>> serving as counsel talking about the latest development in never by some ath states for voter id rules at the ballot box but first how many states are trying to room pose more stringent rules this cycle?re twerking voters see this?in >> there are 15 states in which when they go to thee polls this november they will see new restrictions for the first time in a presidential election. those 15 states are part of a larger trend started in 2010 where 21 states are half the country face those new restrictions. >> are they all the same kind or is there some that our more stringent they andt: others. >> there is a range of those types of restrictions that we are seeing in some of

those that have been identified those that are concerning is that is referred to as the photo identification lot and they can only show of one of a small number of governmentnt issue documents to vote and if they don't have any one of those then they are pretty much out of luck we have seen states such as texas and wisconsin over the past few years attempt to put those strict laws intodd place. ended tissue into voter id restrictions we're also seeing cutbacks of the of voting opportunities and elimination of the opportunity to register to vote in dollar and one trip with same-day registration crimmaking him more urge difficult of the criminal

convictions to get them restored so that runs that gamut. >> host: as they roll back these restrictions they have seen several victories. can you walk us through for those who may not have seent: the stories in recent weeks?e h >> in the last couple oft to weeks we see them stepping in to protect the right to vote to. one of the states that have already mentioned is texas they have strict laws it was blocked by one court then went through a long litigation process with where we are today that just two weeks ago with the fifth circuit court of appeals said that taxes laws discriminates on the basis of race with a disproportionate impact on voters who are

african-american and latino. the so texas cannot enforce the law in november the in fact, they will need to have an opportunity with other types of identification of those limited number of photo ids that we talk about. so we have seen two court cases over the couple of weeks that is somewhatat similar to the texas decision that voters without food or to vacation willem have another opportunity to cast a ballot and we have also seen restrictions on early voting opportunities there making it harder for municipalities.ni in addition to those two states we have a very big victory against restriction

in north carolina where a week and a half ago there was another federal appellate court that issued an opinion to say the omnibus collections prescription iman included voter identification and same-day registration that federal court said that was passed with the intent to discriminate against minority voters. so that also has been wiped off the books although north carolina said they will take that up through the supreme court in addition we have seen north dakota that state cannot enforce its strict voter identification of law and also a victory in kansas with a concerted effort to push for documentary citizenship requirement so

they are taken off the rolls so in part they have to be given the opportunity to vote. there is a lot of court decisions that really push back on these restrictions. >> here is a whole full map of the major religious / -- legislation that is taking place. there is recent litigation victories where challenges too restrictive voter laws are taking place. remind us what the of brendan center is. >> it is a non-profit, non-partisan

institute. to and we were founded to defend the pillars of which our country was built of democracy and justice. in addition we do some work in another area is as well. in >> have you been involved with this various litigation efforts? >> and we are not actively participating but we serve as one of the plaintiff attorneys. >> so let's get to calls.

>> to present photo identification to apply for food stamps, welfare, a bank account, as social security, unemployment, to rent a car get on the airplane, get married, purchase a gun, adopt a pet in and ons and on.it so what is wrong with voting that is important to present photo identification? titles to the problem. >> guest: you are right voting is an incredibly important into proof they are put they say they are. a everybody agrees that

electoral integrity is soviet most importance. sova those covered in the of photo identification part there is a large number ofs americans who don't now that they don't board airplaneses or the other things. they have an zero day home. so for example, in texas you cannot use a driver's license from another state to cast your ballot. or if it is expired moren than 60 days. the that is true under the stricter version of the law but up until that decision was issued but many people

use for what they talkan about. end of litigation a lot of people who did have photo six ya identification'' for that to expire five or six years ago as a there was no need to renew there driver's license but they kept it so they could show it when they needed to. >> those that spoken the trial were not alone. of the to do that statistical analysis over 600,000 registered voters did not have one of those i.d.. that is a sizable portion of the electorate. y >> so proving who you are who you say you are does not disenfranchise.

>>. >> the center is far left socialistic organization that has always ben for is the main objective of allowing illegal immigrants to vote. i work for the government 20 years ago. i saw illegal immigrants and i know this for a fact, i cannot tell you how but i where i worked, they were getting voter registration cards and they were here illegally. the whole objective of this is to vote whether citizen or not.senfranc but then non-citizens that disenfranchises my vote when people talk about i don't care about the 600,000 that are probably half illegal. the lady they gave a list of 20 things you have to have for a licence and the 600,000 really? it doesn't affect any of

them? i have a question. >> host: i want to give her a chance to respond. >> guest: i don't think anybody who works in elections thinks that those in who are not eligible should be voting. for those eligible citizens. that is what i believe in that sets the baseline even for the job right and center if they are not eligible the nation cannot be casting a vote there are other ways to make sure of that such as allowing them to provide other forms of identification that is not from a small limited number. >> host: now back for youring questions. >> illegals left in getting drivers' license throughoutrs

the united states for a number of years and just because you have a the voter id does not mean you are psittacine. in florida you just have to check a box that you are a citizen there is known voteracte police said go out to verifye this and know this for a's fact and back in the '90s, 20 years ago illegal immigrants were getting voter id. >> guest: you did connect - - point out a disconnect there are many states and it is it because they do something wrong but they are on a green card there are plenty or not u.s. citizens there is nothing intrinsic about showing of photo

identification so what does youa prove that and there are some prosecutions of people who ended up registered.because but because they were handed a voter registration pamphlet so there is detection of those pieces from what you thought with your time in government and many of those people have been detected in is an intecent misunderstanding. >> host: but protecting the integrity of the vote so how often does voter fraud oppen for the election cycle? >> there are specifics on that.

