tv Politics and Public Policy Today CSPAN October 23, 2015 5:00pm-7:01pm EDT
degree of rehabilitation that is consistent with something less than the most harsh sentence available for youths who commit murder -- terrible crime -- but still the harshest sentence the court thought would be reserved for the worst of the worst. which is in fact what louisiana said when it amended its statutes substantively to conform them to miller. it said life without parole should be reserved for the worst offenders who commit the worst crimes. so when you combine the fact that this is not a rule that only governs procedure, it doesn't just govern evidence, it also mandates changes in outcomes as an available option with the very genesis of the miller rule in a conclusion that, for the people in this class, the appropriateness of the punishment of the harshest degree, life without parole, will be relatively uncommon, it seems clear that the miller rule falls on the substantive side of the axis rather than on the
procedural side. >> have any states treated miller as retroactive on state habeas? >> yes. the majority of states -- it's a close call. i think it's maybe 10 to 7 or 10 to 8, but the majority of states that have reviewed this have concluded that miller is retroactive. most have done it as a matter of substantive law. there are a couple of opinions that talk about the watershed exception which is not the way we think this case should be analyzed. not only the states have done that, but the united states has taken that position with respect to the juveniles that were sentenced before miller to life without parole as a mandatory sentence, and in the re-sentencings of those that have taken place so far -- it's only been about ten, but those defendants have almost uniformly received sentences that are terms of years significantly shorter than life. >> what is the population we're
dealing with if most states do apply miller retroactively? i think there was a figure of 2,000 people with life without parole. >> i haven't broken it down numerically -- may i answer? >> sure. >> i have not broken it down numerically, justice ginsburg. michigan has not applied it retroactively. it has a large population of juveniles in the miller class. i don't think pennsylvania resolved it certainly not favorably yet for the defendants. >> thank you, counsel. mr. duncan? >> mr. chief justice, and may it please the court. i was going to begin by saying i would proceed directly to the merits but i gather from the drift of the argument the court has serious questions about jurisdiction so i'd like to briefly begin there. we are in an odd position with respect to jurisdiction. because we won below and we'd win in the fifth circuit on federal habeas which found miller is not retroactive. why do we not contest jurisdiction?
we believe this is a straightforward case not -- justice kagan it is not a standard michigan v. long case. but it's an interwoven case. meaning that the state court took teague lock, stock and barrel. now, there's no doubt, justice scalia, in the taylor, previous louisiana supreme court opinions that the state said we are voluntarily adopting teague, there's no doubt about that. we think the question is whether that raises the question of an advisory opinion from this court. why do we say it doesn't? because in cases like coleman v. thompson, the court said where the federal law holding is integral to the state court's disposition of the matter there is no risk of an advisory opinion, and later in coleman the court said only if resolution of the federal issue, quote, could not affect the judgment is there the risk of an advisory opinion. here we don't think there is the risk of an advisory opinion. of course, it's within the realm of possibility. we doubt it's going to happen,
but it could happen that on remand, the louisiana pk spk could say we've seen what you think about teague and we'll adopt our own retroactivity standards, as some questions have done. the question is does it make this court's opinion advisory. we think not. the assistant solicitor general talked about cases like standard oil v. johnson where the state was under no obligation to tether its state law to federal standards. >> it didn't say so, though. in standard oil, the -- this is a quote from the opinion. the relationship between post exchanges and the government of the united states is controlled by federal law. >> right. that's right. my point, justice scalia, is that was embedded in the tax exemption statute. the tax exemption made certain taxes exempt from the statute and the exemptions -- >> it would have been true no matter what the state did, right? >> well, no the --
>> we're deciding a question of federal law that would have applied on its own. >> well, my -- no -- well, with respect to standard oil, my point is that the state didn't have to make its tax exemption status turn on a federal question. it did and so the court had injured to resolve it. >> don't you think the state made its tax exemption law turn on federal law because there are federal constitutional requirements in that area? could the state have taxed -- i mean, there is the question of whether or not the supremacy clause would permit the state to tax sales to the post exchanges. >> i think that's possible. this court didn't make its jurisdiction dependent on that. a case like ohio -- >> in the provision i just quoted it said that the relationship between post exchanges and the government of the united states is controlled by federal law. that's what our opinion said. >> well, so take the -- the assistant solicitor general
brought up the case of ohio v. reiner, where the state made its trangs ax al. this court addressed that embedded and discrete federal issue. >> mr. duncan, isn't it similar when justice scalia used the controlled language, louisiana supreme court used similar language. it's dictated by teague. it's only dictated by teague because they've chosen to make it dictated by teague, but once that choice has been made, all outcomes are dictated by teague. it's the same issue. >> well, we think -- we agree with that. we think it's binding, quote, unquote, binding within the meaning of binding federal law because the state has chosen to do it and it's never shown that it wouldn't do it. so we -- we think that -- look, if the court disagrees with us on that -- >> ohio versus reiner which you just cited, was there any other way in which the state could have obtained review of the state supreme court's erroneous
determination that the witness in question there did not have a fifth amendment privilege because she said that she didn't commit the crime? >> i don't think so. because this -- >> do you think that's not a distinction between that case and this case? >> well, if the teague standard is a discreet federal standard that the state has made, has incorporated, then the only way that -- well, the louisiana supreme court could -- the defendant could go to federal habeas, sure, and you could get an interpretation that way. it doesn't seem -- the difference between federal habeas and the review of the supreme court's decision makes a difference with regard to jurisdiction. it might mean this court would wait for, i don't know, a more robust split to develop and take a federal case. but in this case -- this goes to the second reason why we haven't strongly contested jurisdiction. there is a robust split on this specific issue that extends to something like 21 state and federal courts. they're all deciding the same federal issue. it seems to us that, as a practical matter, this court ought to weigh in.
it's going to weigh in sooner or later. it's going to weigh in on the federal habeas case or on the state supreme court. >> how do we weigh in when we have jurisdiction? you think that doesn't matter at all? >> of course jurisdiction matters, justice scalia. >> so what you've said doesn't really make much sense. >> well, i think it makes sense -- >> let's get in there quickly whether we have jurisdiction or not. you're not saying that, are you? >> well, no, we're not saying that. we're saying if the federal issue is genuinely interwoven with state law and there's no independent state grounds, then this court has the jurisdiction to decide the question. otherwise it has to wait for a federal habeas case. proceeding to the merits. in miller this court was invi d invited -- >> it's clear we have jurisdiction. i'm just trying to think this out in my mind. we have jurisdiction, where there is a person, that's the defendant. and the defendant says the court's decision, that's your court's decision, is contrary to the constitution or statute of
the united states. that's just what they say. so we have jurisdiction to hear the case. the question is how do we dispose of the case in which we have jurisdiction. in three instances, i guess, the court has done, in disposing of such a case, what the solicitor general says. namely, they have said we are -- we are not going to say whether he is right in saying it's contrary to the constitution. that's because there might be an adequate state ground. there might not be. your adequate state ground was one that was elucidated or explained as being flowing from a certain interpretation of federal law. we will say their interpretation of federal law was wrong and now we'll send it back to see what they do. >> yes, the cases that we -- >> is that right? >> that's our position. >> what is the federal law that you're talking about? >> the application of teague to miller. >> that's not a federal law. it's a federal habeas statute is a federal law, right? and teague is an interpretation of that federal law. was that federal law at issue in this case?
