that youths who do not commit homicide cannot be sentenced to life without parole at all. the court's remedy for what problem could either be a sentence of a term of years or also converting the life without parole sentence to a life with parole sentence. >> mr. dreeben, how do you explain how your articulation of your test wouldn't apply to the guideline change that we made. >> i think the key difference is that, with respect to the guidelines there was always a minimum and a maximum set by statute, and the guidelines, even when they were mandatory, did not preclude judges from sentencing outside the guidelines depending upon the presence of aggravating or mitigating factors that weren't taken into account. and as justice alito's opinion for the court in united states versus rodriguez recognized, even the top of a mandatory

guidelines range was not truly mandatory. so even under the mandatory guidelines which for sixth amendment purposes were treated as if they established elements of the offense, for the purposes that we're looking at here, they are not mandatory in the same way. so booker brought about a procedural change. >> what is the substantive difference to pardon the use of the word between your formulation and petitioner's formulation that says this is substantive because it did away with mandatory life imprisonment? you're articulating it slightly different. tell me what you see as the difference and why your articulation. >> justice sotomayor. i don't think there is substantive day light between .petitioner's use and ours. it meant in treating it as a category. i think sums up the reality of what is happening.

we broke it out into its component parts because i think it facilitates the analysis of it to understand that miller does have a procedural component. sentencing courts must now consider the mitigating characteristics of age. but it also and more fundamentally, in our view, contains a substantive component that required a change in the law. now, the change here was expanding the range of outcomes. previously when this court has analyzed substantive changes in the law there have been changes that restricted the form of outcomes, say, for example, in justice breyer's hypothetical forbidding punishment at all. i think that, if you trace back the origins of the substantive category to justice harlan's opinion in mackie, this is still faithful to what justice harlan had in mind. justice harlan said the clearest case of an injustice in not applying a rule retroactively is when it puts off limits altogether criminal punishment.

he did not say it was the only case. if you consider what's going on in miller and the reasons for the rule, the court made clear that it believed that, of the 2,000 people that were in prison under mandatory life or juvenile homicide, the court believed that that penalty was frequently disproportionate, that it would be uncommonly imposed in the future and that it was not a sentence that was consistent in most cases with the mitigating characteristics of youth that had been recognized in roper and in graham and in miller. >> would it be accurate to say that a rule is substantive if it makes a particular outcome less likely or much less likely or much, much less likely than was previously the case? >> probably the last, justice alito. when the court characterized substantive rules most recently -- >> is there's a different between much less likely and

much, much less likely? >> i would butt it in words the court used previously. the court said previously that a substantive rule creates a significant risk that the person is serving a sentence that's not appropriate for that person, maybe not even legally available for that person. did not say absolutely conclusively proves it. it said "significant risk." in contrast, when the court has talked about procedural rules, rules that govern the manner in which a case is adjudicated. it has said that the likelihood or potential for a different outcome is speculative. i think, if you put this case on the speculative significant risk axis, this case falls in the significant risk domain precisely because of the reasons why the court said it was deciding miller. the reasons why the court decided miller had to do with the reduced culpability of youth and the capacity of youth to mature, change and achieve a degree of rehabilitation that is consistent with something less

than the most harsh sentence available for youth who commit murder, terrible crime but still the harshest sentence the court thought would be reserved for the worst of the worst. which is what it said. it said life without parole should be reserved for the worst offenders who commit the worst crimes. when you combine the fact that this is not a rule that only governs procedure, it doesn't just govern evidence. it also mandates changes in outcomes as an available option with the very genesis of the miller rule in a conclusion that, for the people in this class, the appropriateness of the punishment of the harshest degree, life without parole, will be relatively uncommon, it seems clear that the miller rule falls on the substantive side of the axis rather than on the procedural side. >> have any states treated miller as retroactive on state

habeas? >> yes. the majority of states -- it's a close call. i think 10 to 7 or 10 to 8. the majority of states that concluded that miller is retroactive. most have done it as a matter of substantive law. there are a couple opinions that talk about the watershed exception which is not the way we think this case should be analyzed. not only the states have done that, but the united states has taken that position with respect to the juveniles that were sentenced before miller to life without parole as a mandatory sentence, and in the re-sentencings of those that have taken place so far -- it's only been about ten, but those defendants have almost uniformly received sentences that are terms of years significantly shorter than the life -- >> what is the population we're dealing with if most states do i apply miller retroactively?

i think there was a figure of 2,000 people with life without parole. >> i haven't broken it down -- may i answer. >> sure. >> i have not broken it down numerically, justice ginsburg. michigan has not applied it retroactively. it has a large population of juveniles in the miller class. i don't think pennsylvania resolved it yet favorably for the defendants. >> thank you, counsel. >> mr. duncan. >> mr. chief justice. may it please the court. i was going to begin by saying i would proceed directly to the merits but i gather from the drift of the argument the court has serious questions about jurisdiction so i'd like to briefly begin there. we are in an odd position with respect to jurisdiction. we won below and would win in the fifth circuit on habeas which found miller was not retroactive. we believe this is a straightforward case not -- justice kagan it is not a

standard michigan v. long case. it's an interwoven case. the state court took teague lock, stock and barrel. no doubt, justice scalia, in the previous louisiana supreme court opinions that the state said we are voluntarily adopting teague, there is no doubt about that. we think the question is whether that raises the question of an advisory opinion from this court. why do we say it doesn't? because in cases like coleman v thompson, the court said where the federal law holding is integral to the state court's disposition of the matter there is no risk of an advisory opinion, and later in coleman the court said only if resolution of the federal issue, quote, could not affect the judgment is there the risk of an advisory opinion. here we don't think there is the risk of an advisory opinion. of course it's within the realm of possibility. it could happen that on remanned the court could say we've seen what you adopted on teague and

we'll adopt our own retroactivity standards. the question is does it make this court's opinion advisory. the assistant solicitor general talked about cases like standard oil v johnson where the state was under no obligation to tether its state law to federal standards. >> it didn't say so, though. in standard oil, the -- this is a quote from the opinion. the relationship between post exchanges and the government of the united states is controlled by federal law. >> right. that's right. my point, justice scalia, is -- that was embedded in a tax exemption statute. the tax exemption made certain taxes exempt from the statute and the exemptions -- >> it would have been true no matter what the state did, right? we're deciding a question of federal law that would have applied on its own.

>> well, my -- no -- well, with respect to standard oil, my point is that the state didn't have to make its tax exemption status turn on a federal question. it did so the court will jurisdiction to resolve it. >> don't you think the state made its tax exemption law turn on federal law because there are federal constitutional requirements in that area? could the state have taxed -- i mean, there is the question of whether or not the supremacy clause would permit the state to tax sales to the post exchanges. >> i think that's possible. this court didn't make its jurisdiction dependent on that. a case like ohio -- >> in the provision i just quoted it said that the relationship between post exchanges and the government of the united states is controlled by federal law. that's what our opinion said.

>> well, so take the -- the assistant solicitor general brought up the ohio case. this court addressed that embedded and discrete federal issue. >> mr. duncan, isn't it similar when justice scalia used the controlled language, louisiana supreme court used similar language. it's dictated by teague. it's only dictated by teague because they've chosen to make it dictated by teague, but once that choice has been made, all outcomes are dictated by teague. it's the same issue. >> well, we think -- we agree with that. we think it's binding, quote-unquote, binding within the meaning of binding federal law because the state has chosen to do it and it's never shown that it wouldn't do it. so we -- we think that -- look, if the court disagrees with us on that -- >> ohio versus reiner which you just cited, was there any other way that the state could have retained review of the state supreme court's erroneous determination that the witness in question there did not have a fifth amendment privilege because she said that she didn't commit the crime?

>> i don't think so. because this -- >> do you think that's not a distinction between that case and this case? >> if is the teague standard is a discrete federal standard that the state has made, has incorporated, then the only way -- the louisiana supreme court could -- the defendant could go to federal habeas and get an interpretation that way, sure. it doesn't seem -- the difference between federal habeas and the review of the supreme court's decision makes a difference with regard to jurisdiction. it might mean this court would wait for a more robust split to develop and take a federal case that way. but in this case -- this goes to the second reason why we haven't strongly contested jurisdiction. there is a robust split on this specific issue that extends to something like 21 state and federal courts. they're all deciding the same federal issue. it seems to us that, as a practical matter, this court ought to weigh in. it's going to weigh in sooner or later.

>> we weigh in when we have jurisdiction. you think that doesn't matter at all? >> of course jurisdiction matters, justice scalia. >> so what you've said doesn't make much sense. >> i think it makes sense -- >> let's get in there quickly whether we have jurisdiction or not. you're not saying that, are you? >> we're not saying that. if a federal issue is genuinely interwoven with state law and there is no state grounds this court has jurisdiction. otherwise it has to wait for a federal habeas case. proceeding to the merits. >> we clearly have jurisdiction. just trying to figure this out in my mind. we have jurisdiction, where there is a person, that's the defendant. and the defendant says the court's decision, that's your court's decision, is contrary to the constitution or statute of the united states. that's just what they say. so we have jurisdiction to hear the case. the question is how do we dispose of the case in which we have jurisdiction. in three instances, i guess, the

court has done, in disposing of such a case, what the solicitor general says. namely, they have said we are -- we are not going to say whether he is right in saying it's contrary to the constitution. that's because there might be an adequate state ground. there might not be. it was one that was, was explained as flowing from a certain intrepation of federal law. we will say their interpretation of federal law was wrong, and now we'll send it back to see what they do. >> yes, the cases that -- >> is that right? >> that's our position. and by the way -- >> what is the federal law that you're talking about? >> the application of teague to miller. >> that's not a federal law. it's a federal habeas statute is a federal law, right? and teague is an interpretation of that federal law. was that federal law at issue in this case? >> the teague standard-- >> of course it wasn't.