is important to think about what we are talking about some of the type of voter fraud that's is from the texas law is called in impersonation clause i go to the pull to try to go to somebody else. there are numbers. one study was sent by a "the washington post" and there were 31 cuttable instances of this impersonationn 2000 clauses between 2000 and 2014. that is infinitesimally small number.hat betw

so that evidence there were two instances of the impersonation clause of militance of ballots cast. is incredibly rare and not a good way to have the outcomeme on the election and it doesn't have that much of anan s effect it is very severe. >> good morning. >> the first lady was very articulate and to mind standing in with obamacare i find it very difficult in

this day and age that don't house of voter id. i am just very disappointed that i feel like my vote is discounted because of the nonsense going on. >> guest: certainly as useful distinction between what taxes has on the books in elegy to use one of seven pieces of photo i.d. vs. what they will put in place after the court decision came down. see you can use a pay check

or another governmentthing ca document this is something that taxes actually meals tote people at the address that they put on their voter registration and so they have that. that is a much broader range of documents to show them that the polls means their voices will count and the caller expressed dismay at the fact that your votes doesn't count for one of those i.d. that texas required they testified on the stand at how they attempted over and over to use the documents that they acc did have and they simply failed because they didn't have the money that they needed, they ran into trouble with transportation

or had a mistake with the underlying documents. and were not able tof th reconcile them and that really made them feel like it did not count so everyof viee eligible citizen can cast a vote. >> host: en florida on the democratic line. >> caller: just a quick comment. so that they alcan go to. to hold as a precious jewelpassl and government with those laws to try to surprise people from voting because

that is all we have in we should exercise that.these to the people that live in the state. >> what is too much? after they serve their timeociey to be put back into society to exercise a right to vote the for democrats or independents they should be brought into the fold.

>> florida is the statesre with a prior criminal convictions to have their rights restored only one of three states in the country where you face a potential lifetime disenfranchisemente. and that is important it is also a responsibility.es so we see that they're doing a lot of things to increase turnout to make it more democra likely to see them undercut and quite the opposite that makes it much more difficult for certain segments of the up population disproportionately tend to be minority voters. >> host: independent line from pennsylvania good morning. t

>> caller: the seven formsed of identification required what are they anbar their places for them to go if you were not a driver you can get up i.d. without driving's including the county i.d. >> guest: under the texas law that recently has written on the books the types of the identification that were allowed were texas driver's license, a non driver's license, a photo identification where you go to the dmv if you don't drive you get the state identification. you still have to pay for that.nd thr passport and three other

documents were with the photo on it. texas did create an election identification and certificate that had a photo identification used for voting purposes only and that was supposed to be the cost free alternative if they didn't have one of these however you needed a birth certificate and other documentation to get that. then we saw people did not have the original or certified copy of their birth certificate anymore as they primarily were people that were older and had moved around a lot and have lost the document and didn't have that document to begin with. voter although there was the free i.d. provided it was set free in the was the problem and texas did not make an

effort as we have seen in other states there was an effort that caller specifically called out with county i.d. and also issued at a local level. and to make a big push.e would o said none of those would count they didn't allow any government so if you have the county i.d. with your picture, a government i employee or the amply i.d. -- employee i.d. >> host: go ahead you are on the phone. >> caller: that brennan center is not a non-partisan it has never ever supported a conservative cause.illega

second, if you can get a driver's license if you are it an illegal born in a foreign country, no birth certificate, how difficult is it for someone who iss born here and has a birth certificate? the appoint is an. alabama, you have to have a photo i.d. if you don't have won the state will come to your house to issue you one. you must provide proof of citizenship to register a vote in the first place. >> guest: the first comment on of brennan center is non-partisan rigo support liberal or conservativeticula causes. in my time i have learnt

worked with republican legislators so it really is about partisanship. the idea that we all go to the polls in the vote for whoever it is we support that is across party lines. every elected official should feel passionate to make sure all eligiblee citizens can vote but it is about the fundamental rights >> host: have you worked with mark before? >> i have not. >> on the front page story

in to take a prominent and controversial plays that are challenging a wave of state election and laws that weree rewritten.ff the efforts explicitly of behalf of democrats make 2016 a bit different. he also struck out on his own with additional claims over the clinton campaign in the future of the democratic candidates. so does his work concerned a group like yourself that isto w non-partisan to work on this in a non-partisan way? >> i think they should be kept non-partisan to the extent possible. but the idea there on moreith holds is not with shocking because we saw in that is

struck down a part of thet voting rights act. it made it much easier for those who have a history ofs discrimination on the ballot box to pass a law such as the one we saw in texas to make it harder for people to vote now that we don't have a full protections we have seen an uptick of those passing restrictive laws so of course, it makes sense the lawyers are coming to the table and that they stepped in to fill the void about what should happen for

