that we are looking at the nature of the offender. Position that if the Sentencing Court says ive considered the Miller Factors but i think and the crime does not reflect permanent incorrigibility but i will sentence him to lwop anyway because the crime was really horrific . Not if you understand that a crime that reflects transient immaturity simply to describe a crime, the circumstances of which make a life without parole grossly disproportionate. I would like to take the two sentences mean most, that would would be because montgomery says its the rear juvenile offender whose crime reflects irreparable corruption. Multiple, multiple times in miller and and montgomery, the court says it should be rare. I agree with that, your honor. The best way to read that is to say that this court, looking at the whole, it looks at statistics was envisioning that many times, mitigating circumstances, the mitigating circumstances of youth and the surrounding circumstances would indeed make a life without parole sentence grossly disproportionate. If a judge said what i said, hes not permanently incorrigible but i think the crime is serious, would that violate miller and montgomery in your view . Your honor, i may be misunderstanding but i look at those two questions differently. I know you dont but answer mine. If a judge says this is not a permanently incorrigible human person. Yes, if this court is using permanently in cordial not anchored from the crime, perhaps so, perhaps a life without crime perhaps a life without parole andd be disproportionately just. Can the crime be sufficiently diminished by or explained by some quality of youth . Justice kagan . I guess what im struggling with here is how, on your theory, we could have labeled miller a substantive rule and montgomery. I always thought that he substantive rule under teague meant there was a class of inple who you either put criminal light conduct or you couldnt senses them to a certain way. That was the question that there was a class of people for whom a particular punishment was impermissible. You are saying thats not what montgomery does. But if its not what montgomery does, if montgomery is only basically ensuring that a certain kind of process is accomplished, then how can montgomery be saying that miller was retroactive . Two ways, first miller is substantive because it goes on the subject of disproportion punishment, that there was a grave risk that a life without parole sentence would be grossly disproportionate in any given case. Miller says that on page 470. Let me interrupt you there, do you mean to say that it satisfies teague if there is a process rule that has an effect on substantive outcomes . Portion ofthe key miller is that there was a grave risk of a disproportionate sentence. If you look at page 731 or 733 montgomery, it says protection against disproportionate punishment goes beyond the manner of determining a did a defendants sentence. I guess what youre saying is there is a process and that process is necessary to prevent a serious potential for bad substantive outcomes than thats enough under teague, is that correct . What montgomery says there is a grave risk, not a likelihood or a possibility. You can see that on page 736. If you look at the class language and montgomery, i dont disagree that the languages in there, but you can look at it as a numerator or denominator kind of set up. The denominator is all juveniles convicted of homicide in the numerator being a class of defendants for which a life without parole sentence based on the circumstances will be disproportionate. Thank you. Justice gorsuch . Oni would like to pick up Justice Kagans question. Before i do, let me ask one quick question. Because mr. Jones is on direct appeal from resentencing, do you need to beights retroactively applicable under teague or is that neither here nor there . No, your honor, the state is never actually argued that he was on that he was on collateral review. Ok and we are trying to figure out what to do. Lets say we think that miller was a decision about processes and montgomery did what Justice Kagan described and created a or a of persons substantive right for a class of persons. What we do about that . If montgomery misty to the roofer miller, how do we proceed . I dont agree that montgomery set a new rule but i think you look at the process and miller is self prescribed because that process is going to effectuate a substantive rule. I dont think miller and montgomery read together can be said that the substantive rule that came out of one doesnt match the procedure. I think the process in miller which is repeated at least twice and montgomery would give effect to any substantive or whether or not this court looks at that coming from miller or montgomery. Normally how we think of rights. We think of some rights as process rights regardless of the substantive income and a substantive right for a reasonable sentence no matter what the process was that led to it. They are independent. They are complementary, to be sure, but one can be violated without the other. That is normally how we think about it. Asking i think youre to ignore the substantive aspects of montgomery just to acknowledge that it misread miller. I think im trying to reconcile the two. What Justice Kagan was asking about, the class of offenders, i think the point i may not have finished is that there is going to be a class of offenders for which a life without parole sentence would be grossly disproportionate. You cant define that class categorically. I dont think montgomery says you can. That falls in step with sentencing to begin with. Im not disagreeing theres going to be a class, there is going to be it is going to be a casebycase basis on whether or not the mitigating circumstances diminish the pd logical the minutes the penological thank you. Mr. Shapiro said we shouldnt to locke this situation it in the Death Penalty context but rather desperate brother atkins and fort and consider this a finding of some kind of not just a process that considers you as a factor. Youth is a factor. That raises the tension that Justice Kagan was identifying in montgomery. The key paragraph in montgomery that says no finding effect is in tension with the conclusion that miller was a