appellate please the court my name is katherine laurent and i represent the taurus rainer nearly two decades ago mr raynor was sentenced to die in prison crimes he committed as a juvenile the trial court sentenced him to two hundred and forty four years aggregate sentence and intended that mr raynor die in prison now the laws change substantially or evolved since that time and were here before the court today to decide whether mr rayner's one hundred and twelve year sentence doesn't deed violate the principles of graham and the th amendment before i get to the merits i'd like to talk for a moment about the remedy that we're seeking and what we're asking this court to do is grant conditional writ and remain and to the state court for rescind tensing i think that would provide the most equitable form of relief because it would allow the state court in the  instance to apply the new principles that we're aware of that you can't just sentence a juvenile as if he were a small adult and no court no state court has apply those principles to issues may just disappear in state court and that's because in recent times the state courts have been recent and saying are juveniles who were sentenced to mandatory life role for st degree murder and the sentences in those cases have been in the range it's between thirty and fifty years or a forty year life sentence that provides parole eligibility and when you say this state courts have been doing this have you provided i think everyone agrees that the novo review applies here and that colorado supreme court has their decision is contrary to the fairly established federal law in graham as interpreted also by this court in b council in connection with the noble review with regard to whether or not the opportunities for early release in the state provide a meaningful opportunity for early release based on a demonstration of would make it a question of law that under colorado law parole is not what was contemplated by justice kennedy in his case it's not something that in the regular course of  events an individual who can show themselves to be rehabilitated will actually be released the parole is never guaranteed is it it's never guaranteed your staff have a reasonable opportunity to well that's where i think we have a real debate here because brawl can be different things and i think in a way it's analogous to what this court did in food or when you were analyzing well what is a sentence if a sentence is a term of years say three hundred years is that equivalent to a life sentence are we going to distinguish life sentences and life without parole sentences or are we going to really understand what we're talking about and what what of parole is not the same thing as a meaningful opportunity i'm xargs i said the chance of parole is not the same thing as a meaningful opportunity for well actually you have to have is a chance for parole under go for parole board all you have an opportunity they don't have to give you pour all they can evaluate the facts and turn your day is that a problem that i why because because a chance of parole doesn't rise to the level of a meaningful opportunity for release based on demonstrated maturity which is what the th amendment requires for juveniles  and we get that roof from ground those are right with it meaningful opportunity for release for a juvenile we get it from gram and we get it from the subsequent case law i think gummer is instructive also because montgomery talks about you know there are going to be juveniles who when they come up for parole they're going to be denied because they aren't you have military that they're the rare juvenile in corrigible and we can't release them but for the vast majority of juveniles what the court said in montgomery in holding that miller was retroactive was that you have to restore their hope for some years outside prison walls so a chance for parole judge kelly when you are appearing a guarantee for parole and this is why i worried so much about semantics and language and i actually before coming to the oral argument i was looking up in webster's what is what is hope what is what is an opportunity what is the chance what is realistic in meaningful because what justice kennedy has always said and justice kagan in miller is that it's not just an opportunity for release not an opportunity for parole it's a realistic and meaningful opportunity and what does that mean realistic mean people having a meaning or purpose school of meaning significant opportunity well it's a good chance for advancement progress hope hope for release hope it's a desire with expectation attainment to expect with confidence can i ask you let's let's accept those definitions and i want to sort of interface this question with your question about the standard you said it's a think it's a mixed question of law in fact right and so something is a right it's you know it's hard to say if this court recognizes that for a role under colorado law doesn't impact the severity of the sentence and i cited this court to a couple of  in colorado that talk about a lack of any expectation ok ok so in any of the whether or not it is depended on the answer to some factual questions there's two sub issues one that you had a dialogue with judge kelly about and that is the general parole there is also obviously a lot of discussion about the j care program my question is focused on the jay care program and more particularly whether the answer to the  it presented in this case is factual two of the elements for entry into the jacob program that you've taken issue with or the nature and circumstances of the offense arguing obviously that attempt to prove st degree murder is a very no information do we in our record on whether or not these two factors a in the that you take issue with have as a practical matter precluded anyone or a substantial number of individuals from being admitted in o the jay care program and does and it's in so if we were to answer the question does the does the availability of j care for an offender for convicted of st attempt for st degree murder to answer whether or not it provides a meaningful opportunity for early release given your definitions we have to answer these factual interior intensely factual questions of whether or not these two elements have as a practical matter been jeopardized well in your record and this is where it becomes a question of law there was a real concern in roper v simmons the reason the court initially adopted a categorical bar to death the death penalty for individuals  younger than eighteen or yes was because they were concerned that the nature of the offense and the impact on the victim would overwhelm all other factors so we have no idea that you know one of the elements into the program is someone who has to actually spend hard time in prison for twenty years you know the position of marijuana it will never qualify for a twenty year or hard time served served senates and if we cannot tell whether or not these two factors would be a practical barrier it may be that mr reiner might have a viable claim twenty years from now or ten years from now once there's been a bit right now would we be compelled to reject your claim based on the absence of evidence maybe it's not your fault and since it's a new program well this is you are looking at the entry point