OF STATE VERSUS SAM YOU WILL RYAN CHARACTERISTIC WE PLEASE HAVE APPEARANCES OF
COUNSEL. JAMES K. SMITH: JAMES CAN SUBMIT JUNIOR SIFRT
DEPUTY PUBLIC DEFENDERER A FEARING ON BEHALF OF A PEL AJT SAM YELL RYAN. A.
GOM RUTSD GERS JUSTICE CLINL I CAN ON BEHALF A MAM US CREDIT WILL YOU OF NEW
JERSEY. A. GOOD MORNING DIL YON MRAK MADAM CLERK FASHLG FAN WAULDER
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS OF NEW JERSEY. A. GOOD MORNING
YOUR HONOR DEN YOU THE ATTORNEY GENERAL DANIEL A SING STIEN ON BEHALF VT STATE.
CHIEF JUSTICE RABNER: GOOD MORNING COUNSEL AND WELCOME MR.
SMITH PLEASE GO AHEAD. JAMES K. SMITH: YOUR HONORS WITH THE
PERSONAL OF THE COURT WOI LIKE TO RESERVE 2 MINUTES FOR POSSIBLE REBUTDAL.
CHIEF JUSTICE RABNER: THAT'S FINE SFLOO IF I MAY PREES THE COURT IF
I MAY BEGIN TODAY I WOULD LIKE TO START WITH A HISTORICAL PERSPECTIVE.
CHIEF JUSTICE RABNER: COULD I KEEP YOUR VOICE UP. JUSTICE
ALBIN: COULD YOU KEEP YOUR VOICE UP. JAMES K. SMITH: I AM SORRY.
THE 3 STRIKES LAW BECAME EFFECTIVE IN JUNE OF 1995. IT HAS
NO AGE RESTRICTIONS WHATSOEVER EITHER IN THE ORIGINAL VERSION OR THE CURRENT VERSION.
SO THEORETICALLY IT COULD BE APPLIED TO EVEN WHERE ALL 3 STRIKES WERE FOR
OFFENSES COMMITTED BY A JUVENILE. INDEED, AT THE TIME THE 3 STRIKES LAW WAS INITIALLY
ENACTED, 14-YEAR OELDZ COULD BE WAIVED UP TO ADULT COURT. SO THEORETICALLY
IT WASN'T UNTIL 19 EXCUSE ME 2016 THAT THE AGE OF WAIVER WAS RAISED TO 15-YEAR
OELDZ. SO THEORETICALLY AS ORIGINALLY NANTHED, THE 3 STRIKES LAW WOULD
ALLOW A 14-YEAR OLD WHO COMMITTED 3 FIRST DEGREE CRIMES AND WAS CONVICTED ON PRIOR
AND SEPARATE- KALGSS TO BE SENTENCED TO LIFE WITHOUT PAROLE. I THINK THAT
THE ATTORNEY GENERAL WOULD AGREE WITH ME THAT NOW UNDER THE DECISIONS IN GRAHAM
VERSUS FLORIDA AND STATE VERSUS CUBER, A JUVENILE OFFENDER AN OFFENDER COULD
NOT RECEIVE LIEFZ WITHOUT PAROLE IF THE THIRD STRIKE WAS FOR AN OFFENSE COMMITTED
AS A JUVENILE. THE ISSUE, HOWEVER, BEFORE THIS COURT IS WHETHER A SENTENCE
OF LIFE WITHOUT PAROLE CAN BE IMPOSED ON AN OFFENDER WHERE THE FIRST OFFENSE OR
EVEN THE FIRST AND SECOND OFFENSES WERE COMMITTED AS A JUVENILE.
THE BOTTOM LINE IN MY ARGUMENT IS THAT PRIOR OFFENSES COMMITTED BY A JUVENILE
ARE NOT THE EQUIVALENT OF PRIOR OFFENSES COMMITTED BY ADULT AND THEREFORE
SHOULD NOT BE CONSIDERED AS STRIKES UNDER THE 3 STRIKES LAW. MY ARGUMENT IS BASED
UPON THE WELL-SETTLED DECISIONS OF THE SUPREME COURT IN UNITED STATES THAT
QUOTE CHILDREN ARE COPS SUBSTITUTIONLY KIFRN FROM ADULTS FOR PURPOSES OF SENTENCING.
THE SUPREME COURT SAID THAT IN MAYOR VERSUS ALABAMA THEY RE PEETDED IT IN
MONTGOMERY VERSUS LOU WEES AND AN AND THERE COURT IN CUBER QUOTED IT TWICE. THE
STATE TAKES THE POSITION THAT THE FACT THAT THE DEFENDANT WAS 16 YEARS OLD AT
THE TIME OF THE FIRST STRIKE IS IRRELEVANT. NOW, OF COURSE IT IS NOT
IRRELEVANT IN THE SENSE THAT WITHOUT THAT CONVICTION MR. RYAN COULD NOT BE
SENTENCED TO LIFE WITHOUT PAROLE. HOWEVER, THE TRIAL COURT TOOK THE POSITION AND
I THINK THE ATTORNEY GENERAL NOW REFLECTS THAT POSITION, THAT WHILE HE COMMITTED
HIS SECOND ON THIRD STRIKES AS ADULT SO THEREFORE HE SHRUB TREATED AS ADULT. AND
IN THEORY I AGREE WITH THAT, THAT THE SECOND AND THIRD STRIKES WERE FOR
FIRST DEGREE CRIMES THAT BECAUSE OF THOSE OFFENSES HE IS SUBJECT TO A MANDATORY
EXTENDED TERM UNDER THE GRAFS ACT WHICH WOULD BE SOMEWHERE BETWEEN 20 YEARS AND
LIFE IN PRISON MENT WITH A MANDATORY PAROLE DISQUALIFIER. THE ISSUE,
HOWEVER, IS WHETHER HE SHOULD RECEIVE A SENTENCE OF LIFE WITHOUT PAROLE BASED UPON
BASED IN PART UPON SOMETHING THAT HE DID AS A 16-YEAR OELDZ.
JUSTICE ALBIN: MR. SMITD, ARE YOU MAKING ANY ARGUMENT WHETHER OR NOT A JUVENILE
CONVICTION CAN BE USED FOR AN EXTENDED TERM SENTENCE? FORGET ABOUT P
STRIKES. JAMES K. SMITH: THE ONLY OTHER EXTENDED TERM SENTENCE
IN NEW JERSEY IS THE PERSIST TINT OFFENDER STATUTE. JUSTICE ALBIN:
I AM TALKING FW A GRAVES ACT EXTENDED TERM. JAMES K. SMITH:
NO, I AM NOT GETTING INTO THAT ONE. JUSTICE ALBIN: OKAY.
JAMES K. SMITH: THE GRAFS ACT, JUST FOR CLARIFICATION, THE
COMBRAFRS ACT THE SECOND OFFENDER UNDER THE GRAVES ACT SAYS THAT THE OFFENDER MUST
BE AT LEAST 18 AT THE TIME THAT HE OR SHE IS SENTENCED. BUT I AM NOT I HAVE
NOT MADE ANY ARGUMENTS WHATSOEVER RELATING TO THE GRAVES ACT. MY ARGUMENT DEALS
ENTIRELY WITH THE 3 STRIKES LAW. JUSTICE PATTERSON: JUST
TO FOLLOW UP ON THAT, WOULDN'T THE ARGUMENT YOU ARE MAKING TODAY APPLY
LGS TO THE GRAVES ACT IF IT ENDED UP SFLOO I HOPE SO BUT YOU KNOW AGAIN I HAVEN'T
BRIEFED THAT AND PATD PAT THERE IS RL NO DISTINCTION BETWEEN THE TWO ARGUMENTS
YOU ARE MAKING ASSUMING THAT THE GRAVES ACT ENDS UP WITH A SIGNIFICANT EXTENDED
TERM SFLOO I DON'T SEE ONE BUT AGAIN THIS SNOTS AN ISSUE THAT IS BEFORE THE COURT
AT THIS TIME. JUSTICE ALBIN: ARE YOU MAKING A COMPARISON,
YOU MADE A LITTLE REFERENCE TO THIS IN YOUR BRIEF ESHGS MAKING A COMPARISON TO
UNCOUNSEL LD PRIOR CONVICTIONS? WHICH CANNOT BE USED TO ENHANCE A SENTENCE.
JAMES K. SMITH: RIGHT. JUSTICE ALBIN: YOU CITED
UNITED STATES VERSUS BRIENT BUT WE ALSO HAVE AS YOU PROBABLY KNOW, STATE
VERSUS LOR ^ REMEMBERING ^ WRECK AND STATE VERSUS PATEL IN DRUNK DRIVING CASES
IN UNKOND CONVICTION CANNOT BE USED TO ENHANCE A CUSTODIAL SENTENCE. AND
THAT'S BASED UPON SOME SENSE THAT AN UNCOUNSELED CONVICTION DOESN'T HAVE SUFFICIENT
INDICIA OF RELIABILITY FOR AT LEAST ENHANCEMENT PURPOSES. ARE YOU MAKING
A SIMILAR ASHTH ARGUMENT WITH RESPECT TO THESE JUVENILE CONVICTIONS? BASED UPON
MILLER AND CUBER AND THE OTHER SUPREME COURT CASES THAT AT LEAST FOR
ENHANCEMENT PURPOSES THE STRIKE THUD NOT BE USED. JAMES K. SMITH:
EXACTLY. I WOULD SAY THAT UNG I SORT OF A DRAESED THIS IN MY APPELLATE DIVISION
BRIEF WHERE THE STATSZ REPLY BRIEF EXCUSE ME WHERE THE STATE MADE ARGUMENT WAS
BASICALLY YOU DON'T EVEN HAVE A DAYS HERE, THIS IS YOU HAVE NO CLAIM BECAUSE
HE WAS SENTENCED FOR THE THIRDS STRIKE, YOU HAVE NO RIGHT TO ATTACK WHATEVER HAPPENED
ON THE FIRST STRIKE. JUSTICE LAVECCHIA: MR. SMITH, DOES YOUR
ARGUMENT THEN EXTEND EVEN ONE STEP FURTHER TO SAY THAT THESE JUVENILE OFFENSES
FOR WHICH THE DEFENDANT WAS WAIVED UP CANNOT BE COUNTED FOR ANY RECIDIVIST PURPOSE?
JAMES K. SMITH: NO. I MEAN. JUSTICE LAVECCHIA:
WHAT LINE DO YOU DRAW. Q. JAMES K. SMITH: WELL, THIS
COURT HAS SAID IN THE APPELLATE DIVISION LAST SAID OVER THE YEARS THAT OFFENSE
S THAT ARE COMMITTED WHILE A PERSON IS A JUVENILE CAN STILL BE CONSIDERED AS PART
OF THEIR PRIOR CRIMINAL HISTORY. AND CERTAINLY IF SANL YOU WILL RYAN GOES
BACK AND IS RESENTENCED AS I SAID AS A SECOND GRAVES ACT- FINDER IN DETERMINEING
THE LENT OF THAT SENTENCE, THE JUDGE COULD CERTAINLY CONSIDER THE FACT THAT
YOU KNOW MR. RYAN HAD THIS OTHER CONVICTION AS A JUVENILE. I AM NOT TRYING TO
BAR IT FROM JUDGES' CONSIDERATION, I'M JUST SAYING IT CAN'T BE USED TO IMPOSE
A MANDATORY SENTENCE. JUSTICE ALBIN: A MANDATORY LIFE. WHAT IS
HIS POTENTIAL SENTENCE IF WE DID NOT INCLUDE THE JUVENILE AS A STRIKE FOR
3 STRIKES, FOR THE 3 CONVICTIONS, WHAT IS HIS POTENTIAL SENTENCE?
JAMES K. SMITH: WELL, HIS POTENTIAL SENTENCE IS ANYWHERE BETWEEN 20 YEARS AND
LIFE IMPRISONMENT WITH A PAROLE -- THIS IS PRENEAR AN, 1996, SO IT WOULD BE
A PAROLE DISQUALIFIER OF UP TO 30 PERCENT OF WHATEVER SENTENCE THE JUDGE IMPOSED.
JUSTICE ALBIN: TELL ME IF I AM MISTAKEN. FOR HIS SECONDS
CONVICTION HE GOT 60 OVER 20? SFLOO RIGHT. JUSTICE ALBIN:
THAT WAS FOR NUMBER TWO WITHOUT EVEN CONSIDERING NUMBER 3.
JAMES K. SMITH: RIGHT. NOW, THE -- IN TERMS OF DRAESING THE ISSUE
OF WHETHER PRIOR CONVICTIONS FOR OFFENSES COMMITTED AS A JUVENILE ARE THE
EQUIVALENT OF ONES COMMITTED AS ADULT, THE FACT IS THAT AS I SAID THE SUPREME COURT
HAS CLEARLY RECOGNIZED THAT THESE ARE DIFFERENT. THE LANGUAGE IN GRAHAM
VERSUS FLORIDA THAT FROM A MORAL STANDPOINT IT WOULD BE MISS GIETDED TO EQUATE
THE FALGS OF A MINOR WITH THOSE OF ADULT AND THEY GO ON TO SAY THAT A
JUVENILES' TRANSGRESSIONS ARE QUOTE NOT AS MORALLY REP HENCE IN AS THROWS OF AN
DULTH. AND IT EVEN SAYS IN GRAHAM THAT CRIMINAL PROCEDURE LAWS THAT FAILING
TO TAKE A DEFENDANTS YOUTHS FULLNESS INTO ACCOUNT AT ALL WOULD BE FLAWED. SO I AM
ARGUEING THAT IT WOULD BE IMPROPER TO SIMPLY IGNORE THE FACT THAT SAM YOU
WILL RYAN WAS A JUVENILE AT THE TIME OF HIS FIRST OFFENSE AND THAT'S EXACTLY WHAT
THE 3 STRIKES LAW DOES. NOW. CHIEF JUSTICE RABNER:
MR. SMITH, YOU ARE RAISING A CONSTITUTIONAL WHICH TAEGS USZ FO THE 3 PART
TEST AND I WONDZER IF YOU COULD DRAES THE THIRD QUESTION, THE PENAL LOGICAL
OBJECTIVES THAT ARE TRADITIONALLY CONSIDERED. IN THIS CASE BY DEFINITION
WE ARE DEALING WITH SOMEONE WHO IS A RECIDIVIST, WHO HAS REENTLY COMMITTED A VERY
SERIOUS OFFENSE, HOW DOES THE ISSUE OF INCAPACITATION IN THESE CIRCUMSTANCES FIT
INTO YOUR ARGUMENT? JAMES K. SMITH: WELL, ONE OF THE MAIN
ARGUMENTS OR POSITIONS TAKEN BY THE SUPREME COURT OF COURSE IS THAT
JUVENILES ARE MUCH MORE LIKELY TO BE REHABILITATED THAN ADULT OFFENDERS. AND THAT
DOESN'T NECESSARILY TAKE PLACE THE DAY THEY TURN 18 OR THE DAY THAT THEY
NR INTO PRISON, IT IS A PROCESS BUT THE FACT IS THAT THERE IS A LIKELIHOOD THAT
JUVENILES WOULD BE REHABILITATEED AT SOME POINT AND THAT OPPORTUNITY SHOULD
NOT BE DENIED TO MR. RYAN JUST SIMPLY BECAUSE HE. CHIEF JUSTICE
RABNER: YOU WENT TO REHABILITATION AND I WANT DOD HEAR YOUR THOUGHTS ON THAT
AGS WELL BUT FOCUS FIRST ON INCAPACITATION. YOU HAVE SOMEONE WHO APPEARS IN FRONT
OF THE COURT AS ADULT HAVING COMMITTED A THIRD OFFENSE AS ADULT THAT'S VERY
SERIOUS. IS INCAPACITATION UNDER THOSE CIRCUMSTANCES A LEGITIMATE CONCERN?
