i think the invisible hand of government is now dramatically slowing our recovery and those investment decisions. you see that in the unemployment numbers today. according to the house survey, employment declined by 785,000 in september. . . >> what have the household

surveys been in the past month? the household survey -- we'll have to look the numbers up. one second here. .. >> is one reason for that because the number of those no longer in the work force increased by 870,000? >> yes, there was a decline. >> if those people stayed, unemployment would likely be higher? >> yes. >> the administration model planes job growth even as the date it shows job losses. do you know the number of unemployed in september? how much has increased since january? what is that? >> the total unemployed in september was 15.1 million. that is an increase of about

200,000. >> the gentleman's time has expired. >> thank you for being here. i appreciate you going through the areas where we have seen job losses. i think some people think the money from the recovery package when into government workers. i think it will be interesting for them to know there has actually been in the -- been a decrease in government workers. most of the money was used in the private sector. 1/3 was tax cuts. 1/3 was forced the government issues. 1/3 was spending for roads and bridges and broadband. the vast majority went to the private sector. is that correct? so. >> the retail trade number where you have seen a decrease in net, you're talking to people buying things? >> basically, yes or. >> and i was just reading an

article this morning about this, but individual spending has gone down as their savings rates have gone up, is that i? >> i believe that is to. >> to see that in other recessions we've had in the past? >> that's a good question. i'm not sure i know the answer real well. i believe that's correct. that does sound right. people 10 to repair the balance sheets i might in fact increase their savings. >> and then manufacturing, we are aware of that issue in construction as you pointed out. is there a trend in parts of the country, say, is the unemployment rate higher in the west or the south or do you see any trend? i know when you and i have discussed this before, and there is a patchwork of states that didn't really have one part of the country that was faring worse. >> sure. i can tell you generally the regions. the regions that have been

hardest hit this recession, hardest hit regions has been the west, and maybe the midwest. and the northeast has been maybe the least hard hit. the west lost about 6 percent of their jobs were the northeast lost about 3%. >> one of the things we're debating right now is the extension of the unemployment benefits and there is a proposal out there, the house proposal that only those unemployed in states that have a .5% or over unemployment will get an extension. i have an interesting letter from one of my constituents that said that maybe minnesota's rate is 8%. but at her house and its 100%. one of the things that i am grappling with is regions, say wisconsin next door to us, has an 8.8% employment. we are at 8%. yet a region that stretches across both states have similar unemployment rate. i'm very concerned about this kind off that we look at it that

way, doesn't quite make sense to me. i will say compared with wisconsin, we did get one more increase in employmenemployment in minnesota when we hired brett favre from wisconsin. so that maybe can account for some of the difference. but i am just wondering if you have seen this before, and what kind of economic, don't make some joke about clogger for cash because he has turned out to be very good. all right. so what i'm wondering about what i would like to know is headed in the arbitrary cut off and is this way we should go when states -- what kind of incentive would we be creating in these? >> i don't want to comment on the policy aspect. >> please do. >> i will say though that the change in unemployment rates during the recession for states clearly somewhat depends upon the industry mix in those states. but there really does seem to be sort of a state level, you know,

where some states start with a higher unemployment rate before the recession. so i don't see a sample story as to what states are going to jump above the level you talk about. i don't see a good way of predicting that during a recession. >> do you know much about the history of the extension of unemployment benefits, and if they were set at a certain rate for which he states, which unemployed get them and which don't i don't. >> the changes in temporary services, i think i read somewhere this morning at your numbers are going to show that actually they have seen job loss in temporary services, is that right? >> yes. they lost 2000 jobs. >> didn't you tell me before that an increase in temporary help can be a sign that that's what companies do first, they hire these temporary workers so it could be a good sign that it's going to leave later. what do you think this means? >> well, this is a moderation actually and lost in temporary help.

last five months temporary help has lost something around nine or 10000 jobs a month. 2000 as a little bit of a moderation. i would say a moderation job loss in temporary help is probably not a bad sign. >> so in other words, it actually has moderated and gotten better. so this argument that companies start hiring temporary workers and then eventually hire permanent workers could still stand to? >> yes. >> thank you. >> thank you very much. dr. hall, i just want to talk a little bit about how this economy has affected women and people of color. in particular, what industries have women and people of color lost the most jobs? >> it varies a bit.

african-americans have lost a lot of jobs and manufacturing, and wholesale trade, in terms of percentage. information services. it's actually been pretty broad. for hispanics, it's also been pretty broad as well. although their job loss probably was in construction work more so than other groups. >> where you finish. >> you know, there are some areas where there actually hasn't been job loss for certain groups. for example, education and health, hospitality or hispanic. they have actually had some job increases over the past year. >> one of the most alarming statistics is with regard to african-american teen

unemployment. i think it was up to 40.8 percent in september. and that was up from 34.7%. is that correct? while you are looking, if that is accurate, what is the significance of that? >> well, that is accurate. >> normally, i mean, is the teen employment rate significant in regard to what you could tell, to contributing towards a families stability financial stability and having the funds to do what they need to do to survive? >> well, certainly african-american teens are being hit much harder by the recession and the most always are. it's gone up quite a bit that

it's been absolutely and probably should have implications for family finances. >> do you have any reasonable explanation for that? in other words, why that number? we are approaching a 50 percent of african-american teens, and i assume these are people who are ready, willing and able to work, don't have jobs. >> i don't have a good explanation. i'm not that familiar with economic research literature that would explain that. >> has the unemployment rate for color leveled off? >> it has slowed down pretty much like the overall unemployment rate. is still probably roughly leveling off but it's moderated a little bit. >> and women in recent decades

in increasing proportion of women's, 55 and older are working and this trend has continued during this recession, while decreasing proportion of men 55 and older are working during this recession here can there be reasons for the difference other than a recession has hit male-dominated industry harder? >> there might well be something more are going on. because the differences are fairly surprising. >> why do you say that? >> well, the big differences for women 55 and older, their unemployment rate is doubled during this recession. but the employment to population ratio which will give you some idea of the labor participation, that has gone down for women 55 and older. so really what we see is an increase in labor force participation by women that age.

>> well, could some of that trend has to do with the fact that many 55 to 64 year-old women, older men who have retired or taken by alps are no medicare eligible, women ages 55 to 64 are jet eligible for medicare, and because their husbands are no longer working they no longer have health insurance through a spouse. perhaps these older women are returning to the label force in order to obtain health insurance? >> that's quite possible for our data is not going to tease that out and take that for sure but it's early, but it is consistent with that. >> my time has expired, ms. klobuchar. >> make you very much, mr. chairman. commissioner hall, we talked before about this dramatic difference between unemployment with varying degrees of education. and i always like to see what the trend is here, and i think you have remarked before that compared to other recessions, and correct me if i'm wrong,

those without a high school degree were really soft hard with this recession. what is the employment rate now for let's start with college graduates. on employment rate. >> the unemployment rate for college graduates is 4.9 percents. >> four point nine present. what is the unemployment rate for a high school graduate? >> 10.8%. over double. >> 10.8%. then what is the unemployment rate for those without a high school degree? >> 15%. >> is that relatively the same margin we saw last month or has there been any changes to their? >> it's pretty similar. the unemployment rate for less than a high school paula dropped a little bit, but it may not be statistically significant and there may be some issue of folks dropping out of the labor force as well. >> do you have postcollege greet unemployment for people have an additional degree?