substantive rule. If that is true and you have made an attempt to reconcile it and i think you made a good point on that, suppose that is true and we have to fall the paragraph in montgomery or the location of the teague conclusion to say that her graph is wrong in montgomery or back away from it. Requireldnt we we just that the defendant is permanently incorrigible . I think that is illusory. Finding that the defendant is an cordial bull is also not an objective fact. It is going to be some type of judgment that is going to have to be made and to get that judgment youre going to have to need an evaluate will nle ta i think we know that because miller says that. Onyou look at the brief pages 11 and 12, it underscores the absence of constitutional morning for the role of the parishioner a dentist. Advances. Does the judge or jury have to make the finding if it is a specific finding, does the jury have to make it . I think that would suggest we dont know the nature of the role. We should guess it is not a constitutional role. We dont think about the eighth at amendment as requiring specific findings that are rejected by this court, indicates that miller cited johnson versus texas. Justice barrett . Do you agree that a defendant can bring an as applied eighth amendment challenge to a juvenile sentence of life without parole . Yes, your honor, that there would be a gross disproportionality challenge. Miller adding to disproportionality is the consideration of youth. What would the standard be . Not permanent and court ability . Not permanent incorrigibility . I think so and looking at it that way does dovetail nicely into why miller is substantive rule and why montgomery said miller was substantive rule. Own words,rys youre trying to determine that a life without parole is a disproportionate. Sentence. How do you determine that if youre not looking at this as credibility or permanent and court ability . What standard you apply . Miller considers an all things type of analysis and weighing mitigating circumstances, that is something do. Ourts to the way we define a crime is that all the circumstances surrounding the crime would make a life without parole grossly disproportionate. Can you explain this crime by a particular quality of youth is always anchored i think that makes sense because in Going Forward with these miller cases, youre not going to have any postrehabilitation. Arent we back to whether it is procedural . If we see the trial Court Considered youth . The proceduret is but i think that is just a component of what miller and montgomery were concerned about. Not applying miller retroactively would create too great of a risk. Montgomerying reiterating the punishment against disproportionate is of the limited. The eighth amendment. Would you like to wrap up . Are not necessarily unconstitutionally disproportionate but they can be. To reduce the risk of a disproportionate sentence and give effect to millers substantive right, it requires to give consideration to the mitigating circumstances of youth and all that accompanies it before imposing a life without parole sentence. The eighth amendment does not impose procedures to follow a verbal formula. The court had the benefit of miller and took care to consider age, agerelated characteristics, and the nature of a brutal murder. The court disagreed that youth and its character sticks diminished the p logical justification the characteristics diminished the penological justification. Mr. Chief justice, and made please the court. This court of montgomery enter the question when it made clear that miller does not require child courts to make a finding of permanent and court ability. This of permanent incorrigibility. Whether a crime reflects transit immaturity is not separate from the inquiry miller first prescribed. A court must consider whether the district if attributes of youth diminished the p logical the penological that is a determination that the crime does not reflect transit immaturity and no further finding is required. Even if transit immaturity required a separate finding, the court made a finding here when transient immaturity argument insufficient. I would like to ask you the question that i understood Justice Kagan to be asking your friend from the state. I understand your submission to be that the requirement here is purely procedural. In other words, looking at page 15 of your brief, the senators have the ability to take in account youth and attending carter sticks and if they do that that is enough attending characteristics and if they do that, that is enough. Is that a fair reading . It is a fair reading that is enough to an permit millers substantive rule. This court need not go as far as ofsay part of the language montgomery announcing substantive rule was right or wrong. We are willing to except that language that draws a distinction between the two types of crimes we are talking about. Our submission is even if you accept that language, the inquiry miller describes is the inquiry to draw those distinctions. Teague, how is this rule are the considered retroactive how is this rule properly considered retroactive . If you take montgomery at its word that the substantive rule in miller is a distinction between crimes relenting transit immaturity and crimes affecting permanent and court ability. Incorrigibility. We think the court should stick to it it says on the top of 734 of montgomery. It makes it clear that a crime reflects transit immaturity or the penological justifications of life without parole have collapsed in light of its distinctive attributes. Once you have the understanding of what a crime affecting transient immaturity it lines up with what the inquiry miller describes prescribes. Hower tells courts to ask the distinctive attitudes of youth diminished the penological justifications for a life without parole sentence. Justice thomas falk . Questions. O Justice Breyer . I have no questions, thank you. Justice alito . Suppose a judge says this after a sentencing hearing, i dont think this minor who committed this crime a month short of his 18th birthday is transiently amateur. I think this person is highly intelligent and very mature. I cant say that after 25 years in prison he cant be rehabilitated if he is released