scientific legal and moral truth that most children even those who commit grievous crimes are capable of redemption after miller and montgomery there is no denying that the permanent in corage ability rule is settled law only juvenile homicide offenders who are permanently in corrigible may be sentenced to life without parole a paragraph in montgomery about formal fact finding has created deciding if the defendant fits within the rule but mississippi's courts have denied the permanent corage ability to rule itself and the state continues that denial in this court  implicit finding a rule that usually assumes the judge knows the law and implicitly find the defendant corrigible when imposing a life without parole sentence there is no implicit findings here that's why mississippi continues to dispute the permit and courtship ilithyia rule it out the court should enforce settled law by remanding for the answer to the decisive question is french your own who committed a crime just weeks after to mr shapiro i'm having just a little trouble figuring out what exactly it is that you're looking for if we know it can't be a formal finding as i think you've indicated because of miller and montgomery's statements and obviously you want more than just a hearing in which you'd have an opportunity to raise the arguments but what is it in the middle there is a just a statement on the record at some point during during a hearing  i don't know some kind of informal hearing finding what exactly do you do you need on the most fundamental level general are what we need is a sentencing judge who understands that permanent corage ability positive rule and determines whether the defendant it's within that rule and there are any number of ways that it could be why it is true or it's not magic words but words but that convey and substance the idea that the defendant is minutely and corrigible going to commit more crimes one to reset of a cetera and the other one other is that usually you can presume an implicit transient immaturity and the rare offender who's crime reflects irreparable corruption the judge certainly referred to miller 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 i mean is the problem really just that the judge didn't quote enough passages from miller the certainly cited no you is not the problem the fundamental problem is that the judge does not appear to have understood that herman is in corage ability is the decisive role that he needed to apply and in fact in reminding the case the mississippi supreme court said that the sentence is all lawful if and only if the judge does not consider us related factors and that was an affirmative misstatement of the law and then the judge said that he was way aggravators and mitigat evidence of what he said at the hearing i think it's not a finding of a historical fact and you talk about things like intellectual disability and the like permanent encourage ability strikes me as different it's more no way i see on the record to conclude that the judge made a conclusion about that finding or even some kind of predictive judgment and again he was operating under instructions that affirmatively said he didn't have counsel following up on the chief justice of the line of questioning one of the judges did exactly what you said was required and stated on the record that there had to be finding  permanent in court to villa the yes i think so in this case for the judge you have said that it would have been contradicting the instructions that were given by the mississippi supreme court and reminding the case which  that all you have to do is consider you to related factors statement that your honor just alluded to would make it very clear that the judge understood that he needed to determine permanent  properly understood the rule i had decided whether the defendant fit within it ordinarily you can presume that the judge knows and correctly applies the law but that presumption does not apply here because of the me an indication of why you think i think that it is a substantive rule that only parliament man corrigible juveniles can be sentenced to life without parole i think that because the court of whether or not the defendant is permanently in corrigible order to impose the center and then there are different ways to tell if the judge resolves that question why his words that convey substance not magic words but words that conveyed and substance that the defendant is going to commit more crimes or can be rehabilitated staff and and then of course out of options here we think that that is the better rule that requires some short of explicit statement not magic words but given the gravity of the constitutional interest or the deprivation that's occurring here we think that is the better rule the other option that the court has is to say that there is an implicit finding rule that ordinarily you know presume that the judge understands the law understands the permanent horridge ability to rule and that the life without parole sentence reflects a determination that the defendant is permanently in corrigible but that presumption doesn't apply here because of the affirmative misstatement that i have alluded to and either way the court could make it clear th recognizes the scientific legal and moral truth that most children even those who commit grievous crimes are capable of reduction yeah i think you are this is fascinating you want to take  and you want to take the courts of this country into very deep theological and psychological waters do you think that there are any human beings who are not capable of redemption being is capable of redemption and there's a 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 so they want to judge says about the perpetrator of the crime itself is a very much relevant and to make a determination as to whether the defendant is going to receive the or have the capacity miller held and this is what is said expressly we therefore hold of the elements for business sentencing scheme that mandates life in prison life in prison without the possibility of parole for doing almost under somewhat montgomery said was we hold that miller set out the substance of the rule and what followed from that was that it was retroactive so if we just follow the holdings of those cases we get to a much narrower rule of water  the one that you're proposing isn't that the case no your honor and that because the holy case includes indispensable reasoning the only reason the only reason that montgomery how miller was