>> the teague standard -- >> of course it wasn't. >> but the teague standard, the teague exceptions could well be constitutionally required. teague doesn't apply. >> that's why we don't take a position on it. particularly -- >> you want us to hold that in this case? >> we do not want you to hold that in this case. >> did we say the opposite in danforth? or the majority say the opposite in danforth? >> could you tell me why you would think that something like atkins would not be retroactive to states? as a compulsion, meaning not as by election of teague retroactivity. >> that is a difficult question that we don't take a position on, but to answer your question, justice sotomayor, the argument goes that danforth made clear that teague is an equitable interpretation to federal habeas statute. it's not constitutionally binding on the states, and that
-- the court left open whether the exceptions are binding, but the exceptions were part and parcel of justice harlan's mackey understanding of how he thought federal habeas ought to apply. and so whereas atkins -- i mean, atkins creates a binding constitutional right. the question of remedy, though. the question is a state constitutionally bound to offer that remedy? and this court has recognized in cases like pennsylvania v. finley, for example, that states have wide discretion in structuring their post conviction. and the next point, though, has to do with -- >> that has to be different because as justice breyer pointed out, you have wide discretion to structure it as you want. but if you structured it in a way that you're going to say i'm offering due process, isn't there a check, a substantive check by due process that you have to offer the minimum? >> well, i mean, that is the question. so this court has found that there's a substantive check on due process in griffith where we're talking about direct review.
when we're talking about collateral review, i mean, our view although we haven't taken a position on it, collateral review is a different animal. for purposes of -- >> we have any number of cases where states have viewed the exceptions as controlling the fact that they have to offer the constitutional amendment. >> but this court has never held that. >> hasn't yet. why shouldn't we? >> understood. >> that's really the serious question. >> it is a serious question. and, again, we have not taken a position on that question because we feel that this case is interwoven with federal law as a matter of state retroactivity. in miller -- on to the merits, in miller this court was invited to categorically bar the penalty of life without parole for juveniles who commit murder, but it decided not to do so. now, that decision leads directly to the conclusion in our view that miller is not a substantive rule under teague's first exception. consideration of the teague framework, teague policies and teague precedent points instead to the conclusion that miller is
a procedural and not a substantive rule. so we think summerlin most helpfully sets out the framework. >> may i ask you a hypothetical? suppose there's a state and it has a mandatory minimum for a theft. it says the mandatory minimum for theft is 20 years. and suppose a court looks at that and says, you know what, that's incredibly disproportionate to a lot of theft. and so strikes the mandatory minimum. says you just can't have a mandatory minimum like that. make it lower. would that be a substantive ruling? >> we don't think so, justice kagan, because the mandatory aspect of it goes to the manner of imposing a penalty. >> it does not go to the manner of imposing. it says nothing about the manner of imposing. what it does is it just increases the range of sentencing possibilities. it actually leaves it to the court. it says absolutely nothing about what factors ought to be taken into account, nothing about that at all. all it says is you can't have a
mandatory minimum of 20 years for theft. make it lower. >> well, so if in that hypothetical that doesn't go to the manner of imposing a penalty, then it's different than miller because miller made very clear that the mandatory aspect of the penalty goes to the manner of imposing the penalty. not the substance. >> so if you're saying no, that's different because there was something else in miller, there is something else in miller. there is a bunch -- there is -- there is a process component of miller, no question about it, where the court says what courts are supposed to look at are the characteristics of youth and are supposed to try to figure out whether these terrible crimes are functions in part of immaturity or not. whether you really are looking at an incorrigible defendant. so there is that process component. but that process component does not take away the fact that there is a completely separate self-sufficient component as to
what the range of punishment has to be that's completely on all fours with the hypothetical that i gave you. >> well, justice kagan, the relevant difference in terms of the teague analysis is that this court in miller did not take the punishment of life without parole. the distinct category of punishment of life without parole off the table, this court has never held that a noncategorical rule is substantive under teague. and it's done that for good reasons. because that would fly in the face of the policies that inform the teague analysis. >> no, you're exactly right. it did not take the lwop punishment off the table. but similarly in my hypothetical, a 20-year sentence for theft has not been taken off the table. what the court has done is to say there have to be other options. there has to be an option of ten years or five years or two years, whatever it is. so they've expanded the range of possibilities. they've just made the sentence different because a sentence is
defined both by its upper and by its lower end. and so they've made the sentence different. >> understand that, but making the sentence different doesn't necessarily mean make it substantive under the teague framework. here's another way of looking at it. the defendant, a juvenile murderer who committed murder and is serving a life without parole sentence today pre-miller is not facing a punishment that the law cannot impose on him. and we know that from miller because miller said the court's decision does not preclude that punishment. and so that goes to finality. the finality interests underlying convictions do not yield where the state still has the power to impose that penalty. finality interest yield, justice harlan explained in mackie and this court adopted in teague, finality interests yield only where the state lacks the power. that's where the finality interest crumbled, so to speak, because the state no longer can impose that category of penalty. so that would go for roper, it would go for frahm, it would go for justice breyer's sedition
or which crime. if somebody's in jail because they were accused of being a witch, the state has no finality interest of keeping that person in jail. by the same token, if the punishment is death for a juvenile, the state has no finality interest in doing that. so leaving the punishment on the table is crucial. if it doesn't take it off, it's not substantive. the second policy reason for teague is avoiding the adverse consequences of retrial. and we think miller is even more clearly not substantive under that standard because categorical rules apply retroactively because they don't carry the adverse consequences of retrial. they don't make you go back and redo the trial and unearth old facts and drain state resources and come out with a distorted -- distorted retrials. miller, by its nature, envisions a fact-intensive hearing that considers multiple characteristics at the time of the trial. >> you don't have a distorted new trial if you just grant a parole hearing. >> that's right.
that's right. but that's, of course, not what miller would require. that's what graham would require, justice kennedy, because graham is obviously a categorical rule that says you can no longer impose that punishment so you have to give them a parole hearing or some meaningful way of release. miller is about the step before whether to give a parole hearing. whether the person can be eligible for parole at the outset. that's the inquiry that we're talking about in miller, and that's quite different from a parole hearing. the fact of the matter is, though, is that applying miller retroactively inevitably turns the retroactive miller hearing into a parole hearing which shows that it doesn't quite work. in terms of adverse -- >> are you going to say at some point you started, suppose you look at the watershed procedural change. my impression from the case you cited, summerlin, is that deciding whether that's retroactive has two parts. i think we are unanimous on this point. the two parts were is it implicit in the concept if ordered liberty. and here it would seem to be
because it's applicable for the states. and the second is is it central to an accurate determination that life without parole is a legally appropriate punishment? and the rule that a mandatory can't exist is central to making that -- that was the whole point of the miller opinion. so if that's the correct analysis, for watershed rule procedural rule that's retroactive, if i'm right about that, why doesn't it fit within that category? >> well, let's take the first one. it's not just implicit in the concept of ordered liberty. the way that the watershed rule has been stated, the first prong of it, it has to all ter our understanding of bedrock procedural elements necessary to fundamental fairness. and this would be a strange case to find that in because miller itself doesn't represent a bedrock revolution in sentencing practices. it takes sentencing practice from another area and puts it in this new area. so it's an incremental change in that sense. it's not a wholesale discovery of a new bedrock procedural
element the way we had in a case like gideon versus wainwright. and i think this court explained in wharton versus bocking that it's not enough that the rule be fundamental in some abstract sense, right, but it has to itself represent a change in bedrock procedural understandings, and we don't think miller does that. we also don't think it's necessary to an accurate determination of a sentence. it would enhance the accuracy of the sentence, but it's not necessary. and the other point there is this court has never held that a pure sentencing rule can qualify under watershed because after all, this court has on many occasions said that a watershed rule is necessary to the accurate determination of guilt or innocence. and here we're talking about a sentence. so we agree with the united states that watershed procedural analysis is not the way to go here, but it does raise an interesting question. in summerlin, because after all, we do part company quite strongly from the united states when the united states says we need an outcome expanding
alteration to the definition of substantive rules under teague. we say that's not just a slight tweak to teague. what that is is a change in the understanding of what a substantive rule is. substantive rules under teague analysis have never depended on the frequency with which new outcomes might come about under the new procedures. in fact, in summerlin, and this goes back to my original point about the framework, summerlin explained that a criminal defendant under a procedural rule does have the opportunity of getting a more lenient outcome under the new procedures. so -- and nonetheless, summerlin said that such procedural rules are not applied retroactively. and so as justice alito, as you were saying, the difference between a substantive and procedural rule under teague is not whether it's very likely or very, very likely to result in a new outcome. it's about whether the new rule categorically removes the power of the state to impose a category of punishment.