>> but the teague standard, the teague exceptions could well be constitutionally required. teague doesn't apply. >> that's why we don't take a position. particularly -- >> you want us to hold that in this case? >> we do not want you to hold that in this case. >> can we say the opposite in danforth? or the majority say the opposite in danforth? >> could you tell me why you would think that something like atkins would not be retroactive to states? as a compulsion, meaning not as by election of teague retroactivity. >> that is a difficult question that we don't take a position on, but to answer your question, justice sotomayor, the argument goes that danforth made clear that teague is an equitable interpretation to federal habeas statute. it's not constitutionally binding on the states, and that -- the court left open whether the exceptions are binding, but

the exceptions were part and parcel of justice harland's mackey understanding of how he thought federal habeas ought to apply. and so whereas atkins -- i mean, atkins creates a binding constitutional right. the question of remedy, though. the question is a state constitutionally bound to offer that remedy? and this court has recognized in cases like pennsylvania v. finley, for example, that states have wide discretion in structuring their post conviction. and the next point, though, has to do with -- >> that has to be different because as justice breyer pointed out, you have wide discretion to structure it as you want. but if you structured it in a way that you're going to say i'm offering due process, isn't there a check, a substantive check by due process that you have to offer the minimum? >> well, i mean, that is the question. so this court has found that there's a substantive check on due process in griffith where we're talking about direct review. when we're talking about collateral review, i mean, our view although we haven't taken a

position on it, collateral review is a different animal. >> we have any number of cases where states have viewed exceptions as controlling the fact that they have to offer the constitution. >> but this court has never held that. >> hasn't yet. why shouldn't we? >> understood. >> that's really the serious question. >> it is a serious question. and, again, we have not taken a position on that question because we feel that this case is interwoven with federal law as a matter of state retroactivity. in miller, on to the merits, in miller this court was invited to create gorically bar the penalty of life without patrol for juveniles who commit murder, but it decided not to do so. now, that decision leads directly to the conclusion in our view that miller is not a substantive rule under teague's first exception. consideration of the teague framework, teague policies and teague precedent points instead to the conclusion that miller is not a procedural and not a substantive rule. so we think summerlin sets out

the framework. >> suppose there's a state and it has a mandatory minimum for a theft. it says the mandatory minimum for theft is 20 years. and suppose a court looks at that and says, you know what, that's incredibly disproportionate to a lot of theft. and so strikes the mandatory minimum. says you just can't have a mandatory minimum like that. make it lower. would that be a substantive ruling? >> we don't think so, justice kagan, because the mandatory aspect of it goes to the manner of imposing a penalty. >> it does not go to the manner of imposing. it says nothing about the manner of imposing. what it does is it just increases the range of sentencing possibilities. it actually leaves it to the court. it says absolutely nothing about what factors ought to be taken into account, nothing about that at all. all it says is you can't have a mandatory minimum of 20 years for theft. make it lower.

>> well, so if in that hypothetical that doesn't go to the manner of imposing a penalty, then it's different than miller because miller made very clear that the mandatory aspect of the penalty goes to the manner of imposing the penalty. not the substance. >> so if you're saying no, that's different because there was something else in miller, there is something else in miller. there is a bunch -- there is -- 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 in part of immaturity or not. whether you really are looking at an incorrigible defendant. so there is that process component. but that process component does not take away the fact that there is a completely separate self-sufficient component as to what the range of punishment has

to be that's completely on all fours with the hypothetical that i gave you. >> well, justice kagan, the relevant difference in terms of the teague analysis is that this court in miller did not take the punishment of life without parole. the distinct category of punishment of life without parole off the table, this court has never held that a noncategorical rule is substantive under teelg and for good reasons because that would fly in the face of the policies that inform the teague analysis. >> no, you're exactly right. it did not take the lwop punishment off the table. but similarly in my hypothetical, a 20-year sentence for theft has not been taken off the table. what the court has done is to say there have to be other options. there has to be an option of ten years or five years or two years, whatever it is. so they've expanded the range of possibilities. they've just made the sentence different because a sentence is defined both by its upper and by its lower end. and so they've made the sentence

different. >> understand that, but making the sentence different doesn't necessarily mean make it substantive under the teague framework. here's another way of looking at it. the defendant, a juvenile murderer who committed murder and is serving a life without parole sentence today pre-miller is not facing a punishment that the law cannot impose on him. and we know that from miller because miller said the court's decision does not preclude that punishment. and so that goes to finality. the finality interests underlying convictions do not yield whether the state still has the power to impose that punishment. finality interest yield, justice harland explained in mackey and this court adopted in teague, finality interests yield only where the state lacks the power. that's where the finality interest crumbled, so to speak, because the state no longer can impose that category of penalty. so that would go for roper, graham, justice breyer's sedition or which crimes. if somebody's in jail because they were accused of being a witch, the state has no finality

interest of keeping that person in jail. by the same token if the punishment is death for a juvenile, the state has no finality interest in doing that. so leaving the punishment on the table is crucial. if it doesn't take it off, it's not substantive. the second policy reason for teague is avoiding the adverse consequences of retrial. and we think miller is even more clearly not substantive under that standard because categorical rules apply retroactively because they don't carry the adverse consequences of retrial. they don't make you go back and redo the trial and unearth old facts and drain state resources and come out with a distorted -- distorted retrials. miller, by its nature, envisions a fact-intensive hearing that considers multiple characteristics at the time of the trial. >> you don't have a distorted new trial if you just grant a parole hearing. >> that's right. that's right.

but that's, of course, not what miller would require. that's what graham would require, justice kennedy, because graham is obviously a categorical rule that says you can no longer impose that punishment so you have to give them a parole hearing or some meaningful way of release. miller is about the step before whether to give a parole hearing. whether the person can be eligible for parole at the outset. that's the inquiry that we're talking about in miller, and that's quite different from a parole hearing. the fact of the matter is, though, is that applying miller retroactively inevitably turns the retroactive miller hearing into a parole hearing which shows that it doesn't quite work. in terms of adverse -- >> are you going to say at some point you started, suppose you look at the watershed procedural change. my impression from the case you cited, summerlin, is that deciding whether that's retroactive has two parts. i think we are unanimous on this point. the two parts were is it implicit in the concept if ordered liberty. and here it would seem to be because it's applicable for the states.

and the second is is it central to an accurate determination that life without parole is a legally appropriate punishment? and the rule that a mandatory can't exist is central to making that -- that was the whole point of the miller opinion. so if that's the correct analysis, for watershed rule procedural rule that's retroactive, if i'm right about that, why doesn't it fit within that category? >> well, let's take the first one. it's not just implicit in the concept of ordered liberty. the way that the watershed rule has been stated, the first prong of it, it has to all ter our understanding of bedrock procedural elements necessary to fundamental fairness. and this would be a strange case to find that in because miller itself doesn't represent a bedrock revolution in sentencing practices. it takes sentencing practice from another area and puts it in this new area. so it's an incremental change in that sense. it's not a wholesale discovery of a new bedrock procedural element the way we had in a case like gideon versus wainwright.

and i think this court explained in wharton versus bocking that it's not enough that the rule be fundamental in some abstract sense, right, but it has to itself represent a change in bedrock procedural understandings, and we don't think miller does that. we also don't think it's necessary to an accurate determination of a sentence. it would enhance the accuracy of the sentence, but it's not necessary. and the other point there is this court has never held that a pure sentencing rule can qualify under watershed because after all, this court has on many occasions said that a watershed rule is necessary to the accurate determination of guilt or innocence. and here we're talking about a sentence. so we agree with the united states that watershed procedural analysis is not the way to go here, but it does raise an interesting question. in summerlin, because after all, we do part company quite strongly from the united states when the united states says we need an outcome expanding alteration to the definition of substantive rules under teague.

we say that's not just a slight tweak to teague. what that is is a change in the understanding of what a substantive rule is. substantive rules under teague analysis have never depended on the frequency with which new outcomes might come about under the new procedures. in fact, in summerlin, and this goes back to my original point about the framework, summerlin explained that a criminal defendant under a procedural rule does have the opportunity of getting a more lenient outcome under the new procedures. so -- and nonetheless, summerlin said that such procedural rules are not applied retroactively. and so as justice alito, as you were saying, the difference between a substantive and procedural rule under teague is not whether it's very likely or very, very likely to result in a new outcome. it's about whether the new rule categorically removes the power of the state to impose a category of punishment. that's what a categorical rule does. that is not what miller does.