substantive and  expired what would you say to any members of this court who are concerned we have now gone light years away from your original meaning of the th amendment and who are welcome to go any further montgomery as an indispensable part of this whole of the of the holding and the conclusion and simply saying that a court has to decide whether a defendant fits within a rule of law already laid out by this court is no end that is not in the question presented it just says binding and it is really my friends on the other side more trying to load up the case with affirmative express explicit so if you understand that because it said it didn't require an express finding in sentencing for example and regular sentencing a district court judge says i've considered the factors in three to five  and this is the sentence that i think is adequate and we say that enough here the judge said i've considered miller and all of the factors it talks about and it's just been told that one of them most importantly is the incorrigibility and i don't see the state in that transcript arguing otherwise meaning that incorrigibility is not significant in fact they address it and made the argument he was incorrigible so under those circumstances why isn't that the beginning and end of this case i e the judge may an adequate finding realty out of the dispositive rule is not sufficient so then you're getting back to you want magic words because i don't see how this is any different than a regular sentencing where a judge says this is i've considered the three thousand five hundred and fifty three factors we don't question whether they did or didn't do it we take them at their word and that was the entire argument at the sentencing sentence that that is just implicit and the reason it's implicit is they want to assume that the judge correctly understands the law what happened in this case was that the mississippi supreme court said all you have to do  consider these factors considering the miller factor is not the same and this is a critical point is not the same as a bottom line determination of permit a cordial billeted it would not be sufficient kids case for example for the because your argument is that miller and montgomery set out not just a process not just a rule that you have to be considered but instead of whole a rule a substantive rule that you can give an l of sentence only to small category of people called on the irredeemable for the incorrigibles for what have you and the government in mississippi contest that understanding and i want to get your  reaction to their argument was the government says is that all this talk about incorrigibles that's just really a label for the final judgment that a court reaches after it considers you during sentencing and what mississippi says in addition is that says that the whole point of miller was just to put prevent against the excessive risk of disproportionate punishment but that the essence of it says something very different and two they could not have said what they contend and arrive at the conclusion that knoller is substantive and thoughts retroactive montgomery reiterate seven times am simply considering a group of doctors or order for the miller tractors as they have sometimes been called that is a procedural undertaking because whether you are arrived 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  are right about what montgomery says and as you say my memories senate not one time or two times or three times but like something like seven or eight times and suppose you think that an aggressive reading juvenile offender this crime reflects a rubber ball corruption and that is that although we do not foreclose a censor's ability to make that judgment that judgment referring to the previous sentence and the distinction between the two classes although we do not foreclose a sentence there's ability to make that judgment a homicide case as they were prior to take into account how children are different i don't think there's any way to read that as optional the court have to distinguish under no war between the  do we do with that i mean if you didn't create a new right and just work with me on that assumption in the new substantive right wouldn't we need then a subsequent decision deciding whether that new right should be retroactively applied them to the  i understand that and i've got questions for your your colleague coming up next on that but if you could just stick with my my question for the moment yes your honor you know it's not  this case i mean take the whole case which was on collateral review i interpret the actions requirement but it is a little unusual in the name of purportedly deciding the red tract of any question under tita then create a new right and then not consider whether it should be applied retroactively made is this is a little bit of an anomaly which may be raises for me the next question what about t v i mean we've been applying this plurality opinion from t for some time a watershed rules of criminal procedure we never found one  and substantive constitutional rules and and we mine of turning a procedural rule into a substantive rule in order to become in order to have and have retroactive effect you know kind of a kind of brings to mind justice jackson and brown confusion but the paragraph in mcgovern really is part of the part of the law of course and i guess i'm not seeing it as that as all that confusing at least on its own i know your t v point been on its own it seems very clear in saying multiple times in that paragraph that a finding of fact about in cordial billeted he is not required first question do you agree that a finding  fact regarding encourage ability is not require no because that paragraph is referring to a formal finding i had and i know that it doesn't use that word throughout the entire paragraph but i do think it is clear from the paragraph that the court is talking about one thing and not jumping around between different types of finding and so the modifier for formal or informal finding is what the court is referring to in that paragraph you notice but it does not use the word formal at least the st two times it's use and i'd be curious what the distinction between a formal finding of fact and an informal finding of fact might be in this series context yes that of the st part of the question did it i think of the specific control of 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 and that phrase is formal  finding and i think that what for a fact finding