that's what a categorical rule does. that is not what miller does. right? miller may express an expectation about the way that miller hearings will come out. and that may or may not come to pass in the future. who knows? right? we can point to cases where criminal defendants have had miller hearings and have still received life without parole. and i can point to several in particular from the state of louisiana under its new miller procedures. but the point being is that the idea of changing outcomes, which is what the united states' entire argument depends on, is built into the procedural side of teague and not the substantive side. the substantive side is about -- >> i think not. i think by your own definition this fits on substantive side. you said you categorically remove a certain outcome. and that's exactly what miller does. if you -- as long as you understand a sentence, which i think you agreed with, as defined both by its upper and by its lower end, effectively what
the court said in miller was that that sentence which was the mandatory lwop sentence cannot control for juveniles. there has to be a different sentence, one that includes other punishments. >> well, there's no doubt -- >> that increases the range. >> right. miller quite clearly said, as you know, justice kagan, that it does not categorically bar a penalty. and so what did it mean by that penalty? >> it allows something within the range, but it has -- it has completely changed the range that is given for any juvenile defendant. the range is important. it's not just the top end. this is what we said in alain. that you can't think about a sentence without thinking about both parts of the sentence. both the maximum and the minimum. and when you decide whether a substantive change in that sentence has been made, you look at both, the maximum and the minimum. >> well, look. i hope this is responsive.
i mean, i think after miller we would see two categories of punishment on the table. we would see a life without parole category and a life with parole, for example. but my point is is that miller does not ban the first category. and that's whether something is a substantive rule or not. >> i would not describe changing the range of sentences available as changing the sentence. >> it puts another one on the table i think is the most. >> it doesn't change the sentence necessarily. >> well, this is what we -- >> you still get the same sentence. >> you could still absolutely still -- >> this is what we said last year. we said it's impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. and similarly, we said criminal statutes have long specified both the floor and ceiling of sentencing ranges, which is evidence that both define the legally prescribed penalty. that is the penalty. is the range. >> a life without parole has the same floor and ceiling, of course. it's got the same floor and ceiling.
what miller does is create the procedural circumstances for finding -- for putting a new penalty on the table, which that's the point of the united states argument. there's a new possibility. and our point is to say that putting a new possibility on the table doesn't take away the states' power to impose the old category of punishment. >> mr. winston -- mr. winser -- >> duncan. >> i know that we didn't ever look at this issue. i'm sorry. i'm reading the wrong one. i apologize. but do you really think that any state would have not applied woodson retroactively? they all did. >> probably not, your honor. but the question -- that, of course, is a pre-teague case. it raises the question is woodson substantive or procedural under teague? and our argument is it's a procedural rule. >> it just said you couldn't have mandatory death penalties. just like here, you can't have mandatory life without parole.
>> it required an individual sentencing process -- >> exactly. >> -- which we say is a procedure. >> to give sentences less than mandatory death. but they could have still given death. >> they certainly could have. so the question is whether is it substantive or procedural under the preteague rubric. which is a pre-teague case. it's not substantive under teague for the reasons that we said. it raises the question, is it a watershed procedural rule? >> that's the language -- bedrock i don't think is the right language, because that's the language he referred to in a sentence in mackie, correct. i've just been looking it up. but then in teague itself, justice o'connor tries to get the right words. and what she ends up with here is that the procedural is the first test, first part, can be addressed by limiting the scope of the second exception. that's the watershed rule, to those new procedures without which the likelihood of an accurate conviction is seriously
diminished. okay. >> that's the first one. >> that's joined by the chief justice, justice scalia and the fourth i can't remember. so is it seriously diminished? now, we read through miller. it's pretty hard to say. i mean, my goodness. miller is just filled with paragraph after paragraph about how a mandatory requirement for life without parole fails to take account of all the characteristics or many characteristics adherent in youth. and it's pretty hard to come away from that without thinking gee, accuracy under a mandatory life without parole does seriously diminish the accuracy of imposing life without parole when you apply the mandatory to a youth.
>> but every eighth amendment sentencing rule goes to accuracy. >> no, but you have to say the accuracy is seriously diminished then she says i don't think there will be too many such cases. >> well, again, we haven't talked about the capital sentencing cases, but take a case like o'dell where the capital jury was not informed of the defendant's parole and eligibility while considering his future dangerousness. i mean, one could easily say that the accuracy of the resulting death sentence under the old rule was seriously diminished. and yet this court said in o'dell that that is not a watershed procedural rule. and you can go down the line with all those cases. the beard case and the sawyer case. those are cases in which a defendant could have said, well, seriously diminished accuracy and yet the court found no watershed rule. and, of course, the bedrock is the word that this court has used in referring to that exception. particularly in wharton v. bock. >> is there any watershed procedural rule other than gideon? >> well, this court has said it's doubtful that any will
emerge. and so we think this case is an implausible case for a new watershed rule to emerge since this rule and back to the bedrock point is not creating a -- it's not a revolution in bedrock understanding of procedure. it's an incremental step in sentencing juveniles. you know, if a case like crawford is not a watershed procedural rule, then it's difficult to understand how this one would be. >> we have one brief that tells us that this court has never barred punishment as cruel and unusual under the eighth amendment but refuse to make the decision retroactive. is that so? >> we disagree with that. there are cases that take the case that refused to make retroactive the rule in caldwell versus mississippi. that's an eighth amendment case. it goes to the accuracy of a capital sentence jury determination of death and this court didn't make that rule retroactive and found that it was procedural and non-watershed at the same time. so we take issue with that. just a few more words about the
united states proposed expansion of teague. it would re -- it would shift the whole focus of what a substantive rule is from the categorical nature of the rule to the effects of the rule. and so any defendant in these capital sentencing cases we've just been talking about, o'dell and sawyer and beard would now have the argument handed to them by the united states new rule that says well, that new rule gave me the opportunity for a better outcome. i might have not gotten the death penalty. if my jury had been properly instructed. we don't understand how the united states new rule in this case can be cabined only to where a mandatory sentence is taken off the table. >> i think you yourself cabined it when you said that the difference is one -- there is some category of cases which do refer to process, to how a decisionmaker makes a particular result. and another category of cases which refer to what we've called substance, which is what results are on the table.
