repealed and a new law has been enacted take trying to take into account the supreme court's opinion in miller that's right i that's part of the reason the talk is so significant the year the if they think it's a supreme court rules that never says an alabama is retroactive that would trigger michigan sentencing statute and all these offenders will name plaintiffs for all the prisoners regardless of when they were originally circumstance or a term of years on the low end mission has an indeterminate sentencing scheme so if you get twenty five to sixty or forty to sixty so no one will be on a sentence of life with the opportunity for and by the legislature we don't have anything on that subject from the district court nor hold the subject of miller obviously on the subject of to that effect and then the parties plaintiffs can see if they want to continue to be brave who knows that's a friendly question in my view or in fact i i think the right answer is lynn  challenge to their conviction when what they are seeking is prospect of relief but based on the based on what the parole board could be ordered to prostitute is unconstitutional is that necessarily imply the invalidity of the sentence of all of these prisoners sentences but there are other prisoners with that very senate that are eligible for parole so why would they not retain their sentence and now fall within the jurisdiction of the went back and read what they were senate say it it would look no different from someone else who is within the jurisdiction of the parole board correct mr so why can't you remedy this just why michigan did i think in the bullet case where it's a good well we don't have to go back in recent six people because the sentence is not what is at issue we will simply tell the might be a proper sentence it's the process by which you reach that decision you can impose life without parole but you have to have an individual life sentence so once we know that in this challenge the pole statute is unconstitutional we know by that decision that the process for the decisions for all is of offenders was unconstitutional if the analysis that gives you relief in hundred eighty three also requires the conclusion that the sentences themselves are invalid you can't obtain relief in one nine hundred eighty three you have to go to a v s first and i think it's telling if you look at both arms advanced by plaintiff below and by the your discussed what kind of order you might be able to read we should you know it's the state's position ultimately that would that the plaintiffs this i mean i it's possible another avenue really consistent what you're suggesting is regardless of how took a comes down to send it back to the district court that's another possible avenue for allowed because obviously the argument would be again we've kind of the difficult decision here method of bringing this kind of claim because of course if if if if it's true that you can only just missed the grand point in cramped the court was looking at a scheme in florida that said life sentence and they had ever  them and they said the effect of that is life without parole the same commission sentencing scheme they said this is a scheme that imposes life without the opportunity for parole so that by challenging the lack of parole you are challenging the sentence in a way that's not true and wilkinson versus datsun this is fundamentally different if i can bullock life without parole is then the sentence as appropriate here we don't know what the sentence that's appropriate is because it has the mission courts in reviewing these questions said the proper remedy in the masses the legislative fix is re sentencing because you cannot impose a life without parole sentence without an individual life consideration if you look at what the courts about now the mechanical warrior like legal istic argument whether it's idea eighty three or whether is a b s case i mean if the result in the end is going to be the same what difference does it well the process matters because the well sometimes it matters but in the end the result matters i think that there's successor of whether the plaintiffs are going tells relief  challenge that is taken up through through the hague mechanism in the face of day and forth which very clearly say is a relief from the determination by the supreme court of new constitutional rules is not about the invention of that rule in t it is about the determination of that attach to a remedy i am sorry that attach to a rule that the supreme court articulates when the supreme court says i have we have we have created  we have located in miller this rule about the rights of juveniles when they were recognized that right dan fourth tells us and we found that so the were all on the same page what we're actually determining when we assess the retroactivity of a new rule is not the temporal scope of the newly announced right but whether a violation of the  occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief saw so innocent doesn't dance or to make it clear that it's about the relief you request or the relief requested is nine hundred ninety three my response is they're seeking that relief but the question is in getting there does the answer but for example in that case they were looking to upset the conviction and herrick they wanted to show that the investigation was improper they want to get money damages but in order to get there that's now we're just well they're not only damages but the concept is still political the concept is in order to get a relief if you have to show that the sentence was invalid you know to get to your relief then you have to go to one thousand nine hundred isn't that the question before us is this an invalidity of the sentence and i think there is this about the constitutionality unconstitutional under miller it recognized the norm to get to this relief and also to say the sentences were bad and of course that's true if it if miller applies there's no dispute that all of these sentences was one divided court there was carp which was the unanimous court that was over dictum and then a liason which followed was a two one decision but that's the best indication of what michigan law means in fact we don't have to go to michigan law because miller said michigan is one of the twenty nin wavelength my guess is if toca comes back in session and it's retroactive i suspect we will because if i'm a criminal defendant i would prefer to be in the upper cabin opportunity to get a twenty five to sixty or forty why should we order you to do something that you may very well depending on how the situation develops work it out yourselves in my view it's always better to be resolved b then or somehow but you've already conceded haven't you that it depends on what happens and i tell you this retroactive you're probably are going to be able to sit down and figure this out but if it is not and we're in litigation still then you're in litigation still and you deborah libelling behalf of the plaintiffs i think i should first address why we're here in the questions regarding this because i don't believe this case is moot or will become so we're here and the defendants appeal of the district court's remedial scheme to remedy an unconstitutional statute which is that you don't believe that it will be regardless of what the supreme court decides if they decide that it's not rich or active then one of the