right? 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? right? we can point to cases where criminal defendants have had miller hearings and have still received life without parole. and i can point to several in particular from the state of louisiana under its new miller procedures. but the point being is that 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 substantive side. the substantive side is about -- >> i think not, i think by your own definition this fits on the substantive side. you said you categorically remove a certain outcome. and that's exactly what miller does. if you -- as long as you understand a sentence, which i think you agreed with, as defined both by its upper and by its lower end, effectively what the court said in miller was that that sentence which was the

mandatory sentence cannot control for juveniles. there has to be a different sentence, one that includes other punishments. >> well, there's no doubt -- >> that increases the range. >> right. miller quite clearly said, as you know, justice kagan, that it does not categorically bar a penalty. and so what did it mean by that penalty? >> it allows something within the range, but it has -- it has completely changed the range that is given for any juvenile department. the range is important. this is what we said in alain. that you can't think about a sentence without thinking about both parts of the sentence. both the maximum and the minimum. and when you decide whether a substantive change in that sentence has been made, you look at both, the maximum and the minimum. >> well, look. i hope this is responsive. i mean, i think after miller we would see two categories of punishment on the table.

we would see a life without parole category and a life with parole, for example. but my point is is that miller does not band the first category. >> i would not describe changing the range of sentences available as changing the sentence. >> it puts another one on the table i think is the most. >> it doesn't change the sentence necessarily. >> well, this is what we -- >> you still get the same sentence. >> you could still absolutely still -- >> this is what we said last year. we said it's impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. and similarly, we said criminal statutes have long specified both the floor and ceiling of sentencing ranges, which is evidence that both define the legally prescribed penalty. that is the penalty. is the range. >> a life without parole has the same floor and ceiling, of course. it's got the same floor and ceiling. what miller does is create the procedural circumstances for finding -- for putting a new penalty on the table, which is

-- that's the point of the united states argument. there's a new possibility. and our point is to say that putting a new possibility on the table doesn't take away the states' power to impose the old category of punishment. >> mr. winston -- mr. winser -- >> duncan. >> i know that we didn't ever look at this issue. i'm sorry. i'm reading the wrong one. i apologize. but do you really think that any state would have not applied woodson retroactively? they all did. >> probably not, your honor. but the question -- that, of course, is a pre-teague case. it raises the question is woodson substantive or procedural under teague? and our argument is it's a procedural rule. >> it just said you couldn't have mandatory death penalties. just like here u, you can't have mandatory life without parole.

>> it required an individual sentencing process which we say is a procedure. >> to give sentences less than mandatory death. but they could have still given death. >> they certainly could have. so the question is whether is it substantive or procedural under thepre-teague rubric. it raises the question, is it a watershed procedural rule? >> that's the language -- bedrock is -- i don't think is the right language because that was the language he referred to in a sentence in mackey, correct. i've just been looking it up. but then in teague itself, justice o'connor tries to get the right words. and what she ends up with here is that the procedural is the first test, first part, can be addressed by limiting the scope of the second exception. that's the watershed rule, to those new procedures without

which the likelihood of an accurate conviction is seriously diminished. okay. >> that's the first one. >> that's joined by the chief justice, justice scalia and the fourth i can't remember. so is it seriously diminished? now, we read through miller. it's pretty hard to say. i mean, my goodness. miller is just filled with paragraph after paragraph about how a mandatory requirement for life without parole fails to take a count of all the characteristics or many characteristics adherent in youth. and it's pretty hard to come away from that without thinking gee, accuracy under a mandatory life without parole does seriously diminish the accuracy of imposing life without parole when you apply the mandatory to a youth. >> but every eighth amendment rule goes to accuracy. >> no, but you have to say the accuracy is seriously diminished then she says i don't think there will be many such cases. >> we haven't talked about the

capital sentencing cases but take a case like o'dell where the capital jury was not informed of the defendant's parole and eligibility while considering his future dangerousness. i mean, one could easily say that the accuracy of the resulting death sentence under the old rule was seriously diminished. and yet this court said in o'dell that that is not a watershed procedural rule. and you can go down the line with all those cases. the beard case and the sawyer case. those are cases in which a defendant could have said, well, seriously diminished accuracy and yet the court found no watershed rule. and, of course, the bedrock is the word that this court has used in referring to that exception. particularly in wharton v. bock. >> is there any watershed procedural rule other than gideon? >> well, this court has said it's doubtful that any will

emerge. and so we think this case is an implausible case for a new watershed rule to emerge since this rule and back to the bedrock point is not creating a -- it's not a revolution in bedrock understanding of procedure. it's an incremental step in sentencing juveniles. you know, if a case like crawford is not a watershed procedural rule, then it's difficult to understand how this one would be. >> we have one brief that tells us that this court has never barred punishment as cruel and unusual under the eighth amendment but refuse to make the decision retroactive. is that so? >> we disagree with that. there are cases that take the case that refused to make retroactive the rule in call caldwell versus mississippi. that's an eighth amendment case. it goes to the accuracy of a capital sentence jury determination of death and this

court didn't make that rule retroactive and found that it was procedural and non-watershed at the same time. so we take issue with that. just a few more words about the united states proposed expansion of teague. it would re -- it would shift the whole focus of what a substantive rule is from the categorical nature of the rule to the effects of the rule. and so any defendant in these capital sentencing cases we've just been talking about, o'dell and sawyer and beard would now have the argument handed to them by the united states new rule that says well, that new rule gave me the opportunity for a better outcome. i might have not gotten the death penalty. if my jury had been properly instructed. we don't understand how the united states new rule in this case can be cabined only to where a mandatory sentence is taken off the table. >> i think you yourself cabined it when you said that the difference is one -- there is some category of cases which do refer to process, to how a decision makes a particular result. and another category of cases

which refer to what we've called substance, which is what results are on the table. what category of punishment is on the table? and that's the difference between this and all the other kinds of things that you're mentioning. this is not about the how or it's partly about the how. but there's also about what punishments are on the table. >> well, i just have to push back on the premise a little bit. our position is not that a substantive rule is about what punishments are on the table. a substantive rule is about whether a state categorically no longer has the power to impose a category of punishment. here it's clear from the miller opinion and from the graham opinion that the relevant category is life without parole. the state still has the ability to impose that punishment. and that's a sharp distinction from what a procedural rule is and the united states' new conception of what a substantive rule would blur that. it would blur that and call into question all the capital sentencing cases and a heard i

question, i don't remember which justice asked it about booker. and my reaction to that is but booker is a matter of the sixth amendment, made a sentencing guideline nonmandatory. and it surely opened up new sentencing outcomes. and so by what reason could a federal habeas petitioner now not say under the united states' new test booker is now retroactive or aileen for that matter. aileen overturned the mandatory minimum under the sixth amendment opening up new sentencing outcomes. why couldn't a federal defendant on federal habeas say now i ought to get the benefit of that rule retroactively? our position is those cases, booker aileen, aprendy are clearly procedural. as this case explained in summerlin. they're clearly procedural. and what the united states would do is blur those categories. if there are no further questions. >> thank you, counsel. mr. bernstein, you have three minutes remaining. >> what this fantastic discussion has shown is why the court, as it always has in the past, should keep the teague exception as a matter of equitable discretion rather than constitutional requirement. the court has much more freedom, generally speaking, on a matter of equitable discretion than it does on constitutional requirements. there's no way to look at the prior precedents of the court in

teague and any of those courts to say oh, here's what our equitable discretion is. the only time you get retroactivity is when the constitution requires it. that would have been a really short opinion. and that was not that. now, to turn quickly to the cases that have been cited, the critical difference between this case on the one hand and merrill dow and three affiliated tribes on the other hand is that jurisdiction under this statute is question by question under murdoch. in merrill dow, the question of whether the defendant's conduct had violated the federal drug labeling laws was a federal question. the court never would have gone on to say and we're also going to federalize the remedy. we're going to decide whether it's lost profits or out-of-pocket costs. similarly in three affiliated tribes, there was no question that there was a federal statute that limited state court

jurisdiction. the only issue was the scope of that statute. here we have the opposite. there is no question that the federal statute does not apply to the state court. and yet people say you should decide the scope question even though the underlying issue may be one of state law. and then finally to the solicitor general's new argument that there's going to be review in this court and de novo review on habeas, the statutory lang wage in 2254d is pretty broad. quote, any claim that was adjudicated on the merits in state court proceeding, the only claim in this case is remedy. this case was filed after miller was decided. the only issue in this case is redress. and it would be very wonderful turn if you could say on the one hand that 2254d doesn't apply. but on the other hand, 1257 applies when it requires a, quote, right claimed under

federal law which gets to your question, justice kagan. is it enough that'll a state court says we voluntarily want to be bound? and the best answer to that is not only in the cases i would recommend moore which is cited in merrill dow which goes out of its way to show how federal law is binding on the interstate commerce conduct in that case, but it's also plain in the language of the supremacy clause. binding federal law means binding in all 50 states. and that's why the statute also says right under federal law. thank you. >> thank you, counsel. you have three minutes remaining. >> your honor, i'd like to make two quick points. first of all on jurisdiction. resolving this case under teague avoids the serious constitutional question of whether due process requires retroactivity for miller.

my second point on the merits, merrill says juvenile defenders should not have to die in prison with no chance for rehabilitation and no consideration of youth. that important rule changed the substantive outcomes available. indeed this court said that life without prison should be uncommon. the individual sentence before miller there remains about 1500 deserve a chance at redemption. thank you. >> thank you, council. mr. bernstein? the court appointed you to brief and argue this case against this court's jurisdiction. you have ably discharged that responsibility for which the court is grateful. the case is submitted.