after 25 years, he will commit other crimes. What is the judge to do in that situation . We think that is a legitimate thing for a judge to say. What the judge is saying is that the penological justifications for life without parole have not collapsed in the distinctive attributes of youth. The court is identifying an uncertainty about the future. I think everyone agrees that the burden can be placed on the defendant to show a lower sentence as possible. T is uncertainty itself saying the process is wrong. I dont understand the question, suppose the defense brings in a dozen highly qualified psychologists who say we think that just about anybody who commits a crime short of 18 can after a time in a good correctional facility be rehabilitated so the person will not create a risk for society after the person is released . In that case, it is still within the judges power to conclude that a life without parole sentence is appropriate if he thinks there is still penological justification to support such a sentence. Thatourt could reason while there is the possibility of some rehabilitation, it is not going to be enough to show true rehabilitation given how brutal and depraved the crime itself was. Montgomery and miller use a lot of language, possibly quite loosely. The use certain terms interchangeably. , encourage ability and they contrast that with transient immaturity. Im not quite sure how they all fit together. I agree those are not self defining terms. I think it would help the analysis if the court were to make clear that the phrase crime reflecting transit withoutty means a life parole sentence has collapsed in of the after beats youth in the attributes of youth. Have the benefit of lining up the language in montgomery with the inquiry miller prescribes. It would have the benefit of allowing courts to conduct this inquiry the way they usually do, which is to consider the penological justification and light of a certain category of mitigating evidence and to ask if that mitigating evidence is sufficiently compelling in a case. Sotomayor . You and your cocounsel basically wanted to say that mean only montgomery does youth mitigate the horribleness of this crime. That is not what miller and montgomery said. Whats miller and montgomery said repeatedly was it would be the rarest juvenile that was deceived that would receive life without parole parole. How does your narrow approach get to the nub of that . I think it just might be the case that when a Sentencing Court asks what are the penological justifications for life without parole and collapsed in the attitudes of youth that in most cases, the answer will be yes. Cases yourry, most are saying judges will find that these juveniles shouldnt be sentenced to life without parole . Or are you saying that in most cases they should . I am saying that in most cases, they shouldnt because the penological justifications for such a sentence will be diminished, will collapse in light of the distinctive attributes of youth. It is not a question about the test, the test is to those in a logical justifications collapse. That may be result in applying the test to cases out there in the world that the test is satisfied how does the proportionality test that . That is what im try to get to. It is rarely applied. , wehamlin versus michigan possessing grams of cocaine justified life without parole. What i am laying out about what a crime reflecting transit immaturity is is a test that the sentence or sentencer applies. It is not a gross proportionality, it just is whether certain that getting evidence is sufficient to mitigate to warrant a lower sentence. The question that was before this court in the cases you mentioned was appellate standard. That is more deferential to the sentencer. Nestsis a level of gross grossness, narrowness. Thank you. Justice kagan . I will go back to a question justice of the mayor asked ms. Noble. Lets say that im a sentencer and i go through a hearing and at the end i say i have considered this defendants youth and the attendant characteristics of youth. I have done all that consideration, he has given the argument, i listened to it. Hise honest, i dont think crime represents irreparable corruption. He is not one of the encourager balls that montgomery and miller talk about. I think it is possible he could be rehabilitated. I dont thinks youth is sufficiently mitigated think his youth is mitigated for this crime. To lifetencing him without parole and i think that would be a proportionate punishment. Is that okay on your theory . No, Justice Kagan. We think every sentencing would be appropriate. It is not because the court failed to make any specific finding. It is because the court in that hypothetical has made contradictory statements. Crime both that the immaturity and that it does not. I think it is a well accepted form of procedural error that when the court says contradictory things, we send it back to the court. I dont understand that. I took your argument to be one that said these are just labels, the incorrigible level versus transit immaturity. What is necessary is that a judge take into a judge take into cap youth and considerate and consider it. This judge has done that, he is considered youth. He has bounced it against other factors he said that notwithstanding the possibility of rehabilitation, a sentence is appropriate. Is that not right . It is because labels do refer to specific concepts. When the court uses a phrase transito immaturity if they say they have not collapsed, that is saying two contradictory thinks. What im not saying is that and every case the court has to utter a magic word about transient immaturity. When they use that phrase but using that contradicted, we should send it back to clear things up. Thank you. Justice gorsuch . No questions. Justice kavanaugh . Good morning. I want to followup on my understanding of how this plays out in your view. If the process was good and my understanding is that you cant raise a different eighth amendment argument that the individual sentence was still disproportionate. The answer is that the process is what leads to the as antionality at least eight amendment matter. In the grace versus georgia context, we have set proportionality is required but achieved in two