JAMES K. SMITH: NO. BECAUSE THE PURPOSE OF INCAPACITATION IS
BASED UPON THE PREMISE THAT THE PERSON CAN'T BE REHABILITATEED, THAT THEY CAN'T
BE RELEASED FROM PRISON, SO YOU HAVE GOT TO LOCK THEM UP BASICALLY FOREVER
TO KEEP THEM A WAY FROM SOCIETY. SO. CHIEF JUSTICE RABNER: SO ADDRESS
THE ARGUMENT THAT BY THE TIME ONE HAS REACHED THE THIRD OFFENSE, THE PERSON
SHOULD KNOW BETTER. JAMES K. SMITH: CERTAINLY THEY SHOULD KNOW
BETTER. THAT'S BUT WHAT WE ARE DEALING WITH IN REAL LIFE HERE IS A SITUATION WHERE
THERE ARE A LOCALITY OF JUVENILES WHO COMMIT A CRIME, COMMIT A WHOLE SERIES
OF KRIEMENTS. JUSTICE FERNANDEZ-VINA: COUNSEL THE SEK TWO
TWIEKS WERE AFTER HE WAS 23 HE WAS NO LONGER AP JUVENILE DOES THAT MILG TAT AGAINST
YOUR ARJT EVER REHABILITATION OF JUVENILES HE IS NOW BEEN AN DULTH TWICE
COMPLITDED CRIMES TWICE AS ADULTS NO LONGER ANS A JUVENILE ILTHS A LITTLE BIT
REHABILITATION ARTHD THEN NOT AS STRONG AS YOU SUGGEST? JAMES K.
SMITH: ACTUALLY HE WAS 22. THE. JUSTICE FERNANDEZ-VINA: 22, 23
HE IS ADULTS. I TLAUT IT WAS IF BUT PERHAPS I AM WRONG. JAMES
K. SMITH: WELL, THE FACT IS OF KOERGS AS I SAID THAT WHAT ACTS A JUVENILE COMMITS
SOMETIMES PLEAD OVER TO WHEN THEY ARE ADULTS. BUT THE FACT IS THAT THIS
IS I WOULD SAY NOT THE TYPE OF HARDENED CRIMINAL THAT THE LEGISLATURE WAS THINKING
ABOUT WHEN THEY ENACTED THE 3 STRIKES LAW. THEY ARE NOT TALKING ABOUT A
JUVENILE WHO COMMITS A COUPLE OFFENSES AND THEN COMPLITS A THIRD OFFENSE AFTER
HE BECOMES ADULT, THEY ARE TALKING ABOUT THE GUY WHO COMPLITS ONE CRIME,
IS LOCKED UP IN PRISON FOR 10 YEARS, COMPLITS A SECOND CRIME, HE IS LOCKED UP
AGAIN, AND EXCUSE ME, AND THEN HE COMMITS STILL A THIRDS CRIME AND GETS LIFE
WITHOUT PAROLE. THIS WHOLE STATUTE WAS BASED UPON AS THIS COURT NOTED IN THE
OLIVER OPINION AND THE LIVINGSTON OPINION, WAS BASED UPON THE KILLING OF
A LITTLE GIRL IN KALG BY THE N.J.S.A. OF POMG I CLASS. AND IT TURNED OUT THAT
THE GUY WHO KILLED HER HAS SPENTS LICENSE ALL HIS LIFE IN PRISON AND HE
GOT OUT AND HE DID THIS HORRIBLE HORRIBLE CRIME. AND THEREFORE A BUNCH OF STATES
INCLUDING NEW JERSEY, ENACTED 3 STRIKES LAWS BUT THE CONCERN I BELIEVE WAS
NOT THAT WE WANTED TO LOCK UP JUVENILE FENDERS WHO KEEP COMMITTING CRIMES EVEN
ONCE THEY BECOME ADULTS BUT THE HARDENED KRIMS WHO HAVE DEVOTED THEIR LIFE
TO CRIMINALITY. JUSTICE ALBIN: YOU SPOKE ABOUT INCAPACITATION
SHOULD NOT BE A FACTOR. BUT AREN'T WE REALLY ASSESSING THE LENT OF THE
INCAPACITATION BECAUSE IN THIS PARTICULAR CASE. JAMES K. SMITH:
EXACTLY. JUSTICE ALBIN: GIVEN HIS AGE HE IS NOT GOING TO BE
ELIGIBLE FOR PAROLE UNTIL HE SERVED 47 YEARS AND HE'S 70 YEARS OLD.
JAMES K. SMITH: RIGHT. JUSTICE ALBIN: IN CONSIDERING WHETHER OR
NOT A JUVENILE CONVICTION SHOULD BE USED IN CONSIDERING WHAT WE SAID ABOUT
THE JUVENILE MIND IN MILLER CUBER AND OTHER CASES THE QUESTION IS WHETHER OR NOT
INCAPACITATION OF 47 YEARS SOMEHOW IS CONSISTENT WITH OUR CONSTITUTIONAL
NORMS. JAMES K. SMITH: I THINK THERE IS PLENTY OF
INCAPACITATION IN THIS PARTICULAR CASE AND FOR ALL WE KNOW IF HE GOES BACK TO GET
RESENTENCED HE COULD GET A CONSECUTIVE TERM THAT WILL KEEP HIM WELL INTO THE AGE
OF BEING ELDERLY BUT THAT REMAINS TO BE SEEN. NOW, THE STATE IN THEIR BRIEF
MAKES THE ARGUMENT THAT WELL, THIS WAS AN I DISCUSSED THIS A LITTLE BIT THIS WAS
A POM SEE ON THE PART OF THE LEGISLATURE. AND I WOULD SAY AS I DISCUSSED
BEFORE, THE STATUTE WOULD ALLOW AS IT'S WRITTEN ALIVE WITHOUT PAROLE SENTENCE EVEN
IF ALL 3 STRIKES WERE FOR A JUVENILE EVEN IF THEY WERE UNG COMMITTED BY
A 14-YEAR OLD, THAT THE FIRST STEP IN LOOKING AT WHAT IS THE LEGISLATURE'S INTENT
OF COURSE IS THE LANGUAGE OF THE STATUTE WHICH OF KOERSZ IS SILENT ON THE
AGE OF THE OFFENDER. THE SECOND SDEP OF COURSE IS TO LOOK AT THE LEGISLATIVE HISTORY
I MEFRNGSED THERE IS LANGUAGE IN BOTH OLIVER AND LIFRGS STOP ABOUT THE POLY
CLASS CASE AND THE NATIONAL REACTION TO THAT. AND NONE OF THAT DRAESS THE ISSUE
OF STRIKES AS A JUVENILE. I SAID IT IN MY BRIEF GOFR NOR FORMER GOFR NOVEMBER
V NOR KWLIT MANLS PRESS RELEAVE IN WHICH SHE SAID THIS STAFRP WAS AIMED AT HASHD
ENDS CRIMINALS AGAIN THERE IS ABSOLUTELY NOTHING IN ANY OF THIS THAT WOULD
INDICATE THAT THERE IS A LEGISLATIVE POLICY THAT THIS STATUTE SHOULD EXTEND TO
STRIKES COMMITTED BY A JUVENILE. IN FACT, AS I SAID IT IS SOMEWHAT INCONSISTENT
WITH THE ENTIRE LEGISLATIVE SCHEME OF THE ^ CURVE ^ COULD I HAVE WHICH PRECLUDES
EXTENDED TERMS UNDER THE PERSISTENT- IF HE UNDERER ACT. JUSTICE
ALBIN: I WANT TO BE CLEAR IN MY MIND IN TERMS OF YOUR ARGUMENT VRMENT YOU ARE NOT
ARGUEING THAT THIS STAFRP DOES NOT PERMIT WHAT THE TRIAL COURT DID IN THIS
CASE, ARE YOU? THE LANGUAGE ON ITS FACE DOES NOT DISTINGUISH BETWEEN A JUVENILE
WAIVED UP AND CONVICTED AS ADULT AND ADULT CONVICTIONS. JAMES K.
SMITH: THAT'S TRUE. JUSTICE ALBIN: OKAY. SO YOUR ARGUMENT, I
THOUGHT, WAS A CONSTITUTIONAL ONE. JAMES K. SMITH: IT IS A COULDN'T
AL ONE. CHIEF JUSTICE RABNER: AS A SUGGESTION, THE POLICY ARGUMENTS
THAT YOU RAISE CAN CERTAINLY BE RAISED IN FRONTS OF THE LEGISLATURE WHICH WOULD BE
FREE TO CHANGE THERE STATUTE. I THINK YOU NEED TO FOCUS FOR THE PURPOSES
OF THIS ARGUMENT ON WHY THIS STAFRP IS UNCOULDN'T SUBSTITUTIONAL LOOK LOOKING AT
THE TEST THAT THE COURT ORDINARILY LOOKS TO PLEASE GO AHEAD. JAMES
K. SMITH: LET ME MOVE ON THEN TO THE CONCERNS THAT THIS COURT HAD IN STATD VERSUS
CUBER WHICH I THINK ARE REFLEKSD CLEARLY IN THIS PARTICULAR CASE. FIRST
OF ALL, YOU HAD A QUESTION THAT THIS IS ALIVE WITHOUT PAROLE STATUTE THAT CERTAINLY
SAM YOU WILL RYAN RECEIVED WHAT WAS THE PRACTICAL EQUIVALENT OF LIFE WITHOUT
PAROLE. SECOND OF ALL, IT IS A MANDATORY STATUTE, MEANING
THAT AT THE TIME THAT HE WAS SENTENCED, HE WAS THE JUDGE WAS ABSOLUTELYLY PRECLUDED
FROM CONSIDERING THE FACT THAT HE WAS A JUVENILE AT THE TIME OF THE FIRST
OFFENSE. IN FACT THE JUDGE COULDN'T EVEN REALLY CONSIDER AGGRAVATING AND MITIGATING
FACTORS, THEY WOULD HAVE BEEN IRRELEVANT. THE JUDGE WAS REQUIRED TO IMPOSE A
SENTENCE OF LIFE WITHOUT PAROLE WITHOUT ANY CONSIDERATION OF MR. RYAN'S AGE OR
FAMILY CIRCUMSTANCES AT THE TIME OF THE FIRST OFFENSE. AND
THIRD, OF COURSE, THAT THIS STATUTE AS OPPOSED TO AS APPLIED TO A PERSON WHO WAS
A JUVENILE AT LEAST AT THE TIME OF ONE OR TWO OF THE STRIKES DENIES THE
OFFEND IR THE POSSIBILITY OF FUTURE RELEASE BASED UPON DEMONSTRATED MATURITY AND
REHABILITATION. IT DOESN'T MATTER HOW WELL MR. RYAN HAS DONE IN PRISON, HOW
MANY COURSES HE'S TAKEN, HOW MANY CERTIFICATES HE'S OBTAINED, NONE OF THAT MATTERS,
HE'S LOCKED UP AT LEAST UNTIL HE IS 70. SO I THINK THAT ONE OF THE GOALS OF
ANY CRIMINAL STAFRP OF COURSE IS TO AS I AS WE GREED BEFORE TO INCAPACITATE SERIOUS
OFFENDERS WHICH THIS MR. RYAN DOES NOT GET A FREE PASS, HE STILL GETS RESENTENCED
AS SECOND- IF HE UNDERER UNDER THE GRAVES ACT BUT REHABILITATION OF COURSE IS ALSO
A CONSIDERATION, THAT WE HAVE TO ASK OURSELVES, WHAT IS THE PEEN LOGICAL
GOAL OF CONTINUING TO REHABILITATE TO EXCUSE ME, TO INCARCERATE MR. RYAN FOR THE
REST OF HIS LIFE BASED IN PART UPON SOMETHING HE DID AS A JUVENILE WHEN
IN ALL LIKELIHOOD LIKE MANY OTHER LONG-TERM OFFENDERS, THAT HE HAS BEEN REHABILITATEED.
I WOULD CONCLUDE IF I MAY, WITH LANGUAGE FROM GRAHAM VERSUS
FLORIDA, I WILL PARAPHRASE A LITTLE BIT. IF A JUVENILE- IF HE UNDERER IS LESS
CULPABLE THAN ADULT OFFENDER, AND LESS DESERVING OF THE MOST SEVERE PUNISH
NLTS THEN IT WOULD BE MISS GUIDED TO EQUATE THE FALGS OF A MINOR WITH THOSE OF
ADULT. WHICH IS XALG WHAT THE 3 STRIKES LAW DOES. IT SAYS THAT THERE IS
NO DIFRNS BETWEEN A CRIME COMMITTED BY A JUVENILE AND A CRIME COMMITTED AS ADULT.
I WOULD SAY THAT THAT IS NOT ONLY MISS GUIDED, IT'S UNCOULDN'T
SUBSTITUTIONAL UNDER OUR STATE COPS SUBSTITUTION AND I WOULD ASK THIS KOERTD TO
RULE ACCORDINGLY. CHIEF JUSTICE RABNER: THANK YOU MR. SMITH.
JAMES K. SMITH: THANK YOU. CHIEF JUSTICE RABNER:
MISS WILF. ELANA WILF: GOOD MORNING MAY IT PLEASE THE COURT.
I WOULD LIKE TO HIGHLIGHT A FEW MAIN POINTS BUT ALSO ATTEMPT
TO ANSWER SOFTD QUESTIONS RAISED AND IF YOU ARE NOT ABLE TO LATTER ME PLEASE LET ME
KNOW I HAVE NEVER BEEN A KUSZ DZ OF NOT BEING LOUD ENOUGH SO I AM HAEN TO
PROJECT AS MUCH AS I CAN WITH THE MRAS KS FW THAT IS LRTS WITH YOUR HONOR WILL
IFRMENTD IF YOU ARE CLFRTS ABLG YOU ARE WELCOME TO TAETS FLAS CAN OFFER DURING
THE ARGUMENT. ELANA WILF: TUN VMENT TI YOUR HONOR.
IN IN CASE BUT FORTS OFFENSES THAT SANL RULE RYAN COMMITTED QUESTION HE WAS 16 YEARS
OLD, HE WOULD FLOTS HAVE RECEIVED A SENTENCE OF MANDATORY LIFE WITHOUT
PAROLE. A MANDATORY SCHEME LIKE THE ONE IN QUESTION HERE WHICH DEE MRANDZ THE IMPOSITION
OF LIFE WOULT THE UPON THE OF PAROLE BASED ON A FLN HOMICIDE ACT COMMITTED
AS A CHILD RUNS A FOUL OF THE FRAMEWORK SET OUT IN GRAHAM MILLER AND CUBER. THE
QUESTIONS THAT YOUR HONOR HAVE ALREADY ASKED CENTER AROUND THE EIGHTH
AMENDMENT JURORS FRUNTS AND HOW THAT CONNECTS TO THE CASE HERE. THE EIGHTH MEMENT
LOOKS AT 3 DIFFERENT FACTORS AS YOUR HONOR HAD ALREADY ASKED, THE FIRST FACTOR
IS WHETHER LTS PUNISHMENT FOR THE CRIME KONLS FORNLTSZ WITH CONTEMPORARY STANDARDS
EVER DECENCY THE SEK IS WHETHER THE PUNISHMENT EAST GROSSLY IS DWIS
PROPORTION NATD TO THE OFFENSE AREN'T THIRTD WAS WAS JUST SKUDZ WAS WHETHER TS
PUNISHMENT GOES BEYOND WHAT IS FLES TO ACCOMPLISH ANY LEGITIMATE PEEN LOGICAL
PURPOSE. IN THIS COURT REENTLY IN SUBER WE EVER AFFORDED YOU HAVE
AFFORDED GREATER PROTECTION IN THE CONTEXT OF THE EIGHTH MEMENT TO YOUTHS SENTENCING.
