lifetime and president without possibility of parole is prohibited under the eighth amendment for a particular class of offenders juveniles who commit homicide but whose crimes do not reflect the transience immaturity of youth this case presents the very narrow but recurring question of what constitutes lifetime imprisonment without possibility of parole for juvenile offenders when the sentence is a person term denoted any particular number of years rather than labeled life without parole lifetime in prison without parole or the like it was only this harshest term of imprisonment that the supreme court addressed examined and prohibited and mill thus the question before the court doesn't concern the broader very important policy questions of what is the best or the ideal sentences for juveniles or what reforms must be made to her present system or what post really post release life should look like for an offender upon release the legislature's task the dressing is important questions and it was in the process of doing so here the question is a no constitutional one concerning duration is the present terms so long that it is lifetime imprisonment without possibility of parole and dust within that miller's categorical rule and this this court already helped that for purposes of miller montgomery is sent is functionally equivalent so life without parole when it is so long that it in the words of radius cannot be served in one lifetime the juvenile will die in prison is unsurvivable and means the juvenile most certainly will not live long enough to ever become eligible for release the language that this court used in various nearly echoes that the supreme court used in grammar miller and montgomery when describing the unique characteristics of  in the words of the supreme court a life without her sentence is one that comes out as a juvenile to die in prison in presence the juvenile until he dies the juvenile will remain in prison for the rest of his days is the lengthiest possible honor that's what the court said in reyes is that the sentence must be unsurvivable now whether a sentence is unsurvivable or not is a difficult question and no one knows with certainty when juveniles will die or what will happen how long a prison term will particular penalty is prohibitive for a particular class so for example capital punishment is her have at it for juvenile offenders capital punishment is for have it for intellectually disabled gra applies to juveniles and adults where the legislatures has said that it applies to juveniles and adults so the legislature went before was sentenced had a statutory scheme that removed him from the juvenile court system where the maximum sentence was up to twenty up to age twenty one put placed the offender in the adult system and said we think that given the crime murder first degree murder with a firearm we think the same penalty should apply to snowden told the juvenile was transferred to the adult system wit choice that may be met that may be what the legislature chooses and it has chosen it has changed things after miller as a policy matter and has said that it has decreased the sentences for juveniles that are still in adult court and still treat it like adults in adult court but it has removed some of the more severe components of the adult system like the mandatory firm and spent and it has so it's thought about you can also pick that but the question here is not what legislative choices should be i think in paterson the court explained that the transfer starts just were not unconstitutional and are not unconstitutional even when you're applying it moving juveniles to adult court and the court explained in paterson that those questions are for the legislature to address and the legislature did address them fewer juveniles are transferred mandatorily to adult court and the sentences are different but those are all policy questions and the question here is a constitutional want about the dimensions  meaningful opportunity to obtain release before the end of his natural life or be before the end of life the case is discussed how a life without parole sentence deprives all together a juvenile and the opportunity to re enter society or to reintegrate into society or to be fulfilled in society but the question in those cases was looking at and analyzing the nature of a life without par sentence which all together perhaps it's all of those things and so that is the question presented here is does the sentence prohibit all of those things deny altogether say at the outset that regardless of whether you have rehabilitated we will never let constitutional question is not nice is not defined precisely your honor we think that standard should not be whether it's impossible to survive and i think the standard should be something more like is it probable that the juvenile will survive  statistics are are useful but some of this is very much for that and the courts common understanding common knowledge and we as a community as a society know generally how long people live and those and our believes are believe not that we expect people to die before sixty seven but that we expect people to live until sixty seven and then to live about ten fifteen twenty years after that is that that is the notion of the retirement age that you have you talked about if you like tha years a number of years because to say that it would be at age of release would would lead to more just parodies a fourteen year old to get a greater sentence versus a seventeen year old and we don't think that that is the proper way to draw a line a number of years means the fourteen year old would spend the same amount as the sixteen year old of the seventeen year old and so they might be released of different ages but ultimately the the number of years in prison and the duration in prison and we think it's what should govern and we think that and you start approaching seventy five or even seventy three it's it's a closer question you can't be as confidence to the rights