>> c-span is taking you on the road to the white house for the iowa caucuses. monday, our live coverage continues on c-span and c-span 2. we'll take your phone calls, tweets and texts. and and at 8:00 p.m. eastern, eel ta we'll take you to a republican caucus on c-span and a democratic caucus on c-span 2. be sure to stay with c-span and join in on the conversation on c-span radio and c-span.org. the. >> the c-span bus is in iowa ahead of monday's caucuses to spread the word about c-span. here's a tweet showing some of the our recourses on the ground. all hands on deck as we prepare for our coverage of the iowa kau kpups martin o'malley stopped by and met simpson college students, who tweeted this. simpson ocollege students and

professor hang out in the c-span bus while martin o'malley is interviewed. republican presidential candidate mike huckabee visited the bus. and marco rubio supporters tweeted this, hello to supporters here. traveling with the c-span bus. >> now a discussion about how technology affects politics. a former communications adviser in the obama administration took part in a discussion hosted by the commonwealth club of california in san francisco. this is just over an hour. >> i'm excited to see we have a full house tonight. thanks for being here. now is such an important time for us to have this conversation about the relationship between government and technology. especially with the advent and rise of technology platforms that are creating new industries and literally changing how we live our lives every single day,

it's prosecute etty clear that technology is outpacing -- fast outpacing federal and state regulations. but if there is one critical factor that really drives this merging of tech, policy and politics, it's constituents themselves. gone are the days when constituents used to say, that's just government, i don't respect a response. we're in a different time now. swepts deserve and expect an engaged responsive government, powered by the elected officials that they sent to congress or to their government to serve them. and this is all made possible by the use of technology. technology is magic, and i think that by bringing constituents and government together, it has proven its worth. and with that, i would like to get started. i'm pleased to be here in conversation with matt mayhem, jennifer palca, founder and executive director of code for america. and dan pfeiffer. he has an amazing long title. currently the vice president of

policy and communications for go fund me. previously, recently, he was the senior adviser to president obama for communications and strategy. thank you for being here. so let's get started. jen, my first question is for you. ladies first. i would like to talk about the modernization of government happening across all federal agencies under president obama. there is definitely an uptick in talent going from silicon valley to washington, washington to silicon valley. the administration is recruiting top notch talent with the intent of delivering a better online experience to their constituents. and you were one of those recruits. so you went from silicon valley to washington. you were, you know, what we would love to hear from you is about your role as u.s. -- you know, deputy uscto in the white house, and specifically and the advent of the united states digital service under your tenure and how that's modernizing government. >> great. well, thank you. and thank you so much for

opening with the question about the government side of it. i think very often we think about this is just politics and politics and government are v y cleesly tied, but they are two different things. i think it was sort of, you know, when obama was elected and everyone said that it was the first -- he was the first president to be elected by the internet. there were these years in which there was an enormous disruption of sort of politics by the internet. and then that was sort of starting in 2008. then starting in about 2002, we started to see this really take root in government. and i think it was led, to be honest, by the folks in the government digital service in the united kingdom where they took it very seriously, bringing in digital talent and not having it be sort of innovation at the edges, but really saying, we can provide digital services to citizens that meet a far higher quality

bar. that really create an experience for citizens that meets this expectations that you have now when you're on your mobile phone or onlieng all the time and everything is so convenient and so different than it was ten years ago. i was running code for america at the time. we were running out of inspiration of the ways in which the internet had disrupted politics, and said well, how are we going to bring the principle s and values of the web not just to get folks elected but actually governeding. it matters. if we have good experience with government, we're likely to be much more involved, much more engaged as political citizens. so i was running code for america at the time when todd park, the cto, second ever chief technology officer in the united states which is a big deal.

this is he asked me to come and work on a program that he started that was modelled after code for america, the presidential innovation fellows program. an i know of at least two people in the audience who westbound presidential invest tors. this brought silicon valley to government. i sort of reverse pitched todd on the notion that we really need to bring, not just folks into agencies to help with open data and create value for the american public and the wide variety of benefits people have been seeing for this. but also people put more digital competency at the center of government and changed fundamentally how we create the technology that mediates our

interaction between government and citizens. and so much incredible has happened. i think we probably would not have been terribly successful if healthcare.gov hadn't failed. i'm sorry if that's. >> a controversial statement. >> i'm not sure that's a price worth paying, but hey. yes. >> hey, it worked. >> and some of the people who made healthcare.gov work are in the room. hello. in the end, we enrolled more people than we even had thought. we would be before the site failed. that's a pretty remarkable accomplishment. >> that's amazing. >> that's pretty amazing. i think partly because of that, though, the plans to create an internal group that we ended calling united states digital service were under way before healthcare.gov. that crisis which turned into such an enormous opportunity really gave us the air cover to say nope, we have to gave us th

cover to say, nope, we have to take a fundamentally different approach to how we create technology that works for the american people. it has to be user-centered, it has to be data-driven and it has to work a lot more, but not entirely, but a lot more like how silicon valley works. i'm just incredibly proud the people who came to this task with such an amazing desire to serve the public and have brought so much incredible change. so we've seen things like agile procurement now happening. we've seen wholesale reinventions of services that the government provides the citizens. we've seen that working at the local and state level through code for america. and i think it's an amazing thing, because as people start to have experiences with government that more match the experiences they have in their personal lives, my sincere hope and my wish for the world is that really makes people have a confidence in government that

changes their experience with the political realm. >> i mean, that was amazing, thank you. fantastic answer, and i think you're absolutely right, this administration is doing a great job of taking a page out of silicon valley's book. bringing those best practices back to the citizens. matt, i want to go to you next. i'm fascinated by what you're doing at brigade. in any successful democratic society, civic participation is absolutely critical from everyone, from the elite to the grassroots. but the problem is, not everyone feels like they can be heard or make an impact. so with social media, we know that has changed how constituents interact with each other. so here's where brigade comes in. if democracy is your start-up and we know that it's a hard job to mobilize constituents to play an active role in their own governance. if democracy is your start-up, how will brigade help to scale

democracy? >> great question. let me start by saying that the impetus for brigade was a deep-seated fear as we looked at the electorate and voting behavior and citizens' attitudes toward government that we're really worried about where the country is going, because we think that citizens are losing faith in their own efficacy. when you say it's hard to participate, it is. and yet people who have educations, make money, participate at a very high level. and their needs are often pretty well represented in government despite obvious gaps in technology and other dysfunctions that jen said we're trying to resolve. so if you take the last california midterm, for example, anybody want to guess what turn-out was for younger voters, for the 18 to 25-year-old crowd.

any guesses, here in california? >> 16%? >> about half that. so about 8% turn-out for millenials. latinos as a whole, only 6%. low-income voters, i don't know the stat, but it was in that ballpark. and yet for educated, white, middle-aged to older voters, turn-out was closer to what you would expect, 50%, 60%. so i think that ends up being an issue of kind of justice and responsiveness of our government and of our elected representatives. when we look at the problem, particularly thinking about this next generation of voters, we've identified two components to it that we want to try to tackle. one is complexity. democracy is not scaled well offline. there are over 500,000 elected officials in the u.s. we are each represented by over 40 elected officials, 30 or more of them are at a local level.

you probably couldn't name more than a few. i know i personally can only name a handful. you probably don't know what they're lekted to do, what decisions they're making. the federal budget is about 2.something trillion dollars. all of those local representatives spend just as much money and they make a lot of decisions about things like public safety, transportation, education, many cases health care, parks and rec. a lot of local decisions about spending and regulations that actually have a bigger impact on your quality of life than the decisions that the president can make, not that he or she could make that many anyway. so i think complexity is one matter. how do you help people make sense of this massive opaque system? not just who the reps are and what the issues are, but how do decisions get made, how does power get exercised? and the other, even if you can overcome that problem and

technology offers obvious solutions. i was given this solution earlier today. if you want to travel to dubai and then london and then singapore and then back home and you're gonna need hotels and cars and you want to book all that, you put in a few parameters and kayak gives you a bunch of options to sort different ways. and personal preferences, you can sort it and make it accessible and understandable for me. so there's a complexity problem and i've indicated what i think some technology direction we could take there. but there's a deeper cultural problem. even if i can make sense of the system and i decide to participate, is it going to matter? it's not apathy. we often think these people don't care, they can't be bothered. it's a crisis of faith. if i participate, is it gonna matter? and the hope and the promise there in that long tale of local offices and elections, if you're voting in california for

president, your vote probably doesn't have an impact, unfortunately. but we did a local election test in manchester, new hampshire, and the mayor got elected by a 100-vote margin. so a handful of people could have organized their neighbor and said, we're going to vote because of that and determine the outcome of that election. so i think making those things transparent, building socialized tools and connect that to the political process in a direct way is how we scale up participates and make it more representative and more responsive to it the needs of everyone. >> thank you for that. i think i'm definitely going to become a user after this. so, thank you for that. and dan, i want to come to you next. jennifer and matt have both spoken about things that you can give us insight on. specifically, i wanted to go to

jennifer's point about when she was in the white house and your experience when you were there. before i get to your actual question, if you could give us a tidbit about what you did around the state of the union when you brought it to life. >> sure. the state of the union is for the white house, it's the biggest audience you're going to have at any point in time. but over the course of time, state of the union audience viewership, has dropped dramatically. that's partly because president obama has been in office for seven years, you've seen it before. but it's been going precipitously before because people have more choices now. for decades, it was more channels. now it's their phone, their tablet. people don't particularly believe in this idea of appointment television anymore. you don't show up at 9:00 on a tuesday night to watch a speech. you watch it when you want to watch it. so we thought, in 2015, we spent a lot of time thinking about, how can we engage people more with the state of the union.