SO TOO HERE SHOULD THIS COURT FINDS THAT USING A PREDICATE OFFENSE THAT
WAS COMMITTED AS A JUVENILE WHEN THE PERSON WAS UNDER 18 CANNOT BE USED TO IMPOSE
A MANDATORY SENTENCE OF LIEFR WITHOUT PAROLE. TO YOUR QUESTION JUSTICE
ALBIN ABOUT OTHER SENTENCING SCHEMES, THERE IS DIFFERENT HERE BECAUSE IT INVOLVES
LIFE WITHOUT PAROLE. AND OUR SUPREME COURT OF THE UNITED STATES AND THERE
COURT HAS FOUND THAT THERE IS A CLEAR LINE AROUND LIEFR WITHOUT PAROLE THAT MAKES
THAT DIFFERENT FROM OTHER SENTENCING SKEENLS THAT HAVE BEEN RAISED SUCH
AS TS GRAFRS AK OR OTHER REPETITIVE SCHEMES. JUSTICE
LAVECCHIA: MS. WILF LET ME ASK YOU THE SAME QUESTION I ASKED MR. SMITH HE IS NOT
BEING SENTENCED FOR HIS JUVENILE OFFENSE. HIS JUVENILE OFFENSE IS BEING
CONSIDERED AS PART OF HIS RECIDIVIST HISTORY. NOW HE IS BEING SENTENCED FOR NOT
THE SECOND OR FIRST OF HIS ADULT ORIENTED OFFENSES BUT THE SECONDS ONE COMMITTED
3 WEEKS AFTER. SO IT'S NOT A SPREE, THESE ARE TWO SEPARATE ADULT OFFENSES COMMITTED
AFTER HE HAD ALREADY SPENT TIME IN PRISON. SO HOW FAR DOES YOUR ARGUMENT
GO? ARE YOU SUGGESTING THAT ANY MANDATORY USE OF RESIDZ ADVICE PARTICULAR
CHARACTERISTICS OF A JUVENILE OFFENSE CANNOT BE USED BY THERE COURT UNDER THE EIGHT
MEMTH? ELANA WILF: JUST LAFR THAT IS NOT WHAT WE ARE SKTD
SHALL FO ARE TODAY QUEER NOT SERGEANT TLAGS ANY MANDATORY SCHEME FOR TODAY'S' ARGUMENT
WOULD BE UNKOJTS SUBSTITUTIONAL THAT MAYBE AN ARTHD AT A LATER DATE IN REFERENCE
TO YOUTH. OUR YOUTH SENTENCING LAW OBVIOUSLY IS EVOLVING AND ONLY REAL HAS
BECOME SO REBOUS IN THE LAST 125 YEARS BUT FOR TODAY'S' IF YOUR HONOR WHAT
WE ARE SAYING IS THERE AN A PREDICATE OFFENSE THAT WAS COMMITTED AS A JUVENILE
CANNOT BE LATER USEED TO IMPOSE A MANDATORY SENTENCE OF LIFE WITHOUT
PAROLE. AND THAT'S THE CLEAR DISTINCTION HERE BECAUSE ALTHOUGH HE IS TECHNICALLY
PAST THE JURISDICTIONAL POST INTO ADULT HOOD BY THE TIME OF LIST THIRD
OFFENSE, BUT FOR THE OFFENSE THAT HAPPENED WHEN HE WAS A JUVENILELY WOULD NOT BE
FACING THIS SENTENCE. JUSTICE LAVECCHIA: THAT MAYBE AN EVEN LIGHT
IJD FLAS FEE FOR THE LEGISLATURE TO ADOPT BUT LOU DOES IT PAST FIRST PRONG OF THE
EIGHTH MEMENT TEST? ELANA WILF: OUR ND UNDERSTANDING OF WHAT
IS APPROPRIATE IN YOUTH SENTENCING IS BASED ON YEARS OF DEVELOPMENTAL SCIENCE THAT
REALLY SINCE 2005 WELL AFTER THE 3 STRIKES LAW WAS A DWOPTDED HAS REALLY BECOME
MUCH MORE ROW BUGS AND SOME SO OUR UNDERSTANDING OF WHAT LANS IN THE
MIENLTDZ OF SOMEONE REALLY WHO IS UNDER THE ANL OF 26 BUT WE WILL STRIKE FOR UNDER
18 FOR TODAY'S PURPOSES REALLY LAST EVOLVED A LOT SINCE THE ENACTMENT OF
THIS LAW. JUSTICE LAVECCHIA: WHAT CASE LAW WHAT NATD COMING
SEN US OR CONSENSUS ANYWHERE CAN YOU POINT TO TO PAST FIRST PRONG OF THE TEST FOR
CRUEL AND UNUSUAL AM PUNISHMENT. ELANA WILF: WHAT KWEEK LOOK
AT HERE IS YOUR CASE LAW IN NEW JERSEY WE CAN LOOK ALT SUBER KWEEK LOOK
AT REENT CASE LAW THAT TALKS BEFORE THE AFFECTS OF THAT THE IMPACT OF THE
DEVELOPMENTAL SCIENCE ON OUR UNDERSTANDING OF THE YOUTHS' MINE AND SO TO SAY THAT
HA OFFENSE THAT THAT HAPPENED BEFORE SOMEONE REACHED THE AGE OF 18 CAN BE
USED TO KOUNTD AGAINST THEM AND THEN IMPOSE A MANDATORY SENTENCE OF LIEFR WITHOUT
PAROLE WHEN WE KNOW THAT YOUNG PEOPLE WHO COMMIT OFFENSE GOES ARE LESS CULPABLE,
THAT THEY HAVE LESS AWARE NECESSARY AND APPRECIATION OF THE CONSEQUENCES OF THEIR
ACTIONS, FLOWING EVERYTHING WE KNOW ABOUT THE YOUTH BRAIN AT THAT AGE MAKES
THIS MAKES THE SENTENCE OF LATER MANDATORY LIFE WITHOUT PAROLE UNCONSTITUTIONAL
BECAUSE THEY WERE NOT THEY WERE NOT FULLY FOFRMENTD AT THE TIME THAT THEY
COMPLITDED THAT OFFENSE. REALLY IN THIS CASE IT'S EVEN MORE UNIQUE BECAUSE THE
FACTS OF THIS CASE FOR MR. RYAN SHOW THAT HE WAS UNDER 18 HE WAS 16 AT THE
TIMING OF THE FIRST OFFENSE AND THEN FOR THE SEK AND THIRD OFFENSE HE WAS STILL
ALTHOUGH WE ARE NOT MAKE CAN ARGUMENT THAT YOU SHOULD NOT COUNTS UNDER 26, BUT
IN THIS FRAMEWORK IT'S REALLY IMPORTANT TO LOOK ALT HIS CASE AS A WHOLE
BECAUSE HIS SECOND AND THIRD STRIKES WERE ALSO FALLING UNDER THE DEVELOPMENT AM
SCIENCE THAT WE KNOW OF THAT SAYS THAT HE WAS NOT FULLY FORM SO ALTHOUGH
IT IS NOT A SPREE ANDZ THE LAW AS YOU SUCCESS DZ OR AS YOU SADZ IT WAS NOT HERE
WE RAFR LAF IT IS NOT A SPREE IRT DOESN'T COUNT AS A SFREE UNDER OUR EXISTING
3 STRIKES JURISPRUDENCE DOES IT. ELANA WILF: IT SDOOS NOT
COUNTS AS A SFREE BUT IT'S IMPORTANT TO LOOK AT THE SECOND AND THIRDS STRIKES
BECAUSE WHEN YOU ARE LOOKING AT THE FRAMEWORK AS A WHOLE, AND LOOKING AT HOW TO
ANALYZE WHY THIS IS NOT COMPORT WITH OUR STARDZ WHY THIS IS NOT CONSTITUTION
ALLEGE IT'S FOR TO LOOK AT WHAT WHATS LAPG IN HIS BRAIN AT THE TIME OF THE OFFENSE
AND IF YOU LOOK AT THE FIRST OFFENSE WHICH WE CAN CLEARLY DEE MAR INDICATE
AS A JUVENILE OFFENSE THAT HE COMMITTED BEFORE HE WAS 18, AND THEN YOU SAY WITHIN
SEVERAL YEARS LATER HE COMMITTED TWO OFFENSES WHICH WERE TWO WEEKS APART
AND HE WAS STILL UNDER THE SIGN IT IFSHLG AGE OF 26, WHICH NOW WE KNOW THE LEGISLATURE
HAS KEEMG IMPORTANT AT SENTENCING BECAUSE OF THE NEW FACTOR 14 IN MITIGATION,
LOOKING AT IT AS A BLOEL IT MAKES IT EVEN LESS UNDER THE FIRST FACTOR EIGHT MEJT
IT MRAKS IT EVEN MORE QUESTIONABLE AS TO WHY WHEE KWO ALLOW THIS OFFENSE TO
COUNT AS A PRID INDICATE FOR A MANDATORY AND THAT'S IMPORTANT A PLANNED TRI LIFE
WITHOUT PAROLE SENTENCE. THE JUDGE HERE HAS NO DISCRETION TO IMPOSE ANY KIND OF
INDIVIDUALIZED CONSIDERATION UNDER THE MILLER OR CUBER FACTORS.
JUSTICE LAVECCHIA: AGAIN I PREFACE MY ASHTH MY QUESTION WITH IT MAYBE AN
EVEN LIELT END ARTHD BUT THERE IS A POLICY CHOICE THAT HAS BEEN MADE BY THE
LEGISLATURE. ONE POINT OF CLARIFICATION I WANT TO MAKE SURE I HAVE MY FACTS CORRECT.
WASN'T THE TIME BETWEEN THE SECOND AND THE THIRD OFFENSE 3 WEEKS IT WAS FEBRUARY
1ST AND THEN THE THIRD INDICTMENT WAS FEBRUARY 21ST? ELANA
WILF: THE SECOND OFFENSE WAS FEBRUARY 1ST AND THE THIRD OFFENSE WAS FEBRUARY
21ST. JUSTICE LAVECCHIA: OKAY THANK YOU. ELANA WILF:
WITHIN 3 WEEKS. JUSTICE PIERRE-LOUIS: CAN YOU CLARIFY WHAT
IS YOUR ASHTH WITH REGARD TO STRIKES TO COUNTING AS PREDICATES CONVICTIONS FOR
OFFENSES THAT WERE COMMITTED WHEN A DEFENDANT IS ND THE AGE OF 26 I
THOUGHT THERE WAS SOME ARGUMENT IN YOUR BRIEFING WITH REGARD TO THAT PARTICULAR
LINE AND THERE WAS SOME ADD VOENTH SEE WITH REGARD TO NOT COUNTING THOSE
CONVICTIONS UNDER THE AGE OF 26. ELANA WILF: SO OUR ARGUMENT TODAY
IS THAT ANY STRIKE THAT IT SHOULD NOT BE CONSIDERED A STRIKE IF IT OCCURRED
PRIOR TO THE AGE OF 18 WHICH IS THE LINE THAT WE HAVE DRAWN FOR MANY DIFFERENT
REASONS I AM NOT SAGS THAT HATS SOME POINT IT MIGHT NOT BE ADD VOINGD THE
FOR A DIFR LINE TO BE DRAWN BUT TODAY THE LINE THAT WE ARE TALK CAN ABOUT IGS OFFENSE
S THAT KOIRDZ UNDER 18. AND OUR ARGUMENT IS THAT ANY OFFENSE THAT OCCURRED
UNDER THE ANL OF 18 WHICH IS UNDER OUR LAW THE JURISDICTIONAL AGE FOR DUMENT HOOD
SHUDZ NOT BE CONSIDERED AS A STRIKE. I BRING UP THE ARGUMENT ABOUT ADOLESCENT
BEHAVIOR AND THE DEVELOPMENTAL SCIENCE BEING RELEVANT UNTIL THE AGE OF 26 BECAUSE
I THINK IN THIS CASE PARTICULAR IT MAKES IT EVEN MORE TROUBLESOME THAT THESE
CASES ARE BEING COUNTED AGAINST HIM AND WHEN WE TALK ABOUT THE PURPOSE, THE LEGISLAT
URE'S PURPOSE IN IMPOSING REPETITIVE SCHEMES SUCH AS A 3 STRIKES LAW AND
THE PURPOSE SUCH ASZ INCAPACITATION, IT MAKES IT EVEN MORE QUESTIONABLE BECAUSE
IN A CASE LIKE THIS WHERE YOU HAVE AN OFFENSE THAT HAPPENED BEFORE 18 AND THEN
DWOO OTHER OFFENSES THAT WERE STILL UNDER THAT DEVELOPMENTAL AGE OF ADULT
HOOD IT CALLS INTO QUESTION ALL THE PURPOSES THAT WE TEND TO THINK OF AS
REQUIRING AN INCAPACITATION. JUSTICE PATTERSON: YOU BROUGHT
UP 26 IN YOUR ARGUMENT THE AGE OF 26 AND I WANT TO OBVIOUSLY WE EVER A CASE
TODAY INVOLVING SOMEONE WHO WAS UNDER 18 AND IT'S A CASE INVOLVING A 3 STRIKES
LAW. BUT WHAT I'M HEARING FROM YOU IS ALTHOUGH IT'S NOT BEFORE THE COURT
TODAY, WE HAVE TO CONSIDER THE IMPLICATIONS OF ANY RULING THIS COURT NAKS THAT
THERE REALLY IS NO DISZ STINGS PRINCIPAL DISTINCTION BETWEEN THIS AND ANOTHER
RECIDIVIST STATUTE SUCH AS THE GRAVES ACT. AM I RIGHT THAT'S YOUR POSITION
ON BEHALF OF YOUR CLIENT. ELANA WILF: WELL OUR POSITION IS TODAY
IS THAT UNDER THE CURRENTS CASE LAW THERE IS A DISTINCTION BECAUSE THIS
CASE INVOLVES LIFE WITHOUT PAROLE. JUSTICE PATTERSON: RIGHT BUT THE
CONSTITUTIONAL POSITION I UNDERSTAND THE CURRENT CASE LAW. YOU ARE PRESSING
FOR A CHANGE IN THE CURRENTS EXPANSION OF THE CONSTITUTIONAL RIGHT UNDER THE NEW
JERSEY COPS SUBSTITUTION AND AS I AM HEARING IT AND HAVING READ YOUR BRIEF,
WHAT I SEE HERE I BELIEVE IS AN ARGUMENT THAT COULD APPLY TO THE NEXT CASE NEXT
TERM OR WHENEVER IT MAY APPEAR THAT DEALS WITH THE GRAVES ACT OR ANOTHER
RESITD ADVICE STAFRP. AM I RIGHT ABOUT THAT? ELANA WILF:
YOU ARE NOT WRONG THAT AT SOME POINT. JUSTICE PATTERSON: NOT
WRONG GENERALLY MEANS RIGHT SO OKAY SO LET'S STAY WITH FLORIDA FOR A NOEMG.
AND THEN WE SEE AN ARTHD IN YOUR BRIEF THAT THE AGE OF 26 SHOULD BE A LINE OF DEE
MAR INDICATION, I UNDERSTAND YOUR STICKING TO THE FACTS HERE HE WAS UNDER 18,
MR. RYAN. BUT WHAT I THINK I'M HEARING IS THE POTENTIAL IF YOU WERE TO ACHIEVE
THE RULING YOU ARE LOOKING FOR HERE TO EXPAND THAT TO EVERY SID ADVICE
STATUTE AND ALSO TO EXPAND THAT TO ANY OFFENSE COMMITTED UNDER THE AGE OF 26 OR
MAYBE WHEN THE PERSON IS 26 IMENT KNOW THE SURE HOW THAT KWOSHGS BUT WHATEVER
IT MAYBE WE ARE AT THAT .8 YEARS BEYOND THE AGE OF MAJORITY THAT THE LETHS
YOURSELF RECOGNIZED. IS THAT A POSITION THAT WOULD NATURALLY NO FROM THE POSITION
YOU'RE TAKING IN THIS CASE AND THE RUG YOU ARE HOPING TO SEE FROM IN COURT?