might even to require some kind of particular verbiage or or or heightened explicit or for balance sheet and what we are saying is that how would certainly be sufficient of life f old implicitly reflects a determination of permanent core technology ok so let me ask you this when the sentencing scheme is discretionary what the judge necessarily consider you and in particular because defense counsel will invariably raise the defendant's youth as a read to not to impose wife without parole in and even apart from that that will be the common sense of the situation when you're dealing with someone who committed a crime at fifteen as we have here that you'll be considering that that will really be the centerpiece you would think in most cases so when the judge then determines that the sentence should be life without parole won't the judge necessarily have made that informal finding or that judgment or that conclusion that you're seeking a couple of points here are the st is it's not enough just to consider the fact that the circumstances context there is you know we on the court over many years has required consideration of mitigating circumstances but in that context does not require any particular finding a factor any particular conclusion and we use the it to the sentence or to make that judgment based on consideration of all the circumstances putting aside for the moment of the requirement that there be one aggravating circumstance but beyond that there is no particular finding necessary isn't that a similar situation to what we have here that is not the case when it is an eligibility role like we have here when it is like but admissions eligibility rules based on intellectual disability or the florida eligibility rule based on audience sanity in those cases the court requires a determination it may not be a formal finding and again that is not what we are shapiro i have a question about as applied to th amendment challenge here i take it that you think that mr jones can bring such a challenge and why isn't that a primary protection you know if the judge applied the wrong factors as you say happened here why isn't then the case that he's better off not challenging the procedure but simply directly challenging the substantive decision that he's permanently in corrigible victim testified on his behalf a correctional officer spoke of his rehabilitation and his extraordinary record in prison how he is an incredible worker and tries to get along extraordinary story here showing that his is an individual who is fully capable of rehabilitation but because that wasn't even treated as a substantive rule that is not what the determination that the judge was making was i don't why can't you appeal that why can't you then you know if you are given below that he would not permanently in for example and essentially you know one way of looking at what the trial court did is did not make a finding did not the problem is that the mississippi courts don't recognize that town and in courts ability is a rule to judge saying that showing that your client is capable of rehabilitation is insufficient to demonstrate that the sentence is off limits for him and that's the very problem in this case there's just no determination that the rule is actually the rule applies to my client let me just interrupt you then if it's clear in the cases or if we made clear in this case that it violates the th amendment to sentence and juveniles to life without parole if that juveniles not criminally in court and above and alive clear and i guess i still don't understand i let's let's talk about you know if this goes to federal court in twenty to fifty four and there is no factual finding for the federal court to defer to and the lies in the supply what about that then can you get without parole sentence is lawful so long as the sentencing court considers us related factors brand never really had a chance to show that he wasn't prominently in corrigible in any kind of meaningful way because  has any interest in stability that protect this court does not announce rules for them to be ignored so whatever form the determination should take mississippi's courts need to answer the question they have of a did is brett jones sentences are unconstitutional because they pose too great a risk of disproportionate punishment a constitutional flaw in such mandatory schemes that they make use of and all that accompanies it irrelevant to address that fall and if there's must because the sentencing court did not also make a finding that jones is permanently in cordial but that premise is wrong for three main reasons miller implicitly holds and the government explicitly states that a finding of court's ability isn't required against the starting out what exactly it was he was looking for and i have to say didn't seem like very much i think one sentence sort of articulating the holding of miller and another sentence saying that's what i've  determined or that's what i find as i understand him anyway i think that would be enough why why isn't that acceptable to the state but the question is have they applied miller just the   primary disagreement that we have with the just our joneses argument if he continues we relate to ak and for that permit in court ability really in the abstract it's an objective type of a fact and it is and it is a way to describe what is a grossly disproportionate senate always incurred whether or not current i think permanently in court also whether or not the crime reflects it so i think if you look at the transcript of the hearing it seems to me that what the judge is doing is the kind of sentencing weighing of considering a variety of factors so many think he he says that you know the factors are miller the miller factors and it doesn't sound like the consideration of a specific direction from miller i think miller goes a long way to answering it and god answer this question on page four hundred and seventy three consider mitigating circumstances and try to determine whether or not all of the circumstances would make a lesser sentence appropriate to count so justice thomas thank you mr chief justice  decisions again mississippi found the government found miller now has a substantive role three years prior to this court and i think the way to do that is this i think the substantive right at issue in miller is the protection against grossly disproportionate punishment the question the mccombs what is the consideration of use and if you read page seven hundred and thirty four of the