and we thought of -- we sort of divided it into the kind of viewers we had, and tried to design content to reach them. the first group of people are the television watchers, people who watch it on tv. that's easy to deal with. you make sure they know it's on tv and you write a good speech and have the president deliver it well. do that. second group of people will be people who will watch it on tv, but watch it not in the traditional way, but will be watching it with their phone or ipad or computer. what we call the two-screen experience. so what we did for that was to have a set of content that would be able to be -- that would highlight moments of the speech, would be info graphics that highlight parts of the speech, photos and short videos that would provide depth and nuance and share those on social so you could see that as it was happening. the third group were people watching it entirely online.

we tried working with google, tried to drive people to the white house website, do a live stream and you would get that what we call the river of content, where you see the graphics and the information as you were watching it. and then the last group are people who were never going to watch it on television, on demand, or on their phone. how can we engage those people? and so we did a couple of things there, which is, the most notable one, for the first time ever, we put out the text of the state of the union on medium in advance. so people who were a part of that platform, who visited that platform on twitter or facebook, would see the speech. they may not ever watch it, but they had an opportunity to read it or see parts of it and see what people highlighted and how they engaged with it. and we would also take -- we didn't view the state of the union as this one-hour moment on the first tuesday in february. it was instead a period of time leading up to and beforehand. so we were announcing the

policies on facebook or in actual real events leading up to it. afterwards, we would take parts of the speech on climate change for instance and motivate people to share that content, so you have a chance to interacti with it. we saw more engagement than if we had -- i think 30 million people watched it, but compared to the 100 million who would have watched it years ago, it's a fraction. we this would get probably an additional five million people to watch the speech. >> that was what you did for the president. now i want to come to your question about the president himself. someone who's been with the president since his first campaign. you had the privilege of working with one of the most powerful start-ups. you've been able to do good in

your job, to serve the american people and bring technology to government. so, speaking about the president, how would you say that he has -- what key objectives would you say that he's achieved in the administration that are solely or exclusively driven by the use of technology? >> well, i think a big part of it is communication. it is a fundamental role of the president to communicate with the american people. now, that serves a strictly governmental function at times, to tell people about how they -- can get health care, a tax refund, or prepare for a hurricane coming. the traditional tools that allow you to do that -- network television, cable television, and newspapers -- reach a dramatically diminishing part of the audience. so a huge part of what we had to do in that course of time, was learn how to leverage tools to do that. that's incredibly important on the governmental side. then you have to communicate in

two other fashions. one is to try to get your agenda passed. that's to motivate public opinion. and the president has had very good success with that in some areas and ran into a wall in partisanship, the split government we have in washington. but one way in which we think of the long arc of this presidency where he's been most successful from a communications perspective, in his willingness to experiment with new technologies, viewing the presidency as a platform of engagement, not strictly communication, has been in helping move the ball forward in public opinion on things that are very core to him. when we started running for president, think about this, the idea that marriage equality was something that was opposed by a majority of this country and something that almost every political figure would be afraid to touch. >> that's right. >> republicans, the conservative

economic view from reagan of smaller taxes -- lower taxes and smaller government, was the predominant way. the idea -- in immigration, in the democratic primary, if the president got a question on immigration, in most states, it was from the right, about loose borders and people taking jobs. these are democratic primary voters asking the president the sort of questions that you now hear eight years later at a donald trump event. and on climate change, was sort of a much more picky issue politically. the democratic party itself was divided on it. and over the course of a very aggressive and concerted effort over time, let's take guns too, because that's in the news right now -- moved to a place, moving public opinion. action hasn't happened on all of those things, but he views part of it as helping shape the

public opinion environment so that after his presidency, additional progress on these areas is possible. if he communicated like a traditional president, which every time we did something unconventional, whether it was the president holding a selfie stick, or getting with zach galifianakis, or do a youtube interview, which now seems completely normal. in 2009, the conventional wisdom flipped out. like, we were demeaning the president, you're putting him on the internet! like doing all those things was -- >> it wasn't the internet. it was zach galifianakis. [ laughter ] >> right, but even sitting with youtube and taking questions. zach galifianakis is up for fair debate, i will say that. but doing all that was crucial to fundamentally changing the way that all presidents going forward, republican or democrat,

will engage with the public. >> totally agree. even back in 2008, like what you did in 2008 it almost seems archaic compared to what we're doing now. so he brought those issues to life. he was able to engage and mobilize. matt, how would you respond to what dan is saying about how the president used technology and how we can marry that with what brigade is doing? >> great presidents figure out how to level the pulpit. the president's done an amazing job of figuring out how to navigate a really complex media landscape and get a message out to a lot of different audiences. one of the things going back to 2008 that i think is very interesting is that many of you in this room may have been familiar with my barack obama.com and some of the technology that was built there to help groups of people organize together. i think there's a promise in

that idea and i think you saw it in the dean campaign, using meet up, and you've seen that in these different moments of people trying to use the internet. there's a promise there that hasn't been realized. and what i think it is, is the opportunity for more bottom up self-organization that can plug into something formal and somewhat centralized and top down. you kind of have to have both of those. and for a long time now, our media, our mass media has really been very centralized and has tapped into a model in which candidates and non-profits raise a bunch of money and do direct marketing to mobilize people who don't really want to hear the message. and trying to nudge them to give that one dollar because of guilt or whatever it is. and oddly enough, i just downloaded the field the burn app. how many have you checked that out?

a good number here in san francisco? i won't even go to the other side of the aisle. interestingly, i downloaded the app and it had a deep dive on all the issues with info graphics and videos, which was amazing. it had this cool map for me to geo-locate myself. but i was looking at it, saying, where are the people? like even there, there's no conversation and bottom up power-building through creating a community of action that can sustain itself over time. and even with successes online today, like sopa pippa, it was a very quick "no." it wasn't where a group of people who maybe want change around gun laws who are going to build power and capacity over time. my background bias is towards grassroots organizing, so that's how we see the world in our company. but i think there's a promise there that technology hasn't realized and that for everything president obama has done, that's going to be the future of getting elected, but also sustaining efforts to get things

done once in office. >> wonderful. and jen, what do you have to add to that? >> i would just extend that. you have getting people elected and sustaining that agenda, sustaining that community, that set of values. and i think what we see also through our work with local government, it's also not just the "i want to have a voice" in the policy, but it's also "i want to lend my hands to making my community better." and that's also something we're seeing the power of the internet be able to bring together. for us at code for america, people do partnerships and take a user of had centered approach -- >> the fellows? >> these are the fellows. and we welcomed our new class of fellows at code of america, but in the first class, 2011, they're coming from tech jobs

and doing a year of service with local government. we had a team that was working with the city of boston. as a side project, it was 2011 in boston, it was snow pocaly e pocalypse. remember that? >> isn't that every winter in boston? >> that's true. but this was really bad. it was the first year in a long time. and these are programmers from start-up and google and apple. and they're sort of in these operation centers in boston city government during this massive snow crisis. so you really get part of what government does. we think of government is sort of policies and stuff. but government is clearing the show. government is helping people who are stuck. government is, like, who is getting the snowplow? and my neighborhood getting the snowpl snowplow or another neighborhood? when the snowplows clear the streets, it covers the fire

hydrants. if they're covered, and there's a fire, there's a long time before they're dug out. we don't even think about that anymore. he's going, if i live in front of a fire hydrant, i'm incentivized to dig that fire hydrant out. and eric michaels wrote, like in a day, to try something out, wrote an app called adopt a hydrant, that allowed the citizens of boston to say, i'm digging out that fire hydrant if it's covered in snow. and it's just this crazy thing that took flight. anyone here live in oakland? you can adopt a storm drain in oakland. why should the city come out and clear that storm drain when it's full of leaves? when you can just walk out and do it. i will say, i've done it, and it is gross to, stick your hand in a storm drain. but once you get over there, you've saved the city, like a

whole crew, right? and your street isn't backing up. there are things that we as citizens can do, to make our communities and neighborhoods work better that are things that we've asked institutions, local governments, to do them for us. they do them at very great cost. it is free to stick your hand in the storm drain. adopt a siren in honolulu, where it really matters, that you know when the tsunami is coming and you need to know that your thing is working. so i just think there's that element too of not just, where is my voice in politics, but where are my hands to help make my community better and how do we use internet technologies to make that easier and better and i would just echo everything matt had to say about really the incredible relevance of the local level of government. >> and staying with that, and we're talking about adopt a hydrant. so just out of all the different technologies that you've seen foster through the code for

america, follows your program, what would you say has been the most critical for digital civic participation, number one, right? and then relatedly, how would providers of such similar technologies engage with the government? because code for america is doing such an amazing jobl -- job, but how do we cast a wider net? >> to your last point, one of the things that's happened in the last three years, many wonderful people in silicon valley and we say metta physical silicon valley, it's not limited to the bay area, as much as we would like to think. there are amazing entrepreneurs who take this user-centered approach all over the country. but metta physical silicon valley is getting over its horror of government and actually doing start-ups that will provide technology and services to government in a way that are enormously changing the eco-system, giving people in government many, many different

options that are not just the large system integrators, god love them, but we need start-ups doing things in an agile way. it's a huge thing. seven of them have been spin-outs of code for america, but there are many, many others and we support all of them because it makes government work better for the people. so your question about what technologies have been -- >> like, let's say, is it a mobile technology, is it texting? what is a good way to ensure digital civil participation, something that's in your hands to drive that easy? >> i would answer before technology, we hear this question, what are the things that really open up this opportunity in government. more important than any particular technology, i would say, and i'm sorry if i repeat myself, i'll say this over and over again. an iterative, user-centered approach.