them to restore this to the former power as we have been working on with bipartisan support. >> host: space for urd democrats. >> caller: good morning. watching the local and national elections and now they need documentation for the department of motor vehicles end date can register their. so as far as i know all you need is a step for every election so you can read up o

on the issue is whethersu local or national. it is so easy for people especially in the rural area and make a really easy for people.ur >> guest: you mentioned a new initiative in oregon that says than new motor voter law that is a form of automatic voter registration or eligible citizensnt interact with government agencies to be registered to vote. currently the default in many states is the voter has to take the initiative to be registered in a lot of people fall through the? as there is very long miss deadlines and for those to get the opportunity to be registered for coho so why don't they make it easier and that is the great example that they really are trying to make it easier to

register and participate. in the first few months of the implementation oregon had seen not only the ofof registration role where morese and more eligible citizens but they have seen the turnout jump up.ample that is a great example to make that easier instead oft more difficult. >> host: california republican in line. >> caller: good morning. i worked for a union and i saw what happened during the election years.ives i saw them getting a registration forms illegally filled the amount then fill

out so that these people who did not know how to spot speak a variety english would vote for the right people. how do you stop that? >> guest: certainly people that are not eligible should dundee registered a hint if there is somebody that is perpetrating that then that should be reported i don't think any of us so i would encourage those to reach out to those elected officials. but that is not a widespread problem. the study done looking at instances of different type of voter fraud include those who are not eligible

citizens but they are allowed to get a driver's license but that means they are allowed to vote. in many times and sometimes that does in fact, happen. rolls but also that is not a widespread problem.they l but to look at those instances in the turf voter fraud they use that largely but another part was looking at eligible people and they found it happened that 1 billion ballots were cast over that time that it was

below 1,000 so what does happen but it is a very small problem in comparison is certainly every effortt should be made that they're not accidentally setting up that they're not eligible to sign up for. >> host: the democratic line good morning. >> caller: thanks for taking my call c-span. i am listening my mom and mymy family lived in alabama and there were some things that dowo took place where they shut down most. my mom is still alive and doing very well at the 81 years old.

and that the opportunity behind this civil-rights act.d that but people do not understandld how they were brought into the road by a midwife so those biggest violations for people not to vote for the work force of alabama some family members were told not to vote so a lot of those days were shut down to.

>> guest: seamanship and alabama's specifically where your family lives and there is a lot going on in alabama right now. it doesn't look like we will necessarily have the decision before november but there is an ongoing it situation is that is a state there recently made a harder for citizens to vote despite the fact there is the i.d.yo that is needed to vote is wonderful she still cares so passionately about her rightht and responsibility at 91 years old so the trial iner texas resaw people just like her who were born 80 yearsicular ago they were

african-american citizens because they will not take african-american women to berth at the time but they were born here in the united states but still often times they have come up short when they had to pay $42 for the august a birth certificate and had to bail and application and pay to getet it printed and mailed back. they live on a fixed incomesidei so to put money aside they eventually did so the cost

of voting should not be so high for people better eligible citizens since they were 18 or 21 years of. suchaller: thanks for having such a great public service of a bite to speak about the federal prisoni di system in the state prison system.n county, he was a sheriff damage jackson county kentucky end something she might want to look into is the candidate i.d. numbers to make sure they have not been compromised. back in 2014 they were tied directly to ruth unverified,

immigrants so coming up from kentucky every one was tied to illegal immigrants and there is a federal prison system. >> host: have you looked into this? >> guest: it isn't our that i have heard of but i urge callers like that to reach out to their local election officials they are very invested in the system those who are eligible to vote and to make sure it is secure and that is their job. i cannot speak to that incident but i think they

are wonderful resource or if you have a firsthand experience of electoral i integrity. >> watching your tv program every morning because there are so many states withar those issues my suggestion is when the presidential election is up for grabs the people in each state would submit certain issues gore i problem regrading -- regarding the issues to put a the ballot and once the elections are over and all

the various issues are combined then they vote for that because every state doesn't have the same issue basically. that way everyone can vote to allow felons to get their retribution bacchic cetera et cetera everybody should be able to vote but legislatively would take 40 years because every state has the same issue so vote once and for all legislatively and in the meantime work with your legislator. >> guest:. p >> this states have the power for each individual state so under the constitution they are given

authority however that is still blocked by the voting rights act and the constitution you cannot pass laws that our unconstitutional or violate their rights under the federal protection such as the voting rights act and that is what we see now. across the line they have gone too far to see who has the ability to vote by restrictions. >> host: bakes for your time this morning

1500 prisoners sentenced to life in prison as a juvenile to seek reduced sentences or apply for parole. this argument from october is just over one hour. >> the argument first case 14280 montgomery verses clues -- louisiana. >> mr. chief justice said it may please the court the issue is to decide retroactivity in this case or the habeas case and in today's case there is no jurisdiction over that question but to enforce the supremacy clause that states

'' mclennan though laws of the united states applied the judges in every state shall be bound thereby there is no such thing as supreme criminal law that depends on a particular state voluntarily makes the findings if it does then that creates no right under federal law which is what requires. >> catechu describe the state grounds that this decision rested? >> the lack of the binding federal law question before you get to that analysis.