>> yeah, we do. we don't have the data with us. >> i would like to see that. it would be interesting. lederle, you have not quite double the unemployment rate where you don't have a high school >> it is above the national rate with a high-school degree. it is significantly below that if you have a college degree. you can see why we are so focused on trying to make sure high school students get some college education. we will continue to pursue that. i think it is very important. the second thing i want to ask you about is that i think that people are stunned when they learned that our soldiers to come back from serving in iraq and afghanistan, the group that we categorize in the age group that had served in the armed services since 9/11, their unemployment rate has been traditionally higher than the

unemployment rate of the average citizen in the united states. where is that this month? >> the unemployment rate is 10.6% as opposed to non-veterans where it is 9.2%. >> you and i have talked before about how this was worse earlier in the year. is that right? is it always just slightly above the national and a plenary? >> it is generally above it. >> it is always above it, i think. i just wonder if it has been more about it. >> in 2009, it has been about the same gap. >> i think that somewhere, it was up more as a percent rate. i think people would be surprised by that. when those who service come home, we want to make sure they have a job. it is difficult.

they may come back in the company they worked for is not there anymore. then they have significantly reduced employment. that is a change. the other thing is the discouraged workers. these are people who would like to work full time, but they can only find a part-time job. is that the characterization of discouraged workers? does that include those who cannot find a job at all? roader category called marginally attached. >> what is marginally attached to give? >> these are people who want to work, but they haven't looked within the past four weeks. so they aren't counted in the labor force because they haven't looked lately but they have looked in the past year. >> so they are not included in his unemployment rate? >> know they are not. >> so this person i mention in my opening statement who has sent out 60 resumes and in 60

places and go to all of these interviews, if at some point she said i can do this anymore and takes a month off from looking, she wouldn't even be included in the unemployment rate? >> that's right. a 9.8% unemployment rate doesn't include people who are discouraged or part-time for economic reasons. >> when you include forgetting the marginally attached once, if you include these people that want to work full-time but are only working part-time, who have significantly reduced hours, and significantly reduced money as a result, once the unemployment rate when you include in? >> it goes up to 17%. >> where is that compared to the trend of the last year? >> it is up by almost six percentage points over the past year. >> is it possible that some of the people who are unemployed found part-time jobs, but it is not where they want to be? >> yes, that is quite possible.

>> thank you. last month when you were here, or the last time when you are here, you sounded relatively and cautiously optimistic. is that a fair statement? >> yes. how would you describe your position today? >> i think this report is very similar to a couple months ago. >> that is what i thought. >> i was a little more enthusiastic because it was a clear moderation from prior. now we are in a position where we are at a plateau with the job loss. it is still significant but not as high as it was before. >> the cash for clunkers program, when you consider that, did you expect to see more or less impact as a result of that?

did you have any idea? you do not have a magic ball. but when you see the commercials and news, considering what you do, i am sure you had some thoughts. >> we did see a couple of months of pick up in employment at automobile dealerships in particular. we did not see a lot in the manufacturing of cars. that was not surprising because a lot of the seals were coming out of inventories. it could wind up being an impact on production cars that could come later than when the actual program was going on. >> it would not surprise you if there was a slight pickup in the future report or two with regard to manufacturing. i think they said they sold almost 700,000 cars. >> that is right. it would be hard for us to measure that.

that is where i would expect to see some sort of impact. >> consumer balance sheets have been severely depleted due to the fall in stock market and declining home values. state budgets have been hit hard by the decline in income taxes, property taxes, and sales tax revenues. we saw small increases in personal consumption expenditures in may, june, and july. will personal consumption spending helped to expand employment in the retail sector? >> yes, it will. it may not happen immediately. sometimes, there is a bit of a delay in employment. even if consumption picks up, this is part of the lagging effect of the labor market. businesses will take a little time before they bring on employment even when sales pick up. >> you were talking briefly about savings. what is the significance of

people saving questi? i guess that means they are not saving -- spending. does that help? >> in the long run, it can be good. people have to replenish savings. in the short run, it can delay recovery a little bit because people are being cautious and increasing savings rather than spending. >> in august, all retailers saw their sales increase by 2.7%. that was due in large part to a 10.6% boost in sales of auto dealers. most economists agree that this was spurred by the cash for clunkers. we saw retail job losses slowed down sharply in august. do you think there will be a continuing slowing in the retail job area? >> it is hard to say. we lost 39,000 this month.

we averaged about 28,000 lost over the past five months. i would guess that if consumption and retail sales continue to stay up, at some point we will see an employment impact. >> if president obama called you right after you got out of this hearing and said, " dr. hall, give me your assessment of where we are." what would you say? >> i would say that right now we are at a bit of plateau. job loss is significant but nowhere near what it was early in the year. i would say the job loss now is in the range of a normal recession. the six months where we had 650 jobs -- 65 -- 650,000 job losses was unprecedented.

>> to follow up more on the savings issue and the like, does there come a point when consumers who have been saving more money and realizing they have to protect themselves that they have repairs mounting for their homes? in my case with my saturn, i could not even get the window up when it was 10 degrees below zero. but i still kept it even though it was 8 years old. is there some point where people realize they have to replace vehicles or make repairs on their house and start dipping into savings? >> yes. this is one of the characterization's of recessions. it is why it takes awhile for recessions to work out. people are repairing balance sheets and getting back to normal spending levels. that does not always happen.

>> ben bernanke has been suggesting that our economy may be out of recession. he is predicting some growth. he still says we would seek -- i think he predicted above 9% unemployment through the end of 2010. do you agree with those predictions? >> without predicting, i would say that is the way it has worked in past recessions. once the gdp picks up and incomes start to be generated, it does take a while for the labor market to catch up. >> it is hard for people to understand. wall street is doing better. the stock market is doing better. to explain how the economy may be recovering while job losses continued to mount, there are predictions we will see an increase in unemployment. could you explain this? >> i think a lot of it has to do

with what we have been talking about with consumers. consumers confidence needs to get back up. consumers need to be comfortable increasing spending levels. businesses have to work through their typical patterns. one thing that does happen in the early stages of expansions after recessions is that businesses sometimes are slow to bring workers back on board. they take productivity gains for a while. that is part of why we get this lagging labor market recovery is sometimes. >> one of the areas of government policies that i keep hearing about it home is the first-time home buyers credit. the realtors are practically cheering. in june, we had a 20% increase over the same month a year before in new-home sales.

that was in home sales. . what are you seeing in the housing market? maybe you godo not collect the data, but it does not appear to have gone into new home construction. >> employment in real-estate increased this month by about 6000. i believe that is the first time in a while to have that increase in employment. it does look like that new-home sales date it is flat. it may be picking up a bit. there is an issue of inventories. when the sales pick up, existing home sales will start to go on the market. in terms of the labor market construction, in the past when new home sales picked up, employment in construction takes awhile to pick up. it takes between a year and a year-and-a-half for construction employment to start to pick up once new-home sales start to accelerate.

>> very good. thank you very much. >> talking about new home sales, i assume at some point, there would be a relationship between new home sales and manufacturing areas such as refrigerators, stoves, air- conditioner is, and things of that nature. when do you expect to see that with regard to what is happening now with the home sales situation? >> i think the story is probably going to be similar. it is hard to track all of those things with new home sales. people are not always buying a new refrigerator for a new home. i have not looked at the data, but i would think it would track reasonably well with new home

construction. there will be a pick up in some of these related areas. >> if someone is watching this now who has a bs degree and is out of work and you were to tell them where they would have the best chance to possibly get a job -- i am sure there are a lot of people in that position. based upon what you see and what your research shows, what would you say to them? what areas would you tell them that they might want to look that is geographically. what kind of job should look for to have the best chance of getting a job? >> that is a good question. it is very hard for me to offer advice on that. in part, it is because i have

not looked at that really carefully. >> we do know that there are certain parts of the country where the unemployment rate is low. >> it is lower in some places. >> with that have a bearing on any information you would put out? >> -- would that have a bearing on any information you would put out? start there. >> states that have the lowest unemployment rate, in general, the northeast has the lower unemployment rate. it is not a lot lower. it is about 9%. i will just mention some of the states. we have this up on our web site. north dakota, south dakota, nebraska, utah, virginia, montana, wyoming. those of the states with the lowest unemployment rates right now.

it is a fairly long list of states that have below average unemployment rates. >> this whole idea of consumer confidence, it is so easy for us to say that the sky is falling. if we say that the sky is falling, it has a tendency to make people believe that the sky is falling. i think it has a tendency to add to the problem sometimes. i do not think we should be overly optimistic, but i do think we should call it like it is. if we are moving in the right direction, we need to say that so the american people will be clear on that. we also need to keep in mind as ms. klobuchar has so eloquently stated, where we have come from. i think we have come up very long way. >> yes, we have.

