i think you all understand exactly what the question is that's before the court and how it's framed by cases beginning with rove are going through bill or my gun rate so i will repeat what we all know about the way in which the court has say there's no question that of course as i'm sending sheep sentencing you to life without parole that miller kicks in the question now is what happens if the court sentence you to some term of years doesn't use those magic words and then the second question and really the question i think that courts correspondents focuses on is if so you know what how many years is it so let me try to answer that in that bit that i would propose first i were utilized and the hope of otherwise just starting there would be tell of a form over substance as we argue the whole of the judicial system hostage to a label as opposed to the reality of what actually would be going on which  that somebody would be have been sentenced to die in jail so now the question becomes how do you know what that year would that age is when somebody is going to to die in jail and of course that is a difficult question there's two ways it could be answered the best way is not one that this court can do i mean congress could say nobody we're going to let everybody out when the reach age on the blank fifty sixty seventy whatever it is  they can say that for juveniles congress has not acted and in fact what congress has done unique in the federal system as opposed to the state system which makes this case much more difficult in some ways than the cases i've been arguing elsewhere in the states is it parole so there isn't even the opportunity to take a second look at some point down the road in thirty years infin in fifteen years however long it's a is this person closer to achieving rehabilitation or even to taking a look at how long they might live  so it's a much more difficult situation that has to be done other than these really recent it seems that are taking place and as occurred here it has to be done in the first instance by a sentencing judge operating using some sort of reasonable list talk about that need to do their job to understand the das an issue that is the same a course in the determining how long a sentence can be without running afoul of miller without becoming life without parole how  do that it can use life expectancy tables it can do that we all know that those tables are and this case shows those how problematic those are and they can be problematic on in some very disturbing ways so for example if you were to but but what i would submit is that the right way to do this is for a court to make that call to say i'm sentencing you did this and i don't think you're going to die in prison i don't think this is life without parole and here's that because i think your life expectancy is this that sounds weird but courts do this all the time every day courts are determining looking at the questions of life expectancy they do it in the context of wrongful of almost any tort where somebody situation you have to make a fact finding as to whether the defendant is in fact facing life without parole and we'll do that is going to be could be a very highly nuanced thing if it's my client i'm going to call and then you have another language which talks about the opportunity for job rehabilitation and hope it's setter and the question is at least as i'm thinking about is  do how do you achieve what the supreme court has set out for us and life expectancy may or may not achieve that the real problem is when you're looking at the that you've already been deemed as was is true here that you're not encourage people sort of figure out what the true views are it just doesn't make sense to go through all the bad again so i totally get looking at life expectancy but i'm trying to contest realize so let me ask you this question variable right because of everyone's very life expectancy so i'm hispanic ruben i'm going to live longer so you don't buy my crude judgment with devastating impact on opportunity for release at fifteen thinking about that period of time in the future so tell me about that ok so a lot to react to there and i have  a i want to i do think it's important you've created an important distinction between between me the need for opportunity for release about a meaningful opportunity for release they really were talking about that without parole aspect of the life without parole issue and that really what states ought to do is give juveniles an opportunity for parole because of the fact that when they were first  judge guilty and sentenced they were had brains that were still growing and developing and were in progress and so there was these were ideal cases to take a second look down the road and the real problem with the sentences was that without parole that whenever you are released there still has to be some meaningful opportunity for life outside of prison walls for reconciliation for society for film and to end your hundred percent correct and those are the underlying policies behind graham and there are things that should be given life by whatever decision this court renders so i completely agree with that there are two different ways of going about it one way of going about it i should say the way that most courts have primarily done they've changed it wasn't one of two ways either they provided you can also have an early opportunity to seek parole that's about i think five or so states and believe in it and a number of other states have simply put caps on the sentences that can be imposed upon juveniles in the very first place it means very well get to the same place me i can give you and we haven't really provided  to the government just thinking about the about the question they were asked two states have kept juvenile sentences at forty years for states including new jersey where we argued this case in the supreme court and make that determination and it could suggest something along the rise judge me way of what you talk about that retired but that prison we have ages that our society agrees upon as a matter of social consensus a significant ages  bad wait interestingly these cases are cases that start with that consensus because we all know now that juvenile you know brain development continues we have a team but as a society we've we have a consensus that were age at which any anybody would have to be released and by the way not anybody would have to be released right only people were found not to be incorrigible still stick with the age of eighteen when the problem is that you know somebody who's who goes to jail earlier is then going to serve a longer sentence than someone who goes to jail later which is but it's an imperfection on the notion of coming up with some age at which quit those scholarship it shows that as one gets older that becomes more difficult you know at a car for somebody who's being released from prison that you know that should be a consideration that the court should should take into account district court should first determine whether a person is it is essentially serving life without parole across their life expectancy is less than the point at which they're going to be released from prison that's not this case let's assume so then the question becomes however is this effect the relay for that parole no the question will be then impose a sentence that will leave a defendant with a meaningful opportunity for obviously some controversy with regard to the death penalty and with regard to life without parole as a rule matter thank you we that the notion that we're talking about days with basically in two steps the first just said and if i whether there is an international or national consensus around some issue so for example there was an international order consensus around the idea of not executing juveniles evidence that that bears upon the question and that was very much the case it is very much the lesson of the profound lesson of these cases in rubber in graham and in miller there's discussion the psychological evidence and the physiological evidence that juveniles brains are undeveloped and that that causes the specific behaviors that are at issue with regard to the crimes that they commit we can