[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, yo