>> why do you say that? >> we have moved into a time where the job loss is somewhat like a normal recession. we did have a six-month period of job losses that was unprecedented. our benchmark revision come january will add to the job loss over that period. we had a lot of businesses closing down. that is not happening anymore. >> what are the main differences between the current recession and the two prior recessions? the characteristics of the workers losing jobs in this recession versus those who lost jobs in previous recessions, how do they differ? >> recessions do wind up affecting everybody. this particular session was so broad and deep -- this particular recession was so

broad and deep that it probably impacted all groups more seriously than the past couple of recessions did. i thought the last recession was rather notable because it was mild. it was a recession were consumer spending never really turned negative. consumers kept spending through the last recession. in this recession, that has not been the case. that is one reason why this is so much more severe than past recessions. >> i know we have a lot of national dues from up here on employment. going back to the companies that i meet with almost on a weekly basis, they consistently say, separately they arrive at the exact same conclusion. there are two of them. one is that you in congress are

the problem. our clients and customers are delaying decisions because they see proposals to raise energy costs dramatically, to increase utility costs, to raise health care costs on every size business. the you see proposals to raise income taxes on small businesses -- date c proposals to raise income taxes on small businesses trying to market products around the world. their clients and customers are frozen. they are waiting to see what the hand of government is going to do. they are convinced we are slowing economic recovery. slowing this economic recovery. last week, i had a manufacturer, a small manufacturer, pretty good sized construction company, one was an employment firm telling me that they are not seeing the orders for part-time employment and rehiring back retail or manufacturing.

numbers today sort of bear that out, the index of total private aggregate weekly hours declined sharply last month, total private hours declined overall including in manufacturing. they don't see the indicators that show that people are making those decisions. can you tell us your observations from the numbers today? the numbers are going down. >> yes, they are. these numbers still don't show a healthy labor market. we have significant job loss. also we have most of the job loss in four sector is the weakness is very broad. so we still have some work to do, we have some improvement to

go before we see the end of the decline in the labour market. let me say one thing as well. i think of a recession as an illness. there are phrases that the economy goes through the recession. we have been in a phase where the job losses have been around 300,000. this month a the last. past rich edson, a the job loss has been around 0. the next phase, we have significant job growth. if i'm trying to be encouraging to folks, there are normal phases for recession, and i don't want to predict when a past recession goes through these faces every time. >> tell me, you testified recently our ability to sell

products around world have been a growing part of the economy until last year, 6% of our new growth, the understanding that it is not enough to simply buy american any more, we need to sell american products and services throughout the world, yet we have seen a major decline in that. we don't have a trade agenda. other countries are passing america by, signing agreements that give advantages to their companies over american companies and you have a rash of new proposals, one of which is included in the house health care bill that punishes companies for selling their product around world. we have the example at this meeting where one of our companies has a project in algeria, employs 28 workers there, almost 400 workers that support that project, operate in the sense, monitor it, they bring saying that other

countries are aggressively courting our investment. opening up areas to energy, lowering taxes, yet america is doing the opposite, shutting off our energy resources, increasing energy costs, increasing taxes on u.s. companies. do your numbers track jobs created by selling american products throughout the world? >> in a sense they do. weekend tell you where the product are sold, but the products could go anywhere, the united states or abroad, they could go abroad and come back. >> you don't break out the export jobs. is there a way, is there a model that you can create or try to make the estimates as you look at a number of different criteria, is there a way to track those things?

>> it is difficult. we are sending surveys to establishments. the people in the establishments may not know where their products are winding up and that it's to be difficult to track that information. there are some research studies that could be done. with our particular surveys there's no way to separate out the exports. >> thank you, amy klobuchar. >> mr. chairman, i was listening to congress and brady's questions, and we share a belief that we need to promote more american product exports. i am chair of a subcommittee of focused on export promotion. we are having a hearing next week. i was thinking about this argument that somehow all the problems we are having right now, this unemployment rate is

somehow caused by uncertainty about government policy. the two areas we have been discussing in congress are health-care. how is the health-care sector doing with unemployment? >> the health-care sector gained 9,000 jobs this month, the last five months it averaged 24,000 jobs and during worst of the recession it still gained 25,000 jobs per month so it has looked relatively recessionproof. >> where we are having the major debate, arguably facing the greatest uncertainty, has actually, in its response to government policy, has seen increase in employment? >> the health-care industry has not shown obvious signs of the recession. >> what about the energy jobs? you haven't mentioned those. >> let me see though.

>> i'm from houston and i can tell you how we are doing. >> i am looking at the entire country. in our state we have seen increases from wind and solar. we have gone up in the energy area. >> i have to get that information for you but we do have data on mining employment, and employment related to oil exploration and things like that. >> north dakota has the lowest unemployment rate. they are really an energy bastion with renewable and will. >> we have had significant job growth related to energy, even during the worst of this recession when gasoline prices were high. employment declined, there have been months,s where it grew a bit. >> when you look at past recessions, where we have -- you

have said before that as congressman cummings describes, the effect of this recession, a near depression and the beginning was catastrophic compared to other recessions. but as you described this lengthy recovery which is still going on, it mirrors some other ones, maybe not in the length, you see similar signs. is that right? >> yes. >> to those of the recession have major economic debates over the heads of the citizens? health care and energy and those things? >> maybe, but this argument that fact we are debating major issues that are affecting the middle class doesn't make sense, but you don't have to answer that policy question. i just wanted to end by saying first of all i appreciate the detail that you bring to this

committee. it has given me and people who are watching this on c-span some understanding of the issue and long term complexity of it. from my perspective, what you have told us is we have seen a leveling off of this job loss. but we are facing significant issues here. we are seeing recovery in certain sectors and certain parts of the country, we are continuing to see significant unemployed people. as i always do i want to end with these real people stories as we look at this extension of unemployment benefits issue. that is 8% unemployment. someone wrote in a i am worried, as the winter is around the corner, i have worked all my life, i am 54-year-old, i have been employed, unemployed for 24 months, where are we to go?

we cannot wait for years. a woman named barbara from minnesota, my husband was laid off in march of this year from his union construction job and is currently using his unemployment benefits. two of our adult children are looking for work after being laid off. what are we supposed to do? my husband has been looking for a job since march. we need to remember that while some people on wall street may be recovering there are plenty of people on main street who are going to need help. thank you very much, commissioner paul. >> thank you, miss amy klobuchar. i want first of all to thank you, commissioner all, for the before i give my concluding all your service.