would be considered and i would suggest this formulation that courts have to make a determination in deciding whether a particular sentence constitutes life about parole first life expectancy and we thought about that and you know that can be done and by the way you mentioned health concerns i mean those can be brought to bear i mean i'm diabetic i'm probably less likely to live as long as others for that reason and that could be brought to bear here if i were facing   a meaningful life outside of prison bars and the scholarship bears on that as well because we know that at certain ages that a person is likely to be too ill to have to hope somebody is going to prison is likely to be too ill is likely that have very deuce job prospects is like that have a withering social and family network we've briefed each of these issues and provided at least the beginning of a scientific analysis but i think it also provides this court with a list of now so i feel i just completely candidly i feel like this question is one that is in the best of all circumstances i mentioned up front is is one for our legislature and when we are he does in new jersey the courts  juveniles by the age of even forty or so begin to ajab out from the time period from from from being likely to sedate that to commit crimes in the same way my focus has somebody can get is three hundred sixty that is thirty years to life so we view thirty years as a very serious as the low end of the most serious sentence that courts can impose and so we're dealing here with homicides it's very serious offenses and strikes me that that that would be a principal dancer you've actually asked a different question even if the question about each at what age must somebody be released in order for them to have a meaningful opportunity for a life outside prison bars to me that it's not just a different district judges will have different answers to that but the truth of the matter is that different the answer will be different for different defendants there may be some were who are more capable of being employed who will release doesn't give meaning to the supreme court's consideration where at least the argument is there that it doesn't get meaning so if that's where you are and  i'm not asking you where you are saying as you think about this if if you want to give meaning to various cases and the consensus among the cases as to how you're at the age of retirement there may be idiosyncratic circumstances that a district court should bring to bear and allow somebody to be incarcerated longer because of the nature and circumstances defense or the history characteristics of a defendant that typical backers they'll be some circumstances where sixty five is going to be to roll back because of the person's health or because their relatives and friends are dying off or whatever i think that it's eight it's a healthy way to fink about solving this by facilities say sixty years so if a person is is is convicted for a crime they committed between fifteen and eighteen court eighteen you know at that point they would have served they would have served forty two years in prison that's above courts guidance but let's be clear and you're one hundred percent correct i mean there's going to be very in variability as between district judges there always has been even in that in the in how you go about that reasoning process and so what i'm suggesting is a reasoning process i'm fine with a presumptive a but one to consider certain factors and that requires just like district courts or truck courts now in the sentence are required to consider the miller factor set forth by the supreme court that there be a list of factors that are considered the exact things that you're talking about employment family health that kind of thing in making that the ultimate decision but it would not be  the time miller came out will sort of run the gamut of them that'll be over and you know either whatever we come up with some other sort of good or finally the supreme to come up with will be applied to  color representing the government here today but this is a remarkable argument i think that's an understatement myriam usual perhaps what's most unusual about it is the degree to which there's agreement between a lot of the answer maybe i can try to give you that and i also want to be responsive to the obvious concern among the panel that this is a case that cries out for datums to be given to the district courts and i have some guidance i think i have a suggest has made it almost impossible for you to come up with a particular number that may actually issue the other two need to do that because as mr westberg and i were corresponding with each other yesterday on october seventh in this term they did not grant cert in a and then there's everything else and of course this case involves that everything else a third principle is a discrete court said that advisory though they are federal courts are bound by the guidelines and here the appropriate wage inc individual licensing is required that's when the key here is of agreement between mr westberg and the government today it's got to be individually tailored and the final principle and this court has repeatedly stated it that when sentences challenged as to morrow the reasonable honest review is whether there is within the range of reasonableness there is no exact point and even if each of you on this panel were to disagree me to the next one which is that most of this discussion this morning has been about what legislatures are doing and what they're doing is very important oh i would disagree and i'd want us to focus on what the the question is how do you give meaning to the to the words of the supreme court right and a lot of considerations that i think everyone would agree are the for me cases right no chance of rehabilitation you're stuck in prison but if your sentence is less than white without parole by definition you're getting that chance that's a visit to the you or your view of this is the way to look at this and the wa again that doesn't make any sense so i think another area of disagreement is the role that life expectancy plays these are the only other traditional thirty five fifty three eight hypes of questions that one answer when one make our decisions based on individual roy's defendants and their facts of the time this is no different in that sense except it's not a sentencing going forward and we sort of conflated those two things it to hold they're going to get out some hope that they'll bid well enough to enjoy the outside and then when they get that they can do some work it may be showering snow or washing dishes i package of proposals for the judge and he said six ways to sunday i mean guided by merck and graham and montgomery and i need to take music into account but we've already crossed the room because at that point he's getting it going forward i think we don't have a disagreement i'm going to be incredibly brief and just say i'll just respond just a couple of things it is correct but that mr keller is correct that the supreme court did not address the issue that's before this court today unfortunately perhaps for you fortunately for us me that doesn't mean that you don't have to decide this issue and i think it's completely years and then you just say i didn't mean to distract from the issue by talking about what legislatures have done by greed that we're looking at the supreme court's language and the reason they did that was that give you a sense of what's happened which is relevant as i said to the whole proportionality analysis but either way i think that this is the opportunity for this court to get a need in life to the words that supreme court used the rationale for it to have entered the ruling it did for miller and graham in the first place  that's what courts do in the second generation of cases they try to make sense of not only the rule of law that's pronounced by the supreme court but to get in the next series of cases to the next level by that when he said was dead that that mr grant's age was not an excuse miller stands for the proposition that at least to a certain extent it is an excuse not excuse in the sense of a complete defense but an explanation