of survival decrease or appreciably and so to be conservative and to ensure that we we've so to say that a forty one year sentence would be life and we think that the legislature didn't intend to draw a line at forty years and then preclude trial courts from considering specific so you may have them a warning greater sentence so you may have a juvenile offender who where the crime is murdering a police officer but that also commits two or three additional crimes or the circumstances are particularly particularly bad but that he comes from a terrible background and there are lots of mitigating factors and so in there he was influenced by peers or there there could be a host of mitigating factors that would drive a trial court to say well we don't think that the minimum forty years is appropriate but we don't think that the person it's crimes reflect irreparable corruption so life is not really necessary and so there should be a range between forty one and you know what is life and we think the ten to fifteen arranges his is fine or thirteen to fifteen year and just fine and acceptable to give the trial court's discretion and remember we're talking about the eighth amendment and the eighth amendment as putting a cap and it's a constitutional cap that no legislature has can get around at any point in time and when the  amendment operates it takes it takes out the largest the most from the legislature the power to sentence for particular sentences and miller and recovery and graham are very careful to limit the incursion and incursion on the legislative power they said life without parole they don't even proport to analyze like in terms of years as justices alito and thomas pointed out and they're just sensing graham they didn't they were expressly says we're talking about lifetime and president without parole and in fact said the mandatory will be in a worse position than juveniles who were sentenced more harshly on the other side of the red line no honor because the person who gets the life without parole sentence fifty four years there will have to be a determination that his crimes reflect well corruption and that hits necessary to provide that sentence that a person who doesn't receive life without parole sentence doesn't get life in prison there is an opportunity for release we are going to release the offender we don't expect him to stand as a for the rest of the students and there is this there is a distinction now there's always going to people that fall close to the line and this is the line drawing issue but at the end the supreme court has tasked the court with figuring this out and deciding so in illinois before a miller we've always had a scheme that you account for the circumstances of the person then we look at their age and so there was already an discretionary sentencing looking at the juvenile now a person who now for any juvenile going forward there must be hearing but the legislatures of course about to have a starting point and and i would point to the legislation other states like iowa for example have just term and under their own constitutions that any mandatory minimum sentence for juvenile under the iraq constitution must include consideration or factors and they have done that not only the eighth amendment but their own interpretation of their own constitution and that is that is an option to the extent our constitution would allow for a bit but a fifty year term is not a life without parole sentence as measured by our everyday experience is the retirement age the results of a survey from the juvenile life without words that said they expect you were just as drawing a line but i do want to just emphasize a few points about why we think it is necessary to draw a line here i looked at the court's pel docket before coming here and a review of the first twelve pages of the docket reveals that the permissible as a cap and so all of these reasons we think favor the court drawing the line now is it won't depend on the nature of the crime or the underskirt sticks it really does depend on what this court really is is life without parole and i'd like to finally just quickly touch on the remedy to the extent that the court thinks that fifty years is the fact of life without parole we ask the court to draw the line there and say the sentence is under fifty years or not and we also w isn't is life without parole and he asserts a miller violation that's enough to get him through the first stage and then at the second stage the parties defense will be appointed counsel and the parties can argue about whether the hearing actually mandated to for second stage proceedings for the parties could explore whether the hearing complied and so we just as that we comply with the act and this is the way the act is designed and make sure that to the extent you know we are man this is a circuit court there's still go incarcerated juvenile for half century fifty years without adding after a hearing where his youth was not properly considered and their parents respectfully request that this court affirm the lower court below now the state's argument is that miller and the considerations of the protections of miller which are that a juvenile's youth is considered at sentencing applies exclusively to sentences that and states words guarantee that the juvenile will die in prison and nothing less but none of those cases none of the u s supreme court's cases or even this court's case laws necessarily limits the rationale and the goals of miller two senses that guarantee death in prison the brennan miller said about the problem with life sentences about the reason life se that language suggests something more than just dying in prison just that something more than just as long as a juvenile steps outside of prison before he dies the eighth amendment is implicated now in the state suggest runners that you know there's some sort of sacrosanct broader than its core holding and even restauranteurs this court's only opportunity so far to deal with what a functional