issues of the answers on the issues that you believe still before the court with respect to your case for two years we've heard from the defendants dismiss because miller is not retroactive now we're hearing from defendants this court should i guess he should dismiss is appealing this court should rule because impending in the future is a decision before in front of the supreme court that may if they determine that it's a federal question which is the first question decide that miller's retroactive but this case is not a miller case this case is about a statute that precludes and that the court found unconstitutional in that defendants don't disagree because they have said below that miller and require that states provide minors with a meaningful opportunity for release and pool and that is what this case is about the meaningful opportunity for release it doesn't challenge a conviction it doesn't challenge the sentence but says that these youth must have a meaningful opportunity for release and that issue is squarely before this court right now whether the court abused its discretion in determining in later that unconstitutionality what the relief is review something that has been displaced by law by michigan as well as by responding to a room court and something that in the future has been court might tell us we don't know what what is it we're going to be reviewing the new legislation if you want to get into it which i don't think it's before the court because it's somewhere in the future maybe but if you want to get into it it did not repeal the parole sta and it replaces i mean one they're doing is they're saying listen instead of what the judge determined what judge o'meara said was the remedy for this unconstitutional statute we've got a better remedy and our remedy is twenty five to life or sixty years which given that there's no dispute that the average life span of youth in the michigan prisons is fifty one years you want to write our case when we go back down if the if miller happens we we don't have that question before you don't have that question what question do we have the question you have is did the district court abused its discretion in doing a remedy for an unconstitutional statute that still still denying you all is unconstitutional or applicable or not applicable for the defendants are still in forcing this statute in for two years now after it's to been declared unconstitutional they've been refusing to allow these youth any opportunity for parole that's what's before the court and they will continue to do that unless this court affirms the district court's order as to what they need to do and while we're standing here to these youth have died two of them have died the district court ruled in the context of a completely different case didn't rule in the time text or didn't rule in the context account the context in which the court ruled and there may be entirely new context so you're either they did not repeal the parole stance and in fact what the new legislation does is it has a trigger if certain things happen in the future then there's a trigger that happens there's also proposals for amending that we don't know what's going to happen that that legislation also provides the option is twenty five to life it may be that if defendants want to present to the district court below since they want to pursue their appeal if this court affirms the relief which is still there's nothing is changed because none of this comes into effect unless the supreme court gets past the federal thing and determines retroactive at that time defendants go to the district court and say listen we have a better proposal for remedying the unconstitutionality of what's going on here and the case may look more like the where she case that this court a panel this court her up our perspective we say ok but you still haven't provided a meaningful opportunity for release because as the district no one has taken up the new act because we don't know yet whether it's retroactive gray it doesn't apply to any well that is that is a potentiality that could begin at the district court level for review it right now before us is your argument accepted by the district court that the parole statute is unconstitutional correct so give us your best argument for my the he a relief is distinct from the prospect of relief requested under ninety nine three thank you and i think that it is what you have to look at is hideous relieved challenges unlawful detention that not what's going on here in the court it is both the supreme court in both skinner and dodson in this court following these cases said what you have to look at is what happens if you're successful what happens if successful if we're successful as the district court in this court affirms they have an opportunity to demonstrate to a parole board based on maturation in growth that they should be released and the opportunity for but it doesn't necessarily result in any change in their their confinement because as this court said in the war she case just in august of last year that success would not necessarily affect the duration is sense because prison officials would retain the discretion regarding whether to grant them parole or not and that's what the court said in the dancing case too which was an eligibility for parole said listen if they're successful they might get parole but they may not the success is in the an opinion that affirms to district court and says to the extent that defendants if ever that law comes into effect as to this group of people which it is not right now that defendants of certainly free to go to the district court and propose that as a mechanism to provide meaningful opportunity for all we don't know we we're going to speculate about what the law of the future is and then rule on no that's exactly what i'm asking  not to do but you a lot of you want to i mean you agree that we should wait until the supreme court if i do not do not i say god speed that way before this court is an issue that has not that the pro statutes in effect that if the decision of the supreme court would necessitate our review in a different manner if the supreme court makes it retroactive then you've got the question that you may then bring to the district court of the propriety of the new act and if he does not find it to be retroactive then wouldn't our analysis some point defer in order to determine whether there is i differentiate between the determination of the supreme court and the determination that we are asked to make under the eighth amendment for prospect of relief i think if they say it's not retroactive then we're no different situation but then we are right today in the district court had in front of it district court had in front of it michigan court saying miller's not retroactive and he said it's not about miller retroactivity whether it's not about re sentencing it's about a parole statute that deprives them of the opportunity for parole that's what this case is about it's not every sentence in cases supreme court's articulation of retroactive not impact the recent ng that we would need to undertake in reviewing a crime i don't think so your honor be no different than what the michigan supreme court said it's just not retroactive for a number of reasons we don't think we think it's procedural in a subset of but it goes to their sentence we're not challenging their sentence for their