ELANA WILF: JUZ PALLET I DON'T KNOW THAT IT KWO NATURALLY
NO FROM THE ARGUMENT WE ARE MAKING TODAY WHICH IS VERY SEN ERD ON THE MANDATORY
NATURE OF A LIFE WITHOUT PAROLE I UNDERSTAND YOUR SUGGESTING FAT PAT
RIGHT RIGHT BUT YOUR BRIEF IS A REACH AND INTEREST NOT SAYING I UNDERSTAND YOUR
ADVOCATING FOR AN A MIESHG KUS AND WHAT #I78 TRYING TO SEE IS WHETHER IS THE LINE
THAT COULD BE DRAWN AND I THINK WHAT YOU ARE SAYING WHAT YOU ARE ARGUEING
IS THERE REALLY IS KNOW E PRINCIPAL LINE IF YOU WERE TO PREVAIL IN WHAT YOU ARE
LOOKING FOR HERE, THAT WOULD NOT EXTEND TO OTHER RECIDIVIST STAFRPS AND
WOULD NOT EXTEND TO INDIVIDUALS WHO WERE NOT JUVENILES AT ALL UNDER THE LEGISLAT
URE'S CLASHTH SAGS OF JUVENILES BUT WERE UNDER 26 ALT THE TIME OF OFFENSE
NUMBER ONE TWO OR THREE. ELANA WILF: I THINK THE ANSWER TO THAT
IS THAT OUR UNDERSTANDING OF WHAT LINE SHRUB DROUN LAGS BEEN EVOLVING FOR
DECADES. IN 2004 WE DIDN'T HAVE A LINE FOR YOUTH TO NOT BE SENTENCED TO THE DEATH
PENALTY IN 2005 OUR UNDERSTANDING CHANGED DRASTICALLY FALT PAT I UNDERSTAND
THE LAW WHAT I AM TRYING TO SAY IS THERE DOES NOT SEEM TO BE A BOUNDARY TO THIS
UNTIL WE GET TO THE AGE OF 26 I AM JUST READING YOUR ARGUMENT. AND YOU WRITE
WROTE AN EBLGS LENT BRIEF. WHAT I WANT TOO UNDERSTAND AND TO ME THAT INFORMS WHAT
IS THIS COURT GOING TO DO WITH THIS CASE. BECAUSE IF IN FACT A RULING AS YOU ARE SEEKING IN THIS CASE WOULD THEN BECOME PRECEDENT FOR AN EXPANSION TO OTHER
OFFENSES WERE 26 YEARS OLD OR 25 WITHOUT A PRINCE PALGED EIGHT MEMENT YOU KNOW ONE OF
THE 3 FACTORS LINE BEING DRAWN THERE THEN THIS HAS VERY, VERY EXTENSIVE
IMPLICATIONS. AND THAT GOES' WHAT I AM WHAT I AM TRYING TO SPROER HERE WHERE WOULD
YOU SAY THE LINE HAS TO BE MAYBE DRAWN. ELANA WILF: FOR TODAY'S'
PURPOSES AND FOR THIS CASE THE LINE CURRENTLY EXISTS AT 18 FOR THE ANL OF
JURISDICTION INTO ADULT COURT. THAT COULD CHANGE IN THE FUTURE BASED ON EVOLVING
STARDZ IT COULD CHANGE BASED ON KWO HANS AROUND THE COUNTRY FOR BUT FOR DAY'S
PURPOSE THAT IS A CLEAR LINE RIGHT NOW THERE IS A LINE AT 18. AND THAT LINE
DOES NOT REQUIRE A LARGE LEAP FROM THIS COURT'S DECISION IN CUBER FO GET TO THE
CASE TODAY WHICH IS THAT A MRID KALT FERNGS THAT HANS UNDER 18 CANNOT BE
USED TO LATER IMPOSE A MANDATORY LIEFR WITHOUT PAROLE SENTENCE. THAT OFFENSE IS
THE BET BEAD ROCK FRLT LATER SENTENCE THAT IS BEEK IMPOSE DZ IT IS NOT LIKE
OTHER STAVRPGS WHERE THEY ARE CONSIDERING JUVENILE ADJUDICATIONS, WHICH MIGHT BE
PROBLEMATIC THAN IN THEIR OWN RIGHT BUT RIGHT NOW ARE CONDITIONS DISTRIBUTION
AL THIS IS NOT THAT CASE THIS IS A PREDICATE OFFENSE THAT BUT FOR ITS OCCURRENCE
AT THE AGE OF 16, KOO NOT HAVE LETD TO THE DECISION THE MANDATORY DECISION
THAT TOOK ALL YOUTH OUT OF CONSIDERATION BY THE TRIELG KEERT TO IMPOSE A MANDATORY
SENTENCE OF LIFE WITHOUT PAROLE. JUSTICE PATTERSON: SO ON
THERE VERY DEFENDANT'S CASE, THAT ARGUMENT COULD LGS SERVE TO TO SEEK A
RESENTENCING FOR HIS GRAVES ACT OFFENSE HIS EXTENDED TERM UNDER THE GRAVES ACT IS THAT
RIGHT. ELANA WILF: I DON'T BELIEVE SO TODAY. NOT.
JUSTICE PATTERSON: IFRM NOT TALKING ABOUT TODAY THE NEXT CASE.
ELANA WILF: NOT UNDER THE ARGUMENT WE ARE MAKING THIS WOULD NOT CALL INTO QUESTION
THE GRAVES ACT THE IMPOSITION OF THE GRAVES ACT AND NOR DO WE BRIEF THAT
TODAY OBVIOUSLY BUT UNDER THE ARGUED WE ARE MAKING TODAY WE ARE SPIFL LICHLTING
IT TO THE IMPOSITION OF LIFE WITHOUT PAROLE WHICH IS FLOWS NATURALLY FROM THE
SUPREME COURT CASE EGS OR THE E KWIFRL ENLTD OF LIFE WOUTS PAROLE WHICH FLOWS
FWR THIS COURT'S REENTS DECISION IN CUBER SO TODAY WE ARE NOT ARGUEING ABOUT
WHAT ELSE COULD HAPPEN IF HE WAS SUBJECT TO OTHER REMET TIF SCHEMES. I KNOW THAT
COUNSEL MENTIONED THE PERSISTENT OFFENDER ASHG WHICH IRONICALLY HE WOULD NOT
EVEN HAVE BEEN JIBLG FOR AND THAT ACTUALLY GOES TO THE FOINTS ABOUT MEAN LOGICAL
PURPOSE IF THE PURPOSE IS TO IMPOSE GLAD WALTED SENTENCES, SUCH THAT AN OFFENDER
IS ON NOTICE AND IS DEE TERDZ FROM COMMITTING FUTURE CRIMES, WE HAVE
SEVERAL THINGS THAT ARE COUNTING AGAINST IN A WE GO A PURPOSE HERE FRM FIRST EVER
AN YOU WILL WE GLO THAT YOUTH ARE NOT DEE TERDZ IN THE SAME WAY THAT DUMENTS
ARE BUT ALSO HE WAS NOT EVEN ELIGIBLE FOR THOSE GRADUATED SENTENCES THAT WOULD
HAVE RESULTSED IN LENTD YER TERMS BEFORE HE WAS THEN SUBJECT TO THE MANDATORY
SENTENCE FAT PAT BUT LAF RAF BUT RNLTSDZ YOUR ARTHD MISS WILLING WILL IF HIS SKWENTS
OFFENSE KOIRDZ FWR HE WAS 40 NOR GETS THE GRAFRLTS ANTHD SENTENCE IN MY
HYPOTHETICAL, HE WOULD NOT BE ELIGIBLE FOR THE 3 STRIKES SENTENCING IF WE WERE
TO ADOPT YOUR APPROACH THAT DOES NOT ALLOW CONSIDERATION AT ALL OF THE OFFENSE
THAT WAS COMMITTED UNDER AGE 18. ELANA WILF: THAT IS CORRECT
HE WROTE NOT BE ELIGIBLE FOR HISZ FIRST OFFENSE OR SEK OFFENSE EVEN WERE
COMPLITDED BEFORE THE AJT EVER 18 THEN THE SKWENTS IF PENLS WAS AT 40 CERTAINLY
THE FAKTD HERE MAKE IT MORE COME FEBLG BECAUSE OF THAT DEVELOPMENT AM SCIENCE
BUT SO TOO IN THIS CASE USING THE IF TENS THAT HAND BEFORE HE R WAS 18 AND
I'LL REFERENCE JUSTICE ALBIN'S MRET IN OTHER TO THE COUNSEL NS LD PLEA IF KWEE
LOOK ALTS IT AS IF THE YOUNG FERN WAS NOT FULLY DEVELOP AND NOT HAVE THE
COGNITIVE THALT IS THAT YOU WOULD IMAGINE WHEN HE WAS GOING TLUTD PROCESS OF GETTING
CONVICTED, THAT SHOULD NOT BE COUNTED AS A LATER OFFENSE. JUSTICE
LAVECCHIA: I RECOGNIZE YOUR ASHTH. JUSTICE ALBIN: YOUR CONTEMPORARY
STARDZ ARGUMENT IS ROOTDED NOT JUST IN SCIENCE IT'S ROOTED IN OUR LAW.
IT'S ROOTED IN MULTIPLE USDZ SUPREME COURT CASES. AND OUR OWN CASE THAT SAYS THAT
CHILDREN ARE DIFFERENT, CHILDREN ARE LESS MORALLY CULL PENNSYLVANIA PABL,
CHILDREN AK IMPULSIVELY AND THE QUESTION SO THOSE STARDZ ARE NOT UP IN THE AIR.
WE EVER SPOKEN ABOUT THEM. AND THE QUESTION IS WHETHER OR NOT CHILDREN ARE
DIFFERENT IT'S GOING TO BE CONSIDERED FOR PURPOSES OF THE 3 STRIKES LAW.
ELANA WILF: ABSOLUTELY. AND THE PROBLEM HERE THE CONSTITUTIONAL
PROBLEM HERE IS THAT NOT ONLY WERE THEY NOT CONSIDERED THEY WERE NOT PEFRNLTDED
TO BE CONSIDERED BECAUSE TO YOUR EARLIER POINT AS THE LAW IS WRITTEN THE
JUDGE HAD TO IMPOSE THE SENTENCE ONES THE PRETD INDICATE OFFENSES WERE MELT AND UNDER
THE KUFRNTS VOIGSZ OF THE LAW EVEN IF THE THIRD OFFENSE HAND WHEN HE WAS
UNDER 18 HE WOULD HAVE TO IMPOSE A SENTENCE OF LIFE WITHOUT PAROLE WHICH IS THE
OBVIOUS CASE HERE BUT IS STILL TRUE THAT THAT'S. JUSTICE
FERNANDEZ-VINA: COUNSEL AS I UNDERSTAND YOUR FUTURE ARTHD NOT THE ARGUMENT TODAY
AND EVEN ALT 26 A PERSON SNOTS NENTSLY NOT FULLY COULD GO KNOW SARNLTS SHUDZ
BE STREETDED DIRNLLY UNTO THE ANL OF 28 THAT'S WHAT I FLAUTD YOU ARGUE IS THAT
CORRECT. ELANA WILF: IN OUR BRIEF WE STRESS THAT MORE AS
FAR AS THE UNDERSTANDING OF DFRM. JUSTICE ALBIN: SCIENCE WHAT I WAS SAYING
TODAY IS THAT 18 IS BEING USED AS THE JURISDICTION DIKSAL FAUGS FAUSZ BUT
IN THE FUTURE THE WAY URG ARGUE RG TODAY I YOU ARE THINKING OF 26 BASED ON WHAT
I HERE WOOB STILL AN AGE WHERE THE PERSON WOULD BE TREATED AS A JUVENILE
BECAUSE THEY ARE NOT FULLY THAIR BRAIN IS NOT FULLY DVRLTD YET.
ELANA WILF: AGAIN I CAN'T PREDICT WHAT THE FUTURE HOLDS. JUSTICE
FERNANDEZ-VINA: BUT ISN'T THAT YOUR ARGUMENT I AM NOT ASKING YOU TO PREDICK THAT
IS YOUR ARGUMENT ISN'T IT. ELANA WILF: OUR ORLTH THAT TS
DFRLT AMOUNTS SCIENCE THAT FORMS THE COURSE OF CASES THAT HAVE LED US TO
WHERE WE ARE TODAY SAY THAT THE SCIENCE APPLIES UP UNTIL THE ANL OF 26 BUT UNDER.
JUSTICE FERNANDEZ-VINA: IT SHOULD FWOO APPLIED A KROGS THE
BOARDS IN OTHER WORDS ATTORNEYS CAN USUALLY FROM AN AROUND 25 YEERGS OLD IF AN
ATTORNEY KOJS FWR USZ FOR BUSINESS ACE. FOR IRON VADING A TRUST ACT AT
25, WE SHOULD THAT SHOULD BE A CONSIDERATION THAT THE ATTORNEY THE ATTORNEY ARGUE
ING THAT SHUDZ FWEE A CONSIDERATION FOR A PEKS NEVER ASSIST AFRSZ OF COUNSEL
THE ATTORNEY WHO EVENTS RED THE DEFENDANT TWASZ ONDZ ONLY 25 YEARS OLD SHOULD THAT
BE CONSIDERED. ELANA WILF: YOUR HONOR ACTUALLY UNDER THE CURRENTS
LEGISLATURE'S REVISIONS IN 2016 TLAMG MORE RIENTD EVEN KNEE 22020 THERE IS A SKRGS
ALT SENTENCING FOR MID- GALT UNDER FACTOR 14 FOR NLD UNDER UNDER ANL 26
SO IT IS BECOMEING. JUSTICE FERNANDEZ-VINA: I AM NOT TALK CAN
ABOUT THE LITIGANTS THE DEFENDANT IRNL TALKING ABOUT THE TOEFRNL COULD THAT SUPPORTS
AN ARTHD A PCR ARGUED THAT LTS ATTORNEY DRIEDZ THE CONTACT IS DWAGS ONLY 25
YEARS OLD TLFRN WASN'T FULLY DEVELOPED YET AND THE DEFENDANTS TLTD TO A NEW TRIAL
AS A RULE OF THAT? ELANA WILF: YOUR HONOR, ALTHOUGH THE BRAIN
SCIENCE NIGHT APPLY TO THAT PARTICULAR INDIVIDUAL, THAT'S NOT THE LEGAL BASE IGS
FOR THE INDICATION HERE TODAY THE LEGAL BASIS FOR THE CASE HERE TODAY.