equivalent to life sentences and it found that a mandatory ninety seven year sentence was unconstitutional it it arrived at the conclusion that you could represent your client and you've indicated decide this case obviously this is an opportunity for us to establish a bright line rule that will affect other cases i think right now we're saying eighty nine is too old and thirty six is there are thirty six and eight or nine you have two cases on either end of the spectrum you heard my question the opposing counsel with respect to the legislation going forward some of the statutes were we could glean that perhaps if we extrapolate that forty years is the number that the legislature may have been inclined to if they were in our position police officer in forty years without going to the miller factors what's wrong with that analysis i don't necessarily think there's something wrong with that analysis your honour's and obviously the legislature in twenty sixteen after miller graham and possibly montgomery  acted you know and acted neutral sensing laws and they said basically for certain serious homicide offenses such as killing a police officer that in the minimum sentence is forty but in the same statute they require the consideration of youth certain youthful factors that this in home and comply with miller and basically so they basically indicated that this is the long you know this is the longest sentence for giving juveniles without before you actually consider their youth so i think that would be appropriate but just to be clear we are not asking this work to draw a line in this this court should other state supreme court cases that actually decide whether they should draw a line and they decide that they should not draw a line i'll give you two examples of cause yano in the connecticut supreme court and contrary in the california supreme court both courts dealt with the question of whether they should draw a line and by the way both courts found that assent determined sentence and or rolled ability fifty years is unconstitutional and they declined to draw a line below that because they thought it was more corporate for the legislature and here the legislature has already for the most part fixed the problem for much the same offense that my client has been convicted of his minimum sentence has dropped from forty five years to twenty years because there's no mandatory firearm atoms anymore for juveniles they can still they can be implied they can be applied discretionary but not necessarily a mandatory and addition if this were recognized in home  possibility that you know the legislature might institution sort of parole system for juvenile offenders you know after twenty years or twenty five years perhaps you know a juvenile offender would have at that point had the opportunity you know for release which would sort of negate you know this problem and i think you know i  hope you don't ask about the details of your honor but i think there's some thinking around the legislature right now but the right there are cases in the pipeline and i'm saying we have to say that you indicated in your response to the question you know those determinations are made murder offenses without considering their youth this is forty years are you saying that there is a there is a number that would comply with the anything that is juveniles or are you saying mandatory minimums not in this case although we would of course will welcome that decision whether we're saying it in just be clear we're not we don't accept the states as i was arguing before we don't accept the state's standard the idea that functional because you know something it will take care of themself and live out their final years of life to some kind of dignity i think i would be important but we can look to the principles laid out in the u s supreme court's on language you know the u s supreme court someone that gave us that language your honor so we just kind of have to apply it  ideal i think that you know of course you know parts of apply sort of relatively ambiguous principles like that all the time we always have to decide you know what a reasonable person would do in a certain situation so i think that while it's not necessarily you know a hundred percent clear zafar where it draws a line i think it's something that courts can apply on a case by case basis and determine whether or not a particular sentence meets that standard and courts around the country have applied that exact analysis and determined that state that a sentence of exactly fifty years or close to fifty years other as i was saying i would say high courts have found that fifty years is too long to give a juvenile without consideration of their youth the high courts of california maryland connecticut wyoming i wonder the state constitution missouri florida and new jersey that you know a juvenile offender must have a meaningful opportunity to reintegrate back into society and we think that that standard more appropriately balances the real retribution of and rehabilitative goals i want to apply to juveniles to support i'm sure as well where the u s supreme court and this court's case law makes it very clear that a case for a cause for retribution for a juvenile offender is relatively low because they have a diminished culpability because they're you know the brains aren't developed very easily influence whereas the cost for rehabilitation is very h compared to adults because again their brains are still developing and they tend to age out of criminal behavior with the state's standard as the states you know the harsh survivability guaranteed death life expectancies it its goal is to extract the maximum amount of retribution and punishment from a juvenile without any consideration of their youth having without their having ever had any consideration of their you and at least in the situation with me for opportunity for release if the juveniles youth is not considered at their human and say that industries fifty years too much we would