difference on capitol hill and so many other places and they bring the balance and information and things we need to get our job is done. we wish you well and we thank you very much for your service. also -- [applause] -- let me say yesterday, one thing that secretary lahood talked about when the package was getting a lot of complaints, he said that he was seeing people who have jobs as result of the stimulus when one month ago, they were drawing unemployment. as i listened to ms. klobuchar,

i am reminded that there are so many people who are fortunate to have jobs and so many people lost their jobs. people never thought they would be in this position, but they are. i believe this president constantly reminds us that it was a set of circumstances that were very unfortunate. as one great philosopher once said, it is not the hand that you are dealt. it is whether you properly rearranged them to work for you. i believe that is what we are doing. will that hand healed the results that we want tomorrow -- will that hand give us the results that we want tomorrow or next month, probably not. but based on what i have heard today, we are on the road there. one of the things that you said, and i will finish on this, is

that these recessions apparently go up and down. it is like an illness. you have good days and bad days. my father was a former sharecropper year. he used to say that life is like caterpillar, two steps forward, three steps back. five steps forward and three steps back, but eventually it gets to where it it needs to go. if i listened to carefully in the memory of my father, i think that is how we are proceeding. but least we're going forward. that is good. thank you. this hearing is adjourned. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009]

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[inaudible conversat >> vice-president joe biden shared his comments at a white house meeting with economic advisers. and about five minutes, we will hear more from president obama. >> good morning. we are here in the roosevelt room to talk about the task force meeting to discuss our

plans. the middle class task force was designed to make sure that everyone who aspires to the middle class has a chance to get there and stay there. the goal is what we set out on day one. the measure of success is whether the middle class is growing. today, we learned we still have a lot more work to go. we along we to go before we get there. we just learned that employment fell by 263,000 jobs last month. the unemployment rate increased. it is true that this reflects an improvement of overall things based on the results of our policy. in the first quarter of this year, we were losing jobs at an average of 700,000 jobs per month month after month. in the quarter that ended this week, the loss was 250,000 jobs per month.

that is 2/3 less. we also knew all along that the recovery would take a long time. we inherited a lot of baggage. we knew the recovery would come in fits and starts. job creation would be the last element to come into place. those were the realities that we inherited. those are the realities that we know. those are the realities that we acknowledge. those facts and realities are not good enough for president obama and they are not good enough for me. we do not think that less bad is good. less fat is not our measure of success. one job lost is one too many. there is still too much pain. they're still too many hard- working americans without a paycheck. there are too many families struggling to get by. while the peers of depression have been replaced by forecasts of recovery, rigid while the fears of depression have been relplaced by forecasts of

recovery, they're still concerned. we're forecasting a positive growth rate in jobs. the act is already saved in created 1 million jobs. it is a vital part of the economic plan. we have the financial rescue plan, the housing plan, the small business plan. we are working hard on every front to turn this economy around. as bad as things are, they would be far worse without the recovery plan or these other efforts. it is why we have worked to accelerate recovery spending, getting money out the door on schedule. that is why we announced yesterday 9 ambitious goals for the recovery act to perform between now and december 31. today's tough news is a reminder of how critical this work is and why.

as i told the cabinet assembled yesterday, those efforts need to be redoubled in the weeks ahead. let me be clear about one thing. today's bad news does not change my confidence in the fact that we're going to recover. we will be producing jobs. the american economy and the job engine will be created and moving once again. i believe we are doing the right things to move things in the right direction. the determination and creativity of the american people combined with our determination to stay the course in this recovery will produce the ultimate result of a vibrant and growing economy. that brings me to the meeting we are having today. we are working with the task force to lay a new foundation for economic growth. the future is predicated on a good education, high-quality health care, and clean energy innovation. it is a feature that does not

leave the middle-class behind. there will be peaks and valleys in the process. it is not a straight line to recovery. but we are recovering. we will recover. we are determined that when we do, the middle class will be in a better position coming out of this than when it went into this great recession. i thank you all very much for taking the time to come in. we are going to get about our work here. >> i have a question. >> we're working on finishing the first one and doing it right. thank you. >> president obama talked about the september unemployment report upon returning from copenhagen. he discussed the olympic committee's choice of rio de janeiro to host the 2016 olympics. from the rose garden, this is five minutes.

>> one of the things that i think is most valuable about sports is that you complete a great game and still not win. although i wish that we had come back with better news from copenhagen, i could not be prouder of my hometown of chicago and the volunteers that were involved. mayor daley, the delegation, and the american people for the proposal that we put forward. i do want to congratulate the edition narrow and the nation of brazil for winning the 2016 olympics. -- i do want to congratulate rio de janeiro and the nation of brazil for winning the 2016 olympics. these are the first olympic games that will be held in south america.

as friends of the brazilian people, we welcome this extraordinary sign of progress and the fact that the 2016 games will be in the americas. i gave them hearty congratulations and said that our athletes would see them on the field of competition in 2016. i want to thank everyone that worked so hard to put america's bid together. i want to thank the thousands of chicagoans who volunteered over the past few years. they put their heart and soul into the bid. i have no doubt it was the strongest bid possible. i am glad i was able to come in and help to make the case in person. i believe it is always a worthwhile endeavor to promote and boost the united states of america and invite the world to

come see what we are all about. we would have been eager to host these games. as i said, this nation and our athletes are still very excited to compete in 2016. we want to say once again how committed we are to the olympic spirit. i think it represents some of the best of humanity. i also wanted to say a few words about the unemployment numbers that came out today. as i said before, my principal focus of each and every day and the focus of my economic team is putting our nation back on the path to prosperity. since last winter when we were losing an average of 700,000 jobs per month, we have certainly made some progress on this front. today's job report is a sobering reminder that progress comes in

its and starts. we are going to need to grind out this recovery step-by-step. from the moment i took office, i made the point that the unemployment -- employment is often the last thing to come back after recession. that is what history shows us. our task is to do everything we can possibly do to accelerate the process. i want to let every single american know that i will not let up until those who are seeking work can find work, until businesses seeking credit are able to get credit, and until all responsible homeowners can stay in their homes. that is our ultimate goal. it is one that we're working every single day here in the white house to accomplish. whether it involves implementing the recovery act that is already helped to bring back america from the brink of a much worse situation, or lowering the cost of health care for businesses and families.

that is why i am working closely with my economic advisers to explore all options and measures that we might take to promote job creation. whenever i see statistics like the one we saw today, my mind turns to the people behind them. honest, decent americans who want nothing more but the opportunity to contribute to their country and help to build a better future for themselves and their families. building a 21st century economy that offers this opportunity will be an economy where people can receive the skills and education they need to compete for the jobs of the future. that will not happen overnight. we will build it. i am confident and determined. on behalf of every american, i will continue in that effort each and every day for as long as i am in this white house. thank you very much everybody. >> general mcchrystal!

[cameras] >> both the house and senate are planning to debate health care legislation later this month. the senate finance version without the public option is awaiting cost estimates before the vote next week. the house is also looking for cost estimates on its bill. on the floor next week, both the house and senate continue the debate on federal spending. the debate began yesterday. congress has yet to pass the bills allowing the funds. they're operating under temporary authority. the senate will gavel and at 2:00 eastern time. the highest court of the nation begins a new term. at 6:00 eastern, we will have a preview of cases the supreme court will continue.

the discussion will take place at the college of william and mary law school in williamsburg, va. >> justice o'connor insisted that we have lunch every day when we were sitting. now, clarence, you should come to lunch. she was very sweet, but very persistent. i came to lunch. it was one of the best things i did. . .

