we have a full court room i understand we have students from west point high school with mr lang and i'm pleased to have you know i'm a little surprised about coming to watch these cases are going to be sort of tough the first two cases deal with an application of a supreme court case which says that juveniles who receive life without parole or the death penalty are special case and you can't sentence a juvenile to life without parole or to a death penalty and so the question in the first two cases is whether the states are following that law that's a graham decision and i also understand we have lawyers and law clerks from the virginia supreme court observing and welcome for that to sort of make the morning around may please the court still rafael for warden athena the commonwealth appeals the district court's order granting haiti as relief to dennis leblanc in ordering we sentencing for his one thousand nine hundred one rape and abduction of a sixteen sixty two year old woman his prior convictions included carjacking abduction and multiple convictions for use of a firearm in the commission of a felony he claims that he's serving a life without parole sentence in violation of grammar says florida the supreme court of opinion held in two thousand and eleven an angel versus commonwealth however that virginia's geriatric perl statute provides a meaningful opportunity for release at age sixty and therefore complies with graham tries to distinguish angel by arguing that the statistical evidence that he introduced in the trial court shows that he doesn't he won't the district court committed two errors under that require reversal number one under section twenty two fifty four d one the court heard in finding that the state court made an objectively unreasonable application of clearly established federal law as of the because he's not been developed on well i think both of those are true but graham doesn't say what parole requires and it leaves that to states in the first century instance so i think the first question for the court to decide is is it an object to be unreasonable for a state looking at gra to think that released at age sixty using the same parole considerations that are available in traditional parole does that satisfy graham and we say that it does and it wasn't under his tell me i would graham's use of time mean if if if you look at and i guess what i'm thinking ahead of the terms of this particular program yes we really don't know yet because there had been no juba mouse to even reach the point of being able to use program regina held an angel that all of the traditional parole factors apply and the pro manuals in the record and it includes all all factors relating to the that the defendant including any mitigating factors circumstances of the offense family history so statistics now troubling that's not a claim that's going to rise until twenty thirty eight when these folks are eligible for release so you thing to do then that would have to wait until the eligibility rises and then determ that becomes a factual question whether that is being applied in that manner i think there is a rightness issue here but i think the court needs to unpack two things to analyze this case the first question is the age sixty threshold question is that does that clearly violate gra to say you got to wait until age sixty and the second question is the factual question does virginia do virginia's procedures as applied actually provide that meaningful opportunity when you hit age sixty and i think it's critical to unpack those two things let me take the age sixty threshold question first  hundred we confess error that's obviously life that's that's a life without parole sentence so there's a there's a range in the middle in the middle right it's probably between fifty and eighty and the question is if a state picks a day and age within that range is that reasonable and we say it well in terms of your logic on it but the problem that seems to keep cropping up mind is this whole business of meaningful opportunity and then all of the bases that graham's use or going in just direction the fact a more informed decision that it should be different and yet here we have a virginia statute that you say may allow i think may allow or to be considered it doesn't say that's enough but it doesn't require it and it required to give deference to the state court in the way it's construed the statute and you've got an authoritative decision from the supreme court of saying the parole factors apply and if for some reason in the future the school board doesn't do that if they don't like you've got another case coming up next hayden where  it's apparently agreed that youth isn't taken into account or it hurts the person that's not virginia's system youth is taken into account it will be taken into account and if he gets to the point where it's not he's got a remedy then so there really is a rightness aspect to the difficult is that who can run it was a jewel now who had no possibility of being released therefore no hope of being released down the road in this instance  could be and i know it now and let me be clear in virginia's parole guidelines take age into account they're in there the it's within the scope of what's discussed in the in the prole guidelines and the supreme court of jeanette gave an authoritative interpretation that the parole factor apply so there's the age sixty question is age sixty life with parole we say it is but to your point is there still room for hope absolutely because the statistics show and you can take judicial notice of the statistics table from virginia code eight point zero one dash for nineteen when mr le blanc turns age sixty he has a hill have an average life expectancy of seventy six point eight years that's average expectancy he could live till he's ninety that's it that's a generation of time after he turned sixty there certainly is a meaningful life for him after he turned sixty right the trial judge could have given him forty years right he'd be it he would that he would then be sixty when at the time he was sentenced here he's got life with parole at age sixty that is not life without parole he has every opportunity to behave himself in prison so he can qualify for release when he turns age sixty and i'm with you about your inference in that last question you might be able to read graham and cases after it to conclude that there is a gate through which you have to