into the j cap program i would ask the court to focus for a minute as a matter of law on the exit point from the take on the one i'm sorry oh i'm sorry i'm not speaking loud enough i was asking the court to focus not on the admission to the j cap program which is not guaranteed even if you're rehabilitated but on the exit point and what i tried to convey in the brief is that when the legislature passed the program they sold it they sold that to the legislature by saying this doesn't give anyone anything more than they already had before were passing this the governments the government the gov maintains well that's that's good that's a good political marketing but isn't our prisons are presumption that's included in the j cap that makes it a little more unique and obviously not a guarantee but a better chance for release not in the context of what we're looking at where victim impact and where  once you get in and process through server with the steps i know that's wishes and hopes there is a presumption and the presumption is what it is it's told to the governor and the governor just like he always had ha complete discretion to grant or denying and that is what's not enough we have so you want to guarantee that you know if you want to say a guarantee it's not a guarantee for all offenders no one talking about a juvenile offende will never have that guarantee and you know when when when the case law says there's no guarantee that a vendor will be released you have to put that in context and the context is that offenders who can't show that they're rehabilitated they won't be released so how do you know that your client will show he will believe he's been rehabilitated you know frankly he already has but the point is under colorado law he isn't has no entitle meant no assurance and when he was sentenced and i think we can also go back to that moment the intent of the court was that he die in prison and no one has ever considered no court has ever consider those factors that are unique to juveniles and with the court's permission i'd like to reserve a yes or so for thank you may please the court your honors my name is ryan crane i represent the respondents ordinance state of colorado in this case your honors grammar required a meaningful opportunity to be provided to juvenile offenders and require the states to figure out the means and mechanisms for compliance with this rule colorado heeded that rule by creating in its hire program the j cap program which allows juvenile offenders after tw requires a decision to be made by the parole board requires review and affording to the governor who must also make a decision as the court has already noted if a certain amount of years have also been served by the offender twenty five years  petitioners case he is presumed under the statute to have met the criteria for early parole and at that point not only does that statute require review of the application it grants perpetual we're view every three and it surely meets graham's baseline requirement of a meaningful opportunity for release basis as you know whether or not he has applied for the program placement in the program he's eligible to apply in about three months  if the court wants to consider i know the court said it's limited to the record there is public record which is a report by the department of corrections to the legislature as of july as of january of this year stating that it time there were enrollees in this program progressing through the program but what do we do with the fact that you're arguing there is a meaningful opportunity for early release based on maturity and responsibility  based in part on the jayco program and as i understand it our evidentiary record unless we're going to go with the old and start conducting our own factual of this to gay should we have no information whatsoever about whether or not anybody that was convicted   st attempted st degree murder could ever overcome those factors a in a the impact on the victim and the seriousness of the offense and so would we do with that we have no no evidence either way for us to find in your favor that there is a meaningful opportunity based on the possibility of entry into the program i would say that the program as a whole when you look at it certainly meets what graham requires graham doesn't say you can no longer consider what the offense was i mean that would be odd to say you don't even consider what happened and it doesn't say you can't consider it i forget what the other factor cited was the a and e sicken the impact on the victim yes those are appropriate factors gran doesn't say don't consider anything else and every other state that i've seen some of them most of them just grant an early opportunity perhaps for parole they say after twenty five years  will give these people opportunity for parole and they don't even say here's these extra special factors that need to be considered so graham allows those things petitioners burden would be to show that those things somehow always control and overtake every other decision that gra would consider appropriate and therefore it's not a meaningful opportunity anymore if petitioner wants to do that he's he's got to overcome that with some sort of evidence and the program as counsel has noted is too early to stage probably to allow that if when he goes to the program and he thinks he's being you know arbitrary and discriminatorily denied release under the program he can file or that if monies are talking through this program which takes three years to accomplish yes right yes if it's some point he fails to meet the standards of what is it is here the list is pretty low any of these things then i suppose he parole on the basis of improper factors being considered despite what a statute might say is appropriate in other words he's challenging at this point the statute on its face of the statute is clearly sufficient on its face in my mind to satisfy graham under under deneuve a review yes i mean i haven't seen any meaningful opportunity yes we can walk through all of these requirements and say yeah it looks good to us absolutely say it's not after twenty five years of a sense it's at sixty years of age so more like forty years of us and it's being served for a juvenile offender and the court didn't look for evidence of how it's being applied or how if and when there was a juvenile offender and how long  juvenile defender in confined and in a block i don't know how long he had been defined but the program of the geriatric release program would have allowed him or her to apply for geriatric release at age sixty so assuming a juvenile offender is sentenced around age twenty you're looking at about forty years and then montgomery the united states supreme court said that was the miller case of the court was looking at well what the states have to do to comply with miller the court there said states don't have to rescind it's anyone if they want they can do like wyoming has said it stated the wyoming statute and said wyoming has granted parole eligibility to juvenile offenders at twenty five years of this and done there's there's no program that you have to walk through so i don't know if that's a real good parallel for what we have here but i believe the wyoming statute provided for parole eligibility at twenty five years our program does even better it