just our wonderful clerk may have already advise you but we're going to hear a case in which judge mentioned judge droney and i will hear argument judge droney participating from connecticut then we will recess those of you who haven't had the opportunity to check in we'll have plenty of time to do that channel assigned for today and the regular course judge will bow judge chin and i will come back on the bench so that said and modernization approach release decision making among other systemic changes it required the implementation of an empirical verified risk needs assessment instrument and it mandated that the border patrol use risk it needs cabins the discretion the prole board such that prisoners must be given reasons for the denial of parole which is all that due process requires here and opportunity to be heard and reasons for the denial so under this statute if a prisoner a discretionary release shall not be granted as a reward but if the inmate well is what's as discretionary release right correct and secondly it says it shall not be granted as a reward for performance which seems to me to say it is not to be given simply because some kind of condition is met about performance but only when in the board's judgment certain general laws criteria are applied which include an assessment of future safety but also include things like not denigrating the seriousness of the offense correct to break that is not correct yes it is and is that not the exact same language and the exact same set of conditions that was in the pre two thousand and eleven statute that led this court to conclude that the allen test was not met in new york in applying that first piece about future safety whether the person is rehabilitated whether it's safe to release and so on there should be the use of a certain kind of objective tool right but does that say anything that the very specific that the board has adopted compas doesn't have like a passing grade doesn't know it does not say we give you a score and if you read score x you're safe to release of doesn't do that so where is the requirement in the new statute that the board not just refer to an objective tool but if certain standards are met actually release anybody who we believe that you get the presumption from two places first risking these principles is a term of art that means that incarceration should be reserved only for those prisoners who have shown continued needs for rehabilitation and a risk i said it wasn't a statute specifically say something else than that it says not that it is to be determined solely by whether someone is safe to release into the community but also whether it's in the general interest of society to release the prisoner and whether releasing the prisoner would unduly denigrate the seriousness of the offense the to be sure that the pro board still has discretion under the statute for all the reasons you've just articulated because not just a matter of discretion you were saying that by invoking the risk and needs assessment the legislature is saying that's all that matters but it's actually saying the opposite is it not that it's not all that matters so i absolutely a risk a needs assessment instrument is not the be all and end all of a pro determination because of the standard that you point to and say however we've we argued that discretionary that the idea that there is still discretion to determine based on other five other progs of the standard does not the word the finding of the liberty interest in fact that i just actually why would if we said before that that first sentence determines that there is not a liberty interest in new york why does the instruction to use a certain kind of methodology in assessing one of the problems create a liberty interest that was not there before because it further cabin's the discretion of the probe or it in a way that makes clear that heavily on the idea that this risk and needs assessment is a critical piece of the the puzzle that really you know dictates how things go mr norris's original complaint i read as kind of an attack on the risk and needs assessment his complaint says that these very provisions vests the board with standardless an unfettered discretion to gran parole and that's unconstitutional the statute is unconstitutional the very statute that you are relying on he says in paragraphs twenty four and twenty five that the standards are too vague to permit the board to apply them fairly consistently and not arbitrarily the regulations require the board to predict whether a person will remain law abiding if released on the parole this prediction cannot be made rationally fairly consistently contradiction to the factor set forth by the legislature in the law and under a pro safe status that has been a know if to raise a claim and in fact in robles this court made clear that if that this sort of language is sufficient plaintiff had suggested that retaliation might have been a play that that was enough to satisfy the and so the sum is mcglynn if we will let you sit down in a few minutes i think judgment has at least one more question but if if we go off on the last point that you were talking about and remained it to the district court at least to give the plaintiff an opportunity to replete should we if we decide to do that should we tell the district court anything else and i say that in the context i believe of the state arguing that we shouldn't make any other decisions but if it goes back to the district court you guys get to start over and they get to plead if you get them served here complaint that alleges a sarber arbitrary capricious denial for him alone or is it going to now include an argument that the two thousand and eleven minutes created a liberty interest because especially since he's got a state action pending raising that very same color how do we clean that from the original complaint this goes to the standard for leave to amend under gomez the court was clear that unless the court can rule out any he were going to the opportunity to particularize his claim as the as the court and also versus