>> so what about the jurisdictions that answer the question? >> if a constitution required the second part of the brief said it is not constitutionally required. basically this court's precedents have said what was exceptions was matters of equitable and not matters of the constitution and the federal habeas statute on its face only applies so the federal habeas court with a belief is warranted. >> if we are holding a prisoner and choose to do nothing about it then the

answer is federal habeas corpus there isn't a second answer that the state can be required under the supremacy clause to enforce the federal block? if i was going to argue that second position i am not sure what. >> host: have to support me. >> if your honour's opinion of martinez case suggested there are vintages to citing the of federal habeas right and statue rather than what the court calls freestanding constitutional claim. the major advantages if they are bound by the exceptions by the constitution and then with federal habeas it is differential for review.

as an irrational indicated was a matter of state law then when it goes to habeas they will not apply because they would not have decided that is the issue and that is the major difference that you could be weakening the federal habeas statute to recognize jurisdiction in this case and the court would benefit from pending in the lower federal courts all of which will be out the window with us jurisdiction because the lower courts their review on appeal cannot apply the high in the differential rule. >> sova supremacy clause is only with direct criminal proceedings? >> is that another way to

phrase your argument? >> with the supremacy clause it is only in direct proceedings and collateral proceedings. that is the equivalent. so talk about the retroactivity of a new rule rule, that is where the exceptions apply. and those are equitable discretion but the court has already held the directory view presents those questions. >> to differentiate this case because was standard oil that that question is controlled so what does the

eighth amendment require? with the standard oil was a combination of a federal common law that control the question back here that statute doesn't apply like the federal rules of evidence even though many follows similar provisions and precedents. >> but we did say they could find the exemption so it is almost identical here to announce the of federal law that the state has already said that it might or may not be free and makes the case special of murdoch

almost 150 years ago that the 1267 jurisdictions in is question by question it is not like the case by case it is question by question i do not believe the court has the jurisdiction touche skip over the question whether federal law applies and with that hypothetical and what would it be? >> think of the exception suppose that many states had sedition laws so there are 1,000 people in prison say you cannot criminalize that behavior so what is the law

to make that retroactive? it sounds like it isn't a statutory discretion but here are human beings who are in prison who are there with out violated head if that's right ben it's the constitution to do due process even though they committed the crime 22 years ago they are now held in confinement without due process begins you cannot criminalize their behavior. >> that is the federal constitution rule the only question is it satisfies the exceptions. >> in your hypothetical

respectfully. >> i made that a new role for the purposes of my hypothetical. [laughter] >> if that was genuine then going all the way back from danforth justice harlan's opinion said we're not creating because the constitution. >> but they're saying the states could be more generous. and i cannot find i cannot find anything that answers the question so i thought it is a new question because i want to get your response i thank you have to try to figure that out. >> there is a new rule that the court has held that

retroactivity on collateral review is not constitutional >> best true but bin but you say maybe the wife doesn't violate the constitution? >> fair enough. >> but the constitution according to the case is satisfied by the federal habeas.

>> is there anything else you could say i could say being a witch so people in salem were imprisoned for being a witch and then lo and behold it was held by this court that violated the constitution. i just made a more enrages example of the same thing so what you to say i got your point. anything else? >> this course has been reluctant even when in violation of due process clause to create a judicial remedy on top of the federal statute. >> that is not what is happening here. if you assume the promise of the question from justice breyer that there is a violation for conduct that

cannot decriminalized, the state has set up a collateral review that said we're not asking them to set something it didn't have the force of the only question is whether it will comply with federal constitutional law in the mechanism. >> the other question is if that question of retroactivity is a constitutional issue if not of its mitt there is not jurisdiction and of proper remedy is pbs i will reserve the remainder of my time. >> mr. chief justice may it please the court. billable vs. alabama use the

rule mitt detroit life without parole for juveniles to be applied retroactively because the louisiana supreme court provided exclusively on jurisprudence this court held that mandatory life in prison was unconstitutional and also life in prison would be an condescensions even today. >> that is like the state to say we have a fourth amendment such as the national constitution we will apply our own constitution and in applying that we will follow the federal president i think we would say in that case that this case has been decided on the state constitutional grounds even though was not interpreting the grounds based on the federal decision. >> in this case your honor

the louisiana supreme court did not state it was under those laws that all. >> but the case that it cited said that. is cited the earlier supreme court case that made it very clear it was following the federal rule as a matter of discretion not because it had to it could decide not to follow federal law. >> but the louisiana supreme court said and we have a choice in they made that choice. they said in that opinion we are dictated by the analysis done in this case. >> didn't they say they are not bound to policy?