whatever technology you're deploying is just critical and is just very different in which the ways government has codified their approach to technology in the past. and frankly, for all good reasons, we've created procurement and ethics rules because we wanted to do right by the people. but they've had an unintended consequence in a universe where things move so quickly. that's what works and that's very hard to do in a government context, but that's what the u.s. digital service has been doing. that's what 18-f, which is their partner, who has an office nearby, in san francisco, that's what code for america is doing. that's more important than any technology, and it's very important that we support all of our government entities that are trying to take that approach, despite a whole bunch of rules that make it a little bit difficult. but to answer your question, i do think that text messaging, for us at the local level, there are many different things we've

done. the aggregation of data in just making it useful for citizens is really huge. when you're dealing with populations who are relying on digital services for things like food stamps or housing, we have found that finding very simple ways to text message someone, for instance, if you apply for food stamps in california, follow up and say, did you get the benefit? or hey, it turns out, you're about to fall off the rolls because you didn't reply to some of the communications that we sent, very long letters written in legal ease that you don't understand. when you don't reply to them, you you may fall off the rolls. you need to call the office or you'll be at the grocery store, trying to use your benefit and it won't work. when we don't have everybody on a smartphone, text is huge.

>> it's important to take the messaging to the people. >> yeah. >> that's really critical. and to your point about open data, it's evidenced by the fact that we have our first chief data officer at the white house, but the congress department has their first chief data officer as well, a good friend of mine, ian kalen. >> first year. >> so i think there's just a lot of -- there's a lot of coming together between what you're saying, the roles that people are playing and the relationship between the public and the private sector. so thank you for that. and matt, i want to come to you next, and i'm going to read you some stuff back that you've said before. >> uh-oh. [ laughter ] >> don't do that to me, please. >> so i promise it's all good. >> my wife is in the audience. >> this is about brigade. in an op-ed, you wrote that voters, special millenials have

well formed opinions like on whether air bnb should be regulated but they didn't believe that their voices count. and according to congressional quarterly, 2015, 23 states advanced 60 pieces of legislation to restrict short-term rentals like air bnb. how would you engage voters, with the decision makers at the state level and stop legislation from passing or at least be heard that we don't want this to happen? >> what we built last november, i mentioned the test in manchester, new hampshire, we did the same test in san francisco. it was iterative, it's scrappy, we built it in five weeks, we looked at data, learned a lot, made a ton of mistakes and now we can take that forward with our next test in the primaries and the general this year. and i will get around to answering your question, if i

don't, you can hold me accountable to it. what we wanted to test was basically three things. will users of brigade express their political beliefs in a way that can help us inform, help us help them inform how they may want to vote and participate in the election. if we make those recommendations on how they may want to vote, are they willing to then do a little more research and confirm how they're planning to vote in advance of the election? and can we motivate them to pull their friends in and engage them in that same process? one of the difficult learnings was driving mobile app installs is really difficult. that's a niche tech problem, but it's a big deal. really hard to get people to install apps. that was hard. we tried a lot of different marketing approaches. i was joking with dan that not a lot of people wake up in the morning, saying, i wish i had a better tool for voting, for

engaging in politics. [ laughter ] somebody understands. so the barrier to entry was really high. i think part of the tactical lesson for us is to meet people where they are, build more on web, maybe through text, easier interfaces and touch points for people because there are a lot of people visiting facebook every day, there are a lot of people in a lot of different places where we can build more hooks. once we got them into that experience, though, which was focused on taking positions written by the chronicle. so a position might be something like, we should enforce more restrictions on my ability to rent out my extra bedroom to a stranger or something like that. or we should increase taxes to fund, you know, a larger health benefit for workers in the city, so on and so forth. we took a bunch of positions and partnered with the chronicle and

produced some background information. people were incredibly willing to dig in and voice their opinions. they generally knew where they stood on a lot of these issues. i agree with that, i disagree with that, for the mission moratorium. didn't take a lot of information. voters are not dumb, and they're not apathetic. you just have to figure out how to reach them. so the completion rate was really, really high. you took a side, got to see what other people think, competing responses for why people took different sides. and we then said, given everything you've told us about your political beliefs, here's how we recommend you vote. a high percentage of them said, i'm going to fill out my ballot on my phone, so i have this rich source of information before the election and many of the people said they kept that with them or took it into the voting booth with them. it was accessible, better

structured, it recorded their answers. i filled out a bunch. helped me keep track of where i was. and then on the last piece, we didn't probably get the peer-to-peer part as right as i would have liked, but we had power users for something like, i think it was prop f, who sent a lot of messages to their friends, trying to recruit them, saying, i'm voting "yes" or "no" and here's why. so to answer the question, i think there's a general question around distribution and how you get the new tools in front of people and how much demand is there that i think is going to have to be driven by creating cultural and social norms around participation and make it something people are talking about facebook and twitter, use technology to reintegrate or social and political lives. how do you make it mainstream

and we're not the only ones doing that. change.org and nice citizen and pop vox, and a bunch of others in the space trying to figure it out. but then it's about making it really simple, immediate feedback, personalized, transparent and a useful tool for people. when we got that in the hands of people, they used it and they loved it, and the response was really positive. and here in san francisco, it was on the order of about a thousand voters. so in an election of 160,000, for us, that's a pretty good validation, at least from the feedback that we got, that was so positive from those voters. >> i think that's a great quote, integrating or social and our civic lives. that's wonderful. before i go to the last question with dan. in about five minutes, we'll go to q & a. so if you're starting to think about a question, the mike is

there. you'll probably want to start lining up there in about five minutes. dan? >> yes. >> back to you. i have a multi-part question for you. so i hope that's okay. with your new role at go fund me, right, you've gone from taking tech to politics and connecting the dots from silicon valley back to washington. tell us what does your new role entail, specifically in what kind of policy changes are you trying to impact? are those going to impact the -- are they going to affect the whole tech industry, or just a specific sector? and will it be easier to make those changes from the outside? >> look, i think the best way that anyone can make change, is if you have a chance to serve in government. that's the ultimate place to do it. >> agree. hundred percent. >> when you think about the people that jen and others recruited from, and you talk to them in the hallways, people who have worked at google and

facebook and been part of these incredibly lucrative things, and you talk about the chance to give health care to more people, like the people who came in and saved health care.gov, there was no other opportunity to have an impact on people's lives like that. that's the ultimate way to do it. you can do it on a local level. ultimate manifestation is in the white house. so that, i think, everyone, if they get an opportunity to do that in their lives, they should do that. >> here here. >> thank you. for me, you know, what i -- when i left the white house after six years, and i've thought about what i want to do with my life, i didn't really know. because you had asked me when i first got in politics, what would be like your ultimate dream would be like find a candidate you really believe in, get started early with them, go on a journey to the white house and get to be a part of an important presidency in an important role. check. i got to do that.

thank you, barack obama. >> and did it very well. >> thank you for finding myself unemployed about the time barack obama started to run for presiden presidency. so that was good. didn't know what i wanted to do next. i had spent some time, especially in my last two years in the white house, where we were beginning to engage more with the tech world and the tech space and trying to make those changes. i felt a cultural affinity with silicon valley at large. geographically, because i moved here, obviously, but -- and i think there's -- when i went to go fund me, to do my first interview with them -- go fund me is a young company. only been around a couple of years. it was very small until a couple of months ago, about a hundred people who work there. i went to the first office, we're going to move from it soon, it's above a nail salon.

and the ceo knows i'm coming from the white house. so sorry about our office. it's people working in the hallway, all at standing desks. and i said to him, i was like, this is better than every campaign office i ever went to work in. >> in the fourth floor of the eob. >> in all of the eob. there's actually heat in this office. >> this is the executive office building, our offices. >> and so you feel like -- the obama campaign was the ultimate start-up. and all campaigns are start-ups in some way. what i think has drawn people from washington to silicon valley, and there are more of them moving out here every day, and people from silicon valley to washington and why those people in silicon valley are so valuable in washington is a bias for action. right? in start-up world, you have to move fast. you have to decide quickly and you have to act. in campaigns, it's the same thing. you cannot wait.

if you sit around and dilly dally for hours, like, people want to try something and get it done. if it doesn't work, you try something else and you learn from it. so there's that cultural affinity. what lead me to go fund me, which is a personal crowd-funding site, rapidly growing. most of our business is people who are raising money to pay for medical bills, or to help someone in their community, or fund textbooks for schools or stuff like that. but we do all kinds of projects. i didn't know i really wanted to take a job. i thought i could do the consulting thing, and do panels and work in coffee shops and do conference calls. but what really drew me to go fund me, essentially what go fund me is doing is using technology to empower people to help others. sometimes they're helping their family. sometimes it's themselves. a lot of times it's their community, and that was the core of -- that's the obama promise. >> so you're still doing good?