go which is a sentence of a juvenile without parole  they for instance they say this court now holds that for a juvenile offender who did not commit homicide the eighth amendment for bids the sentence of life without parole and so the question is is that a gateway you have to have a juvenile who sentenced to life without the possibility of parole and then of course they explain exactly what the judge when was asked you know the criteria for  forth but i'm wondering if there is parole in its normal standards as interpreted by the state is graham to be read that it's now satisfied sentenced under a system where there is parole for everybody does graham even apply i would say it does not and of course under you can even look at cases decided after the state court ruling here so millar's comes too late montgomery comes too late but graham doesn't tell us what parole means but certainly if the state sentences a juvenile to life with parole it doesn't qualify it doesn't violate graham now maybe there's an argument some day that the law as in the hayden case where the pro system is just a sham and people really aren't getting out they're really getting a life with i would without the aid and we'll have an angry north carolina now and i don't mean to throw them under the bus i but i suppose my point is that the case is also it the case is very distinguish from from our case because here youth is taken into account here this prisoner will not be eligible for parole until he's sixty which is not until twenty forty two where is mr hayden was eligible in two thousand and two and claims that the system is letting subject to geriatric release but it will be take into account in the in the parole review we call a geriatric release but it is a form of parole and the regulations themselves are defined geriatric released as a form of  provides that all of the circumstances all of the procedures for parole apply number to geriatric release is defined in the parole regulations as a form of parole and over three the supreme court of a genius is now twice said that the same factors apply so it is the same so again the first question is age sixty ok and we say it is it's really not objectively unreasonable to say that it's not you don't have anything in grammar that could lead to say that the second question then is the factual question do virginia's right now it's does virginia system is applying actually give  i think that's correct and my question is well if it is not if the statute doesn't say to life without parole but nonetheless it does not provide a meaningful opportunity to a juvenile to pain release based upon demonstrated maturity and rehabilitation then the answer to your question must be the same that doesn't matter because you just said right then that oh if it doesn't see the life without parole even a system that does statute doesn't save life without parole and it provides something an opportunity doesn't have to be mean there's an opportunity then is that sufficient if it is not have  life understand what we say i want to make sure we're not drawing a bright line here if the bright line is that we can make it's nice to have a lot of easy it's nice to say what a statute is a life without parole therefore graham doesn't apply and if that's your position i need to know is that your position or is your position such that that answer is not so easy it was because graham did not define meaning or opportunity and when we get into the definition of meaningful opportunity these cases become complicated we can't just say life without parole doesn't exist is not part of this that is that is that where you go and i just i'm trying to get informed of your position our position is that if you have a system of life with parole then graham doesn't apply but obviously if it's not life with perl because you can't get it then you would have a graham claim and i think hope that that dress was the point on that one can't it meaning you don't have a meaning yet opportunity to be released based upon the maturity and rehabilitation this been  yes and i think it's i think it's helpful to go back to a question that chief justice roberts asked at oral argument a grant he ask rahm's counsel suppose a parole system allows only one in twenty prisoners to get out does that qualify does that satisfy that the really are asking for and he said yes in the statistics they were introduced in this case show more than five percent of the applicants are geriatric release getting out and that's before you even consider that they it's apples and oranges because they're not measuring is as a judge when said earlier the people who are going to be eligible release they won't be eligible until they're there until twenty thirty eight but even if you just looked at the roster to sit in six it wouldn't support limbaugh explained the other point is that you've got to look at the facts through the deferential lens of epa and the district the state court made a factual finding which is entitle to deference and implicit factual findings to fill any gaps that there may be and i'd like to reserve the balance of my time for a vote i think you will hear from mr stevens thank you judge me please the court my name is brian stephens and i represent the levy let me begin i think the state tries very hard to read characterize the issue in this case but that's not consistent with the record the state of virginia has abolished parole it is a statu someone convicted of the crime from which mr blank with convicted is not eligible for parole there is no alternative parole and i want to just emphasize this the statute that talks about conditional release for jerry acts never uses the word parole to characterize that in the state of virginia that's not what angel says what the court an angel says and this is the last statement that the court makes we hold that the imposition of life without parole in this case is not cool and unusual punishment prohibited by the eighth amendment to the united states supreme court pursuant to graham that's the judgment that the district court said was unreasonable the supreme court of the united states did not authorize state courts to do a case by case analysis and to conclude that some life without  and the question becomes does that say that at all it says when a child sentence and you can see this in miller and montgomery which followed graham child is sentenced to life without parole or sentenced to death is different