what category of punishment is on the table? and that's the difference between this and all the other kinds of things that you're mentioning. this is not about the how or it's partly about the how. but there's also about what punishments are on the table. >> well, i just have to push back on the premise a little bit. our position is not that a substantive rule is about what punishments are on the table. a substantive rule is about whether a state categorically no longer has the power to impose a category of punishment. here it's clear from the miller opinion and from the graham opinion that the relevant category is life without parole. the state still has the ability to impose that punishment. and that's a sharp distinction from what a procedural rule is and the united states' new conception of what a substantive rule is would blur that. it would blur that and call into question all the capital sentencing cases. and i heard a question -- i don't remember which justice asked it, about booker. and my reaction to that is but booker is a matter of the sixth amendment, made a sentencing guideline nonmandatory.
and it surely opened up new sentencing outcomes. and so by what reason could a federal habeas petitioner now not say under the united states' new test booker is now retroactive or aileen for that matter? aileen overturned the mandatory minimum under the sixth amendment opening up new sentencing outcomes. why couldn't a federal defendant on federal habeas say now i ought to get the benefit of that rule retroactively? our position is those cases, booker, aileen, aprendy, are clearly procedural. as this case explained in summerlin. they're clearly procedural. and what the united states would do is blur those categories. if there are no further questions. >> thank you, counsel. mr. bernstein, you have three minutes remaining. >> what this fantastic discussion has shown is why the court, as it always has in the past, should keep the teague exception as a matter of equitable discretion rather than constitutional requirement. the court has much more freedom, generally speaking, on a matter
of equitable discretion than it does on constitutional requirements. there's no way to look at the prior precedents of the court in teague and any of those courts to say oh, here's what our equitable discretion is. the only time you get retroactivity is when the constitution requires it. that would have been a really short opinion. and that was not that. now, to turn quickly to the cases that have been cited, the critical difference between this case on the one hand and merrill dow and three affiliated tribes on the other hand is that jurisdiction under this statute is question by question under murdoch. in merrill dow, the question of whether the defendant's conduct had violated the federal drug labeling laws was a federal question. the court never would have gone on to say and we're also going to federalize the remedy. we're going to decide whether it's lost profits or out-of-pocket costs. similarly in three affiliated tribes, there was no question that there was a federal statute that limited state court
jurisdiction. the only issue was the scope of that statute. here we have the opposite. there is no question that the federal statute does not apply to the state court. and yet people say you should decide the scope question even though the underlying issue may be one of state law. and then finally to the solicitor general's new cake and eat it too, argument, that there's going to be review in this court and de novo review on habeas, the statutory lang wage in 2254d is pretty broad. quote, any claim that was adjudicated on the merits in state court proceeding, the only claim in this case is remedy. this case was filed after miller was decided. the only issue in this case is redress. and it would be very wonderful turn if you could say on the one hand that 2254d doesn't apply. but on the other hand, 1257
applies when it requires a, quote, right claimed under federal law which gets to your question, justice kagan. is it enough that'll a state court says we voluntarily want to be bound? and the best answer to that is not only in the cases i would recommend moore which is cited in merrill dow which goes out of its way to show how federal law is binding on the interstate commerce conduct in that case, before saying the court can review it, but it's also playing in the language of the supremacy clause. binding federal law means binding in all 50 states. and that's why the statute also says right under federal law. thank you. >> thank you, counsel. mr. plaisance, you have three minutes remaining. >> your honors, i'd like to make two quick points. first of all on jurisdiction. resolving this case under teague
avoids the serious constitutional question of whether due process requires retroactivity for miller. a second point on the merits. merrill said juvenile offenders should not have to die in prison with no chance for rehabilitation and no consideration of youth. that important rule changed the substantive outcomes available. indeed this court said that life without prison should be uncommon. the individual sentence before miller, there remains about 1500, deserve a chance at redemption. thank you. >> thank you, council. mr. bernstein? the court appointed you as an amicus curie to brief and argue this case against this court's jurisdiction. you have ably discharged that responsibility for which the court is grateful. the case is submitted. every weekend the c-span networks feature programs on politics, nonfiction books and american history. tonight at 8:30 eastern on c-span, we're live from council bluffs, iowa, for a town hall
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written by veteran supreme court journalist tony morrow and published by c-span in cooperation with cq press. landmark cases is available for 8.95 plus shipping. get your copy today at c-span.org/landmarkcases. the pew charitial trust held a panel discussion on allowing illegal immigrants to get driver's licenses. currently ten states and the district of columbo ya have passed laws allowing it. this discussion is about an hour and a half. >> hello and good afternoon, everyone. thank you all for coming. i am tom conroy, vice president for government performance here at the pew charitable trust. thank you for spending time with us today. on behalf of our president
rebecca rhinehold and all my colleagues at pew it's my privilege to welcome you all here today to this very intriguing event. i think you're going to enjoy it. as many of you know the pew charitable trust is an independent nonpartisan public policy institution dedicated to serving the public. and we do a lot of work with state governments and we are speaking today on the topic of immigration in that vein, our immigration and the state's project was create d to really explore this intersection of federal, state and local immigration policies and practices. and i would like to thank our panelists for joining us today to share some of their experiences on how this intersection of federal, state and local practices actually affect their communities. and with that, i would turn over
this program, which is going to focus on driver's licenses in these communities, to our host today, adam hunter. thank you. >> good afternoon. and thank you, tom. even while we don't see broad immigration reforms being enacted in congress in the horizon on the near term, states have been increasingly active in passing immigration related laws. according to the national conference of state legislatures, 171 laws were passed in 2014 alone across the policy areas as wide ranging as law enforcement, health and education. as tom mentioned pew examines this dynamic. our approach as a nonpartisan, nonadvocacy research project is not to take a position on any particular policy but to explore them across levels of government
and where we can to assess the impacts of these state policy choices. today's panel will focus on an issue that is gaining attention in many statehouses across the country and was the subject of our most recent report, extending driving privileges to unauthorized immigrants. under the federal i.d. act of 2005 states can choose to comply with federal standards and opt to issue licenses to unauthorized immigrants if those licenses have distinctive markings and text indicating that they're not accepted for federal identification or for official purposes. states call these licenses a variety of names such as driving privilege cards or driver authorization cards. we'll call them generally alternative driver's licenses or just driver's licenses for the presentations today. this map highlights the places where unauthorized immigrants may obtain these licenses today. shaded light green, teal-ish
here, you see, eight states and the district of columbia offer these distinctive driver's licenses to unauthorized immigrants while the yellow two states, washington and new mexico issue the same driver's license to everyone regardless of immigration status. delaware and hawaii, the two states here in dark blue both passed laws just this year in 2015 and will soon be turning to issue their alternative licenses in the coming months. to deepen our understanding of the issues states confront, we've brought together panelists from three states, each with different roles and experiences. you have their complete bios in your program, so allow me just to briefly introduce them as they're sitting here now. first, we have scott veeen from delaware. scott's worked nearly a decade in the division of motor vehicles and just this year assumed the position of director of that agency. as one of the two states that passed legislation in june establishing a driving privilege card, overseeing implementation
of this new program will be one of his key tasks as he assumes the helm of his agency. terry albertson joins us from nevada. terry has an extensive public service career spanning both california and nevada and comes to us today as the administrator of the management services and programs division of the department of motor vehicles. she's worked in that capacity to implement the driver's authorization card that nevada's been issuing since january of 2014. governor sandoval appointed terry to be the director of the dmv effective later this month. third we have erica contreras who joins us from the golden state of california where she's chief of staff to senator rica d ricardo lara who is also a key sponsor of the state law that created an alternative driver's license that went into effect just earlier this year.