JUSTICE FERNANDEZ-VINA: I AM NOT ASKING ABOUT DAY I AM ASKING
BEFORE TS ARGUE YOU ARE MAKE CAN IN THE FLU TUR MAY DEE IF HE UNDERHOW THE IS
WRITTEN. ELANA WILF: THE OPINION IN THIS INDICATES IS NOT
DOES NOOT NEED TO BE WRITTEN TO INCLUDE OVER 18 OFFENSES. THE PURPOSE OF BRINGING
IN THAT SCIENCE AND THAT DEVELOP. AM BACKGROUND IS TO SAY THAT OUR
UNDERSTANDING OF YOUTH THE YOUTH BRAIN IS EVOLVING AND OUR UNDERSTANDING OF WHAT
HANS UP UNTIL THE AGE OF 26 IS THAT THE YOUTH BRAIN SNOTS FULLY DFRLTD AND HERE
FOR MR. RYAN'S CASE LOOKING AT ALL OF THIS ACTS TOGETHER IT IS HELPFUL TO
HAFRP THAT BACKGROUND BUT IT'S ALSO OF CONSTITUTION ALLEGE DIE MRENGS FOR SOME
WORN UNDER 18 BECAUSE THAT'S THE LIENL THAT OUR CASES AND THAT THIS COURT
HAS DRAWN TO SAY THAT IT'S UNCONSTITUTIONAL FOR A PERSON WHO IS UNDER 18 TO BE
SENTENCED TO MANDATORY LIEFR WITHOUT PAROLE. AND IN THIS CASE WHERE THAT WAS
USED AS A BUT FOR CONDITION OF IMPOSING THAT SOIFRN, IT CAN'T STANDS UNDER
OUR CURRENT INDICATION EGS AND THE STATE HAS ALREADY AFFORDED GREATER PROTECTION
IN THIS ^ CON ^ CONNECTICUT TEBLGS NO, SIR LEENTSLY IN SUBER IN WHICH IT
EXTENDED THE HOLDING OF MILLER TO SAY THAT LIEFR SFENTS EAST ARE UNDER COLUMNS
UNCONSTITUTIONAL THIS COURT HAS ALREADY LOOKED FURTHER THAN FEDERAL STANDARDS
IN DETERMINEING THAT YOUTD MATTERS. AND THAT'S INCREDIBLY IMPORTANT HERE IN THIS
CASE. CHIEF JUSTICE RABNER: MISS WILL WIRL WE ARE A LITTLE
OVER THE FIEFR MINUTE MARK AS YOU CAN MRAJ IS THERE NUG YOU WANLTD TODD PRESENT
TO US. ELANA WILF: TUN IF THERE ARE NO NURTER QUESTIONINGS
WE JUST ASK THAT THE COURT REVERSE THE AVENGS AND DETERMINE THAT ANY SENTENCE UNDER
THE 3 STRIKES LAW THAT IS BASED ON A PRED KATD JUVENILE OFFENSE CANNOT STAND
THANK YOU. CHIEF JUSTICE RABNER: THANK YOU MR. FLAK MADAM
CLERKCOURT. I'LL KEEP MY COMMENTS SHORT FOR THIS MORNING ACL's POSITION AS
IT WAS IN COLEMAN AND SAR RAT BY THE WAY AND WEIGHING THE MITIGATING QUALITIES. WHETHER
IT'S A JUVENILE BEING SENTENCED OR AN SDULT SENTENCE BEING ENHANCED BASED UPON A PRIOR
JUVENILE CONVICTION VIOLATES THE CONSTITUTION. AND REALLY WHAT OUR POSITION IS THAT
DISCRETION IS THE TOUCHSTONE OF CONSTITUTIONALITY. THAT THE MANDATORY NATURE OF THESE
SENTENCES IS WHAT VIOLATES THE CONSTITUTION WHEN IT PREVENTS THE COURT FROM LOOKING AT
THESE MITIGATING QUALITIES OF YOUTH. THE COMMENT READ FROM GRAHAM TO ROPE
PER TO MILLER AND THIS COURT'S HOLDING OF ZUBER AND C K ARE THE ADVANCES IN JUVENILE BRAIN
SCIENCE WHICH WERE DISCUSSED THOROUGHLY JUST MOMENTS AGO. THE SUPREME COURT DESCRIBED
THESE FACTS AS SOMETHING THAT EVERY PARENT KNOWS, THAT KID ARE I AM PET WUS, THEY DON'T
THINK THINGS THROUGH. AND TO USE A PRIOR CONVICTION FOR SOMEONE WHO IS A 16 AND MADE
A REALLY BAD DECISION DOES NOT PROVIDE THE COURT WITH AN OPPORTUNITY TO LOOK UPON WHAT
CAUSED HIM TO MAKE THAT DECISION. AND TO ANSWER SOME OF THE QUESTIONS, IT'S OUR POSITION
THAT THESE WOULD APPLY TO ANY MANNED TERRY SENTENCE RAISED AT MERE RA AND I KNOW THIS
SOUNDS LIKE A BROAD PROPOSITION BUT WE'RE TALKING ABOUT A VERY SMALL CLASS OF DEFENDANTS.
THESE JUVENILES WAVED UP TO ADULT COURT. SO IT'S NOT QUITE AS BROAD AS IT SOUNDS.
JUSTICE PATTERSON: BUT IT'S A CONSTITUTIONAL CHALLENGE. DILLON J. MC GUIRE:
THAT'S CORRECT. JUSTICE PATTERSON: IT IS A CONSTITUTIONAL CHALLENGE, WHICH
I THINK YOU'VE ACKNOWLEDGED VERY CANDIDLY AS YOU SHOULD, I APPRECIATE THAT, THAT COULD
KNOCK OUT A NUMBER OF STATUTES THAT THE LEGISLATURE HAS PUT IN PLACE, SOME OF THEM
VERY LONGSTANDING, THAT HAVE RECIDIVIST COMPONENTS TO THEM. DILLON J. MC GUIRE:
I DON'T KNOW IF IT WOULD KNOCK IT OUT. WHAT WE'RE ASKING IS THAT IT BE RENDERED
DISCRETION. AND THAT STREET SENTENCING COURT. JUSTICE PATTERSON: THERE'S
A CONSTITUTIONAL CHALLENGE. THE LEGISLATURE HAS NOT INCLUDED THAT IN THE STATUTE AND
THERE IS REALLY NO READING OF THE STATUTE, TELL ME IF I'M WRONG, THAT WOULD IN-INDICATE
SOME KIND OF INFERRED INTENT TO EXCLUDE A JUVENILE OFFENSE. SO YOU'VE GOT PRIMARILY A
DEFENDANT BECAUSE YOU'RE SUPPORTING A DEFENDANT'S POSITION, YOU'VE GOT TO OVERCOME THE
PRESUMPTION OF CONSTITUTIONALITY WITH RESPECT TO THIS STATUTE AND THE OTHER POTENTIAL
STATUTES THAT ARE IN THE CROSS HAIRS. DILLON J. MC GUIRE: I AGREE THERE'S
A HYBRID. JUSTICE PATTERSON: SO TO SAY THERE MAY NOT BE MANY PEOPLE WHO
ARE AFFECTED BY IT IS AN INTERESTING FACT, BUT IT REMAINS A VERY BROAD ATTACK ON THE
LEGISLATIVE DETERMINATIONS BECAUSE IT'S MULTIPLE STATUTES. DILLON J. MC GUIRE:
I UNDERSTAND THAT, JUSTICE, AND IT IS A CONCERN. WHAT WE'RE DEALING WITH HERE IS THE
COURT HAS SPOKEN TO WHAT IT VIEWS AS CONSTITUTIONAL WITH REGARD TO JUVENILE AND
THE SENTENCES IMPOSED ON JUVENILES AND THE LEGISLATURE HAS FAILED TO ACT. SO AT A
CERTAIN POINT WE HAVE TO LOOK TO WHAT THE BAZ WAS FOR THOSE DECISIONS. THE BRAIN SCIENCE
SHOWS CHILDREN ARE NOT AS MORALLY CULPABLE AS ADULTS ARE. IN THIS CASE IN PARTICULAR
WE'RE DEALING WITH A JUVENILE CONVICTION. HE SPENT A GREAT DEAL OF TIME DURING THIS
FORMATIVE YEARS IN STATE PRISON. BASED UPON THAT SHORT PERIOD OF TIME, HE'S NOW IMPRISONED
UNTIL HE'S AT LEAST 70 YEARS OLD. WHILE THE JUVENILE. YOU'RE ALLOWING YOUTH OF THE
RESIST VISIT PURPOSELY INCLUDING SOME OF OUR EXTENDED IMPOSING DISCRETION IN THE HANDS OF
THE SENTENCING JUDGE. DILLON J. MC GUIRE: THAT'S WHAT OUR POSITION IS. AND WE
NEED TO TRUST OUR SENTENCING JUDGES STOD WHAT THEY DO DAY IN AND DAY OUT AND WEIGH THESE
MITIGATING QUALITIES OF YOUTH WITH THE CIRCUMSTANCES OF THE OFFENSE, THE EFFECT ON
THE VICTIM OF THESE CASES. JUSTICE LA VECCHIA: IF I MAY, YOUR QUARREL IS NOT
WITH THE RECIDIVIST USE OF THE OFFENSE BUT THE MANDATORY SCHEME THAT WE HAVE.
DILLON J. MC GUIRE: THAT'S WOULD OUR POSITION IS. IT'S THE MANDATORY STIPS IF I RECALL
FACTORS WHICH HAVE BECOME UNIVERSALLY ACCEPTED AT THIS POINT. JUSTICE ALBIN:
WE'RE JUST DEALING WITH A MANDATORY LIFE SENTENCE AND THAT'S ALL WE'RE DEALING WITH.
AND THE JURISPRUDENCE OF THE U.S. SUPREME COURT IN ZUBER DEALS WITH MANDATORY LIFE SENTENCES.
IF THE JUVENILE CONVICTION CANNOT BE USED AS A STRIKE, IT CAN STILL BE USED, AS JUSTICE
LAVECCHIA WAS DISCUSSING, DISCUSSION ANYMORE FOR PURPOSES OF SENTENCING. AND WE KNOW
THE SECOND KIBZ WAS THE 60 OVER 20. SO WE'RE NOT TALKING -- WE'RE NOT TALKING ABOUT SOME
LIGHT SENTENCE. THE POTENTIAL SENTENCE IS -- COULD STILL BE A 30-YEAR APPAREL
DISQUALIFIER. AM I MISTAKEN? DILLON J. MC GUIRE: ABSOLUTELY. AND THAT'S
EXACTLY OUR POINT. OUR JUDGES, OUR SENTENCING COURTS ARE WELL EQUIPPED TO DEAL WITH THESE
ISSUES. THEY DO IT ON A DAILY BASIS. AND WE NEED TO TRUST THEM TO APPLY THESE MILLER
FACTORS AND SERVE -- YOU KNOW, TO BORROW FROM THE FEDERAL CODE A SENTENCE THAT IS SUFFICIENT
BUT NOT GREATER THAN NECESSARY TO ACHIEVE THOSE PENIS LOGICAL OBJECTIVES THAT WE DISCUSSED.
AFRND IF THERE ARE NO FURTHER QUESTIONS WE'LL RELY ON OUR BRIEF AND THE ARGUMENTS OF
CO-COUNSEL. CHIEF JUSTICE RABNER: THANK YOU, MR. MCGUIRE. MR.
FINKELSTEIN. FINGER FINGER. THANK YOU, CHIEF JUSTICE RABNER AND MAY IT PLEASE THE COURT.
I'D LIKE TO FOCUS ON THREE POINTS IN MY OPENING STATEMENT. TWO OF THEM TIE IN WELL WITH
A COUPLE OF QUESTIONS THAT I'VE BEEN ASKED FROM THE COURT. FIRST AND FOREMOST,
THE REASONING OF ROERP, GRAHAM AND MILLER HAVE NO PLACE HERE. THE CENTRAL CONCERN OF
THOSE CASES IS THAT A JUVENILE OFFENDER COULD BE SENTENCED TO DENL OR LIFE WITHOUT APPAREL
WHEN HE'S NOT IN-CORRIGIBLE VENLT WHEN HE MERELY COMMITS THE OFFENSES BECAUSE OF TRANSIENT
IMMATURITY. TAKE MILLER AND ZUBER. IN THOSE CASES THE SENTENCING JUDGE TRIES TO ASCERTAIN
WHETHER THE JUVENILE OFFENDER IS IN-CORRIGIBLE OR WHETHER HE COMMITTED THE OFFENSES BECAUSE
OF TRANS SKEENT IMMATURITY. THE COURT RECOGNIZED THAT'S NOT EASY FOR A SENTENCING JUDGE
TO DO BECAUSE IN A CERTAIN SENSE THE SENTENCING JUDGE IS TRYING TO EVALUATE WHAT THE
JUVENILE OFFENDER IS GOING TO LOOK LIKE AS AN ADULT. WILL THIS JUVENILE CONTINUE TO COMMIT
CRIMES AS AN ADULT OR MATURE AND LEAD A LAW-ABIDING LIFE: IN THIS CASE THAT QUESTION
HAS BEEN ANSWERED. AS TO THE QUESTION WHETHER HE WAS MERELY IMMATURITY OR IN-CORRIGIBLE
WHEN HE FIRST COMMITTED ARMED ROBBERY HAS BEEN ANSWERED HERE. AND THIS ALSO -- THIS POINT
TIES IN VERY WELL WITH THE QUESTION FROM CHIEF JUSTICE RABNER ABOUT NAPGS. BECAUSE THE
KEY TO ROERP, GRAHAM, MILLER AND ZUBER TO A LARGE EXTENT IS THAT PRINCIPLE. WHEN THE
COURT DISCUSSES THAT DEATH IS DIFFERENT THE 8TH AMENDMENT APPLIES TO SPECIAL FORCE AND
THE COURT IN ROERP MAKES SOME THAT POINTS ABOUT JUVENILE OFFENDERS IN THE CONTEXT OF THE
EXECUTION OF A JUVENILE OFFENDER. IN GRAHAM, MILLER AND ZUBER, WHEN THE CONCERN FOCUSES
ON NAPGS, THERE THE COURT IS CONCERNED WITH THE POTENTIAL THAT IT'S TOO DIFFICULT TO
ANALYZE WHETHER A JUVENILE ANDY -- IT MIGHT BE VERY DIFFICULT TO ANALYZE WHETHER A JUVENILE
OFFENDER IS IN-CORRIGIBLE OR MERELY IMMATURITY. AND THAT'S THE CONCERN. SO THE COURT
RECOGNIZES THAT NAPGS IS A LEGITIMATE GOAL FOR PUNISHMENT OF THE LEGISLATURE BUT IT MIGHT BE
DIFFICULT FOR THE SENTENCING JUDGE WHETHER -- TO THE EXTENT THAT PRINCIPLE SHOULD APPLY
BASED ON AN OFFENSE BY A JUVENILE. BUT WHEN A DEFENDANT COMMITS THAT QUESTION IS ANSWERED
UNEQUIVOCALLY. SECOND I WANT TO FOCUS ON TWO ASPECTS OF DEFENDANT'S ARGUMENT
THAT IS IN-CONSISTENT WITH BLACK LETTER LAW. AND IT ESTABLISHED FUNDAMENTAL LAW THAT
A SENTENCER MAY CONSIDER AN ADULT OFFENDERS HISTORY AS A JUVENILE AT SENTENCING. THE
LEGISLATURE DID JUST THAT. SENTENCING JUDGES DO THAT ROUTINELY. SO THE LEGISLATURE
CAN CONSIDER AS A SENTENCER AN ADULT OFFENDERS HISTORY. THE DEFENDANT'S ARGUMENT RUNS
COUNTER TO P IN ADDITION IT'S BLACK LETTER LAW THAT THE LAW MAY IMPOSE MANDATORY PENALTIES.
FOR IMPORTANT REASONS OF UNION FORMAT AND DEMOCRATIC ACCOUNTABILITY AND THE DEFENDANT'S
ARGUMENT RUNS COUNTER. AND I THINK THIS POINT ALSO FITS IN VERY WELL WITH THE CHIEF
JUSTICE's QUESTION ABOUT THE TEST THAT THIS COURT USES FOR DETERMINING WHETHER A SENTENCE
IS CRUEL AND UNUSUAL. AND THE COURT FOCUSES ON THE PUNISHMENT BEING IMPOSED. IS GROEFL
DISPROPORTIONATE OR OTHER PRINCIPLES. BUT THE QUESTION IS WHETHER THE PUNISHMENT IS GROEFL
DISPROPORTIONATE AND HERE DEFENDANT IS NOT REALLY MAKING THAT ARGUMENT AT ALL. I DON'T
THINK DEFENDANT'S ARGUMENT FITS UNDER THE TEST AT ALL BECAUSE DEFENDANT IS FOCUSING ON
THE IDEA THAT A CERTAIN TYPE OF CRIME, A CRIME COMMITTED BY A JUVENILE, SHOULD CATEGORICALLY
NEVER BE CONSIDERED. BUT CERTAINLY THE CONSIDERATION OF AN ADDITIONAL CRIME
ONLY STRENGTHENS THE ARGUMENT THAT THE SENTENCE IS NOT GROEFL DISPROPORTIONATE. IT'S
CERTAINLY ADDITIONAL EVIDENCE OF RECIDIVISM AS SOME OF THE QUESTIONS HAVE SUGGESTED.