>> it's the obama promise. we're a for-profit company. we want to do business. the better we do, more people will help each other. but the core obama promise was not -- it gets lost in a lot of the -- but if you listen to the speech in 2007 and 2008, it's not, i'm going to do all these things for you. it's that we are going to do them together. we are going to come together and change our country. change comes from the bottom up. barack obama's background is similar to matt's, it's about grass-roots organizing. and what's most important about technology, good technology is bringing power from institutions down to people. right? you look in terms of, like, what are the internet and the ability to blog, gave normal people the same power that newspapers

their community. that's what led me to government in politics and that's what led to go fund me upon. >> i would just like to echo what dan said about public service and to draw that very deep, i think, emotional connection between a lot of the ethos that i see and feel in silicon valley and what the experience i had and others had in federal government or in any level of government. the team that saved health care.gov worked about 20 hours a day every day for about 150 days, in some cases.

it was incredibly intense. it was sometimes i was not on the team, i was in that office and i was working in some issues at the time, but these were people who were motivated by an intense desire?&ggaq= save hea care for their fellow americans. and there were times when todd park, who was our boss -- i'm saying "our" because my colleague is in the audience -- would bring the letters that the president had received about the affordable care act into the office and read them. and there was one -- i think each letter hit various of us on the team differently. there was one that i can never forget him reading that was from a mother, who said, i have spent the past 20 years, choosing between health care for myself and for my kids. and because i was able to sign up through health care.gov, i'm now going to see a doctor for the first time in a long time.

i just thought, oh, my god. that's not a choice i've had to make. this is a choice she's made. and everybody on the team was just so inspired to do this amazing work. and work, you know, we always joke at code for america, that when you end a code for america, you go work at a start-up to have an easier job. [ laughter ] people who work in government, particularly around technology, what they do, it's just profound. we saw that working with the state of california this year, to help them change the way they're approaching the procurement of the child welfare system. so it's very easy to get lost in the abstract things. it was going to be a five or $600 million procurement. it was going to be very classic, old-school approach, waterfall methodology, five years to build, we wouldn't see anything until the end. these are the hall marks of

failed government technology program. you can look at it and say, we have tools to bring to bear on that, we have different methodologies for procurement and you're doing all that work in an abstract way. and our team was coming home from a meeting in sacramento where they agreed to make the changes and reflected on the fact that this is not a piece of technology, this is the way that bee take care of kids who are at risk in our state. there are 475,000 reports of abuse and neglect of children in our state. and when the technology doesn't work to manage those cases, those kids have bad outcomes. >> absolutely. i think that's such an important point that you're making. the technology is solving an issue. i know i have to go to our questions from our audience, but i do want to end on one quick thing. dan, what you said about demockraitizing, that's what brigade is about. so we thank you for doing that.

>> that should be our tag line. >> demockraitizing democracy. i was going to put that in my original question, but i liked democracy as your start-up. at this point, i'll turn it over to q & a from the audience. if you have a panelist, please let us know who it is and please ask a question. thank you. >> okay, my question will be about database sets. my name's peter gisele, i work in a hospital laboratory, i'm not a computer geek. as a military veteran, i was interested in a bill that was in the congress a long time ago. my frustration is that 99% of the people i contact i never get feedback from. what i want to create is a website, a viewer easily available database that has database sets in it of like the members of congress, people in the executive branch, but also governors and that. but also academic professors so

that i could, over my retirement years, contact these people and try to get feedback, but at least document on this website that contact has been attempted and no response has been given. database sets are very expensive and i just don't understand why the non-profits and the computer doesn't just generate these for all the different non-profits in the company. there's a company called leadership directory that provides it, but costs tens of thousands of dollars. >> the question being, you'd like to see that contact listed in a database? >> a database itself is very expensive to produce. i can't produce it. i would think that if they're created by various non-profits in the country, it would be shareable for everybody in the country. >> somebody want to take up database sets. >> i'll take a stab. i heard two parts to your question they might be able to respond to. one is on the database of elected officials and who represents you.

i think you're absolutely right. that data is not easily accessible enough. there's no definitive database of every elected official in the u.s. and here's who i am as a voter and who are my reps. there are some good attempts and there are some groups working really hard on that. google civic aid, map light over in berkeley has been working on aspects of the problem for years now. those data sets are getting better. you're absolutely right. i think the second part of the responsiveness of those reps, did they hear what you said and did it count? that's another piece that we're worried about. a lot of that comes down to snent incentives. this is not a new story. but i talk to a lot of officials who spend a ton of time fund-raising, talking to interest groups that represent money in their district and have less time to think about how to engage a wider audience and

they're not incentivize said to do so. so we're hoping to aggregate votes and voters in a way and constituents, so that their opinions actually tied to the identity of someone who votes, can incentivize elected officials to spend more time with them. they're figuring out a lot of time on how to get the money. if you could figure out how to get it to the voters, they would be incentivized to go spend time with them. but it's an unsolved problem at this point. there are some good people working on it. >> next question. >> my name's shayna, i'm a student and also an elusive millennial as you spoke of. for me, the flip side of the proliferation of social media is that a lot of my peers and young people feel like clicktivism and liking something on facebook is enough, and that's engaging with a cause. for me as someone who has a twitter and a website and has

tried to praise technology, it's been difficult to see how social media can be used to sustain involvement and make sure that civic engagement goes past a social media presence. i'm wondering if you can speak a little bit to that. thank you. >> yeah, great question. just quickly, there's a huge amount of engagement online with millenials like shayna, posting articles, commenting on political topics. then when you ask millenials what are the most impactful things they do to help their community, it's actually offline, and/or giving money. volunteering, direct service in their community, where they can see the people they're serving or actually work on things with their hands. it's giving money where they have confidence that the money is going to be used to actually fund something that's impactful. so i do think there's a disconnect right now between the discourse in self-expression that maybe feels satisfying in the moment because you won that argument or you got three likes

on the thing you posted. even if it's -- and it may be political, but you have to ask yourself what do those likes actually amount to and probably the answer is not much. and where millenials are saying they're most satisfied and most engaged which is offline, through volunteerism. i think there's a gap. only 8% of millenials voting in the last california midterm. millenials just don't believe voting matters. that's a huge problem. that probably sounds like a depressing non-answer. i think part of the way you solve that, though, is -- this is a terrible word -- you gamify it, you make the data explicit. you show them they're not alone. you show them how many voters there are, how much the potential impact is. this thing, which i just got as a holiday present, and it changes behavior. just tracking and making

explicit how many hours i sleep, how many steps i take, how much water i drink, just making some data explicit and easy for me to understand and consume and these nudges to do things, has dramatically changed my behavior. i go for a walk after dinner. i try to go to bed earlier. it's not quite as simple in the civic space. but if this is the kind of technology that we're responsive to as consumers and younger people in particular, we're going to have to build those kinds of tools for the civic space. and there's been a huge underinvestment in that in silicon valley for a very long time. government's been the enemy. we're hip and cool and solve problems. they don't. jen speaks eloquently as to how to bridge that gap and why it's imperative that we do. >> and if i could just add, there's a particular opportunity that sort of bridges that sense of social media in digital ca

competence with that sense of hands and working in your community. the code for america brigade, there are 44,000 people that build technology for their city government, for their local community, and two of the most active communities are here in san francisco and oakland. san francisco meets on wednesday nights at our office on ninth street. one of our sponsors, who is in the back for microsoft, who helps out with that community. and open oakland is also in city hall weekly. so it's activism that's digital that helps out in your community. >> that's wonderful, thank you. we have time for two more questions. we'll take the next one. >> my name's ruth shapiro, and right before i came here, i was watching the town hall with president obama about guns. and there seemed to be, in the audience, quite a few people who were very much galvanized by

what i believe is completely untrue information about guns. so i think the underbelly, or the dark side of proliferation of information, is the proliferation of untrue and destructive information with isis recruitment being obviously way, you know, a worst case example of this.5 so i wonder if you can just discuss the fact that there's a lot of untrue destructive information out there, which people are organizing around and how do you deal with that. >> sure. [ applause ] >> i can take that. there are upsides and pros and cons to all things, right? and the dramatic proliferation of information has done great things for the world. but there are people who can use it in nefarious ways, isis being the most obvious example. there has been evil in the world before there was social media.

there was prejudice before it. social media really allows people to express opinions they otherwise had in different ways. what it does do is allow people to confront opinions they would not otherwise ever see. now, you raised guns and guns is a very interesting one. because guns and climate change are two of the hardest issues to communicate on, because we don't live in this broadcast world where you just go to the news and everyone hears what you have to say. people are now communicating in networks and these networks are becoming, in many cases, more homogenous. so it becomes very hard for someone who is outside of that network to convince a bunch of people in a different network that climate change is real. or that actually no one's coming to take your guns, right? so that presents -- that is a challenge. now, i think that as we, as people learn and politicians

learn how to better communicate in this area, you're going to have some more progress there. but i think social media is a tool that, i think, does way more good than bad. but we're going to have to sort of look and learn about how we can deal with, you know, these closed communications. i think it's worth noting the fact that people have facebook friends or twitter followers, who basically believe the same thing, is more of a symptom of something larger that's happening in so tciety. offline it's happening too. people are hanging out and living in and going to school with people of the same opinion. so there are precincts in this country, in san francisco and new york, where mitt romney got zero votes. not a single person voted for mitt romney in that area. and there are precincts where

barack obama got not one vote. so it always becomes easy for people in politics and the media to blame twitter and facebook, and it's made our politics uglier, more confusing, or now people are less informed than they were before. we got to think on bigger things, rather than just what the social media platform of the day is. >> and because of that point, we made a specific design position on brigade, maybe it's background checks required for gun purchases, on what informed citizens do, they take a position, they agree or they disagree, but then they have an ability to leave a reason, to comment, to vet, to post more content. so we made a design decision to structure it as a debate with different perspectives. i would rather in the long run, have a crowd-sourced multi dimensional debate where truth gets created over time and can