finally we have my colleague michelle waslin who led our research team in producing the report on the issue. i'd like to start now by turning over to michelle the opportunity to share with you some findings of our report and to frame our discussion. >> good afternoon. and thank you, adam. so we conducted research on all of the states that are currently issuing driver's licenses to unauthorized immigrants. we analyzed their loss and legislative reports. we spoke to dmv and other state and local officials and we spoke to other experts about their experiences implementing these laws. so that we could analyze the critical decisions that they made and the diverse approaches that they took. while we also looked at who have made those decisions, so in some states the legislators are very
specific instructions into the legislative language while in other cases decisions were made by regulations or through the issuing agency staff. we did not look at the factors that led a state to make the decision to issue licenses to unauthorized immigrants nor the merits of those decisions. pew does not take a position on issuing licenses to unauthorized immigrants, but we do believe that policymakers can learn from the experiences of these other states, so this report is meant to provide a framework for those considering similar legislation. we identified four areas where states made critical policy decisions in implementing their laws that allowed unauthorized immigrants to obtain driver's licenses. scope eligibility standards, issuance procedures and outreach and education. it's also really interesting to see how these four areas interact with one another, and so i'm going to highlight some of those examples as well.
scope is a very important first step. and it really affects every other step of implementation. up-front planning is the foundation to successful implementation. in order to plan, states really need to estimate how many people will be eligible for their license, how many people will actually apply and how often they will need to renew their license. and these estimates are the key to determining start-up costs such as staffing and technological upgrades. and key to anticipating costs associated with the ongoing administration. these estimates also determine the revenues that the issuing agency can expect to collect from new customers. these licenses are generally expected to pay for themselves through fees, but planning is the key the making sure that that actually happens. obviously, in this fiscal environment, the states are making very important decisions and really need to plan ahead. now, these estimates are going to vary widely depending on the
state's population. in california, the state initially estimated 1.4 million people would be eligible for the driver's license. whereas in vermont where unauthorized immigrants make up less than one-half of 1% of the state's population, they estimated that 1500 would apply. and of course these very different estimates affect the choices that they made. in california, they hired more than 800 new staff and opened five new facilities to accomodate this population whereas in vermont they didn't hire any new staff or open any new facilities. however, we will see that in vermont these estimates turned out to be low. next. we have eligibility standards. states determine the requirements for obtaining a license including the documents that can be used to prove identity and state residency. some states additionally have applicants sign an affidavit stating that they're ineligible
for a social security number. others prove that they paid state taxes for a time. and in delaware we understand they'll require fingerprints and background checks. i'm sure we'll hear more about that later. the decisions about documents turned out to be key to implementation. especially because, as we know, unauthorized immigrants don't have the same documents that u.s. citizens and legal immigrants have. so states worked with embassies, consulates and other experts first to determine what documents unauthorized immigrants actually have that can prove their identity and their state residency and how reliable these documents are. so now you can see how eligibility requirements is connected to scope. the number of applicants and licenses issued are related directly to the number of people who can meet the eligibility requirements and produce the right documents. a state's estimates need to take into account the people that will actually be able to meet the eligibility requirements.
next we have issuance procedures. states make decisions about how and where unauthorized immigrants are going to apply for, states need to think about how they will serve this new customer base at the same time they continue to serve existing customers. so some states hired more staff and opened more offices. some created appointment systems to regulate the flow of customers and process applicants in a timely manner and these decisions about staffing and appointments are directly relates to the amount of resources a state has for these purposes so the estimates of needed resources need to take things into account like staffing and facilities. states also need to think about this when they were planning or creating their appointment systems. they need to think about systems in light of the projected demand and their available resources. how many facilities and staff
they will have available to serve this population, how many appointments they can alabama accommodate, and is this really enough to meet the demand and over what period of time? the number of appointments available also means states predetermine a set number of applicants that will be served and the maximum number of licenses that will be issued and, of course, in the end this affects the amount of revenue that comes in from the fees. finally we have outreach and education. states really understand that no program can be successful unless the target group knows how to access it, and although many states didn't provide any funding for outreach and education, we did learn that states used various methods to reach immigrant communities and provide them with lots of information about the new laws. for example, here in d.c. we know the department of motor vehicle staff went on spanish language radio stations. in illinois they used mobile
units to educate the community and make initial consultations on people aets's documentation, and in california the dmv makes information available through public libraries. one commonality we found across states is that they worked closely with foreign consulates and with trusted community organizations to reach immigrant audiences in their own languages and to educate them about where and how to apply and what documents they needed to show up at the dmv with. states also stress the importance of reaching out to immigrant communities to warn them about the potential for consumer fraud. we heard stories that unscrupulous individuals may try to charge these applicants for things that should be free such as for booking an appointment or filling out an application, so again here you can see how this area, outreach and education, is related to the other areas of decision making.
a state's estimate of potential applicants won't be correct if the audience doesn't know about the program or is uncomfortable coming forward to apply for a license. public outreach can make sure that people know about the licenses and apply. it's critical to ensuring applicants are aware of the eligibility requirements and come to the dmv with all of the proper documentation and fees. outreach and education are also important to preparing immigrants for the written and driving exams so they can pass those the first time and don't have to come back multiple times which uses more time and resources. so now i'm going to give you a sneak peek at upcoming research. we recently contacted all of the states and d.c. that began issuing these alternative licenses in 2013 and later and we got data about how many licenses had actually been issued as of july 31st, 2015.
and as of that date, a little more than 800,000 alternative driver's licenses had been issued by these eight places and i imagine the number is nearly 900,000 by now. the number of licenses is definitely correlated with the size of the unauthorized population in the state but there is quite a bit of variation in the numbers of licenses so we wanted to know what are the factors that influence the number of applicants and alternative licenses issued? we've already identified a couple of those this afternoon. so the appointment availability applicants ability to meet the eligibility requirements and public outreach and education being effective. state rules around getting a learner's permit can also impact how many people will actually get a driver's license because it affects how long it takes for one applicant to go through the process and get a driver's license.
even when these factors are accounted for, though, there are also other unanticipated events that could impact the final number of licenses issued. so here vermont is a real outlier. i told you we were going to talk about vermont. this state estimated 1,500 people would be eligible for a driver's license. but by august 2 they issued nearly 50,000. so we spoke to the director at the vermont dmv and he explained there are several reasons for this. first, the vermont driver's privilege card is available to anyone who is a vermont resident and a u.s. citizen, a legal permanent resident or undocumented immigrant so an unknown number of u.s. citizens and legal immigrants have decided to receive this alternative license even though they're eligible for the standard real i.d. compliant license. still others didn't have the documentation they needed to get the standard license, but they were able to meet the
requirements for the driving privilege card. and then finally we heard that fraud may have been an issue. the dmv administrator nod he saw some evidence that there were advertisements in several out-of-state newspapers that encouraged applicants to pay a large fee to get a vermont driving privilege card using fraudulent state residency documents, so an unknown number of alternative licenses most likely has gone to nonstate residents. as a result the number of licenses has for exceeded the initial expectations. finally, pugh has looked at the existing literature on the impact of these driver's license laws on insurance rates, public safety, and the economy. and we published this short analysis in september and it's available right now on our website. there are several challenges when trying to ascertain the impact on allowing unauthorized immigrants to get driver's licenses.