have to be using that on life expectancy to lose or to look at people's in a time when would we not to a degree but not to the degree that i think the state's argument argument is guaranteed death in prison and that's that and that's the standard they're saying that miller applies to and that's and that and that's a problem even if we knew i think if we could pick out a life expectancy number a life expectancy is just the hour it's an a mathematical average of courts of recognize that means that approximately half the population will not reach a certain number so the closer your sentence gets to life expectancy even if it's lower than the life expectancy you may have no better than a coin flip chance of actually surviving your sentence at all and yet that's what the state says gives you a meaningful opportunity for release and it does now in addition to and though you're not asking for a bright line rule your your argument would not change august i think they recognized in their survey of the law of the other state high court that they're sort of a fifty year threshold but there's a number of states that have found that you know at least a sentence of fifty years is unconstitutional a few states like i think wyoming i think cases what's the difference i mean we're listening to all the actors were we're taking into account tables life expectancy tables and what and we're just reducing until we get to the point well i assume thirty six years is was too much not enough words but until we get to that thirty six more we're serving in the rule which are right unless we do do some of it least we have the opportunity here again i know i'm beating a dead horse i think i mean obviously any decision it's hard makes is going to be you know is going to set a bright line role you know other cases me in but i think that when they do when it when it does so your honor again it gives the legislatures at least a standard to apply when when determining such as we can wait you know this chris decision can encourage the legislature to do to you know create a system of juvenile parole for example that would sort of obviate this problem you know for everyone and any person who has a long sentence now if they have opportunity for release or real opportunity for release after twenty or thirty years or something like that that would solve the problem but as roger says this court can also look to you know what the legislature has done and say that you know the legislature at the very least to set a sentence of forty years that's the maximum sentence we're going to give a juvenile  you actually have to consider their next work or draw the line when you are you there's any tension you don't think there's any tension between doing that and being compliance with seeing a meaningful opportunity i don't think so your honor i think i mean at the very least argument obviously is that a fifty year sentence does not provide that opportunity and so if a and they get me flopper to for a least a chance to you know rejoin society i think you know a sentence of you know forty years you know or someone is you know released in their mid fifty's i think obviously gives a much better chance to you know it's farther away from the end of their life span however no one wants to categorize that and it's give a longer a more realistic chance of actually like getting a job and becoming becoming a normal member of society again as opposed to you know a sentence of fifty years which courts of recognize comes close to the end of a person's life span you know the state acts as though fifty years it's you know there's no question everybody knows everyone is going to survive a fifty year sentence but again my client you know even by the state's own metric based on my client's you know race my my client's life expectancy is seventy three and he's going to release it sixty six he's going to be released very close to the end of his lifespan and as i said if we're looking only at life expectancy which is kind of what the state argument demands were that's it that's an average my client has you know maybe a fifty fifty shot or even if it's not quite that high it's a strong possibility he will never be released from prison so does that actually give a meaningful opportunity even just to obtain a release i don't think it does and it's best case scenario then let's say he will survive then he's going to be released from prison which he entered as a teenager when he's sixty six years old approaching you know seventy years old he won't have a job he won't have any money he won't have any prospects of getting a job as a you know person of sixty six with no job history with a criminal record you know he's at the age where as counsel point out the law itself recognizes that you shouldn't necessarily even be working you should be retired at that point because you'll be age qualify for social security even though we can actually get social security because in prison you so basically the best case scenario for my client in this case which is what we're asking for decide on this even if he survives his sentence  imposed without consideration of you has to afford you no hope of restoration reconciliation with society of film and beyond prison walls so i see my time is up here i was very sorry for those reasons roger respectful to draw a line we think the standard is what miller says is that lifetime and president without parole and we think fifty years is not that sentence but one thing somewhere between fifty four and fifty nine is that because we start as the new jersey supreme court said once you're releasing an offender in their seventy's or eighty's it starts to look more like life that people and if you're not releasing the juvenile in their seventy's or eighty's then it's not life so that's what we would  court has no further questions we ask the court to reverse the judgment of the appellate thank you case number one two two three two seven people versus buffer will be taken under vice minister gender number one