no was what is the parole genuinely a parole or is that a sham you can challenge that right to me but i think if there is a normal parole system the supreme court was focusing in on the states set the mechanism and they used the word the states have to make these decisions so under that analysis the threshold question would be does virginia impose life without parole and i think under that point the supreme court of the united states the part in angel which is right before it says the regulations for conditional release under the statute this is that your actions that you provide that if the prisoner meets the qualifications for consideration contained in the statute the factors used the normal parole consideration process lied to conditional release decisions under this statute but it doesn't obviate the fact that we're talking about that because there is a life without parole sentence and i just want to emphasize again the supreme court an angel never disputes that we have life without parole in virginia the united states supreme court acknowledged that virginia was one of the seven states that impose life without parole that's my threshold point addressing the m r then we get to the second question of whether there is a meaningful possibility of release which is what judge when w sixty four someone who has served ten years is a parole probation that satisfies graham that was their conclusion their conclusion is yes that there is this meaningful possibility really my i'm only making the point that there's nothing in angel that would say we're not talking about life without parole years i agree with him well and that's my point judge when this is not pro bowl and that's why i start by making the point there's nothing in that geriatric statute that refers to itself as parole it is conditional release and not only is it a different process judge johnson it's not the  you have a much higher burden of proof you've got to persuade four rather than three it's not self initiating like parole is you have to apply for it show a compelling reason you have to show compelling reasons in the state is assuming that age is going to be a factor but there's nothing in here that talks about that the third thing is you don't get an interview which is critical when you're talking about this and most significantly it does the opposite of giving special considerations for children a thirty eight year old offender committing the same crimes as the defendant here half the time as a juvenile it turns graham on its head it's not treating juveniles more sympathetically it's actually treating juveniles less sympathetically that's why it doesn't become an adequate response to graham and just on this point of whether age was considered at sentencing the trial judge here in the rule in the collateral said no he said basically i don't have to give this defendant relief because he was nineteen or twenty when i got to him because they were accompanying felonies because he had a bad attitude and we have a sentencing report that he's a sociopath those are the reasons that the trial judge articulate it for denying relief all of those are prohibitive or prohibited by graham and gra coming felonies and grand to defend it was older than seventeen or eighteen at the time of sentencing and graham there was a bad attitude that's expressed what the united states supreme court was overturning when it created this categorical protection for juveniles and that's why the district found the trial judge's findings a contrary to clearly established law similarly the virginia supreme court makes no findings in this case they make no findings an angel they simply assert that geriatric release provide miti without ever acknowledging higher burden you don't have to you have to initiate it you don't get the interview you don't get the consideration without even addressing that that's what the district court again found contrary to clearly establish law if this state had presented a proceeding that we're going to change the rules for juveniles we're now going to mandate that they get x whatever x is we could be talking about whether x meets the constitutional requirements but this was actually a pre existing release program that in no way acknowledges the differences between kids and adults that's the command of graham but we recognize that there are these constitutionally significant distinctions between children and adults yes we're sentenced to life without  we're denied a meaningful possibility of release but there's nothing in virginia that does that we don't have a single provision a single statute a single rule the trial judge does the opposite by saying i'm going to condemn this child to life without parole because he was nineteen when you get t the underground with a juvenile sentence under that system i think they would i think they would in part because that system would not provide it says parole we're going to provide parole but we're never going to give parole before age that's for everybody juveniles and adults so you have a state system that doesn't impose sentence of life without parole imposes a sentence of life subject to all of the sixty life with that its statute was rolls well it's more than that though just because it's not just that we have life with well we don't have life with for all we have something that is conditional release on it because at the same time they got rid of they had the truth in sentencing they put all this through they put the geriatric provisions in there and the arguments in the legislature was basically we have people getting their committing very serious crimes within a few months few years are getting out on parole so they wanted truth in sentencing and they put all this package together and they explained that we want not to let people out who are committed very serious crime at least age six in jail so that you won't have to give them treatment and take have them after they've kind of reached this one of informant parole has a different form purpose absolutely and what it is a new cabinet i and use that is the basis of it but the end result is a release because we don't want to hold you in a more because you have got too old and you might medical treatment and so we'd rather let you go which makes a lot of sense why would you keep someone line next to the word terminally ill it was absolutely defined for that and just for the point florida had a similar provision at the time that