be revised and updated, more of a wikipedia model, than a kind of expert-driven, you know, encyclopedaedia britannica mode. the internet offers that, but it's going to require time and tools and social norms for that to work for. >> everyone. >> if you haven't downloaded brigade, i encourage you to do it. there's a cool feeling when, because what happens is, you leave a reason, and if someone changes your mind because of your reason, you get a notification. so and so changed their mind because of what you wrote. that gives you a rewarding feeling. so on guns, taxes, women's health, maybe i'm not gonna convince a bunch of people, but in the course of reading about this, the first san francisco election i ever voted in and reading the back and forth on

that, you hear really interesting arguments about things you wouldn't have otherwise thought of. so it's a totally interesting thing when you do the -- my first time of the million ballot initiatives here -- [ laughter ] -- incredibly helpful. >> bring that one to california. i feel like you're talking to me. i've already said i'm going to download it. >> i wasn't trying to be subtle. >> that was great. and with that, we'll go to our last question of the evening from the audience. >> it's interesting. i was going to ask about what you were talking about, which is the unintended consequence of technology actually helping polarize the nation more. i was going to compliment you on what you just mentioned at brigade, it's the only place where you see both points of view. my question is, what role do you see yourself having on actually using technology so we can graduate and use it as a way to work together? there's so much overlap on

issues like immigration that different groups on the different sides agree on, but when you go into this world of sorting and dividing, i'm not going to work with that person because they're so evil, that even though we agree with each other, we're not going to work. and that's what's happening. so my question is, how important is that for you at brigade, and what are your thoughts about how to work on that? >> thanks for the question. i think in the long run, it's absolutely critical. our mission is to empower people to play an active role in their democracy through collective action. we want to help people build real influence. so discussion and getting informed and learning about yourself and where you stand on the issues and forming an opinion on things is a really important starting place. but we have a long way to go to figure out, to build the tools for people to take action and collaborate. jen mentioned brigade -- we both

like that name. -- mentioned the code for america brigades, which are exactly that. those are people with a common vision for wanting to get something done. they have resources and tools, they use technology to meet offline and work together to building amazing things. similarly in the realm of policy and electoral politics, we want to connect new people to work together. which of my neighbors care about the same issues i care about? i wouldn't know where to begin to work with them. and finding ways to reconnect those people and give them tools to organize and get things done is absolutely the long-term vision. >> i think the other place is, we can connect on getting the policy that we think matches our values. but particularly here in silicon valley, we can connect around the implementation of that policy. if you care about immigration, one of the things i was doing when health care.gov was doing their stuff, was working with the immigration and the domestic

policy council. that was when we still thought we would pass immigration reform at the legislative level. and we said, wow, if aca is vulnerable to being threatened by implementation, so is immigration. now, since then, many wonderful people have come from silicon valley to help the immigration -- the straightive things that have to happen if we're going to process many more people through. so there's common ground, i think, particularly in this community around getting the policies to actually work, using digital technology. >> absolutely agree. thank you for that. that was our last question. thank you for the audience, really appreciate it. before we close out, i want to go on to tradition. we'll start with you and work our way back. i would like to ask each of you, what are your 60-second ideas to change the world? [ laughter ] >> i had to go first on that one. obviously personal crowd

fund-raising. [ laughter ] >> obviously. >> yes. >> would you like to expand on that? [ laughter ] >> sure. i was trying to be efficient in silicon valley style and do it in ten seconds. i think the most important thing for changing the world is education. right? it's bringing more -- it's giving people the opportunity to reach their full potential. that can happen in a whole wide array of things. but people's fates are being determined at too young an age. start with early childhood, work your way to learning a specific skill set, that more than anything else, that's on the long arc of the world that will make our country a better place. >> agreed. jen? >> i guess i would say that i think if we all believed and held government accountable to it working for us and for the people that it needs to help, not just us, but people who need

to rely on government more, we would live in a different world. we have a lower expectation, and i think the belief that it could be and the ability to help make it as effective as we need it to be is a powerful idea. it's not only about the delivery of government services which is where we focus at code for america, but it turns out that if we make the delivery of those government services work in the way that, say, uber works, then we get realtime data about what programs work and then government can work effectively, not just at the delivery level, but at the policy level. >> couldn't agree more. matt? >> i feel like i've been talking about that the whole time, probably selfishly, i'm sorry. i guess i'd just slightly reframe it as a better answer to shayna's question, which is that

i want to live in a world where people take pride in having opinions and being civically engaged, not just with their voice, but their hands. and this is a sad statement on humanity, i point back to my health tracker. but i think we're going to have to measure those things and they're going to have to be recorded and it's going to be part of our civic identity online and part of our identity of who we are. but if more of our lives are moving online, my big idea is that being rooted in a community, having opinions, having a stake in society and contributing through my voice and my hands, making that accessible and making it something that's aspirational is the big idea and what we're trying to build. >> thank you. thanks so much. i'm so thrilled to be on stage with you tonight. can we just give our panelists a round of applause.

[ applause ] thanks, guys. don't move. thank you, everyone. is there still wine? no, i'm just kidding. [ laughter ] i was going to send you guys to the wine. >> sunday night on q & a, author scott christiansen provides his thoughts on the documents that had the greatest impact on the world, from the magna carta and the declaration of independence, to martin luther king jr's i have a dream speech and wikileaks. >> there's a lot of criticism of snowden, but there's also a very

strong feeling that he's an american hero. and he's viewed as such around the world. so it does really cause people to question, you know, who controls documents, who owns documents, what's the power of documents, who are these things really about, that the government is collecting. >> sunday night at 8:00 eastern and pacific on c-span's q & a.e2 >> des moines, iowa, simulcasting with c-span. >> here in the state of iowa. >> here in iowa. >> god bless the great state of iowa. >> go iowa! >> the republican party of iowa. >> in iowa. >> in iowa. >> in iowa. >> in iowa. >> in iowa. >> here in iowa. >> in iowa. >> i'm so pleased to do this with wonderful friends in iowa today. >> if you had told us one year ago that we were going to come in third in iowa, we would have given anything for that. >> oh, it is good to be back in iowa. >> people didn't know much about

the iowa caucuses. ♪ >> is there an average caucus? >> that's hard to say. it's the third one i've been to. they're all different. >> 17, 18, 19, 20. ♪ >> it is good to be back in iowa. >> i thank you, iowa, for the great send-off you're giving to us. >> you got to show respect for iowans, they're discerning voters. >> i want to thank the people of iowa. >> i want to thank all the people of iowa. >> iowa is the first. >> i love you all. if i lose iowa, i will never speak to you people again. [ laughter ] ♪ >> attorney general loretta lynch was the main speaker at

this year's martin luther king day breakfast, hosted by the national action network. she discussed the justice departments civil rights prosecutions. other speaker, eric holder, john king, and national action outh network president al sharpton.s. this is two hours. >> hey, where's the line?wher all right.that that's a little better.r.ha happy king day. happy kingpp day. >> happy king day. >> oh, come on now. remember when we used to have t? sneak in happy king day, it wasn't really official, so you'd sneak and not show up. you go to work and they say, where were you yesterday? knowing we all took the day off for king day, so let mesay i heu all say it. happy king day.tter. >> happy king day. >> that's a lot better. it's my pleasure and privilege

to be able to bring up reverend al sharpton, who is the founder of this glorious band. like t but before i do, i'd like to take a note of personal privilege, because we always talk about reverend higgs that tomorrow is not promised.pro and for me it was almost not re promised because i was almost i not here htoday. i had a very serious surgery last year, that almost took my m life, left me paralyzed on my a left side, and i had one call tl make. and i to called reverend al sharpton, who prayed for me. and i want you to know, reverend, all of that paralysis, when they said, get ready, you might not survive, i couldn't lift my hand, that healing that, you gave me, they ought to just look right now. thank you so much for the prayer that you gave. this man looked out for the disenfranchis disenfranchised, the turneded

out,,l the shut in, he'sad been doing e for years. let's bring up the head of our wondererous band, the one and only, the reverend al sharpton. [ applause ] >> thank you. thank you. thank you very much, and thank o you nate u, nmiles. i grew up in the church of god and christ for reverend jens ans reverend hicks baptized me baptist. ba so we believe in healing. i might have to go back in the healing business. let me welcome all of you to the king day breakfast for national action network in washington. this is what we do annually. but this is the 30th anniversary of it being an official holiday.

and we must remember that even the holiday was not automatic.hd had it not been for mrs. corettn scott otking, and congressman jn conyers, and reverend jackson cr and s others, we would not havea had ave federal holiday. i was asked this morning, what does the holiday mean?an. when you think of 30 years ago,r whens i was a younger man, we never thought, 30 years later, l on the king holiday, that we would have a black president, a black female attorney general -- [ applause ] -- who succeeded a black male attorney general. [ applause ]

it's a long way from bull conner to eric holder. it's a long way and a long but journey, but we have yet a long way to go, because even as we e celebrate that black unemployment is still high, questions of policing and profiling is still before us. economic challenges are still o before us.re and we still must face those challenges.se and that is why national actionl network and others must stay on the forefront of raising these g issues. it'shese not enough to remembee king and not really try