government which petitioner signed off and is simply described grossly disproportionate punishment i think they can be reconciled and i think you can see this because the court vacillate between very agitated crime would miller change change your procedures much no your honor if i'm understanding the question correctly that the state would have been applying miller it certainly changed the way is that the fifteen jurisdictions that miller kind of highlight as what is constitutional for example in footnotes and none of them required a finding a permanent court ability so what we're saying is that the constitutional regimes  incorrigible did the court say that i think yes assume i'm right on that yes that's the substantive rule but that my question is the same as justice why the end of the  judge is due to substantive rules all the time and the question is well did they get the rule right and so if the lawyer h judge the rule and maybe he's inadequate if he doesn't and then the judge starts talking about balancing factor and then the supreme court starts talking about balancing factors in that state role i know that you disagreed with that and so i ask you to assume that i'm right on that if 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 the permanent courts ability type of a contact is a grossly disproportionate sentence and you when you're leaving making i'm sorry to interrupt you but you're well i'm interested in is on you something that is an absolute rule transient immaturity quite likely was involved here and the judge rejected that so i think what we're arguing over here is more of a procedural issue but if that is a substantive  argument i don't really understand exactly what we're talking about there are a lot of statements and miller and my gum right and one of them which a lot of the argument has focused on is the statement that a judge has to determine whether a particular defendant's crime a particular miners crime reflects transient immaturity or incorrigibility as if those are the completely mature and yet capable of being rehabilitated so what are we talking about and keep in mind of the three purposes of punishment that the court identified and applied in miller and montgomery st which is retribution has nothing whatsoever to do with rehabilitation i think the best way montgomery puts it is on page seven  senator to consider a juvenile's youth and its attendant characteristics before determining that a life without parole is the proportionate that it so if you look at the substantive right to protection against grossly disproportionate the way we understand page seven hundred and thirty four dollars of the comrie is to say that a crime reflects strains and immaturity that simply describes a crime the circumstances of which make a life without parole grossly disproportionate what you miller is an all things considered type of analysis it's not a myopic focus on one particular fact one particular fact and one particular piece of evidence is not going to accept facto make a life without parole either proper or improper it truly is all things considered and see if mitigating circumstances are going to diminish all of the pea a logical justification for the punishment to montgomery says repeatedly on seven hundred and thirty four and in other places that miller did more than require a sentence or to consider a juvenile offender sho before a life without parole so merely considering you can't be enough under my calmly it is stablished that the people logical justification for life without parole collapse in light of the distinction distinct in fact tributes a few more than one tune says even if a court considers a child's age before sentencing him or her to a lifetime in prison that henson still violates the  amendment for a child whose crime reflects on fortunate yet transience in maturity of proportionality of sentencing look at the nature of the crime but but i think the cause and the crime does not reflect permanence incorrigibility but i'm going to sentence him to l w o p anyway because the crime was really horrific not if you understand mean most would be because montgomery says it's the rare juvenile offender who's retired reflects irreparable corruption motorable multiple times in miller and in montgomery the court says it should be rare i agree with that your honor i think i the best way to read that is to say that this court looking at the whole for example would look at statistics on but no ten was envisioning that many times mitigating circumstances well if the mitigating circumstances of youth and all the surrounding circumstances would indeed make a life without parole and grossly so it would show which said what i'd said is not permanently the crime perhaps so perhaps a life without parole judgement would be proportionate i don't think portability some discrete objective fact in the abstract about a person and that is why the court time again anchor said what a crime or flag can a crime criminalize their conduct or you couldn't sentence them to a certain way that that was the question that there was a class of people for whom particular punishment was impermissible and you want to study and that does not what montgomery miller was retroactive to two ways st mellor a substantive because it is premised on the protection against grossly disproportionate punishment that there was a grave risk that a life without parole sentence would be grossly disproportionate and in any given case quote protection against of proportion of punishment goes far beyond the manner of determining a defendant and then i say what i can and i guess what you're saying is that there's a process for all and that process is necessary to prevent  serious potential for bad substantive outcomes and that's enough under teeth is that correct what montgomery says is that there is a grave risk not a quote unquote likelihood or quote unquote possibility you can see that on page seven thirty six and so i think if you look at the class language and not the marie i'm not disagreeing with your honor that that language is and there are of course but you can look at for example as the numerator denominator kind of a kind of a a set up the denominator be  sense for example no matter what the process was that led to it there are independent they are complementary to be sure but one could be violated without the other so that's normally how we think about it  was asking about about the class offenders i think my at that point that i may not have finished or explained accurately