ways. One, the rollout of the Death Penalty or life without parole for certain classes of offenders. Thendly, we require sentencer consider the relevant mitigating and relevant circumstances. , i want to make sure your answer, if the process considers relevant circumstances, is there a separate argument as an eighth amendment matter someone could make that they applied all the relevant factors but i think it is disproportionate . I think the way to think about it is to compare it to the federal regime. You can bring a procedural reasonableness but then a substantive reasonableness claim under this is a case about procedures. We are saying theres nothing wrong with the procedures that were followed. The court asked the right question and considered the right elements in internet question. There is no procedural eighth amendment claim. We do think there is still room for a defendant to bring an eighth amendment claim. This is the sort of claim that the chief justice entertained in graham versus florida. I dont think miller or montgomery forecloses the ability of that type of claim. Thank you. Justice barrett . I am a little surprised to hear you say you think they can raise an substantive challenge to the proportionality. This is part of the confusion about whether miller and montgomery is substantive or procedural. It all the procedures that justice as Justice Kavanaugh said are applied, what is the standard of review . Is it that the standard is grossly disproportionate because the defendant is not permanently incorrigible . A separate were substantive eighth amendment claim, yes the standard of review for an Appellate Court would be from a proportionality standard that your objection here is really that it is making the states jump through too many hoops to put something formally on the record as a finding of fact . That is correct. It would be as if in the federal system we had judges requiring child courts to say i followed the sentence considered the sentence. Courts dont require that uttering of magic words. That is our objection to petitioners here. A minute to wrap up . I think this case turns on what the crime reflecting transit immaturity means. Wherenk it means a crime the penological justifications of youth have collapsed in light of youth. Once we understand crime reflecting transients in that way, there is no tension between millers substance and millers process and no tension between pages 734 of montgomery which draws the distinction and page 735 which says no finding is required. Thank you. Inc. You counsel. Thank you, counsel. Three minutes for rebuttal. I want to be clear that we are not asking for any sort of informal or affirmative or express or magic word type of finding requirement. Thate are asking for is the judge needs to understand that children who are capable of rehabilitation cannot be sentenced to life without parole and to decide whether or not the defendant fits within the rule. As the chief justice noted, we are not asking for much. All we are asking for is for the rule of elder and montgomery which is a rule stated in miller, reiterated in montgomery seven times as part of its holy of its holding, that only juveniles can be sentenced to life without parole. That means there needs to be a determining a determination. It can be based off the usual presumptions the judge knows and applies the law, perceptions overcome here. Or it can be something more explicit. That is for the states to decide. My friend from mississippi said a weakness of our position is we havent laid out all of the details. That is the point. The details are for the states. That is up to them and their discretion. What there must absolutely be is a determination, implicit or explicit that the defendant is incapable of rehabilitation before he or she is sentenced to life without parole. I think what we have heard from the other side is what a frontal attack on start assizes on sorry assizes is being able my friends. My friend for mississippi agreed, even accord triple desk even in cordial geneva nile even a in cordial not for the providing a direct answer to whether permanently incorrigible juveniles can be sentenced. To a life without parole montgomery provides that answer. Miller provides that direct answer in saying that child courts need to distinguish between the two classes. I think my friends from mississippi, her comments illustrate what a free for all it is without a standard. It comes down to considering factors in deciding whether a lesser sentence is appropriate. All Things Considered, what youre saying is there is a rule. This court has laid down that rule in miller and montgomery. It is part of the edifice of start assizes this court does not lay down rules so they cannot be applied. Mississippi courts need to is probably incorrigible. Thank you, counsel. The case is submitted. You are watching cspan, your unfiltered view of government. Created as a Public Service and brought to you today by your television provider. Here,ction day is november 3. Stay with cspan to learn who the voters select to lead the country as president and which party will control congress. Our live coverage starts tonight at 9 00 eastern and continues until washington journal at 7 00 a. M. Hear from the candidates. Watch live on cspan and cspan. Org or listen live on the cspan radio app area Election Night on cspan. Your place for an unfiltered view of politics. Throughout the course of the morning we will also be joined by reporters in key battleground states to talk about what is going on on this election day and what expectations might be. Steve from the Tampa Bay Times joins us. He is their political editor, joining us from st. Petersburg, florida. Steve thank you, pedro. Your recent story said it was prediction time. What is the assessment from what you are seeing going on . We regularly pull some of the some of thepoll insiders and experts who are in the know inside florida politics. The conventional wisdom is that most of them give a slight advantage to president in florida. This is a state where republicans have a lot of muscle memory for victory. Democrats have had a tough time winning statewide elections here when president obama is not on the ballot
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