perhaps most importantly 8 of the 11 jurisdictions that issue these licenses only began issuing in 2013 or later so not enough time has passed to gather meaningful data about the impact of the laws, but we looked at the literature on the relationship between licensing unauthorized immigrants and insurance coverage rates, accident rates, and on access to employment which then is related to immigrant tax contributions and spending, and we found that while there is some literature about licensed and unlicensed drivers available, there's really very little specific information about unauthorized immigrants and access to driver's license. so this points to the need for more research and we hope to continue studying this in the coming months. more complete information about the facts would enable states to perform a more complete cost benefit analysis of their
proposed legislation and allow state policy makers to make more informed decisions. so in conclusion, we hope that the information in our reports offers a framework to those state policymakers who are currently making decisions about issuing licenses and how to design and implement those laws. but now i'm looking forward to our conversation with our other panelists so they can provide insights from their own states and really turn this framework into a reality. thank you. [ applause ] >> thank you very much, michelle. as our panelists are coming up on stage, we are going to take this conversation to the practical realities and to keep that even more interactive, we are not going to have each panelist do a presentation of their particular state model, but i'm going to facilitate a discussion and ask a couple
questions that i think is going to tease out some of the differences in approaches. but i'd like to start with a topic we've not covered yet. erika, using the advantage of your being here and your perch coming from the legislative branch, could you take us also first inside the legislative debate highlighting areas where there might have been disagreement in your bill moving forward and how you overcame opposition and came to some consensus on actually passing a driver's license bill in california. >> absolutely. so thank you so much for the opportunity to be here and specifically to share some perspective from california and the legislature specifically. so i think to your question, i kept looking at the fact sheet and i think for california, the approach -- the conversation of driver's license has been a long-standing conversation.
>> we actually -- the legislature approved and the governor approved a driver's license in 2003. it was very -- it was only -- it was not in effect, it was only available for three months. regulations hadn't been drafted, nothing had been done. so for us the conversation and political debate has been very, very long, and it was never a question today and in recent years about who is going to drive because we knew that there was undocumented individuals driving in our state. the question was how do we integrate and what is the responsibility of the state to ensure that we are actually moving forward with the values that many of our representatives have run on or have indicated are prirorities for them in
representing the district which in many cases they had large population of undocumented individuals, they wanted to provide relief for the population. so for california in more recent years leading up to the implementation, one of the debates was the marking. many legislators -- i'm chief of staff to senator ricardo lara, he was the chair of the latino caucus representing over 25 members of the legislature in each house, and there was -- there was clear ly -- the body, the latino caucus wanted to provide relief for this population with very little penalty. so the individual marking was huge -- >> this is the marking required under, if you can explain, under real i.d. >> for the real i.d. state
clin compliance, if a state was going to proceed with issuing an alternative driver's license or a driver's license for an undocumented population, there had to be a distinguishable mark. for our legislature, for the latino caucus, it was important that that marking not exist. there was a lot of debate. there was many members of the legislature, including the latino caucus members, that did not want a marking because the communities did not want that, the advocacy organizations did mott want that. they felt it was going to be very difficult for people to come out and take advantage of the opportunity of a driver's license. eventually that proved to be an area that could make or break the legislation, and our members specifically in the senate, latino caucus members led by senator lara, now pro tem kevin
deleon and other caucus members decided they wanted to proceed with a legislative solution, this relief, and they were going to mark the card but it was going to be minimal markings, and so that's the debate that then moved the bill forward. >> turning now to delaware but staying kind of still at this phase of preimplementation, delaware took a unique approach. in fact, the legislature worked with communities and put together a task force of community members wide ranging to help advise and actually shape the legislative process. and director vien, you were also a participant of that task force. could you tell us about that experience and what that purpose was? >> sure. and thank you for having me as well. like california, this is something we have been considering for a long time, and once it started to really starting to take shape, we worked closely with the legislature. we have a great relationship with our legislature and it helps us with things like this
because we're able to do a lot of preplanning before a bill is drafted. so in this case we said, hey, before we do this, why don't we see, bring together all the stakeholders and find out what's going on and the sponsors -- the potential sponsors of the bill really liked that idea. we passed a task force or a senate resolution to form a task force, and we involved all the stakeholders we could possibly think of from the degrees of motor vehicles, we had our state homeland security adviser, law enforcement representation. we had members of the hispanic commune, the chair of the delaware hispanic commission, four legislators, both representing the senate and the house, and the list goes on. and we spent several months just debating this topic of whether or not delaware should enter into the business of offering a driving privilege card to undocumented immigrants, and the
need was clear. you know, these folks are residing in our state. they're driving on our roads. there are highway safety implications by not having them properly credentialed, but the desire to necessarily do that was what the we were debating and how we go about doing that. and so we had great conversation, great debate. we brought in external stakeholders to give us presentations. we asked the coalition of secure driver's license to come in and present information on what other states were doing as well as their perspective. we also talked -- asked the american association of motor vehicle administrators to give us a national view, what's going on throughout the country regarding this topic, and so we just took that information and at the end of it decided to move forward with legislation, specifically incorporating things that we felt were very important in our state to make sure that everybody that was involved is comfortable with this legislation.
and some key components in addition to trying to identify someone, we do require fingerprinting. we're going to require fingerprinting. we haven't implemented it yet, through our state police officers, and we also require two years of delaware tax returns. and those were things that we pulled and lessons learned from other states who had been doing this for a while, and, yeah, it was a great process, and one that i would recommend if you have the opportunity in your states to do something like this, to get that kind of stakeholder buy into something we hadn't seen before. it was a knew eke punique proce. >> just a quick follow up to the task force, how did you manage participation and did you include also members of that task force who may not have thought of themselves really party to this issue or skeptical to the issue and how did they contribute to that final legislative outcome? >> yes. so i mentioned we had law enforcement, state police as well as local law enforcement
represented, and that was one area where my understanding was there was some initial opposition because obviously we're in the business of identifying people and how do you do that if there aren't any documents to identify them. and then no other organizations were coming, but we made sure we had a balanced approach, maybe not straight out position but concern and then full support so we could properly vet those things. the fingerprinting was probably the most debated topic of our meetings. i think we went probably two or three meetings going around about whether fingerprinting made sense for our state, states that had used it and states that decided not to. >> as was mentioned, delaware and hawaii are the two states that have passed laws just this session and have ten other states and the district of columbia to look to for examples. turning the conversation to administrator albertson in nevada, who was your model in
nevada for implementing this law from the dmv perspective and what lessons did you learn? >> i appreciate the opportunity to be here and to talk about nevada's experiences. unlike what happened with scott in his state, nevada dmv was not brought into the initial discussions regarding the introduction of the legislation. so once the senators that were involved in sponsoring this bill had introduced it at the legislative level, that's when it became knowledgeable to us at which point we immediately stepped in to join the conversation to see what it is that we could help them with. so again, the second part of your question? >> if there were model states you were looking to. >> yes, correct. the model state that we used was the state of utah. so it was very helpful during the legislative hearing process. some of the senators that had been involved in utah's legislation came in and spoke to nevada legislature. they provided us with invaluable lessons learned because they had implemented i believe four or
five years prior to nevada, and so we utilized their knowledge and their lessons learned to help us implement our project which i think helped us become very successful. >> did you do anything differently than utah? >> yes. what we did differently than utah is the first thing that they did is they suggested we change the name from a drifer privilege card to a driver authorization card so through their experiences, they had learned by using the term privilege that it had a connotation to it that wasn't necessarily true because it isn't a privilege to drive, it's a right to drive. so the first thing our legislators agreed do was to change the name from privilege to authorization. one of the best lessons learned for nevada in this respect was what utah had used as far as the translation services that are required for foreign documents. it is a huge impact on the agency that has this undertaking, so the legislature did not give us any statutory
authority to regulate the translation of documents. so what we ended up doing was putting that into the regulatory process, and this was probably the biggest piece of debate that occurred during the legislative process for nevada, that we had recommendations from everything that 7-year-old johnny should be able to translate their parents' foreign documents to having dmv technicians do it, and this was where we took the information from the stakeholders. however, we did determine in the end that that was not in the best interest of either the department or the individual to do that, so we did require that translators self-certify and be authorized through the department in order to translate the foreign documents, and so i believe adam may have some follow-up questions a little later on in regards to more detail of that because, again, this was one of the biggest challenges for us was ensuring that we had a proper translation process in place.