SO TO TAKE THAT COMPLETELY OUT OF THE EQUATION DOESN'T FIT WELL AT ALL AS THE THREE PART
TEST THAT THIS COURT HAS RECOGNIZED. LAST I WANT TO FOCUS ON AN ARGUMENT
THAT THE DEFENDANT HAS MADE. DEFENDANT FOCUSED ON AS A CENTRAL ARGUMENT TODAY. THAT
IF A JUVENILE DEFENDER IS LESS CULPABLE AN AN ADULT OFFENDER, THAT MEANS EQUAL CULPABILITY
PRINCIPLE THAT THIS DEFENDANT'S CENTRAL ARGUMENT HERE. AND THE FIRST PROBLEM WITH THIS
ARGUMENT IS THAT IT WOULD ESSENTIALLY OVERRULE STATE VERSUS OLIVER BECAUSE THIS STATE
RECOGNIZES VARYING LEVELS IS INHERENT WITHIN THE STATUTE. AND THEY HAVE VERY DIFFERENT
LEVELS OF CULPABILITY. SO THE LEGISLATURE HERE WAS RECOGNIZING THE IDEA THERE CAN BE
VARYING LEVELS OF CULPABILITY AND THIS COURT CONFIRMED THE CONSTITUTIONALITY OF THE
STATUTE VARYING LEVELS OF CULPABILITY. SO SURPRISINGLY THERE'S VERY LITTLE SUPPORT FOR
THIS ARGUMENT THAT IF THERE'S VARYING LEVELS OF CULPABILITY OF SEVERAL DEFENDANTS, THAT
STATUTE CAN NEVER BE APPLIED TO MORE THAN ONE DEFENDANT. THERE IS NO RULE OF LAW THAT
SAYS A STATUTE CAN ONLY BE ADDRESSED AT THE MOST CULPABLE OFFENDER AND THAT'S I. IN THAT
SITUATION, THE THREE STRIKES LAW ONLY BE FOR MURDER. AND IMPORTANTLY THIS
ARGUMENT DOESN'T REALLY ADDRESS OUR ARGUMENT OR THE CONSTITUTIONAL QUESTION HERE. OUR
ARGUMENT IS NOT NECESSARILY THAT DEFENDANT IS EQUALLY CULPABLE FOR COMMITTING A CRIME
AT 16 AS PERHAPS AN ADULT. THAT HAS EVER BEEN SENTENCED UNDER THE STATUTE OR THAT IT
COULD EVER BE SENTENCED UNDER THE STATUTE. AS EVERY OTHER DEFENDANT UNDER THE STATUTE.
OUR ARGUMENT IS THAT HE'S SUFFICIENTLY CULPABLE AND THAT IS THE KUBL QUESTION. WHETHER
THE LEGISLATURE CAN DECIDE WHEN SOMEONE COMMITS A VIAL KWLENT THAT IS A SUFFICIENT DANGER
TO THE PUBLIC AND THAT MAKES THE DEFENDANT SUFFICIENTLY CULPABLE TO WARRANT THIS
MANDATORY PEBLT PENALTY AND OF COURSE MAIN GOAL AND MAIN AIM IN THIS STATUTE. SO TO CONCLUDE
MY OPENING RE-MARKS, I'D ASK THE COURT TO HOLD IT'S NOT CRUEL AND UNUSUAL FOR THE
LEGISLATURE TO PROTECT THE PUBLIC AND THEN TWO VIOLENT FIRST DEGREE CRIMES AS AN ADULT.
JUSTICE ALBIN: COUNSEL, IT WAS BLACK LETTER LAW THAT AN UN-COUNSELED
PREDICATE DWI OFFENSE COULD BE USED TO COUNT AS A SECOND OR A THIRD DWI CONVICTION UNTIL
THIS COURT SAID IT WAS FUNDAMENTALLY UN-FAIR TO DO SO. SO LOOKING AT OUR JURISPRUDENCE
WITH RESPECT TO PREDICATE OFFENSES THAT MAY LACK SOME SUFFICIENT RELIABILITY AS AN ENHANCER,
WHY SHOULDN'T WE BE CONSIDERING ALL OF OUR JURISPRUDENCE, U.S. SUPREME COURT
JURISPRUDENCE, ZUBER. IT TALKS ABOUT THAT CHILDREN ARE DIFFERENT. THEY'RE NOT AS
MORALLY CULPABLE. A 16-YEAR OLD's BRAIN IS NOT FULLY DEVELOPED. WHY SHOULDN'T WE USE
OUR SORT OF PRIOR JURISPRUDENCE AND MESH IT TO CONSTITUTIONAL JURISPRUDENCE AND SUGGEST
THAT THAT PREDICATE, OKAY, THAT PREDICATE THAT MAY NOT BE RELIABLE ENOUGH FOR AN ENHANCE
R BECAUSE OF THE NOT FULLY DEVELOPED BRAIN AND LACK OF MORAL CULPABILITY FOR GIVING A LIFE
SENTENCE. AND I KNOW YOU'RE SAYING BLACK LETTER -- EVERYTHING IS BLACK LETTER LAW UNTIL
THIS COURT OR SOME OTHER COURT SAYS THE CONSTITUTION PLACES CERTAIN LIMITS ON THE
MANNER OF SENTENCING. GO AHEAD. APPELLANT: I AGREE WITH THAT. OF COURSE
BLACK LETTER LAW SHOULD NOT BE SET ASIDE LIGHTLY. FIRST OF ALL IT'S NOT UN-COUNSELED
AT ALL. I THINK THE ANALOGY IS NOT A GOOD ONE TO START WITH BECAUSE OF COURSE DEFENDANT
HAD COUNSEL. SO LOOKING AT UN-COUNSELED AS A FIRST THRESHOLD IS PROBLEMATIC. I THINK
IN ADDITION DEFENDANT'S ARGUMENT IS THAT IT'S CRUEL AND UNUSUAL TO CONSIDER THIS AS A
PRIOR CONVICTION UNDER THE STATUTE BUT OF COURSE IF YOU LOOK AT GRAHAM, JUST FOR THE JUVENILE
OFFENSE ALONE UNDER GRAHAM DEFENDANT COULD HAVE BEEN SENTENCED TO LIFE WITH APPAREL.
SO GRAHAM RECOGNIZES LIFE WITHOUT APPAREL AS THE DIVIDING LINE. THERE'S NO DISPUTE HERE
DEFENDANT COULD HAVE BEEN SENTENCED FOR A SIGNIFICANT PERIOD OF INCARCERATION BASED
SOLE LOIN HIS JUVENILE -- JUSTICE ALBIN: I AGREE WITH THAT. BUT DO YOU ACCEPT
THE PRINCIPLES THAT ARE ENCOMPASSED WITH U.S. SUPREME COURT JURISPRUDENCE AND OURS THAT
CHILDREN ARE NOT AS MORALLY CULPABLE AS ADULTS? DO YOU ACCEPT THAT? RESPONDENT:
AS A GENERAL PRINCIPLE, YES. JUSTICE ALBIN: AND THE BRAIN SCIENCE. UNDEVELOPED
BRIAN OF A JUVENILE. RESPONDENT: MY FIRST POINT WAS TO FOCUS ON HOW THOSE
CASES ARE FUNDAMENTALLY SDIFRNT FROM THIS CASE. JUSTICE ALBIN: BUT WE ACCEPT
ALL THAT. WHY SHOULD THAT BE USED AS A BOOSTER TO GET A 22-YEAR OLD OR 23-YEAR OLD TO
A LIFE WITH -- TO LIFE BASICALLY WITHOUT APPAREL. 47 YEARS. RESPONDENT:
BECAUSE THE LEGISLATURE IS ALLOWED TO DETERMINE THAT IT'S A SERIOUS CRIME. THAT IT'S A
SERIOUS VIOLENT CRIME THAT CAN BE LOOKED AT AS FURTHER EVIDENCE OF RECIDIVISM.
JUSTICE ALBIN: I AGREE, BUT THE QUESTION FOR US -- OF COURSE THIS IS MANDATED BY THE
LEGISLATURE. SO I UNDERSTAND THAT. BUT THE QUESTION IS WHETHER USING THAT PRIOR JUVENILE
CONVICTION TO IMPOSE A SENTENCE WHERE THIS 22, 23-YEAR OLD WILL NOW SERVE 47 YEARS IN
PRISON UNTIL THE AGE OF 70 IS CRUEL AND UNUSUAL UNDER OUR STATE CONSTITUTION WHEN USING
A PRIOR JUVENILE CONVICTION SNOOCHLT I AGREE THAT'S THE QUESTION. I THINK I TRIED TO
ANSWER -- BRING UP A POINT ABOUT THE CHIEF JUSTICES QUESTION ABOUT THE THREE PART TEST.
THE DEFENDANT IS NOT ARGUING THAT THE LENGTH OF HIS INCARCERATION IS GROEFL I AM
PROPORTIONATE TO HIS OFFENSES. IN FACT HE COULD BE A LONGER INCARCERATION BECAUSE HERE
HE WOULD NEED TO BE SENTENCED FOR TWO FIRST DEGREE CRIMES. HE'S SEEKING TO VACATE TWO
FIRST DEGREE SENTENCES. SO YOU HAVE TWO SENTENCES. SO ESSENTIALLY DEFENDANT IS NOT
CHALLENGING THE LENGTH OF HIS SENTENCE IN A GROWS PROPORTIONATE SENSE AND ARGUE THAT IF
YOU TAKE ALL THREE CONVICTIONS OR WHATEVER THE CASE MAY BE, FOUR CONVICTIONS, TWO
CONVICTIONINGS, IT'S SIMPLY. THAT ARGUMENT IS ALWAYS AVAILABLE IN EVERY CASE AND IT'S
AVAILABLE TO DEFENDANT HERE. IT'S NOT THAT HE DID NOT MAKE THAT ARGUMENT. HE'S ASKING
THE COURT TO CATEGORICALLY. AND THAT WOULD APPLY TO MURDER -- AL YES. THAT WILL IMPOSE
A LIGHT SENTENCE AND IN HIS CASE A 47-YEAR PERIOD OF APPAREL DISQUALIFICATION AND THEY'RE
SAYING THAT'S GROEFL DISPROPORTIONATE USING THAT JUVENILE CONVICTION TO GET TO THAT END.
THAT'S WHAT THEY'RE SAYING. RESPONDENT: I DISAGREE. THEY'RE ARGUING YOU
DON'T EVEN MAKE THE GROWS DISPROPORTIONATE CALCULUS. JUSTICE PATTERSON:
THEY'RE NOT MAKING ANY DISTINCTION BETWEEN SOMEBODY WHO'S SENTENCED UNDER THE THREE
STRIKES LAW WHEN THEY'RE 15 AND 23. IT'S NOT A PROPORTIONALITY. AND THE FACT THIS IS
A LENGTHY SENTENCE HERE BECAUSE MR. RYAN WAS 23 DURING HIS SECOND AND THIRD SENTENCES
THAT UNDER THE THIRD STRIKES LAW HAPPENS TO BE THE FACTS IN THIS CASE. BUT THE ARGUMENT
THEY ARE RAISING HERE WOULD APPLY TO EVERY SINGLE DEFENDANT WHO'S FIRST STRIKE WAS WHILE
HE WAS A JUVENILE. RESPONDENT: THAT'S EXACTLY CORRECT AND I LIKE TO POINT
OUT A PREDICATE OFFENSE UNDER THIS STATUTE IS MURDER. IF A JUVENILE AND COMMITS TWO
MURDERS AS AN ADULT IT'S NOT GROEFL DISPROPORTIONATE AT ALL TO BE SENTENCED UNDER
THIS STATUTE. I THINK EVERYONE WOULD AGREE WITH THAT. THAT'S CLEARLY CONSTITUTIONAL.
BUT DEFENSE ARGUMENT WOULD ELIMINATE THE CONSIDERATION OF A FIRST OFFENSE AS A
JUVENILE WHEN IT'S MURDER AND -- CHIEF JUSTICE RABNER: COUNSEL, DO YOU DRAW
A DISTINCTION ALONG THE LINES OF JUSTICE PAT'S QUESTION? SUPPOSE YOU HAVE A SITUATION
WHERE SOMEONE AS A JUVENILE COMMITS TWO OFFENSES, SERVES A PERIOD OF INCARCERATION, IS
RELEASED, SERVES AN EXTENDED PERIOD OUTSIDE OF LIVING AN ORDINARY LIFE FREE FROM CRIME.
THEN AT AGE 60 COMMITS A THIRD STRIKE. IS THERE A CONSTITUTIONAL CHALLENGE THAT COULD BE
BROUGHT TO THAT SITUATION? RESPONDENT: WELL, AT ANY POINT A DEFENDANT
CAN ALWAYS BRING AN AS APPLIED CONSTITUTIONAL CHALLENGE ARGUING IT'S GROEFL
DISPROPORTIONATE TO CONSIDER THOSE CRIMES AND TO RESULT IN THIS SENTENCE. THE STATUTE
DOES HAVE A FEATURE IN TERMS OF THE LAST TIME -- LAST PERIOD OF INCARCERATION. SO THE
STATUTE ITSELF RECOGNIZES A CERTAIN LENGTH OF TIME WOULD ACTUALLY ELIMINATE THE APPLICATION
OF THE STATUTE. BUT TO ANSWER YOUR HONOR's QUESTION -- CHIEF JUSTICE
RABNER: MAKE THE PERIOD OF TIME CLOSER. MY CONCERN WAS, YOU HAVE AN IMMATURITY YOUNG
ADULT WHO COMMITS TWO OFFENSES AND THEN THERE'S A SUBSTANTIAL PERIOD DURING WHICH THE
INDIVIDUAL OUTSIDE OF THE JAIL CONTEXT DOES NOT COMMIT CRIME. IS THERE A CONSTITUTIONAL
CONCERN UNDER A SITUATION LIKE THAT? RESPONDENT: THERE'S NO CONSTITUTIONAL
VIOLATION WHATSOEVER AND THE LEGISLATURE DETERMINING WHEN AN ADULT COMMITS A VIOLENT
FIRST DEGREE CRIMES AND ALSO AS A JUVENILE THAT THAT WARRANTS NAPGS AND I THINK THAT
ADDRESSES YOUR HONOR's EARLIER QUESTION ABOUT NAPGS BECAUSE THE POINT OF THE STATUTE IS
TO PROTECT THE PUBLIC AND TO PREVENT AS MR. SMITH MENTIONED, THERE WAS A HEINOUS MURDER
IN CALIFORNIA BY A REPEAT OFFENDER GRANTED APPAREL. SO THE ENTIRE POINT OF THE STATUTE
IS TO POTENTIALLY SAVE LIVES AND PREVENT CONTINUED VIOLENT CRIMES BY RE-SID VISITS AND
THAT IS A LEGITIMATE GOAL AND AIM AND CERTAINLY THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE
DOES NOT PROHIBIT THAT. JUSTICE ALBIN: YOUR ADVERSARY IS NOT ARGUING THAT
THE JUVENILE CONVICTION CANNOT BE USED FOR SENTENCING PURPOSES. IT MAY BE FOR
ENHANCING. THEY'RE SAYING, THE LIMITED ARGUMENT HERE BEFORE US IS WHETHER IT COULD BE USED
TO IMPOSE A BASICALLY LIFE WITHOUT APPAREL. RESPONDENT: WELL, THAT'S THE.
JUSTICE ALBIN: THAT'S THE ARGUMENT. CAN YOU USE IT WITH LIFE WITHOUT APPAREL.