conviction we're saying that under graham and miller the parole statute which denies them any opportunity for release is unconstitutional that's what the district court found in defendants have not disputed the constitutionality of that what we're here on is what is the relief and if the supreme court then the supreme court of course could say it's not a federal question so we're not even going to reach this which is one of the questions before it but if they say could difference the rationale that they use in relationship to the decision in dan forth i don't believe got you got you got a swing vot agree with one of those cases and dissented in the other i think i think miller's going to be retroactive i mean i think the court took it and it's going to be retroactive but we should not have to wait years and literally we're talking years because although it's not before you and i think if this is for the district court to hash out that triggered legislation provides that a whole scheme that results in it could be years before people even get me sen literally five to ten years given that scheme because of the way it's set out in that what they get is twenty five to life which is the same without a meaningful opportunity for parole what we're here for  here is the district court said here is what you have to do present to me and this is why we're up and injunctive there's no final decision below we're up on an injunction because the defendant said listen the scheme he said the district court said propose a fair and equitable scheme for we are poor overview and he set some parameters and majority of the parameters and defendants didn't disagree with i mean it's hard to disagree with  premier it says make a fair and reasonable process for reviewing these people to see who they are censor fourteen fifteen sixteen and seventeen to see if they're no longer a danger and based on maturation and i mean you take the position that should be retroactive so you you will be right so one of the main terms of what you want to do we would argue that the room to the district court that if defendants are saying you say what you affirm the district court and we go back and they have to do a proposal and we start parole hearings and just send it back to the district court  to or depending on what you can work with and proceed from that point your honor i think if this court affirmed the district court and sent it back for and they developed a process we send it plan for parole hearings if six months or eight months from now they say you know what we would like instead of this we think we can get a meaningful opportunity for release by reset and sing something that they have argued to the michigan supreme court they won't do because it's so expensive that's their position they took there in the supreme court denied retroactive it to be based on that expense so in part and so they say and they may say we want to do it differently judge the judge can then consider whether that alternative proposal would in fact provide meaningful opportunity for release and we would say without the court's additional criterion for the pro board it would not and the court would still have to provide it what we're here today for a process that actually looks at these issues because the recent unsing that the legislature plans and if you want to give twenty five to life or forty life you don't even have to consider mitigating factors and miller the legislation is credibly problematic it's your position as i understand it that that the relief that new invasion what not require this individualized rethink and thing it would it would require the consideration of these factors in the determination about whether or not perot afforded for an individual defend them exactly in their august seventh two thousand and twelve motion for summary judgment on page eleven or six thirty four of the page i do they say plaintiffs sentences are categorically unconstitutional as well so ideally you can tease out the prostate or from the right that's right and i think also there's a significant point with respect to this perspective injunctive relief the pro statute now is not unconstitutional it's only constitutional as applied to a set of founders whose cases already reached finale so that portion of the is unconstitutional as applied to that if miller applies this is all a question of retroactivity that's why i took this this this court what is before us today this judge has already decided that miller makes that portion of the parole statute unconstitutional now i just believe that you might get a different call out of the supreme court but right now what's before us is here is order that what you're exactly right might my position is we want to do that for me no footnote thirteen identified missions prostitution said it was unconstitutional essentially we know it was unconstitutional the only question is does it apply to those cases that are final on director view and the idea that you can challenge that let's say talk that we hold in our hands we hold that argument and we hold your argument your argument is it's how you b s in other closing their argument is it is not that it is a nineteen eighty three that's not that's that's the issue with if talk is found not to be retroactive it seems to me notice and we filed an atoll ninety two in the court took it and told me to as an injunction the district court asked here on interlocutory exactly and it's going to go back down one way or another the the point where i don't make is who decides the remedy one of the points made by plaintiffs is that judge the just record judge below should be the remedy the michigan legislature went through this terrible fight to create this new statutory scheme and of course the statutory scheme that has been essentially set aside by this just a court decision if if the district court decision to somehow are found then essentially the district court has rewritten michigan's whole panel schemes like a separate statutory code for these offenders in the face of michigan's legislative scheme and there's a substantial i guess i would does not bode the parole board from considering what the judge would have to say correct that's true but it's almost the way mission a lot of don't operate is you'd have all  considered in a meaningful and realistic manner i think we just have to look very clearly at what this judge did that's number two have two sets of standards that have a statutory code for all offend all hill case offenders and then the hill case would have its own set of rules all governed by the district court so my point to you is if talk is found to be when they had this issue said we're sending them back three sentencing to cure the constitutional injury whereas this remedy just strips out the no parole provision and gives them essentially a new sentence it changes the nature of the punishment that these people are subject to the instead of being life going not afraid of the parole board prowling anybody then you all are given them the authority and role of making that determination i assume you trust through i'm not going out just like you trust them with the a don't need imputed all the the  kind of jumping up and down is that the this is that the statute that michigan adopted which has a twenty five year provision in it may not be enforced that's right that's the effect of  you thank you both for your arguments you may call