allows early parole and also provides actual programming and rehabilitation to prepare the person for release and it requires review and it allows perpetual review after that you also take the position that graham what graham said was it was a it use the phrase non homicide offenses and when it talked about homicide offenses the language in the studies that it used suggests that the focus is the intent to kill the studies site  they include in their counting of juvenile offenders they consider homicide offenders to be including those who were convicted of attempted murder and so our argument is this is actually a homicide offense to begin with which would allow a life sentence well but when you read the rest of graeme that follows the statement that you're quoting it talks very much about drawing a line between the victim living or the victim dying and here the victims did not die that's true so you're really hanging your argument on that one phrase included in that one sentence intent to kill that in some of the studies that the grammar relies on however i would argue the court doesn't need to get there because even if it were to find that argument would still be you know what actually this isn't a life sentence anyways or even if this is a miller case miller applies to barring life sentences unless certain factors are taken into account by the sentence or and so we would say this is actually not a life sentence to begin with because the j cat program applies and petitioner is eligible to begin this program and then apply for early release after serving twenty years you also take the position that the good time that vests would have an effect on a sentence yes every court that i'm aware of counts whether or not something is a life sentence and whether or not there's a meaningful opportunity by looking at parole as a meaningful opportunity for release and that's including the opportunities that a prisoner has to deduct from this and it's over time for a good time but what you're doing is not saying right he has good time and he gets ten days out of every thirty days by the time he turns sixty then he will in the future have accumulated enough good time credit to qualify for parole eligibility at age sixty now i have not seen any cases that have addressed whether or not you can do that there are some cases that seem to implicitly do that without any discussion there are some cases that take a good time credit up until the time that the petition is filed but i haven't seen any cases that would support this idea that you consider in considerable future time future good time credits why should we or should we extend the law in that fashion i'm not sure there would be an extension of the law like well what cases are there that have discussed that in have been endorsed your position i believe the cases the answer brief state that the question is the opportunities that the president will have to deduct from the senate's through good time and good behavior none of the none of those i mean all of those cases are looking at a senate senate that has been imposed and then saying what are the opportunities that this person has that's what the effect of sentences is there are meaningful opportunity to obtain a release based on demonstrated maturity and rehabilitation because as the court has pointed out graham didn't require a guarantee of eligibility at age sixty it seems to assume a lot of things in the future i think we're assuming that things stay the way they are which they haven't changed and i don't know when the amount of good time has ever been taken away certain amounts of  investment cannot be just taken away i think it's more speculative for petitioner to say well he might never get there or the law might change or that sort of thing our position is this is the law and this is the way it works and this is the opportunity that he's been given by the and so yes it's our position that the j kept program is sufficient easily sufficient to satisfy graham it's in my mind is exactly what supreme court wants to see states do is give these people a nd chance at liberty and this just this program does that not just by saying well we'll give you an early parole eligibility date it says we're going to give you training and life skills training vocational training community support family reunification emotional and mental health training and then give you a true nd shot at and twenty and i can submit that report if the court would like as a supplementary authority of public record but i'm happy to provide anything and i thought it was referenced in a brief somewhere do you have any objection to that counsel would you do that and thank release under the j capital gram is executive grace and that doesn't satisfy a meaningful opportunity for really well i just cannot understand your argument because you must concede that pool is never guaranteed but you want to guarantee b you say no i don't want to guarantee well and i think this may go to the heart of the matter and i also think it may go to the matter of why this should be decided in the st instance by the state courts who are so familiar with their laws but it goes to the heart of the matter because guarantee when when the court is talking about no guarantee for release it's talking about juveniles who aren't able to establish that they have been rehabilitated we don't know if your client is going to be able to establish that he's rehabilitated at this point and at this point if he does without any doubt he has no expectation of release you talk about in  action will lose that and i will lose that because under colorado law there is no right or expectation for release under either the j cap clemency program or under parole well can you give me an example of and eighty five dollars if a man went into prison on a ten year sentence and he earned the maximum amount right the time he would be intitled to release in five years if a man goes into day and he earns the maximum amount of good time he doesn't get released in five years he gets a chance of parole and no expectation or right to it do you see the difference yet to die did not understand that that is correct not until they served every day of that in mr rayner's case one hundred and twelve years well it does make any sense i think i tried to explain it and i'm not sure it's because parole means different thing under different statutes some statutes it is an absolute guarantee if your behavior is good and justice kennedy in montgomery talks about the role in most systems but not colorado being the expectation when someone's behavior has established they're ready for release and that's in montgomery he talks about that when he sees my parole are the possibility of parole a that in five years what the situation will be and if he does how he does have an opportunity crime and the victims were really hurt and you're not going you're going to show you can't do that i'm saying that you can't deny someone a juvenile even if it's a horrible horrendous crime and even if the victim is a basket case they can't demonstrate the central insulation that's what the supreme court's court talks about of juveniles being able to reap the real delegated yes he should be released thank you thank you both for your arguments this morning i thought the briefing from both sides was excellent thank you