is that there is going to be a class of offenders for which a life without parole sentence will be grossly disproportionate to the point is that you can't define that class categorically and i don't think the gun rate ever said you can and i think that that would just all out of step with individualized sentencing to begin with so i'm not disagreeing that there's going to be a class i'm disagreeing that there's going to be a class finding of some kind not just a process that considers youth as a factor and then raises of course the tension that justice kagan was a down a flying in montgomery and i think what she was getting at is that the key paragraph in the comrie that says no finding a fact is required is some would say intention with the conclusion that miller was a substantive rule and so if that's true and you've made an attempt to reconcile it and i think you make a good point on that but i suppose that's true and we need that to follow the paragraph in the government or all the implication of the t v conclusion really say that paragraph is wrong in m or back away from it which just of course it was getting at a long lead up to a bottom line question why shouldn't we just require a finding of fact that the defendant is permanently  that the defendant is in cortical ignores much of miller it's also not an objective fact it's going to be some type of judgement that a sensor is going to have to make and to get to that judgment you're going to need an evaluative process and you're going to need to evaluate mitigating circumstances which this court has always said is a normative type of a value call and so i think this is more like the what's in line of cases and i think we know that  and i think if you really look at the titian ours reply brief on he just well are pages eleven and twelve i think it underscores the absence of any constitutional moring for the rule that the petitioner advances because he doesn't really tell us if it's a legal rule or factual ru which side would have the burden of proof to the judge or jury have to make the finding if it is a specific finding of the jury have to make it and at that point are we and the a pretty arena so i think that that just suggests that we don't really know what the nature of the rule is which suggests that it's probably not a constitutional rule and we typically don't think about the th amendment as requiring specific findings i think that's been completely rejected by discourse in the cases that miller cited including johnson versus texas thank you question of was this grossly disproportionate yes i think so your honor and i think looking at it that way does tell the tale quite nicely into why miller is a substantive role and why miller and why montgomery said miller was a substantive role because you're trying to in the garridos words on page seven hundred and thirty four you're trying to determine that a life without parole is a proportionate and how do you determine that if you're not looking at the question of whether this is a trend and maturity or a reflection of permanent encourage ability normally do i think the way we define a crap i am as to whether or not a crime reflects transient immaturity is a crime sufficiently mitigated by the just give characteristics of you that all the circumstances surrounding the crime would make it life without parole grossly disproportionate i mean can you explain this crime by a particular quality of you it's always anchored to the crime and i think that makes sense because in going forward with these miller cases you're not going to have any evidence of the procedure but i think the substantive component and what miller in montgomery were concerned about is that not applying miller retroactively would create too great a risk that many juvenile financed to mandatory life without parole prior to miller were serving recognize that life without parole sentences for juveniles convicted of homicide are not necessarily unconstitutionally disproportionate but they can be to reduce the risk of a disproportionate sentence and give effect to miller's substantive right  verbal formula the financing court here had the benefit of miller and took care to consider the implications of age age related characteristics and the nature of the particularly brutal murder of burnistoun on the whole the sentencing court disagree that youth and its attendant characteristics have not that is a determination that the crime does not reflect trends and maturity and no further finding is required nd even if transferred to maturity required a separate finding the court made such a finding here when i found the state i understand your submission to be that the requirement here is purely procedural you know the words look at page fifteen of your brief the sensors have the ability to take into account youth and but i think this court need not go so far as to say part of the language in montgomery announcing such in the role is right or wrong we are we are willing to accept that language that draws a distinction between the two types of crimes we've been talking about an arts position is that even if you accept that language the miller inquiry miller prescribes is the inquiry to draw those distinctions well but how does that under keegan how then is this rule properly considered retroactive well if we even if we take montgomery at its word that the substantive rule in miller is a distinction between crimes reflecting transient immaturity and crime effects transient immaturity where the teen a logical justification for life without parole of kalat in light of the distinctive attributes of youth and once you have that understanding of what a crime reflecting trendy immaturity is a month short of his th birthday is transiently him mature i think this person is highly intelligent and very mature but i can't say that after twenty five years in prison he can't be rehabilitated if he's with least after twenty five years he will commit other crimes what is the judge to do in that situation do you think that is a legitimate thing for a judge to say period of time in a good correctional facility rehabilitated so that the person will not create a risk for society after the person is released in fact in that could reason for example that while there is a possibility of some rehabilitation it's not going to be enough to show true rehabilitation given how brutal and to pray the crime itself was montgomery and miller use a lot of language possibly quite loosely you if they lose they use certain terms