we will follow it that makes it clear we're not bound to do that. >> they did say that. they never retracted that but that is not necessarily a matter of state law but those who have the authority to make that decision to say we believe there is a better law to follow those federal guidelines and i believe under michigan that unless they make it clear this court can conclusively presumed. >> i thought it was the last day clearly state otherwise and here they clearly did state otherwise they said we don't have to follow federal law that we will model the state law on federal and

seems that is the exception requirement. >> it is my opinion that the michigan case indicates the reverse. the state must say we are following state law to make the decision to apply that. >> but they did. they said that it is a matter of state law we don't have to but we choose to as a matter of state law. that is what they said. >> eppley that is sufficient to indicate to this core is applying federal law. >> i think what they are saying to you it is different from the standard michigan question as state that says we're not bound we can never do something different but that is what

we want to do. then with all of the particulars then if the state commits not that anybody else to follow federal law then what happens is there enough of a federal question to decide the case? that is not a michigan question it is where federal law, the state has chosen but that is just part and parcel because the state is so committed to follow federal law with all of the particular. >> i agree. even with the and forth the court says the question of retroactivity is a pure question. that is the answer to your explanation of the hypothetical that you said

the state decided who is using federal law of than what is the next up? that question is retroactivity so they said that is that your question of law. >> federal statutory law? of thought that was the point of danforth? it is because we talk about the federal habeas statute. right? >> correct your honor begged even then they said the cbs the merits of this claim mr. mcgarry is it retroactive? >> had to do with the point that you could be worse off if you are correct?

if the question comes up with federal habeas and the federal court decides without any problem than the federal review is truncated? >> so while jurisdiction does not depend on what has occurred so far but he to go to federal court or this court and the question is --. >> can you answer the question you were right believes your client in a worse position? >> not if it rules it has

jurisdiction to make miller retroactive then obviously then the question is is this the cape -- detailed unconstitutionally? that a mandatory life in prison sentences unconstitutional because it fails to address the fact of the matter. >> with said jurisdictional point, let me see what you understand. a law of state rules of procedure are modeled after federal rules of procedure. to simply follow the federal rules but they follow that as a matter of choice not because they think they are bound but if there is a disagreement in federal court about what rules of evidence 403 means the state court says we will follow

the federal rule that the right course between these two divergent is the second circuit of the interpretation whereby we add jurisdiction as a decision on federal law? >> it is clear to the court that the state court made a conscious choice and sent to enough of a signal to adopt federal law but there is no indication the state supreme court of louisiana was making that decision but that is dictated and they

found there would not apply kneller retroactive. >> we can review if we add jurisdiction but then we go on to say it can be applied under collateral review but then they say previously in taylor that was based on the a understanding with at that time it to see what has been interpreted by the u.s. supreme court. >> think it is bound to follow the court's ruling. >> because he would voluntarily follow that? >> to make the constitution to make the courts laws.

in doing so as i said before they change their mind now they tell us not to follow jurisprudence but that forces them to stay where they were. is a matter of state law. but they did not do that in this case. >> if we agree with you and they say that is what it means, and then doesn't that make us look foolish? >> if the state considers the merit in a mess grant from the federal court. >> so what is the federal claim? >> so what is your response

from justice scalia? >> perhaps. >> that was the case from the solicitor general and probably is to that question a little better. >> denver said it could be a constitutional minimum. are you asking? >> i know believe you need to get to that question. >> i reserve the balance of my time. >> mr. chief justice said it may please the court this court does have jurisdiction

to decide the question of retroactivity to voluntarily incorporate it with those three affiliated tribes in the court has recognized as they choose to adopt through those decisions then buys and sells to federal law there is a federal question. >> but they can change their mind you said voluntarily. >> but what they said is this court has jurisdiction under 1257 to resolve the state court and of that state constitutional decision to be binding but to be recognized the only

circumstance that the court will not treat federal law that the state makes clearer it would reach the same results under the same constitutional law as it did under federal law. into reach a different decision so standard oil is completely clear on this that the state chose to use federal law to determine if that exchange with instrumentality but the state now freed from its apprehensions decide with the state law requires and if it does that. >> and that should be pretty elemental and that seems a little far out it definitely

gives you support. >> suppose you check justice billy is example? we interpret i was state rule 56 the same way as civil procedure and now this is what it means in that case he is he said they can review that. >> how you fit that into the words? >> barricaded say theoretical and a practical answer. the states that copy the federal rules of evidence pretty uniformly say we will treat federal president as guidance for persuasive

value we recognize there are state rules of procedure and evidence that belong to the state. >> it is great guidance we agreed our interpretation is the interpretation. can we review that? yes or no? >> there is a distinction between the case that may suggest in the court does not. >> so for the federal rules of civil procedure? >> it is a doubtful they would have jurisdiction or choose to exercise it because of promise of the arguments so implicitly to it knowledge if we had your argument with a law of

similar cases with though words that were used by the state supreme court me will be guided by it and adopt. i should be go down the road? >> with a popular superior remedy. >> i don't think it will come up in that way because that is not the way the state street there's i don't think it is that difficult. and as it has been adopted by federal law the court even if chosen a different path. >> did you misspeak? when the federal law is adopted a state law? isn't that what you meant to

say? you are very careful. >> you say when state law of stops federal law. >> this day has adopted for a reason that does not exist and that is the state knows that federal law will be applied to the case in the habeas case. in this search say purpose that they have to rectify a constitutional era we would like the opportunity to read. in the federal habeas court will treated as retroactive. >> so you say hooray in that

is is so to answer the question earlier but it applies to state determination that is really time that difference kicks in so that is that threshold determination in deference to the state's determination on retroactivity would never over. >> may be to hear more on the merits. >> where miller verses alabama it goes far beyond regulating the procedure by which u.s. is sentenced for homicide it would compel the state to adopt new

substantive sentencing options that is less severe than life without parole. the only time it is never invalidated as mandatory sentencing provision was vs. north carolina 1976. we went to 36 years before we had another decision that concluded the law must change to accommodate the compelling interest to have the characteristics of views that mitigate culpability considered in the sentencing process. >> isn't it rifra our those mandatory sentence without parole? >> it is the same remedy a court ordered so it could not be sentenced to life without parole.