>> it all starts sunday at 9:00 p.m. eastern. for its special preview, join us sunday at 8:00 p.m. eastern for questions and answers. >> this weekend, "empire of delusion." former middle east bureau chief at the new york times argues that we now live in two societies, one based in reality and the others sat in fantasy. >> a live picture from the william and mary law school in williamsburg, virginia, where coming up shortly we will have live coverage of a moot court competition. it is running a few minutes late but we will have live coverage when it gets underway. the u.s. rejoined the u.n. human

rights council earlier this year, reversing a decision by the bush administration. the assistant secretary of state for organizational affairs discusses some of the actions taken by the council in recent weeks. this is about 15 minutes. >> good afternoon and welcome again to the department of state. this is the second of three briefings we will have today. obviously, you saw last week the quite effective general assembly at the u.n. engagement by the president and by the secretary of state. the quarterback of that effort is our assistance secretary for national organizations. also, we had an important meeting today with the secretary general of the oic.

the real reason i wanted to bring her down here today is the significant activity within the human rights council this week, both in terms of passage of a very important resolution on freedom of expression, but also some other activities that have been going on this week with the goldstone reports. lots of things going on. we thought it would be inappropriate time to bring her back down to the briefing room. -- we thought it would be inappropria an appropriate timeg her back down to the briefing room. >> at that time, i expressed our clear intent and our desire

to work constructively with the council and its members to protect and advance the rights enshrined in the universal declaration of human rights. the decision of the u.s. to rejoin the council was motivated by a desire to protect and promote human rights through engagement, our commitment to the universal application of international law, including human rights law, to all members of the international community without exception or double standards grounded by fair minded fidelity to the truth. in giving greater volume to our views on these issues under its purview, the united states signals the president's era of engagement is well underway. today marks the end of the council's 12th regular session, and the first with the united states as a member. these three weeks, fall as they have been with negotiations,

debate and, has been a terrific learning experience for us. we saw the strengthening of the mandate of the independent expert on somalia, the continuation of important accounts to work on cambodia, a new resolution co-sponsored by the united states on the independence of judges, and resolutions on hiv/aids, extreme proverb -- extreme poverty, and other topics. have we agreed with all of the actions at the council session? no, of course we have not, but that was not our expectation. we have, however, launched a partnership to build partnerships and strengthen dialogue to transcend some of the impediments. we discussed with council members, in particular, the

state of israel as well as the palestinian authority how to approach the goldstone report. the united states has reviewed the you -- has reviewed the report carefully. it's sweeping factual and legal conclusions and many of its recommendations we are concerned about. however the issues are difficult and the stakes are high. linked as they are two fundamental goals of security and peace for both israel and the palestinians. israel's right to self-defense and security must never be diminished. we must do everything in our power to end the suffering of innocent israeli and palestinian civilians. we appreciate the decision to defer consideration of the goldstone report and will continue to focus on working with israel and the palestinian authority to relaunch status

negotiations as soon as possible. we also encourage domestic investigations of credible allegations or violations of international human rights and humanitarian law. i would like also to highlight for york a particular attention an important early success from the last three weeks. today, the human rights council adopted by consensus a resolution affirming the fundamental, universal values of freedom of speech, opinion, expression, and freedom of the media. the resolution also speaks out forcefully against efforts to interfere with the exercise, including journalists, writers, internet users, and human rights defenders. it calls on all states to end -- >> we leave this event to take you back to the college of william and mary law school for live coverage of a moot court

competition and a preview of the upcoming term of the u.s. supreme court. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> the preview is an opportunity [inaudible] we begin each preview with a moot court predict this year's preview is on the question whether a juvenile offender can be given a life sentence without the possibility of parole. in april, 2008, a florida appeals court ruled that it was not cruel and unusual to impose a life sentence on a 17-year- old who committed a series of home invasions. 18 months earlier, he pled guilty to both armed burglary and attempted armed robbery. at that time, he was ordered to spend one year in pre-trial detention facility. in april 2008, the appeals court -- the decision struck

down the death penalty for minors. on may 4, two dozen men, the justices agreed to review the decision -- 2009, the justices agreed to review the decision. with that little bit of background, it is time to begin our moot court. >> all rise. the hon. chief justice and associate justices of the united states. the court is now sitting. god save the united states and this honorable court.

>> the court will hear arguments now, graham v. florida. you want to reserve three minutes for every bottle. we want to hear from you now. >> the judgment of the florida supreme court affirming mr. graham's life without parole sentence for the crime he committed should be reversed for two reasons. a sentence of life without parole imposed on a juvenile for a non-homicide is cruel and unusual punishment. mr. graham's life without parole sentence for armed burglary is

excessive and disproportionate. this court held in a previous case that the death penalty was not a permissible punishment for people under the age of 18. the logic and reasoning in that case brought to bear on the problem before it leads inevitably to the conclusion that life without parole is a disproportionate punishment for someone who does not commit a homicide. >> with this have been a disproportionate punishment under the eighth amendment? >> yes. >> suppose your client committed a string of seven burglaries or armed robberies and the judge sentenced him to 15 years. with that violate the eighth amendment? >> that, i think -- it may depend on the facts of the case. as a categorical rule, that would be at the outer edge but that is an issue that does not have to be addressed.

life without parole is a disproportionate punishment. the court does not have to go further in this case and decide where to draw the line. >> parole would be constitutional? >> life with parole would probably be constitutional depending on the range of the poor will time. -- range of the parolet ime. >> why is life without parole on constitutional? is it because he is a juvenile? what line are you asking us to draw? >> it is disproportionate as a class of juveniles for non- homicide. it is disproportionate for the reasons that this court said the death penalty was an inappropriate punishment in roper. . >> death is different so i do not think -- >> i am not relying on the case for its holding but the approach

that this court brought to bear on the problem. excuse me. >> has discord ever approached a sentence other than death by carving out a category of individuals for whom cannot be eligible for that punishment? >> no. >> is that when you are asking us to do? >> the important part of the case was not the holding that relates to capital punishment but the class characteristics that this court identified in juvenile that made the death penalty appropriate. first, people under the age of 18 has a lesser sense of culpability because of their brains are not fully formed and an underdeveloped sense of responsibility. this court noted they are more acceptable to-peer influences than adults. >> are we going to take adkins and extend that to life without parole, to provo?

>> i don't think you have to do that. there is one primary feature of juveniles of adolescence which is different. they are not fully formed. >> as i understand it, the sentence originally imposed on your client was a suspended sentence and if he did not do anything else wrong, that sentence would have gone away. what actually led to his being sentenced to life without parole is that even after the point at which we do treat people as fully formed, he continued to be a bad actor. i am not sure that that theory gets you very far with your client. >> first, it is not factually correct. the violation of his probation occurred when he was still a juvenile. >> if it would have occurred when he was 18 -- >> i don't think so.

the crime for which he was -- for which he pled guilty to the armed burglary, he was sentenced to three years, two of them to be probated. it was the violation of his probation that led to his life without parole sentence. if you want to do a straight ruml analysis on this sentence, it is excessive. the initial judge thought the upper presentence was three years. they decide to give him life without parole. it exceeded the recommendation the department of corrections was 48 months. >> why is this extensive -- why is this an expensive under three strikes? if he stole a piece of pizza out not for his third offense, we suggested it is perfectly fine to impose a life sentence. >> those cases involved an adult, not to announce.