>> and i certainly will. but what's clearly emerging here as a trend, there may be legislative wishes and implementation realities that these issuing agencies have faced. i'm curious jumping back to erika, from the legislature, were there specific decisions that legislators wanted to proscribe in sktatute and specific reasons to leave certain decisions to the dmv in california to make? >> absolutely. once the legislature decided that the youy were going to mov forward with a marked card, one of the priorities remained ensuring that the state strike a balance between meeting the real i.d. requirements and not putting this population at risk for deportation or discrimination, even locally in our state or in our local governments. and so there was definitely a lot of thought and work put into
the legislation. the lauthor of the legislation had been working diligently with the stakeholders, including law enforcement and others, on providing direction specifically about discrimination and protections indicating specifically in statute that the information provided both for revocation of identity and also the information, you know, for example the list of ab-60, in our case the bill was assembly bill 60, it would not public information or public record. there was a lot of thought put into that process. in the senate, we made sure to strengthen that and we worned very closely with the dmv, the transportation agency, and the governor to make sure the raw provisions that remained as this bill headed to the governor for
his signature. that was critical for our legislature. >> before tafter the bill was pd as the dmv stood up the program over the course of the year, were you surprised with any decisions they later took? >> you know, we were -- the way i describe it is that the legislature, and i speak from a staff perspective. i'm chief of staff to senator lara and i was tasked with being very involved in the implementation. there were very specific parameters that were decided in statute, and then there was authorization for the development of emergency regulations for including the types of documentation that should be used for the purpose of verifying identity, the process for that verification, so as -- along -- during the time that the bill was getting ready to go into the governor's desk, there was concern that
there was a year and a half delayed implementation, and at the time at the staff level, i was also concerned. my boss was concerned, other members were, why does it take so long? why can't they just figure it out quicker? we have some direction, the reg shouldn't take that long. the authorization for emergency regs should be done quickly. we care about this. we've been talking about it, let's do it. when we were in the process after the bill got signed, how i describe it is we didn't know what we didn't know, and things happened and the dmv would come up with a process or they would decide a procedure that we were like, wait, those are major policy questions and should be debated in the legislature, but we were completely silent on it. how are you going to deal with a population who may have previously had a driver's license because there were no rules about -- prior to '94 there were no rules about whether you needed approved residency, u.s. legal residency.
or what it'somebof somebody hadd identification that was not their own. there were things we didn't know we didn't know and the year and a half delayed implementation was very helpful to help guide some of the administrative policies, to better understand and have a good relationship with the dmv and the transportation agency, and to also help engage other stakeholders that may have the expertise in implementation. >> and administrator albertson, how long did you have in nevada to set up your program and was that enough? >> actually nevada had six months once the bill was approved, and again because most motor vehicle agencies do have, you know, the process to issue a credential today, you know, this one is different, so the six months was an adequate time period for us to develop the regulations that we needed as well as work with our card production vendor to make sure that we could properly put the markings on the new card type.
>> and did you feel you had sufficient guidance? you mentioned earlier having really just joined the process once the first bill was introduced. did you feel you were able to provide sufficient guidance to shape that statute or have sufficient latitude rather to make your decisions as an administrator in designing the program after the law passed? >> yes, we did. once the bill was introduced, we became very, very actively involved with the bill's sponsor. we, again, because we were real i.d. complaint at the time, we knew what we had to do to remain real i.d. compliant and provided insight, information, and guidance to the senator who was more than willing to work with us to ensure this important piece of legislation would get passed with the department's support. >> so turning a bit more to implementation, director vien, in delaware you're probably right now about at the midpoint of when the law passed in june to when you say you should be ready.
do you have a date certain that you plan to start issuing these licenses? >> our law says december 27th, so everything is aimed towards that date, and so we had six months like nevada to implement. i would have liked more time. we're going to make some concessions on, you know, process efficiencies that we'll implement afterwards. it won't stop us from getting this bill and this new law up and running but with a little more time we could be ready right out of the gate. definitely any state that's looking into it, i would advise more than six months if possible. understandably wants to be done quickly, but, you know, when you are in the meat of the dmv and you have been for some time, you understand all the different processes and even in our case where we've been a part of the conversation from the very beginning even before it became a bill, that's worked to our advantage because we kind of -- we understand where everybody's mindset is that is going to be impacted by this, so we can make our policy decisions based on a
lot of conversations that we've had in the past and so that's helped us be hopefully a lot more proactive than we would be otherwise. we're definitely not flying blind. >> you mentioned earlier also that delaware will be instituting this fingerprint and background check process which, as i understand it, actually is going to involve two separate agencies and touch points for applicants, and this is an approach that the states that currently issue these laws has not yet taken. can you talk a little bit more about how that's going to work and where you are in finalizing those implementation plans? >> sure. so the state of utah it's our understanding they do fingerprinting for the driving privilege card, and that's where that idea originally came from. and this was one thing that was very important to law enforcement for our state. the most important thing to them is when they pull somebody over on the road, they want to know who they're dealing with. and so obviously fingerprinting is one way that you can certainly identify somebody. you have a biometric you have captured for them.