so that problem could be years but also could be converting though life without parole to a life lived parole. >> have owed you explain your test would not apply to the guideline changes? >> i think the key difference is respect to the guidelines there was the minimum and maximum set by statute and the guidelines even when mandatory to not preclude judges from sentencing outside the guidelines depending on mitigating factors. and as the opinion for the court from justice alito with rodriquez recognized even the top level range was not truly mandatory so even under mandatory guidelines were treated for the purpose

is that we looked at here they are not mandatory in the same way so talk about a procedural change. >> so between your formulation that says this is substantive to get away with mandatory life imprison you are articulating it is slightly different tell me why of your articulation. >> i don't think this is substantive daylight between the petitioners position and ours but the description of the crime that ichiro as punishable by a mandatory life imprisonment to treat that as the category sums up the reality of what is happening. breaking out into the component parts it takes the analysis to understand there is a procedural components

sentencing courts must now consider the mitigating characteristics of page but also more fundamentally has a component that requires a change in the law. the change was expanding their range previously but the court has said there are changes that restricted the form of outcomes as injustice pryor's hypothetical as punishment at all but if you trace back the origins of the substance category to the opinion of mackey it is still faithful to the justice harlan had in mind the case of the injustice is not apply retroactively is when it puts off limits altogether criminal punishment so but we didn't say that was the only case but if you consider miller the court

made very clear it believed the 2000 people in prison and under mandatory life for juvenile homicide the court believe that penalty was freed from the disproportionate and uncommon the imposed in the future and was not the sentence to be in most cases in line with the mitigating characteristics of your note use that was recognized. >> is it accurate to say the rule is substantive if it makes a particular outcome less likely or much less likely or much less like the been previously indicated? >> when the court characterized. >> there is the difference between much less likely to put in the words previously the court said a substantive rule creates a significant

risk of the person serving a sentence that is not appropriate for that person may be even not legally available it did not say absolutely conclusively but a significant risk and in contrast to an accord talks about procedural rules that govern the manner in those cases is it says the likelihood for potential of different outcomes is speculative if you put this case on that speculative significant risk access it falls in a significant risk domain precisely because of the reasons the court said it was deciding miller. the reasons the court decided miller with the reduced culpability of youth and the capacity to richard and achieve rehabilitation consistent with something less than the most harsh sentence available for those who commit murder terrible crime but still that the

court thought would be reserved for the worst of the worst which is what louisiana said when it amended its statute to conform to miller and said life without parole should be reserved for the worst offenders. commit the worst crimes such you combine the fact it is an only governance procedure it also mandates changes in outcomes as an available option with the genesis of the rule in the conclusion that the people in this class the appropriateness of the punishment of life without parole will be relatively uncommon and it seems clear that it falls on the substantive side of the access rabbit -- rather than the procedural side. >> the majority of states would be between 10 and

seven but those that have concluded no other is retroactive most have done it as substantive law there bahrain a couple of opinions that talk about the water shed exception not the way it should be analyzed but not only that but the united states has taken that position with respect to the juvenile sentenced to life without parole as a mandatory sentence in those that have taken place so far but they have almost uniformly received sentences that are significantly shorter. >> what is that population we're dealing with retroactively? i think 2000 people life without parole? >> i have not broken that down numerically.

but michigan has not applied retroactively and it has a very large population of juvenile is in the middle class i don't think pennsylvania has resolved that yet. >> mr. chief justice said it may please the court i will proceed directly to the merits from the questions of jurisdiction of a bite to begin there. we would win in this circuit with federal habeas miller is not retroactive but we do not contest jurisdiction because we believe it is a straightforward case it is not the standard case but it is interwoven that the state court 2:00 stock and barrel

there is no doubt justice scalia that they said we are adopting that no doubt so the question is it that raises the possibility of the advisory opinion been widely say it doesn't? because in these cases the court says where the federal law holds for the state's courts disposition there is no risk of the advisory opinion and later the court said only later could not affect with the rest of the advisory opinion hear we don't think there is a risk but it is within the realm of possibility that it could have been one began to the louisiana supreme court could say that was those retroactivity standards they couldn't do that but does that make this court's opinion the advisory? we think not generally we

have talked about cases like standard oil where this state was under no obligation to tether the laws to the standards. >> but with standard royal there was a relationship between those exchanges in the government of the united states that was controlled by federal law. >> that's right but my point is that was indicted in the tax exemption statute to make them exempt and that exemption. >> that would be true no matter what? >> no. >> we were deciding the question of federal law? >> no. with respect that might point is the state didn't have to make the tax