the fundamental characteristics of children is that they are not fully formed. their characteristics are transitory. >> if the defendant commit an armed robbery when he is 17, he gets out the day before his 18th birthday, he commits another armed robbery the day he turns 18 and his sentence for that and the judge says i am not sentencing you for the prior crime but for this crime. i am going to sentence you for life without parole. it would that be constitutional? >> it depends if it is on the facts of the case. if we are talking about -- >> it would not apply to -- >> mr. gramm was not sentenced. the state elected not to try him for the substance of conduct. this court is recognized in alabama vs. shelton in other cases that that was a different

thing. he was never found guilty and those crimes. he had no right to jury trial progressed so under your approach probation proceedings maybe we need to require parole proceedings? >> no, i don't think so. there are two rules at play here. life without parole is disproportionate for a juvenile who does not kill. florida isn't out lawyer in that situation -- is an out-lyer in that situation. >> the state says in its brief that three-quarters of the states permit life without parole for juvenile offenders. >> not for a first-time offender. 76 of the sentences are in the state of florida. there is no juvenile anywhere else in the country doing life without parole for an armed

burglary. >> just to follow up on the question, what states actually have a ban on life with parole for juveniles? do states have that law or is it by happenstance that the numbers are disproportionate? where are the actual statutes? >> the statutes are essentially variable. many of them depend on whether the person has been tried as an recidivist. there are only 29 other in the state of florida doing life without parole for a non- homicide. this greatly exceeds the average sentence not only in the state of florida, for even murder, but there are only six states in the country that is sentenced to do now without life -- >> what is the non-homicide

matter in your analysis? i don't understand if we should be focusing on the roper theory. the homicide in the case was worse than most of the homicides that lead people to get the death penalty. >> kennedy vs. louisiana was a case about the death penalty disproportionate in the analysis. the court looked at the crime and said while murder is different. other crimes are horrible. >> you can put somebody in jail for life without parole for possession of a moderate amount of drugs. i feel like we are in a 3 card monte. if we start talking about the defense, you start talking about the offender. >> i think they are all relevant. all of those things have to be taken into consideration in determining whether the life

without parole sentence imposed is constitutional or not. >> are you backing off of your perce when you start talking about the particular offense? the fact that there are new juveniles in jail for life without parole or non-homicide offenses, are you telling us that the ones that are in jail for homicide offenses, that is ok so there is no per cent rule that to announce cannot be in jail for life without parole? >> our position has never included to announce that committed homicide. >> what is your position? >> the categorical rule proposed in the brief is that life without parole for a juvenile offender for a non-homicide is under all circumstances is cool and unusual. >> does the constitution permits -- >> for juvenile killers? >> gasparilla >> that would be

up to this court to decide. the rule that we are proposing excludes juvenile sprint >> i understand that. >> i think this court's analysis has looked at not only the characteristics of the offender but also the nature of the offense. >> that is why we are doing the analysis for a particular sentence for a particular crime not like when we are carving out a whole category of individuals who are treated differently because of their characteristics regardless of what crime they committed. i think we need to separate the two. are you focusing on the characteristics of juvenile or are you focusing on the disk proportionality between the crime he committed and the sentence that he received? >> both. i don't think they are not apples or oranges. for the categorical rule, i think you look to the class

characteristics identified by this court. my only -- my secondary point is that this court has in the past decided to look at non-capital cases at the proportionality of a particular sentence. both are true here. >> if we buy your argument, that juvenile are different for the reason that you have given us and for the reasons that we held before, does that necessarily mean we would also have to rule that juvenile that commit homicide cannot be put in jail for life without parole? >> you don't have to. you could. mr. gramm might suggest that you could but you do not have to. this court proportionality cases look both at the characteristics tof the offender and the characteristics of the offense.

the court did not say rape was a disproportionate punishment because there was something about kennedy. the court said that the death penalty was disproportionate because of the crime. >> death is different. i understand it because we can draw a line. once we get past that, if what you are talking about is drawn lines among offenses, there might be some homicides that are less heinous in all sorts of ways than various kinds of tortures. if you don't rely on ruml, it seems like you have no cases to rely on that we are going to do proportionality analysis to decide which ones of the most serious. isn't that the job of states' progress this court has said there is a proportionality analysis for individual sentences.

>> to other -- >> in solemn obverses help. >>when the court said yes theres a proportionality principle for non-capital cases. the case was -- >> it is not a case about the offense. rope is anr case about the offender. i am having difficulty whether your role is focused on the offender, in which case i think your answer to the question is you can't have life without parole for any crime committed by a juvenile matter how heinous and indeed no matter how many times he has done it, or your role is focused on the nature of the crime in which case i am having real problems figuring out which line we can draw. >> this court proportionality decisions do not say you have to look either at the

characteristics of the defendant or the nature of the crime. this court has looked at the crime or the defendant. >> i want to know in what case we have done that and said this would be ok for a different kind of offender and a different kind of offense but it is the mix of the 2. >> the court has not been confronted with that situation. the state's arguments that this court has never looked at a youth or the culpability of a defendant in an analysis is wrong. >> why should we treat your client as a juvenile rather than an adult given that the state made a determination he should be treated as an adult for the purpose of sentencing perplexed because he is a juvenile. >> the states have for many years it made determination's whether particular juvenile

elses should be treated as an adult. >> if that were true, you would say if the state took a 16-year- old they could give them the death penalty because they made a decision that he was a particularly heinous person. in the previous case, this court said no. it does not matter whether they elected to try him as an adult or not. the same principle applies here. >> the whole question in this case is are we going to open up a can of worms with respect to every other offense besides the death penalty. you make a point. youth is different. states take that. they have a whole system called the juvenile justice system but then they determined based on all the circumstances that some juveniles are not suitable for the juvenile justice system. once they do that, why don't we just treat them like any other

adult? >> because this court said in the previous case in describing use, they said that the character of children of youth is different. their character is not formed. >> could he have objected to being tried as an adult? >> he waived his right to be treated as an adult under florida law under the guilty plea context. the important point on this is what this court said it is even experts can't tell whether this is a character trait or whether it is a transitory nature. the same judge that sentenced mr. graham could have looked him in the eye when he was a juvenile and chosen the certainty of recidivism over the possibility of redemption. that is what the judge did here. he said i don't know why you have done this. this is the way you decided to live your life. i am going to give you a life

without parole. >> [unintelligible] that is the logic of that argument. >> the logic of that argument is, and it certainly the court could do that, but the court has decided in other cases in which they said in determining proportionality and determining whether sentences are proportionate, you also look at the nature of the offense. >> is it your argument that the judge is not the appropriate fact-finder to determine future dangerousness? >> i am just saying what this court said in roper v. simmons. even trained experts cannot tell if the criminal conduct is a result of the person's character or a result of their youth. everyone knows that. if you ever had a teenager and you asked them, what were you

thinking? you would know. you can't tell. it is this part of their character or is it something they have done? >> can you tell with your client, given how many times he has offended how his offenses have escalated? >> i don't think that is right. first of all, the armed burglary, it was his first offense. he was never charged of a crime or convicted. he had no prior criminal history. he was sentenced for three years for armed burglary. the average sentence in florida for this is five years. he then violated his probation. the judge found that he violated his probation on an armed invasion but his older codefendants in that case, one of whom had a more substantial record, only got 30 years. >> if he had gone 30 years, with that have been all right? >> i think if he had gone 30

years, i don't think we would have been here. >> what about 50 years? >> i see you're 50 and i raise you can. [laughter] >> i think that the sentence exceeded any actual life expectancy, then it would be the functional equivalent of life without parole. you don't have to address all of those lines in this case. this court comes at a problem incrementally. you could do a number of things. >> how many people convicted as juveniles are currently serving life without parole sentences in the united states including the homicide ones? >> including homicides? >> yes. >> probably a little more than that. >> so this is going to be a substantial part of our pocket? >> no. [laughter] i think it depends if you

exclude the homicide cases. it takes up most of them. this court frequently in difficult areas lets things percolate. >> does it take out the murder cases? suppose that in this armed robbery, one of the other perpetrators had killed the victim, and mr. gramm was there, too. with your rules apply to him in that case? >> under the federal murder rule, i think under the homicide role, he would be equal to someone committing a homicide. >> what is the principle that you are slicing and dicing these cases? he can't be sentenced if -- he can be sentenced to life in prison if he shot the gun and somebody died. what if he tried to kill somebody but he missed or the only injured them? what is the principle on which you are answering all of these