deploying found was appropriate then he would be able to allege facts to make out that claim and again the district recognize that this was a plausible claim that could have been raised because in brief it's represented that the proposal has been adopted yes short of the status of those as the board voted to adopt the proposed regulation but with non substantial changes but the text has not been published or promulgated yet i literally have not seen the board could still amend before it's promulgated it's not at according to west law at least as of yesterday or the day before they're still showing the what is that what is the status of that if it's been voted but not promulgated it's not official yet it hasn't it's not and i don't i asked for the border probably order and they don't have a date when it's going to be published previous regulation but it isn't to support the new regulation will be promulgated at some point yes more than that i'm afraid i cannot say it has not been decided your honour's  beyond the changes that the two thousand leavens amendments didn't make those did not create a legitimate expectancy of release they require the board to establish procedures that incorporate risk in its principles those principles are supposed to be used structured says to assist the board in making progress least decisions the press supposed to not govern the decision they do not determine the decision and therefore there's no presumption of release if standard has three parts and the first part is whether there is a likelihood of success upon release and the the board is acquired he is risk in its principles an order to when it's considering that decision it's not determin the crime as to undermine respect for the law and particularly the last of those in the respect for the law that's entirely separate from the question or rehabilitation and so even if a person is fully rehabilitated the board could determine that and nevertheless determine that release is not appropriate and that's been well established in the state for part of being rehabilitated it's the public's respect for the law your honor and so the question is whether  understanding undermined the public's understanding of how the how the justice system treats the seriousness for particular crime and so pushes and things that are relevant to that are things like judgment on what the public's understanding of the law is and also the general welfare of society and does are separate from rehabilitation riskin needs principles can't speak to those so of course the animates have meaning but they don't they're likely create a certain kind of expectation that even advisory god mine is likely to be followed while the procedures are by definition non substantive i'm missing something there is the year i believe that i believe that when you read the amendments together with the fact that he said they made up guidelines where is the shell of procedures and and the state courts of how did that by considering this compass assessment tool that the board meets statutory requirements to use riskin need principles but again those principles are only to assist in the release decision and also to assist in setting conditions for parole right i office instrument also deals with what sort of conditions are likely to be used on what are likely to be counterproductive yes your honor precisely what's what is the state's position with respect to remembering this for to allow replayed your honour's as we stated we don't believe it's necessary because there is no indication in the complaint that plaintiff wanted to bring an individualized action when it's brought as an attempt at a facial challenge the constitutionality of the statute in the regulations plaintiff has to state court proceedings pending at the moment he has a contempt proceeding based on his new york state court of appeals decision and he also has this challenge to his most recent denial approach which raised on its face a challenge the constitutionality certainly the court could remain but there is nothing in this is to say that the arguments raise on appeal were before the court below that's that's for the court to decide of course your honors i just want to note that  v and so to answer and so there is no the claim that in any given case the reasons are detailed enough that's that's an individualized claim that's not a facial challenge it's not before i'd like to begin by briefly discussing the idea of discretion we do not argue that the statute eradicates all discretion but the alan for me clear that there are two kinds of discretion and one kind in which the when it's simply not guided by standards set by authority and another kind in which it does have to use its judgment in applying standards set by authority and in the words of green holds all project or nations are going to be inherently subjective and predictive but we are clearly in the second category of cases where they are guided by standards in statute and in fact in number in that the nebraska and montana statutes at issue green holds an alley used almost verbatim the language that we're talking about used is not going to be is not the test that we're applying and in fact in booth the court specifically said that the shall unless form a was decisive for the courting green hold which is understandable as a misinterpretation of the standard because it was prior to allen when the court clarified that this is not a magic words inquiry i'd also like to talk briefly about the nine hundred fifteen issue this court has been clear that leave to amend is to be granted lean the attlee because which is important because under nine hundred fifteen g you cannot simply raise another claim without losing one of your one of your three strikes to file informal popper's and so it is actually very important that mr lynn are as if this case has been has to be remanded well argue both it's always a pleasure having both parties both representatives or sets of representatives here so thank you good luck on exams if that still applies and we will reserve decision in this case and w