incentive status. >> at e said the state made its tax law turn on federal law as federal constitution requirements in that area? could the state have taxed? there is a question whether or not that supremacy clause would permit the state to pass sales to the exchange's. >> that is possible but it wasn't dependent on that. >> but that is the provision that i just quoted if that is the relationship with the government of the united states and is controlled. >> so what the solicitor general brought up to make the transactional immunity this court addresses that indebted in the federal issue. >> it is quite similar when

justice scalia used the control language the louisiana supreme court used similar language dictated only because they chose to do that but once the choice has been made then all outcomes are dictated by that that is the issues. >> we agree we say quote-unquote binding the meaning of binding federal law so we think that if the court disagrees with us. >> but was there any other way the state could have obtained review of the state supreme court of erroneous determination that the witnesses in question did not have the fifth amendment privilege? >> i don't think so because that is not a distinction with that case.

>> but if this standard is a federal standard made then the only way the supreme court that the defendant could go with a petition that way but that doesn't go for the federal habeas decision making it doesn't make a difference it might mean this court would wait for a more robust and take a federal case that this is the second reason because there is a robust split on this specific issue over 21 state and federal courts and all have the same issue so it does seem it is a practical matter matter the court will weigh in sooner or later from the federal habeas case. >> but we will buy even when there is jurisdiction. >> of course, that matters. >> what you said religious

and make much sense so get in there quickly if we have jurisdiction and not? >> we're not saying that. . . >> was contrary to the constitution statute of the united states. >> now the question is how do we dispose of the case in which we have jurisdiction? >> we have three instances i guess, the court has done in disposing of such a case. what the solicitor general says, namely they have said that we

are not going to say whether is right in saying it is contrary to the constitution. that is because there might be an adequate state ground there may not be. an adequate state ground is one that is explained as flowing from a certain interpretation of federal law. what what we will say is the temperature epic to rotation of federal law is wrong will send it back. >> is that right? >> that's our position very by the way - make. >> what is the federal law you're talking about? >> that's not a federal law, it's a federal federal statute. >> will the interpretation-make. >> and the interpretation of that federal law, was that federal law and issue in this case? >> the key standard. >> of course it wasn't. >> that standard and exceptions could well be constitutionally required.

>> vicki exceptions do not apply. >> that's why we don't take a position on it. >> you want us to hold this? >> did the majority say the opposite? >> tell me why you would think that something like. [inaudible] would be retroactive to states? >> as a compulsion, meaning not as by election of key retroactivity. >> that's a difficult question we don't take position. to answer your question, the argument goes that it was made clear that teague is an equitable interpretation of the federal statute. is not not constitutionally binding on the states and the exceptions are bundy. the exceptions were of justice harlan's understanding of how he thought to apply it's the

binding constitutional rights. to offer that remedy of this court has recognized in cases like pennsylvania for example that states have wide discretion structuring their postconviction. the next one has to do with. >> as justice breyer pointed out you have wide discretion and if you structured in a way that you are going to say and if you said in a way to bring due process isn't there a check for due process that you have to offer the minimum question. >> that is a question. were talking about collateral bill, i mean our view that we have not taken a position on a collaborative he was a different animal. >> what we have any number and

states have viewed an exception. as controlling the fact that they have to offer that. >> this court has never handled that. >> that is really a serious question. >> it is a serious question. again we have not taken a position on a quest because we we feel this case is in line with federal law. >> this court was invited to categorically with a life without parole for juveniles to commit murder but it decided not to do so. that decision leads leads directly to the conclusion our view that it is not a substantive rule. consideration of the framework, the key policies and president points instead to the conclusion that miller is a procedural not a substantive rule. so we think it sets up the framework. >> mr. duncan, let me give you hypothetical. suppose there is a and it has a

mandatory minimum for theft. as is is the mandatory minimum for theft is 20 years. and suppose a court looks at that and says you know, that is incredibly disproportionate to a loss of theft. so strikes mandatory minimums. said you just cannot have a mandatory minimum like that. make it lower. would that be a. would that be a substitute ruling. >> we do not think of justice kagan because that mandatory aspect of it goes to the manner of imposing the penalty. >> it did not go to the manner of imposing. it says nothing about the manner of imposing. what it does is it increases the range of sentencing possibilities. it leaves it to the courts. it says absolutely nothing about what factors are to be taken into account, nothing about that at all. all it says is you cannot have a mandatory minimum of 20 years years for theft, may be lower.