interchangeably corruption redemption incorrigibility and then contrast t with transience immaturity i'm not quite sure how they all fit together well i agree justice alito that those are not self defining terms i think it would help the analysis if the court were to make  corage ability is a crime where those you know logical justification has not collapsed that would have the benefit of lining up the language in montgomery with the inquiry miller prescribes but it would also have the benefit juvenile that should receive life without parole so how does your narrow proportionality approach your senior colleague get to the nub of that well i think it should i'm saying that in most cases they shouldn't because the peano adequate justification for such a sentence will be diminished will collapse in light of  is satisfied that is so funny how the science how does the proportionality test test that that's what i'm trying to get to it's very rarely applied in ham out about what a what a crime reflecting transmeta maturity is is a test that this sentence are applied in the st instance it's not a narrow proportionality it's not a gross proportionality it just is as a sentence or what asking any case noble and get your view on it say that i'm a sentence or and i go through a hearing and at the end of the hearing i say i considered this defendant's youth and the attendant characteristics of  youth i've done all of that consideration he's given me a lot of argument i've listened to little to be honest i don't think that he his crime reflect reparable corruption you know he is not one of the committed so on sentencing him to life without parole i think that that would be a good punishment and a proportionate punishment is that ok on your on your theory no justice kagan it's not ok we think a re there would be appropriate but it's not because the court failed to make any specific finding it's because the court in that hypothetical has made contradictory statements specially saying vote but the crime reflects transient immaturity and does not and i think it's a pretty well accepted form of procedural error and went to court says contradictory things we spend it back to the court so i don't understand it mr low because i took your argument to be one about an all things considered way and this judge has done that is considered abuse and all things considered way he's talented it against a whole bunch of other factors and he should that not withstanding the possibility of rehabilitation  a lot of sentence is appropriate is that not right it's because labels do refer to specific concepts in our view and so one accord uses the phrase crime reflecting trancing immaturity where translating into that into a good morning mr lew i want to follow up on my understanding of how this plays out in your view if the process was good and perfect my understanding is that you can tra a different th amendment argument that the individual sentence was still disproportionate to the answer that is the process is what leads to the proportionality he says made them in that matter and by analogy in the death penalty context the great versus georgia context we have said proportionality is required but to cheat in two ways one you rule out the death penalty or life without parole for a certain class of offenses or offenders and secondly we require that the sentence or consider all the relevant mitigating and other relevant circumstances of the walk and principle and here i just want to make sure your answer if the process considers all the relevant circumstances is there is a separate argument as an th amendment matter that someone could still make well they apply to all the relevant factors but i still think it's disproportionate call and what we're seeing here this is a case about procedures where saying that there's nothing wrong with the procedures that were followed here the court asked the right question and considered the right elements in answering that question so there's no start of i mean i guess this is part of the confusion about whether miller and montgomery are substantive or procedural but let me ask you this if i know the procedure that justice cavanagh said what applied perfectly what is the standard of review is it well the standard is grossly court would be the narrow proportionality standard that the chief justice the bidens concurrence in brown versus board your objection here is really that it's making the state sounds great too many hoops to put something actually formally consider whether this the sentence was suspicious or not greater than necessary courts don't require that sort of uttering of magic words and that's their objection to petitioners submission here ok thank you  crime where the penal logical justification is of youth of collapse and what have you and if we once we understand crime reflecting transient immaturity in that way then there's no tension between miller substance shapiro three minutes for rebuttal thank you mr chief justice i want to be very clear that we are not we are not asking for any sort of formal or a farm an airport express or magic word type what we all we are asking for is that the child 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 that we are asking for is for the rule of miller and montgomery which is a rule stated in reiterated in montgomery seven times as an interval part of a told ing that only permanent corrigible juveniles and be sentenced to life without parole and all we're saying is that it means that there needs to be a determination it can be an implicit one based on the usual presumption that the judge knows and applies the law correctly a presumption that is over comments year or or it can be something more explicit that it's one of the states to decide my friend absolutely be is a determination implicit or explicit is that the defendant is incapable of readability addition before he or she is sentenced to life without parole and i think what juveniles can be sentenced to life without parole montgomery provided that direct answer miller provides direct answer in saying that trial courts need to distinguish between the two classes and i think my friend from mississippi her promise illustrates what i pray 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 we are saying is that there is rule this court has laid down and that rules and miller and montgomery it is part of an edifice of stories of psychosis and the stability interest that it protects and this court does not lay down the rules so that they cannot be