graham was decided and we have to be clear about this fact the united states supreme court was given these arguments in grammar so we have clemency we have these other release mechanisms and what the supreme court said was that is insufficient to meet our constitutional concern and that children be treated differently than adults and i think you're absolutely right if the state of virginia built a new facility for geriatric prisoners to suggest that this provision would operate the same i think is misguided a healthy sixty five year old is actually going to be less favor in a geriatric police provision given the constraints that we have here and and the state of  honor the virginia state legislature said no more parole we do want an escape mechanism we have these prisoners that are old expensive geriatric prisoners who we've now concluded we can release without threats to public safety there's nothing in this provision this is or will give special consideration to juvenile offenders and in fact what the rules say is that we can deny it based on the offense alone which is not consistent with parole and there are people getting parole in virginia for the people who were sentenced previously your parole eligible after twenty years you get that interview you don't have to apply it it's actually administered but it's a very different system and that's the system that the state of virginia the legislature on its own terms says where elimina differences that was baked into their conclusion that to condemn a child to die in prison life imprisonment without parole cannot be reconciled with the eighth amendment so states are obligated to take all of that they are obligated at the have a process that recognizes these distinctions between children and adults and that's what the district court found so objectionable and what happened here because the trial judge rather than doing that reinforced his initial judgment that life without parole was appropriate for four reasons because the defendant was nineteen when he came before him rather than sixteen even though the crime was sixteen that he had a bad attitude that there were accompanying felonies and all of those were things that the supreme court addressed in graham so in that respect  the state of virginia was obligated to do something responsive to this conclusion that children are less culpable than adults when it comes to these kinds of sentences and offenses and virginia hasn't done it they have not in any way implemented the supreme court to mandate that children are constitutionally protected from certain kinds of sentences as distinct from adult there instead invoking a provision that doesn't make any distinction between children and adults and if anything treats children worse than adults because it actually makes them serve more time before they are eligible for this kind of release and that's the problem your honor it just doesn't respond on to grand and that's what the district court found it was rooted in an analysis that i don't think is terribly complicated when it comes to clearly establish law this is really well settled law on now it's a flat ban on life without parole we have a life without parole sentence the state of virginia has done nothing to create a process that distinguishes between children and adults i also think it's significant your  honor that if the this argument having to wait i mean if the parameters themselves are unconstitutional it would make no sense to impose this sentence on a juvenile who has to do twice as much time as the thirty eight year old offender before they could then bring their claim the supreme court actually mandated that these sentences be adjusted at sentencing that's the mandate of graham and the virginia virginia the state's position is that now we can continue to impose life without parole sentences on convicted of non homicides and then if they get to age sixty and don't think that the process works well enough then they can complain that can't be reconciled with graham that would not be an objective or reasonable interpretation of graham graham had a clear objective they wanted to end these kinds of life without parole sentences the state of virginia has not done that and because of that this does constitute an eighth amendment violation which the district court was proper to recognize i should just note that virtually every other state in this similar situation has created mechanisms have created reforms that are responsive to graham and in that regard virginia is an outlier in this use of geriatric when least i want to make that point again that it's not parole it's not anywhere in that the word parole is not describe yes the parole board manages it with a very different set of criteria and i don't want to kind of understand the significance of a higher burden of proof no interview you have to initiate but for this challenge an angel we would even have this surance that their so called following the same procedures i think all of that establishes that what the state is arguing here is insufficient to comply with the mandate created by  you didn't come out of this program but if you came in at fifteen it's going to be a long time for you get there and how does that i mean i don't i don't get it you have a generation of time left i say i think this goes back to my initial point which is you've got to decide is what's the what's released it's exactly the purpose of grammar and age sixty is not too late age seventy you know we might confess error at age seventy eight sixty absolutely not so remind me who she was she was she's a former federal prosecutor scum also attorney and she was on the  kind of microsurgery on what constitutes valid parole or not thing and gramma says meaningful opportunity and meaning opportunity has to be that you can do much at great maturity and rehabilitation has been has been put in a process and if you don't even ha honor you do get an interview you look at me when you ask yes you are and you do get an interview the the evidence that they put in showed that more than five percent of people who apply for geriatric lease are getting it which is above the number that just chief justice roberts mentioned at oral argument in graham but of course those statistics are misleading because many of those folks eligible for geriatric release or are getting parole through the normal traditional system and not even the district court relied on any kind of statistical