questions? >> that would be different. it as not as if i am making this up. this is all based on decisions that this court has decided in the general understanding of criminal law. if i shoot at you and dennis, my punishment is going to be different than if i kill you. >> you are asking us -- or at least you have not gotten to the part in your argument where you are asking us to make an individualized proportionality decision for this particular sentence for this particular juvenile. you are so far asking us to carve out a whole category and a juvenile who do x are eligible for life without parolex + 1 are . x + 1 are not. i do not see the principle that juveniles are eligible in certain cases but not in others

depending on the crime that they commit. >> again, the principle is that on the categorical rule, almost applying to this case, is that the character of youth is different. this court has recognized that. the culpability of someone who commits murder or homicide is greater than someone who does not. those are both well-recognized principles. they are both relevant in this case. he was under the age of 18 and did not commit homicide. >> mr. kevin newsome, we will now hear from you from the state of florida. >> i think it is important that i make two points. under a straightforward application of this court's this

promotional the prudence without the benefit of the last case exemption, this clearly fails. no. 2, there are good reasons to limit the scope of the last case exemption of introspect allies that this court has repeatedly acknowledged between the death penalty. let's talk first about ordinarily -- >> before you get into that, are you acknowledging that we should decide this case under proportionality analysis? >> my own you, your honor, and this gets to something that justice sherry earlier, the lines in this court are being asked to be drawn outside of this context. if you apply this analysis, and i recognize there is a very is debate under the justices of this court whether it is proportionality principle should apply outside of the capital context, idle to do need to resolve that debate tonight here because even under this proportionality analysis announced in the controlling opinion, mr. gramm's claim

clearly fails. justice sherry, i should mention that you will search in vain in the brief for any real argument of this case, this particular sentence is unconstitutional under a strict proportionality analysis and i think there is a good reason for that. the reason is that number one, this court has never not once invalidated under it is proportionality analysis a non- capital -- a term of year sentence for a violent crime. the only time this could ever invalidated a sentence under this proportionality analysis was in solemn v. helm with this court went in great links -- >> for proportionality, we look at the offender as well as the offense, and we have never been faced with a juvenile offender that had a clean record until he was 16. >> the truth is, i think you don't in ordinary this

personality analysis looking at the characteristic of the offender. as i recall in reviewing the materials for this case, this question came upin rope in rope. as in life without parole coming down the pike? the lawyer said now. he said no because life without parole, is fundamentally different than death. this court has said that only one that -- >> how is life without parole fundamentally different from death? >> on the one hand, we are sentencing someone to die and on the other hand we are sentencing someone to die in prison. >> i agree in part. what i would like to say is that one answer is that the reason that the life without parole is so fundamentally different is because this court has said so. i am not talking about the proportion that divided the majority but the part that

united the majority in part for which is a majority opinion, this court said that even with the differences between life without parole on the one hand and an ordinary life sentence on the other may seem to be the greatest privilege life without parole cannot be compared to death, and the course of that for a good reason. >> what is the good reason? >> outside of the case law, -- i think it is consistent with this rationale of the discord is consistently and reports with our shared court moral commitment as a society to the sanctity of human life. without respect to one support for or opposition to the death penalty, with respect to the degree of one's religiose city, i think we can come together. >> i get it that death is different than life, but why is that different than death in prison? i don't get it. why? >> functionally, there is a

different -- you are talking about allowing time for things like clemency or retroactive judicial decision making. >> do you know how long you get to stay in prison before the punishment is actually administered? there is time for lots of collateral review. >> i recognize that. i nonetheless think that once an individual is put to death, that is final in a way that i think we all recognize is different from inspiring of natural causes in prison. -- expiring of natural causes in prison. >> this seems to me that someone is chained up and not allowed contact with the rest of the world for 20 years. it is unconstitutional to put someone in this position when they are cut off from all society for basically their entire life. i don't see given that we would not have let mr. gramm make a contract. if he tried to make a contract,

it would be voidable in florida. now we are holding him to the fact that he pleaded guilty and then made one mistake. we are holding him to this contract that he probably didn't even understand that he was entering into. >> well, in fairness, it is a contract of his own making, and i recognize your point about florida contract law. it is not just the state made a determination that mr. gramm should be treated as an adult. he pled guilty in an adult court and thereby he acknowledges page 14 of his brief waiting the right to make to announce that is an issue. >> what do you say about the argument from the attorney that florida is almost alone in this proved the country is way beyond doing this kind of thing any more internationally. it is really frown upon. what are the loss in the united states?

are there other juveniles in prison without parole in any significant way beyond florida? >> yes. i will try to expand a bit. yes. the answer, by my count, is that there are 180 juvenile is in the united states serving life without parole sentences for non-homicide crimes, and about 150 are in florida. the remainder are spread out among five other state. this gets back to the disproportion malady analysis. under the controlling opinion, this court never makes it to those comparative analyses he has satisfied the threshold criterion of showing an inference of growth is proportionality based on the comparison of the crime alone and the sentence alone. >> are there crimes for which florida could not sentence a juvenile to life without parole? >> i am sure there are, your honor. >> as a constitutional matter.

florida decided, look, shoplifting by a juvenile is worse than some other juvenile shoplifting. if you are a juvenile and to shoplift, life without parole. that would be unconstitutional? >> yes. the only case in which this course ever invalidated a term of year sentence under the is professionally agree was -- >> it is one of the seven of fences that jerry, was convicted of then it would be disproportionate. if it was suppose he stole $500,000, it would not be disproportionate proved if he stole $250, it would prove once you start down that road, it seems to me that you are in the same position. you are asking us to draw a line. >> what the justice said is that the triggering of fence was one of the most passive felonies a

person -- >> is the line that you are asking us to draw, and you saying it is the constitutional line? >> it is a descriptive mattered. >> take a defendant who is 13 years old and he engages in a simple battery charge. it happens to be a felony but it is a simple battery charge, his first offense. >> under a straight- proportionality analysis without the benefit of the previous cases juvenile boost, yes, that is probably constitutional. they dealt with a pound and a half of cocaine, a serious offense. it is not in and of itself a violent act. look, we can all recognize the differences -- we can rank crimes according to how serious they are proud of violent and

non-filing was the first characteristic of was brought up. under the previous cases, that is probably constitutional. >> the same answer if the defendant is 6 years old? >take into account youth. your position goes that far? >> i think the position does go that far. that is a different case. this court will hear it the next half hour. it is a different case. i think the principle is the same. under the previous case that controls the strait proportionality analysis, yes, the position is the salmon that would be constitutional. >> how do you respond to the data in the petitioners brief that the average time served on the crime here was 10-0.1 years 2003/2004 and the average time served for the crime of murder in the state of florida, 26.9 years? how can this not be at least

suspect under the proportionality analysis? >> again, i would like to hold my line. we are not going to get to those jurisdictional comparisons unless he can appears the threshold comparison, which until think he can predict given that, and i want to answer your question, i think the court has typically not look that average sentences. in that average, the number in that box for the average, i have no idea the criminal history of this people, -- >> de committed lesser crimes than this guy because this was his first offense. >> that is only if you are taking into account solely the armed burglary and none of the other criminal conduct that the courts have found -- >> but you asked about all of the armed burglars in florida, none of them at the time of their conviction could have had fewer convictions than mr. gramm because he has zero. >> that is a fair point.

to be fair, his claim here under the disproportion melete analysis is not, and the analysis has not looked at averages. it has been a nose counting exercise. it shows you as i have said, that madam chief justice earlier, there are 180 individual serving the sentence issue martin 36 states plus the district of columbia and in the federal government operas descended for to announce. >> the florida legislature passed a law saying we want to send a 13-year olds -- >> i could not find anything in the record that with the florida legislature had done here. they allowed to announce to be charged as adults. once they get charged as adults -- they never passed a law that they wanted to send a 13-year olds to prison. >> that is true. he has made much of the fact that this is not an attack on a legislative determination per say. i don't think that is right.