>> will if in that hypothetical that doesn't go to the manner of imposing the penalty, then it is a different in miller. miller made it very clear that the mandatory aspect of the penalty goes to the manner of imposing the penalty. >> so if you're saying that is different because there something else in miller, there is something else in miller. there is a bunch, there is a process component of miller, no question about it where the court says, what courts are supposed to look at are the characteristics of youth and are supposed to try to figure out whether these terrible crimes are functions and parts of immaturity or not. whether you really are looking at it and cordial defendant. there. there is that process component. that process component is not to take with the fact that there is a completely separate, self-sufficient component as to what the range of punishment has to be that is completely on force with a hypothetical that i gave you. >> well the relevant difference in terms of the analysis is that

this court in miller did not take the punishment of life without parole. the distinct category of life without parole off the table. this court has never held a noncategorical rule under teagan. it is done that for good reason. that would fly in the face of the policy that informed the to get analysis. >> you're exactly right, it did not take the punishment off the table. but similarly in my hypothetical, 20th sentence for theft has not been taken off the table. what the court has done is to say, they has to be other options. there has to be an option of ten years, five, five years two years, whatever it is. so they have expanded the range of possibilities. they just made a sentence different different because a sentence is defined, both by its upper and by its lower end. >> so they have made the sentence different. >> i understand that making a sentence difference does not make it substantive under the

take framework. here's another way way of looking at. the descendents, the defendants in committing a murder with life without parole, is not facing a punishment the law that it can impose on it. we not from miller because miller said the court's decision does not preclude that punishment. and so that goes to finale, the finale interests underlying convictions do not yield whether the state still has the power to impose that punishment. finality interest yield only where the state lacks the power. that is where the finale interests crumble so to speak because the state no longer can impose that category penalty. the go for roper, graham, justice briars, if somebody is in jail because there be accused of being a witch than the state has no finality interest in keeping the person in jail.

by the same token, if the punishment is death for a juvenile, the state has no finale interest in doing it. so leaving the punishment on the table is crucial. it doesn't take it off, it's not substantive. the second policy reason for teague is avoiding the once of the retrial. we think miller is even more clearly not substantive under that standard because categorical rules apply retroactively, they don't carry the adverse consequences. they don't make you go back and redo the trial and drain state resources and come up with a distorted retrial. miller, by its nature and vision to a fact intensive hearing that

considers multiple characteristics at the time. >> we don't have a distorted new trial if you just granted a parole hearing. >> that's right, but that is of course not what miller would require. that is what graham would require because graham is obviously a categorical role. it says that you can no longer impose that punishment so you have to give them a parole hearing or something of a waverley. >> miller is about the step before whether to give the pro- healing. whether the person can be eligible for parole at the outset. that's the great were talking about a miller and that's quite different than a parole hearing. the factor the the matter is applying miller retroactively inevitably turns the in miller hearing into a parole hearing which shows that it's not quite work in terms of adverse. >> you started saying, suppose you look at the watershed procedural change, my impression from the case, deciding whether that is wrecked restive is two points where it's implicit in the concept of order and liberty , it would seem to be because it is applicable to the state. the second is, is it central to inaccurate determination that life without parole is a legally appropriate punishment?

the rule of mandatory cannot exist as central to making that, that is the whole point of the miller opinion. so if that is the correct analysis for watershed rules procedure rules is retroactive, if i'm right about that y does not fit within that category. >> let's take the first point. it's not just implicit, the way the watershed rule has been stated, the first prong of it is it has to alter our understanding and the sabia strange case. miller itself doesn't represent a bedrock revolution and sentencings practices. it takes a sentencing practice from another area and puts it in this new area. it's an incremental change in that sense. it is not a wholesale discovery is not a wholesale discovery of a new bedrock procedural elements the way we had in a case like gideon versus wainwright. and i think this court explained that it is not enough that that will be fundamental in some abstract sense.

but it has to itself represent a change in bedrock procedural understandings and we do not think miller does that. but we also don't think it is necessary to inaccurate determination of the senate. it would enhance the accuracy but it is not necessary. the point there is this court has never held that appear sentencing role can qualify under watershed. after all the support by many occasions have said that watershed rule is necessary to the active dissemination of guilt or innocence and he were talking about a sentence. we agree with the united states that watershed procedural analysis is not put a go. but it does raise an interesting question. after all, we do part company quite strong from the united states when the united states says we need an outcome expanding alteration to the definition of substitution rule, we say that is not just a slight tweak, what that is is a change

in the understanding of what a substantive rule is. the rules under the teague analysis have never depended on the frequency in which new outcomes might come about under the new procedures. in fact, in slumberland, this goes back to my original point, summerlin explained that a criminal defendant under procedural rule does have the opportunity to get more lenient outcome. under the new procedures. and nonetheless, summerlin said that such a procedural rules are not applied retroactively. and so as you are send the difference between the substantive rule in the teague is not very likely are very, very likely to result in your outcome, it's about about whether the new rule categorically removes the power of the state to impose a category punishment. that is what i categorical rule does. that is not what miller does. miller may express an expectation about the way that miller hearings will come out

and that may or may not come to pass in the future, who knows. we can point to cases where criminal defendants have had miller hearings and still receive life without parole and i can point and particulars in the state of louisiana after under the miller procedures. the point being the idea of changing outcomes which is what the united states entire argument depends on is built into the procedural side of teague and not the substance side. the substance side is about -- >> i think by your own definition the steps on the substantive side. you categorically removed a certain outcome. that is exactly what miller dollars. as long as you understand the sentence which i think i think you agreed with as defined both by its upper and lower end, effectively what the court set a miller was that that sentence which was the mandatory sentence cannot control for juveniles. it has to