RESPONDENT: THE LEGISLATURE CAN IN-ACT PUNISHMENTS. AND THAT'S SPECIFICALLY
WHEN A JUVENILE OFFENDER IS BEING SENTENCED AND THAT'S BECAUSE OF THE IN-CORE RIDGE
ELIGIBILITY AND MATURELY TEA ISSUE. SO I AGREE, YOUR HONOR. BUT THE PROBLEM IS THAT IT
CUTS AGAINST THE IDEA THAT THE LEGISLATURE CAN ENACT MANDATORY PENALTY AS ND THE REASONING,
IF IT'S JUST GOING TO BE BASED ON LIFE WITHOUT APPAREL, THEN THIS COURT WILL HAVE TO DECIDE
APPAREL AT THE AGE OF 70. BUT ASIDE FROM THAT, HE STILL NEEDS TO SHOW WHY THE LEGISLATURE
CAN CONSIDER AN OFFENSE, A SERIOUS VIOLENT OFFENSE WHEN MANDATING A PUNISHMENT. AND A
LESSER TERM OF INCARCERATION, BUT YOU STILL HAVE TO EXPLAIN OR THE DEFENDANT WOULD HAVE
TO EXPLAIN BY THE LEGISLATURE CAN'T CONSIDER CRIMINAL CONDUCT WHEN MANDATING --
JUSTICE ALBIN: BECAUSE THEIR ARGUMENT IS CRUEL AND UNUSUAL. THEIR ONLY ARGUMENT IS
THE CONSTITUTIONAL ARGUMENT. SO THE QUESTION IS, CONTEMPORARY STANDARDS OF DECENCY.
WHETHER THIS IS MEETING PENOLOGICAL OBJECTIVES USING A JUVENILE CONVICTION TO GIVE A 70
-YEAR SENTENCE WHERE THIS DEFENDANT IS GOING TO SERVE 47 YEARS WITHOUT APPAREL WHEN HE
MAY VERY WELL RIGHT NOW BE TOTALLY REHABILITATED AFTER SERVING 26 YEARS IN PRISON.
RESPONDENT: I AGREE WITH THE CONSTITUTIONAL QUESTION. ROERP SPECIFICALLY TAKES THE DEATH
PENALTY OFF THE TABLE FOR JUVENILE OFFENDERS BECAUSE ROERP MENTIONS THAT LIFE WITHOUT
APPAREL WILL BE AVAILABLE FOR JUVENILE OFFENDERS. GRAHAM RECOGNIZES JUVENILE OFFENDERS
CAN BE SENTENCE TO DO LIFE WITH APPAREL. ZUBER MENTIONS A 50-YEAR SENTENCE AS A POSSIBLE
SENTENCE FOR A JUVENILE OFFENDER. SO TO ARGUE THAT THOSE SENTENCES ARE PERMISSIBLE BUT
THEN IF A JUVENILE ANDY IS RELEASED AND IS GIVEN A CHANCE TO LEAD A LAW-ABIDING LIFE AND
REFUSES TO DO SO AND CONTINUES TO COMMIT CRIMES AS AN ADULT THAT THAT ADULT OFFENDER CAN'T
BE SENTENCED TO LIFE EITHER WITH OR WITHOUT APPAREL CANNOT BE BASED ON A PERSUASIVE
EXPLANATION. PL PL WHY IS IT THAT JUDGES SHOULD NOT BE ABLG TO HAVE TO DISCRETION TO
CONSIDER THOSE JUVENILE OFFENSES THAT CAN BE COMMITTED WHEN AN INDIVIDUAL THOSE OFFENSES
ARE DIFFERENT AND USING THAT PREDICATE FOR A MANDATORY LIFE SENTENCE WHEN WE KNOW THAT
AT THE TIME THAT THAT OFFENSES WAS COMMITTED THIS PERSON WAS DIFFERENT. DIFFERENT THAN
THEY ARE WHEN THEY ARE AN ADULT. BUT USING THAT AS A PREDICATE, WHY SHOULD JUDGES NOT
BE ABLE TO USE SOME DISCRETION IN THOSE SENTENCES -- THREE STRIKE SENTENCES THAT ARE PREDICATED
ON AT LEAST IN PART A JUVENILE CONVICTION. RESPONDENT: THE FIRST STREET
STRUCTURAL, SEPARATION OF SO YOUR HONOR's QUESTION SUGGESTS IT MIGHT BE BETTER FOR A
SENTENCING JUDGE TO CONSIDER THIS INSTEAD OF THE LEGISLATURE BUT IT DOESN'T FOR BID THE
LEGISLATURE FROM CONSIDERING THIS IN THE FIRST INSTANCE. THE LEGISLATURE IS AWARE CERTAINLY
OF THE BRAIN SCIENCE AND THE CASE LAW ON THIS TOPIC. THE LEGISLATURE CAN ADDRESS THIS
AND IF -- IF IT WANTS TO GOING FORWARD AND CERTAINLY THE LEGISLATURE CAN ENACT MANNED
TERRY PENALTIES AND THE AIM OF THE STATUTE IS TO TAKE AWAY JUDICIAL DISCRETION BECAUSE
OF WHAT HAPPENED IN CALIFORNIA. IF REPEAT OFFENDERS ARE GRANTED APPAREL AND ARE NOT
COMPLETELY 100 PERCENT REHABILITATED, WHICH IS LIKELY IMPOSSIBLE FOR A SENTENCING JUDGE
TO FIGURE OUT, IF THAT HAPPENS AND THEY'RE RELEASED FROM PRISON TOO SOON, SOMEONE CAN
GET KILLED, AND UNFORTUNATELY IN CALIFORNIA THERE'S A TERRIBLE MURDER OF A 12-YEAR-OLD
GIRL AND THE LEGISLATURE WAS RESPONDING TO P AND THAT WAS THE LEGITIMATE PERMISSIBLE SPHERE
THAT THE LEGISLATURE WAS TRYING TO ADDRESS. PFL PL BASED ON THE SUPREME COURT's
JURISPRUDENCE, THERE A CONSTITUTIONAL ISSUE THAT IS CRUEL AND UNUSUAL TO USE THAT -- THOSE
PARTICULAR CONVICTIONS WHEN A DEFENDANT WAS YOU UNDER THE AGE OF 18 AND A JUVENILE TO
-- AS A PREDICATE FOR A MANDATORY LIFE SENTENCE? RESPONDENT: NOT AT ALL.
NOT AT ALL. ROERP, GRAHAM, MILLER AND ZUBER ARE CONCERNED WITH THE POTENTIAL THAT A
JUVENILE OFFENDER WILL BE SENTENCE TO DO DEATH, LIFE WITHOUT APPAREL, WHERE THEY'RE NOT
IN-CORRIGIBLE. WHEN IT'S THE RESULT OF TRANSIENT IMMATURITY. HERE WE KNOW WHAT DEFENDANT
WOULD LOOK LIKE AS AN ADULT IF GIVEN THE CHANCE TO REFORM, TO POTENTIALLY MATURE AND TO
LEAD A LAW-ABIDING LIFE AND DEFENDANT'S CONDUCT IS STRONG EVIDENCE OF RE-INDIVIDUAL SICHL.
SO THOSE CONCERNS THAT ARE ANIMATING THE SUPREME COURT AND THIS COURT IN ROERP, GRAHAM,
MILLER AND ZUBER ARE NOT PRESENT HERE. DEFENDANT'S VIOLENT CRIMINAL CONDUCT AS AN
ADULT ANSWERS THE QUESTION OF WHETHER THE LEGISLATURE CAN RESPOND IN A PERMISSIBLE
FASHION TO PROTECT THE PUBLIC. JUSTICE PATTERSON: YOU'RE SEEING AN
IMPORTANT DISTINCTION WHERE A JUVENILE IS SENTENCED AND THE OPPORTUNITY HOW MANY YEARS
OR DECADES THE SENTENCE MIGHT BE, THE OPPORTUNITY FOR REHABILITATION IS ESSENTIALLY LOST
DURING THAT PERIOD. BUT YOU'RE SAYING IN THE CASE OF MR. RYAN NOT MUCH TIME PASSED BEFORE
HE HAD TWO OFFENSES, TWO SERIOUS VIOLENT OFFENSES AS A 23-YEAR OLD WITH OBVIOUSLY -- I DON'T
KNOW WHAT EVIDENCE MIGHT HAVE BEEN THERE AT A SENTENCING FOR THOSE -- OR AT THE TIME.
BUT THE REHABILITATION DIDN'T HAPPEN. RESPONDENT: THAT'S EXACTLY CORRECT.
AND THE FIRST PART OF YOUR QUESTION, JUSTICE PAT, IS REALLY THE HEART OF OUR ARGUMENT.
IF YOU TAKE MILLER AND ZUBER, THOSE CASES ARE CONCERNED WITH LIFE WITHOUT -- THEY DON'T
PROHIBIT A LIFE WITHOUT APPAREL SENTENCE FOR A JUVENILE. THEY'RE CONCERNED FOR A JUVENILE
OFFENDER BASED ON THE POTENTIAL THAT THAT JUVENILE OFFENDER IS NOT IN-CORRIGIBLE. AND
OF COURSE MILLER AND ZUBER RECOGNIZE THAT LIFE WITH APPAREL IS PERFECTLY APPROPRIATE --
AT LEAST POSSIBLE AS A CONSTITUTIONAL MATTER AND LIFE WITHOUT APPAREL IS PERMISSIBLE AS
A CONSTITUTIONAL MATTER FOR A JUVENILE OFFENDER. SO THEN TO TAKE THAT OFFENSE COMPLETELY
OFF THE TABLE WHEN THE JUVENILE OFFENDER IS GIVEN THE CHANCE TO REFORM WHICH MILLER AND
ZUBER ESSENTIALLY CONTEMPLATE THAT SENTENCING JUDGES MIGHT WANT TO CONSIDER THAT, THAT
SHOULD CONSIDER THAT, THAT THERE SHOULD POTENTIALLY BE AN OPPORTUNITY FOR A JUVENILE
OFFENDER TO SHOW MATURITY. TO SHOW REHABILITATION. THAT IS THE HEART OF MILLER
AND ZUBER. AND WHEN A JUVENILE OFFENDER PROCEEDS, IS GIVEN THAT OPPORTUNITY, PROCEEDS
TO COMMIT VIOLENT FIRST DEGREE CRIMES AS AN ADULT, THOSE CONCERNS COMPLETELY FALL AWAY.
JUSTICE PATTERSON: HOW DOES THAT FIT IN WITH THE THIRD FACTOR FOR WHETHER
THE PUNISHMENT GOES BEYOND WHAT IS NECESSARY TO ACCOMPLISH -- RESPONDENT:
THAT FACTOR CANNOT POSSIBLY BE SATISFIED HERE, JUSTICE PAT. ROERP IS THE FIRST OF THESE
FOUR MAJOR CASES ON THIS SUBJECT AND ROERP IS SPECIFICALLY ADDRESSING RETRIBUTION. ROERP
DOESN'T ADDRESS NAPGS WHATSOEVER. AND THE COURT IS CONCERNED ABOUT THAT SENTENCE. SO
THE COURT IS TALKING ABOUT RETRIBUTION WHICH IS COMPLETELY DIFFERENT THAN NAPGS. WHEN
YOU GO TO GRAHAM, MILLER AND ZUBER, THE COURT RECOGNIZES NAPGS AS A LEGITIMATE GOAL AND
IS NOT PROHIBITING LEGISLATURES OR SENTENCING JUDGES FROM IMPOSING SIGNIFICANT PERIODS
OF INCARCERATION ON JUVENILE OFFENDERS SIMPLY FOR WHAT THEY DO AS JUVENILE. SO THOSE
COURTS RECOGNIZED THAT THE LEGISLATURE CAN TAKE SIGNIFICANT ACTION TO PROTECT THE PUBLIC
JUST BASED ON CONDUCT THAT A JUVENILE -- CRIMINAL CONDUCT OF A JUVENILE. AND THEN WHEN
YOU ADD OF COURSE CRIMINAL CONDUCT BY AN ADULT, VIOLENT FIRST DEGREE CRIMES AS AN ADULT,
THAT CERTAINLY STRENGTHENS THE ARGUMENT THAT THERE IS NO GROEFL DISPROPORTIONATE
PUNISHMENT HERE AND THAT THIS IS A LEGITIMATE INTEREST THAT THE LEGISLATURE IS CERTAINLY
ALLOWED TO TAKE TO PROTECT THE PUBLIC AND TO PREVENT SERIOUS VIOLENT CRIMES FROM HAPPENING
AGAIN. THIS OF COURSE WAS IS TO PREVENT WHAT HAPPENED IN CALIFORNIA. VIOLENT MURDERS
BY REPEAT OFFENDERS GRANTED APPAREL. JUSTICE ALBIN: SO LEGITIMATE PENOLOGICAL
OBJECTIVE, 47 -- WITH THE USE OF A JUVENILE CONVICTION, 47 YEARS. SO WHAT IS THAT? LIKE
IN TERMS OF HOW LONG YOU NEED TO INCAPACITATE THIS 23-YEAR OLD. RESPONDENT:
THAT QUESTION CUTS DIRECTLY TO WHAT THE SUPREME COURT SAYS OVER AND OVER ABOUT NOT TRYING
TO FIGURE OUT WHAT THE PERFECT LINE IS FOR THE LEGISLATURE. THE SUPREME COURT REPEATEDLY
TRIES TO USE INDICATIONS OF HOW LONG IS A SENTENCE IS TOO LONG. IT'S DIFFICULT FOR THE
LEGISLATURE, FOR JUDGES TO FIGURE OUT A PERFECT SENTENCE IN TERMS OF -- JUSTICE
ALBIN: I AGREE. 47. 67 YEARS? AT SOME POINT THE LINE IS DRAWN. CORRECT? OTHERWISE
WE WOULDN'T EVEN HAVE CRUEL AND UNUSUAL JURISPRUDENCE. THE LINE IS DRAWN SOMEWHERE.
YES? RESPONDENT: YES. WELL, FOR TERM OF YEARS, IN THIS CASE FSHGS IT WAS
LIFE WITHOUT APPAREL, IT PROBABLY WOULDN'T AFFECT THE ANALYSIS AND DEFENDANT IS ARGUING
IT'S LIFE WITHOUT APPAREL. SO THE LENGTH OF THE SENTENCE IS NOT -- IF YOU LOOK AT WHAT
THE U.S. SUPREME COURT HAS SAID OVER AND OVER IS TO LOOK AT OBJECTIVE FACTORS AND THE
U.S. SUPREME COURT HAS BARELY IF EVER OVERTURNED A SENTENCE BASED ON THE LENGTH OF THE
TERM OF YEARS. AND CERTAINLY WHEN IT'S VIOLENT FIRST DEGREE CRIMES ON A REPETITIVE BASIS,
THE LENGTH THAT THE LEGISLATURE CHOOSES AS FAR AS 47 YEARS, TO SECOND GUESS THAT, TO BE
QUITE HONEST, IF THIS WAS JUST A REGULAR APPEAL IN TERMS OF THE REGULAR STANDARD OF REVIEW,
ABUSE OF DISCRETION, SHOCKING THE JUDICIAL CONSENSUS, THAT STANDARD WOULDN'T BE
SATISFIED HERE BY THE DEFENDANT. IF YOU ACTUALLY LOOK AT THE THREE VIOLENT FIRST DEGREE
CRIMES THAT THE DEFENDANT COMMITTED AS AN ADULT, HE RECEIVED CONCURRENT SENTENCES IN ASSESS
SENSE FOR ALL OF THEM. SO TO LOOK AT THIS AS ONE SENTENCE MIGHT BE MISLEADING BAU HE
RECEIVED THREE SENTENCES AS YOUR HONOR MENTIONED BEFORE, AN ASK YEAR SENTENCE WITH 20
YEARS OF APPAREL IN-ELIGIBILITY FOR THE FIRST ARMED ROBBERY HE COMMITTED AS AN ADULT.
JUSTICE ALBIN: I DON'T WANT TO BE MISUNDERSTOOD. I'M NOT IN ANY WAY
DIMINISHING THE NATURE OR THE VINES OF THESE OFFENSES. THEY'RE SERIOUS OFFENSES. THE
ONLY QUESTION IS WHETHER OR NOT THE USE OF THE JUVENILE CONVICTION FOR PURPOSES OF OUR
CRUEL AND UNUSUAL PUNISHMENT STATUTE CAN BE USED TO IMPOSE A MANDATORY LIFE SENTENCE.