the florida legislature created this comprehensive mixed do justle adult sentencing scheme at which point everywhere along the line of the decision tree, age is taken into account i this certain way. >> if you are a young juvenile offender, you don't want to get the wrong judge. >> this course said it is important that the accord defer to the discretion that trial courts possess. it is not as if we can dismiss this out of hand because it is not a mandatory sentence. one important thing to recognize where is it gramm wants to say that this would be less constitutionally suspect that it was a mandatory sentence because it would clearly be an attack on a legislative -- he has the leakey on his side that a lot of states out their function mature early sentencing people to life without parole. i am not sure which way that cuts. >> a young guy ended up getting

three years and is out now? >> that is true. >> this guy is in prison for life? >> that is true, your honor. mr. graham typically not look at these individual comparisons. the court has never said that under a strict proportionality analysis that the sentencing has to be precisely calibrated. the court has given great deference to state and federal government. >> has florida abuse that privilege of deference by sending 150 juveniles, non- homicidal juvenile? the vast majority of the one sitting in jail today are from florida and the judge seemed to single out this particular juvenile as one of the co- conspirators was sentenced to three years? isn't that essentially of using the deference that we have previously given to the states? >> i think that depends in some

respects about how you want to resolve the categorical rule. it is only an abuse if you find that it is in some sense unconstitutional for juveniles to be sentenced to life without parole. that raises the question that i would like to turn before we get too far down the road. i think the eggs in this case are in the roper basket. i think the position is a categorical one. the characteristics of juvenile offenders make them categorically different. >> is there any sort of avenue under florida law for constitutional avoidance principles? nothing in the legislature never had to confront this situation and it seems like given this raises at least eight amendment questions, is there any avenue -- does the judge has to take that into account under florida

law? >> i am not sure if the judge has to take that into account. i just don't know whether the judge has to take constitutional considerations into account. the florida scheme anticipates that age is taken into account seemingly at every juncture. >> how many of the juvenile serving these sentences in florida or nationwide sentenced prior to the previous case? >> that i don't know but i would guess a substantial portion. >> so maybe this is another way of getting at the question that it seems to me that given that there was this two-step process in florida, first they say you can try these people as adults, and then they have a sentencing scheme that allows you to sentence adults to life without prison, maybe we should -- maybe this they should reconsider

about what happened in the previous case and that analysis their casts some light on whether it makes sense to continue to treat to pronounced like adults for non-capital cases when we said you should not be treating them like adults in terms of sentencing. >> that is possible. i would like to explain to the court why it i thought the florida appellate court was justified in thinking so. roper certainly hitched as adea death is different type of case. i think it is no great surprise that the court decided the case on that premise. the court started from the premise that because the death penalty is unique in its severity and finality, the eighth amendment applies to it with special force. the court reasoned from that premise is that the conclusion is that 18 is the line to be

drawn. that is not an arbitrary rule. that is not an arbitrary distinction. it arises from the court's willingness to create this youth exemption in roper arises from the underlying substance did standard for that eligibility. >> do you think there is any constitutional line under the eighth amendment about whether a state can decide to treat juveniles as adults? you read these cases in the papers about six-year old skills four-year olds, the state wants to try them as an adult. is there any eighth amendment constrict whatsoever on a state's decision to treat a juvenile as an adult? >> i think it is -- >> i am asking you as a matter of eighth amendment.

is the complete and matter of legislative grace? the state wants to treat five- year olds as adults, it can do that. >> hypothetically, i suppose that is true. my answer to your question is no, there is no principle from the state to do that. >> we cannot even get to an inter-jurisdictional comparison on that. mistake in florida trees seven- year olds as an adult, florida is free to treat seven-year olds as adults and to put them in jail for the rest of their lives. >> certainly under a strict proportionality analysis without the benefit of the previous case does not provide the court within out, i think the answer is probably yes. the likelihood of that happening is 0. >> and many countries around the world allow for juvenile to go to jail for life without parole? >> not many, your honor. there is no question about that.

i don't know the precise answer. much of the united states and somalia have declined to ratify the treaty that prohibits it. there is good reason that mr. graham dinners that argument in the last page and a half of his brief. under its trade disproportional the analysis, we are never getting there because he never pasha's the threshold. even if the score was to consider international opinion, which i do not think it has ever done, this would require an extrapolation from roper. you would only be as the court said able to confirm when you have learned in the united states. >> what does the word "unusual" mean in cruel and unusual punishment? >> i think that raises a lot of questions. as i was answering the justice earlier, there is a great debate among the members of this court about an original matter about what the word "unusual" meant.

i don't think the court has to go there in this case. what this court has done is look first not to whether presumably whether the sentence is unusual in the sense that the severity of the crime and the gravity of the offense is such a fatal mismatch between those two things that it cannot be reconciled. if that comparison is satisfied, you go on to count noses in the states. >> in the state's only proved to be looked at "unusual" around the world? >> i am not aware of the line of cases that you have ever look outside of the united states. >> how many adults in florida are serving life without parole for one burglary? >> i do not know the answer to that question. >> i don't understand you keep saying we have never did that. we never did it at all.

it is a brave new world. why it would not we do it now? >> the answer is because and this gets back to the point i was trying to make, roper is a unique -- it is a horse of a different color because it is a capital case. this court has said time and time again that death is different and with good reason. >> but roper is a case about 17 is different. >> i think rupert required both. surely the principle that graham is traveling under this case is that -- what we are heading toward is a juvenile discount that will apply to every crime no matter what across the board. $100, then the juvenile at 16 should only pay $90. that isn't inconceivable will to me. i think he has a tough time limiting the will that he is proposing to life without parole. he has a couple of suggestions

but i will think either of them work. number one, he says perhaps we could limit this because life without parole, like the death penalty, is different from other punishment because it forecloses rehabilitation. this court said previously that the eighth amendment does not mandate the adoption of any one theory. the extent of rehabilitation has been foreclosed in this case, it is of no one's doing but mr. graham's. >> [unintelligible] >> i think there can be no question that we see the trial judge wrestling with this. he says we have given you every opportunity to rehabilitate yourself and you failed to do it. now we have to take society's interest and incapacitation into account. >> it doesn't that part of roper extend here? i understand the -- we said we don't trust in a sense trial

judges to make that very determination with future dangerousness? >> if that is true, and then if that passes that you are referring to, it goes on to say that if we don't think trained professionals can do, certainly injuries cannot do. i take your point. i think mr. graham is going to have a tough time limiting it to life without parole. >> tell me florida's interest in having us say that they can put mr. graham in jail with -- in jail for life without parole. what interest is served by upholding life without parole if we are prepared to uphold life with parole? >> i think florida's interest in incapacitation -- the marginal benefit of incapacitation may be

slight. i think the problem that the court will have is drawing a line between life without parole and life with parole. >> we drew that line is centrally in explaining why r ummel and solem were dif ferent. >> it is pretty final if you are 16 and you get life without parole. >> i don't dispute that but i also think that would apply, and this goes back to some of the questions being asked, what about two consecutive 35-year sentences? i think the problem, and this court recognized it, that part four, in that part, the court said whereas life without parole is categorically different from death, it said that time and time again, it said that there is no principled line to draw.

because the court said life without parole is unique because it is the second most severe punishment. life without parole is the third most severe punishment. >> thank you very much, mr. kevin newsome. mr. john blume, you have three minutes. >> i would like to spend my time when the sentence imposed in this case is excessive. i have gone back and read the briefs from previous cases and all of them, and in none of them did the defendant ask this court to consider the characteristics of the defendant. it is not as if that issue has been considered or rejected. the other fundamental inconsistency is that they say youth should not matter in looking at the excessiveness of a punishment yet they decide to defend the florida system because e