THAT'S ALL. RESPONDENT: OF COURSE. AND IT IS PROBLEMATIC TO SEPARATE THE
QUESTIONS. I THINK THIS IS WHAT I WANT TO ADDRESS WITH THE CHIEF JUSTICE's QUESTION
PSHGS THE THREE PART TEST DOESN'T PERTAIN TO DEFENDANT'S ARGUMENT. DEFENDANT IS ASKING
FOR A CATEGORICAL RULE. IF AN ADULT OFFENDER, IF THAT OFFENDER ALSO COMMITTED A VIOLENT
CRIME AS A JUVENILE, AND THERE IS NO SUPPORT IN ROERP, GRAHAM, ZUBER OR UNDER THE
CONSTITUTION FOR THAT. JUSTICE PATTERSON: THE REPRESENTATION BEING MADE
HERE REALLY MAKES THE INDIVIDUAL SENTENCE AND HOW IT PLAYS OUT IRRELEVANT TO THE THREE
PART TEST. AM I WRONG ABOUT THAT? RESPONDENT: I THINK THAT'S EXACTLY RIGHT.
I THINK A GREAT WAY TO LOOK AT IT IS LOOKING AT THE STATUTE. IF YOU HAVE MURDER UNDER
THE STATUTE, NO ONE WOULD DISPUTE THAT A 47-YEAR PERIOD FOR TWO MURDERS AS AN ADULT IS NOT
CRUEL AND UNUSUAL. AND IF YOU ADD A THIRD MURDER AS A JUVENILE, SO IF YOU HAVE A MURDER
AS A JUVENILE AND TWO AS AN ADULT, WOULD ONE WOULD ARGUE THAT 47 YEARS SHOCKS THE
CONSENSUS IS OR IS CRUEL AND UNUSUAL. SO THE LENGTH OF THE PERIOD IS ESSENTIALLY
IRRELEVANT IN AN IMPORTANT WAY AND THAT'S WHY THE ARGUMENT DOES NOT FIT. JUSTICE
PATTERSON: THERE COULD BE AN APPLICATION MADE SPECIFICALLY AND THAT'S NOT WHAT'S BEING
MADE HERE. THEY'RE TALKING ABOUT STRIKING DOWN THE STATUTE AS IT APPLIES TO THREE MURDERS,
INCLUDING MURDERS SPREAD OUT OVER THE COURSE OF SOMEONE'S LIFE, CORRECT?
RESPONDENT: THAT'S EXACTLY RIGHT. THE LENGTH OF INCARCERATION IS ESSENTIALLY NOT THE
FOCUS OF DEFENDANT'S ARGUMENT BECAUSE IN THAT CASE FOR THE DEFENDANT'S SECOND MURDER THE
DEFENDANT IN THAT CASE COULD BE -- JUSTICE ALBIN: YOU'RE USING THESE MURDER
EXAMPLES. WE KNOW THAT FOR A MURDER CONVICTION YOU'RE GOING TO GET A LIFE SENTENCE FOR
THE FIRST MURDER. IT'S NOT LIKE YOU'RE GOING TO BE GETTING OUT TO DO A SECOND AND A THIRD.
RESPONDENT: THAT'S NOT CORRECT. BECAUSE THIS COURT RECOGNIZES IN MILLER
AND ZUBER IF THE JUVENILE IS SENTENCED THESE FACTORS SHOULD BE TAKEN INTO ACCOUNT AND
THE SENTENCING JUDGE SHOULD CONSIDER A PERIOD OF APPAREL IN-ELIGIBILITY. THAT'S THE IDEA
OF MILLER. JUSTICE ALBIN: YOU'RE THROWING AROUND THESE MURDER CONVICTIONS
AS IF SOMEONE'S GOING TO GET OUT, COMMIT ANOTHER MURDER AND ANOTHER MURDER. AND YOU KNOW
THAT THAT IS NOT JUST A HYPOTHETICAL THAT HAS ANY GROUNDING IN REALITY.
RESPONDENT: I'M RESPONDING TO DEFENDANT'S ARGUMENT WHICH IS A CATEGORICAL CHALLENGE
BASED -- IT DOESN'T HAVE TO BE THREE MURDERS. I AGREE WITH YOUR HONOR. IF YOU HAVE AN
ARMED ROBBERY AS A JUVENILE, AN ARMED ROBBERY AS AN ADULT -- JUSTICE PATTERSON:
BUT THE THREE STRIKES LAW COULD MAKE A DIFFERENCE IN THIS CASE BETWEEN AN 18-YEAR OLD AND
BEING OUT AT 48 BETWEEN A MUCH LONGER SENTENCE. RESPONDENT: THAT'S CORRECT.
AND MURDER IS OFTEN A FEW INCHES IN ONE DIRECTION, UPRIGHT, LEFT OR DOWN. THERE'S AN
ARBITRARY LUCK BETWEEN. SO THE IDEA THAT THIS COULDN'T HAVE BEEN A MURDER FOREVER DID HE
FIND FINAL OFFENSE AS AN ADULT, THAT'S COMPLETELY WRONG. THIS COULD HAVE BEEN A MURDER
HERE. DEFENDANT'S ARGUMENT WOULD HAVE BEEN THE SAME IF HE COMMITTED MURDER AS AN ADULT.
FOR BID THE LEGISLATURE FROM CONSIDERING CRIMINAL CONDUCT AS A JUVENILE WHEN THAT OFFENDER
IS GIVEN AN OPPORTUNITY TO LIVE A LAW BIDING -- JUSTICE ALBIN: I DON'T THINK
ANYONE'S ARGUING CAT KELLY. IT CAN BE USED. THE ONLY QUESTION IS CAN IT BE USED AS A
THIRD STRIKE FOR. RESPONDENT: SOME OF THE QUESTIONS EARLIER FROM THE COURT
RECOGNIZE WHAT IS THE LIMITING PRINCIPLE AND HOW FAR WILL THIS GO. WILL THIS APPLY TO
OTHER STATUTES AND QUITE FRANKLY APPLY TO WAIVER COMPLETELY. I THINK DEFENDANT'S ARGUMENT
HERE THAT JUVENILES SHOULD ALWAYS BE CONSIDERED DIFFERENT, THE ENTIRE IDEA OF WAIVER IS NOT
BEING CHALLENGED HERE BUT THE LOGIC OF IT, IT DOESN'T COINCIDE WELL IF THE DEFENDANT CAN BE
WAIVED AND CONVICTED AS AN ADULT ARND ROERP RECOGNIZES LIFE WITHOUT APPAREL AS AN
ACCEPTABLE SENTENCE. AND ZUBER RECOGNIZES A 50-YEAR SENTENCE AS A PERMISSIBLE SENTENCE
FOR A JUVENILE OFFENDER. SO TO TURN AROUND AND SAY WHEN AN ADULT CONTINUES TO COMMIT
VIOLENT FIRST DEGREE CRIMES, THE LEGISLATURE HAS TO -- IN THE WORDS OF THE 11TH CIRCUIT,
WIPE THE RECORDS CLEAN, THAT'S NOT SUPPORTED BY. CHIEF JUSTICE RABNER: ANYTHING
YOU'D LIKE TO ADD IN CLOSING? RESPONDENT: NO THANK YOU, YOUR HONOR, YOUR
HONORS. CHIEF JUSTICE RABNER: MR. SMITH, BRIEF REBUTTAL? JAMES K.
SMITH, JR.: I'D LIKE TO JUST ADDRESS A COUPLE OF MATTERS VERY BRIEFLY RE-LATING TO
CONSTITUTIONALITY. FIRST OF ALL, THERE WAS A QUESTION BY A MEMBER OF THE COURT ABOUT A
PRESUMPTION OF KUBLT. CHIEF JUSTICE RABNER: TRY TO RAISE YOUR VOICE A LITTLE
BIT. JAMES K. SMITH, JR.: I'M SORRY. REGARDING THE QUESTION RELATING TO
THE PRESUMPTION OF KUBLT. I THINK THAT WHATEVER OPINION THAT THIS COURT MAY RENDER,
IT HAS TO ACKNOWLEDGE THAT ON ITS FACE THE THREE STRIKES LAW WOULD BE UN-CONSTITUTIONAL
AS APPLIED TO A JUVENILE. YOU KNOW, THE STRIKE WOULD -- AS I MENTIONED BEFORE -- WOULD
ALLOW A JUVENILE TO RECEIVE LIFE WITHOUT APPAREL BASED ON CRIMES MADE PRIOR TO THE AGE
18. JUSTICE SOLOMON: THAT'S NOT IN FRONT OF US. JAMES K. SMITH,
JR.: NO. JUSTICE PATTERSON: YOU'RE TALKING ABOUT ALL STRIKES TAKING PLACE
BEFORE THE AGE OF 18. JAMES K. SMITH, JR.: RIGHT. BUT I THINK YOU'RE GOING
TO HAVE TO ACKNOWLEDGE THAT THERE ARE IN FACT PROBLEMS WITH THE STATUTE IN YOUR OPINION.
JUSTICE SOLOMON: WHY DO WE HAVE TO ACKNOWLEDGE WHEN IT'S NOT THE CASE IN
FRONT OF US? THIS INDIVIDUAL WAS SENTENCED AS AN ADULT FOR A CRIME HE COMMITTED AS AN
ADULT. THAT'S NOT A CASE IN FRONT OF US. SOMEBODY MAY DECIDE TO MENTION IT BUT THAT'S
NOT THE CASE IN FRONT OF IT. WHY DO WE HAVE TO DEAL WITH THAT? SMITH SMITH NOT NECESSARILY
MANDATED THAT YOU WOULD HAVE TO DISCUSS IT BUT THE FACT -- JUSTICE SOLOMON:
YOU'D LIKE US TO. JAMES K. SMITH, JR.: THIS COURT HAS SPOKEN IN ZUBER --
JUSTICE SOLOMON: IT'S IMPORTANT TO SAY THAT IF THAT'S THE CASE IN FRONT
OF US. THAT'S NOT THE CASE IN FRONT OF US. IN FRONT OF US IS SOMEBODY WHO COMMITTED
TWO FIRST DEGREE CRIMES AS AN ADULT. THAT'S WHAT'S IN FRONT OF US. JAMES K.
SMITH, JR.: OBVIOUSLY YOUR HONORS CAN PHRASE THIS WHATEVER WAY YOU CHOOSE IN YOUR OPINION.
I DON'T GET TO DECIDE THAT. NOW, HOWEVER, IN DETERMINING THE CONSTITUTIONALITY
OF A RECIDIVIST STATUTE, THE COURT MUST ALWAYS CONSIDER THE NATURE OF THE PRIOR OFFENSES.
IN SULLIVAN VERSUS HOME FOR EXAMPLE THE SUPREME COURT OF THE UNITED STATES DEALT WITH
AN HABITUAL OFFENDER STATUTE AND FOUND CRUEL AND UNUSUAL PUNISHMENT. IN THE OPINION THE
COURT RECOGNIZED THAT THE DEFENDANT IN FACT HAD SIX PRIOR CONVICTIONS BUT THEY WERE ALL
FOR VARIOUS MINOR OFFENSES. NOW, IF I UNDERSTOOD THE ATTORNEY GENERAL CORRECTLY,
HE SAID THAT HE WAS NOT ARGUING THAT PRIOR OFFENSES COMMITTED AS A JUVENILE HAD THE SAME
MORAL CULPABILITY AS CRIMES COMMITTED BY AN ADULT. AND THAT OF COURSE IS EXACTLY OUR ARGUMENT
IN THIS CASE. THAT, FOR EXAMPLE, IN STATE VERSUS OLIVER, THIS COURT FOUND THAT THE THREE
STRIKES STATUTE WAS NOT CRUEL AND UNUSUAL BECAUSE IT ONLY ENCOMPASSED CRIMES THAT WERE
VERY SERIOUS. AND THERE'S A PART OF THE OPINION WHERE THEY TALK ABOUT, WELL, WE'RE NOT
TALKING ABOUT PASSING BAD CHECKS. BUT OUR ARGUMENT HERE IS THAT RECOGNIZING THE FACT
THAT CRIMES COMMITTED AS A JUVENILE ARE LESS MORALLY CULPABLE THAN THOSE COMMITTED AS
AN ADULT, THAT THAT IS A REASON WHY THE STATUTE IS UN-CONSTITUTIONAL. AND
THE FACT, OF COURSE, IS THAT RECOGNIZING THAT THESE PRIOR CRIMES HAVE LESS MORAL
CULPABILITY, THE FACT IS THAT IN SENTENCING A DEFENDANT, AN ADULT DEFENDANT, UNDER THE
THREE STRIKES LAW, THE JUDGE HAS NO ABILITY TO CONSIDER THAT MORAL KAL APPLICABILITY.
JUSTICE SOLOMON: THE DEFENDANT WHO IS APPEARING IN FRONT OF THE SENTENCING
JUDGE HERE, YES, HE HAD A PRIOR JUVENILE OFFENSE AT THE AGE OF 16, A FIRST DEGREE ARMED
ROBBERY, BUT THE DEFENDANT IN FRONT OF THE JUDGE HERE WAS AN ADULT BEING SENTENCED AS
AN ADULT FOR A THIRD FIRST DEGREE ROBBERY, CORRECT? JAMES K. SMITH, JR.:
THAT'S CORRECT. AND IN ANY OTHER CONTEXT, THE JUDGE WOULD BE ABLE TO CONSIDER THE FACT
THAT THE PERSON WAS A JUVENILE AT THE TIME OF THE FIRST CRIME. IN FACT, NOW UNDER THE
NEW MITIGATING FACTOR EN ABLTHED BY THE LEGISLATURE, FACTOR 14, THE JUDGE WOULD HAVE
TO CONSIDER THE FACT THAT THE PERSON WAS UNDER THE AGE 26 AT THE TIME. JUSTICE
SOLOMON: THEY WOULD. BUT THE LEGISLATURE DIDN'T SAY THAT AND DIDN'T SAY THAT HERE AND
DIDN'T SAY THAT WHEN THEY PROPOSED THAT MITIGATING FACTOR. THE LEGISLATURE DIDN'T DO
THAT HERE. JAMES K. SMITH, JR.: THAT'S TRUE. BUT THE ENACTING THE THREE
STRIKES LAW, THE LEGISLATURE DIDN'T SAY ANYTHING. THEY DIDN'T SAY THAT THIS IS GOING
TO ENCOMPASS -- JUSTICE SOLOMON: ARE YOU ARGUING THERE'S AN AMBIGUITY IN
THIS LAW? JAMES K. SMITH, JR.: WELL, THE QUESTION THAT WAS RAISED, I THINK
BY THE ATTORNEY GENERAL, WAS THAT THIS WAS A LEGISLATIVE POLICY THAT JUVENILE OFFENDERS
SHOULD BE TREATED NO DIFFERENT THAN ADULT -- JUSTICE SOLOMON: I DID HEAR
HIM SAY P BUT ARE YOU ARGUING THERE'S AN AMBIGUITY IN THE STATUTE? JAMES
K. SMITH, JR.: I'M SAYING IT'S NOT CLEAR THAT THE LEGISLATURE INTENDED THIS STATUTE TO
APPLY TO JUVENILES IN TERMS OF WHAT CONSTITUTES THE FIRST AND SECOND STRIKE.
JUSTICE SOLOMON: I'M JUST ASKING A SIMPLE QUESTION. ARE YOU CLAIMING THERE'S AN
AMBIGUITY IN THE STATUTE? JAMES K. SMITH, JR.: WELL, YES, I'M CLAIMING THERE'S
AMBIGUITY IN THE SENSE THAT IT DOESN'T SPECIFY -- JUSTICE SOLOMON: IS THAT
WHAT YOU'RE RELYING ON FOR YOUR ARGUMENT? JAMES K. SMITH, JR.: IT IS PART
OF MY ARGUMENT. CHIEF JUSTICE RABNER: MR. SMITH, I THINK
CHIEF JUSTICE RABNER: MR. SMITH, I THINK WE'VE COVERED THIS POINT THE FIRST GO AROUND.
ANYTHING ELSE ON REBUTTAL? THANK YOU, COUNSEL FOR THE VERY HELPFUL ARGUMENTS. WE'LL TAKE A
BRIEF RECESS AND COME