and so like i said, great debate about this, whether or not it should be just a state check, state and federal check, and where we landed was that we would do a state sbi check at the various state police facilities that do fingerprinting, and unless there's a conflict with a name or any aliases that the person provided or they have an outstanding warrant, that's not going to go any further. they'll clear that individual. they've captured the fingerprints and they can pass that information along to us. but if there is a warrant or if there is a conflict, in other words i said i was john but i'm really joe and i'm trying to trick the state police, then they can do a federal track to kind of dig into it further. and so we're setting up an interface between us and the state police to make that process as seamless as possible. we'll be working on our outreach to make it very clear that the state police is your first step in order to get a driving privilege card. go there and then once they've been vetted at the state police, then this will be electronically
verifiable by us. >> do you plan to have capacity ready on day one for the anticipated new demand that these agencies will see? >> so what we're doing, we're going with a scheduling model. the state police i believe is doing the same thing, and that's our best attempt at controlling capacity because one thing i'm sure my colleagues could attest to is you don't know the entire -- what the population is that you're dealing with. we have several different numbers. the numbers just keep going up as we dig more and more into it. we drafted legislation and worked around 32,000 was our number that we cued in on. that was from puew research don in 2008. but we've also heard much more than that. we recently had the mexican consulate and they said they have 40,000 valid mexican passports issued to delaware residents. that's just one nationality. and so that kind of had us take a step back for a moment. now, who knows whether or not
those people are still living in our state. so because of that, we've looked at other states that have implemented scheduling so we're going to be scheduling counter visits. for multiple reasons, not only to not impact our other customers who are there and increase wait times because anybody that works in dmv, it's all about the wait times. we don't want to increase wait times. also for the individual coming in to get the driving privilege card there, will be an established time frame we're going to be able to service them. they can come in, they can get their questions answered. they don't have to wait a long period of time, and we're not having to have them wait in lines every single day in hopes to be serviced that day. that's the reason we're taking a scheduled approach. >> so california, delaware, it sounds like now in most of the other states actually do have appointment systems but nevada is one state that actually did not. so i'd be curious, administrator, if you can tell us what strategies you employed to be mindful of wait times and also to concurrently serve the existing client base that you
already have. >> because there wasn't a lot of other states that had already implemented similar bills and we didn't have a capacity for an appointment system, our approach was to work through the legislature and authorize 18 additional staff. we used our averages of the amount of time it takes for a technician to process a transaction and multiplied that times the estimated 60,000 people they anticipated would come in for these cards and came up with the need for nine additional staff, so the legislature did provide that appropriation so that was for nine additional counter technicians and nine additional drive examiners to address the population. so, again, it definitely -- it was a challenge because we had worked with the community groups and advocacy groups before hand to let them know the cards were going to be made available as of january 2nd, and so we literally had bus loads of people at our doors on january 2nd that were ready to come in and get their
driver's authorization cards. one of the big challenges again, even though we worked with the community advocacy groups as far as educating individuals on the driver's authorization cards, there was not a wide awareness that it wasn't just a matter of coming in and paying the fee and filling out an application. that there were tests associated to it. so nevada really missed the mark in that regard, and so i know when we met with california after we had implemented after several months, there was a group of us that went to the california dmv and said, here, learn from us. and so again california i think, you know, made great efforts then to improve upon the mistakes that nevada had made and it worked itself out. you know, of course, we had that initial bubble of individuals that came in to get the cards, but once they found that they had to take the written test as well as the driving test, that helped to level out somewhat the impacts on the offices because,
again, part of our analysis in questioning the 18 additional staff was we didn't want to impact our customer wait times because that's what it's all about at the dmv. we missed the mark a little bit in that area but it could have been much, much worse. >> erika, pivoting back over to you, what did you learn from nevada and in the state that has the largest unauthorized immigrant population and itself estimated 1.4 million unauthorized immigrants would actually apply for this license, this is a huge operation. >> yeah. so, yeah, california did estimate that it was going to be 1.4 million applicants over three years. and in the ten months that the dmv has been issuing driver's licenses, we've had over 500,000 people who have a driver's license and 1.8 visits for the marked card. and so there was absolutely, you
know, a lot to learn from other states, and i think again that period of time that we had that delayed the implementation, you know, had -- you asked me specifically or my boss if -- how we felt about that delay. you know, we'd be concerned, nervous, you know why can't we do it? and when we realized how much education was needed and how little time we had, it was really good that we had that time. and so it allowed legislators to engage with their communities. we would partner with the dmv. the dmv would send a spokesperson to a community. you would host a forum and the message was are you ready? are you going to be ready january 2nd? what do you need to do? what sort of documents do you need to get ready? the dmv held over 200 workshops throughout the state and continue to do education throughout the state. so it was wonderful. i think part of why i'm excited
to participate today here with pew is because our conversations and our discussions i think can really provide really great factual information that's not just sensationalizing the paper, that can really help inform the decisions of legislators. we were happy to learn from nevada. >> that's great. and we're very glad to provide that opportunity for all of you and everyone watching here as well. i'd be curious, director vien, you mentioned utah and we've heard a little bit more about some other state models from california and nevada. since you're right in the throes of making decisions about implementing these programs, what types of programs are you looking to implement in delaware and from whom? >> so as we're implementing one of the states we're looking at is california. we're trying to leverage their extensive research because a state the size of ours, our research arm is a couple of managers. so we're trying to take
advantage of other lessons learned. we're looking closely at maryland which is a neighboring state of ours who is already doing this and vermont is another state and connecticut is another state we looked at. and so we really pooled our information and studied and utah as well to figure out what's worked, what hasn't, how can we translate those lessons learned into our state, and that's where our two years of tax returns came from was from the state of maryland as we were planning and that was an effort on their part to keep other states from -- or folks from other states from basically flooding their doors with false residency documents. they wanted to say, yep, this person has lived here for the last two years, they're a resident of maryland, and we're looking to do the same thing. because we're so small and we're so close to everybody else, it's very easy to just come on into delaware and so that's our attempt at the same thing maryland is doing is trying to limit the number of people that can say, yes, i'm a resident here when they just showed up
yesterday. >> excuse me, could we ask a question? >> certainly, yeah. go ahead. >> thank you. [ inaudible ]. >> just a moment. we're going to get a microphone right over here on the side, please. >> thank you. thank you very much. i'm armando guzman, broadcasting in spanish nationally. i wanted to ask miss albertson, have you found this to be a burden on the state at all? >> no. not at all. again, the numbers came in significantly lower than what was anticipated, and with the additional staffing resources that we were given by the legislature, it has not been a burden. >> and, miss contreras, in california i heard yesterday a report on one of the news channels stating that in california now everybody is getting registered to vote at
the same time once they get their driver's license. that this will allow undocumented immigrants to vote. can you please clarify. >> absolutely. so there was a piece of legislation authored by an assembly woman, assembly member gonzalez co-authored by a number of latino legislators and sponsored by the secretary of state, former senator alex padilla, and the purpose of the law is to create a mechanism to basically better meet the voter motor act, and so this is an attempt to get more people registered to vote. there are -- the author, our office, the sponsor worked very closely with the dm v, the transportation agency, to make sure that the bill was amended so that there were no provisions in the bill that would
inadvertently register undocumented individuals to vote. moving forward since we have parameters of who we know is applying for an ab-60 driver's license in california, the dmv has the mechanism to be able to say, okay, these people are not eligible. we're not going to follow through and automatically register this population because they're not eligible. they don't meet the criteria that's in statute. so the information that you're hearing is not fact. the legislature has taken great caution to ensure that no undocumented individual is accidentally registered to vote and the secretary of state's office is working very closely with the legislature on the implementation to make sure there's nothing left where that
even is a risk. >> and miss waslin, if i may, why new mexico and washington state have gotten out to issue this licenses without marking on them that they are not for federal purposes, just issued to undocumented? >> so washington and new mexico have both been issuing the same driver's license to everyone regardless of immigration status for quite a long time. the state of washington has never had a legal presence requirement, meaning that they have never had to prove they were legally in the united states to get a license. and new mexico passed a law in the early 2000s that allowed unauthorized immigrants to get the driver's license. these two states are not real i.d. compliant, so they did not need to create a special alternative license with the
distinctive markings to give to the unauthorized population. if they did want to become real i.d. compliant, and i know there are conversations in those two states about becoming real i.d. compliant, then they would need to also make decisions regarding licenses for unauthorized immigrants. >> thank you very much. thank you kindly. >> and this is a good opportunity if other people have questions, if you would just please move and line up behind the microphone there, and i'd be glad to call on you. actually michelle, while you're speaking to the examples of new mexico and washington, can you tell us more about -- so there are two states that passed laws now. we have delaware at the table but also hawaii. can you tell us what's going on there and are other states considering similar laws? >> sure. so hawaii passed its law the same day as delaware, and we have been speaking to dmv officials and legislators in hawaii. we've examined their legislative language and are really trying to learn more about that state. one thing that's really interesting about hawaii is that
their unauthorized population is a little bit different than those in the states represented here. it's many filipinos and people from micronesia. we'll see how that affects their decisions around implementation because i expect that the languages that they have to produce materials in and the documents that they accept from foreign countries are going to be different for that. their law also creates an alternative license that is for unauthorized immigrants but goes well beyond the unauthorized immigrant population as well. they wanted to create a document that other populations that have a hard time getting documents could get. so they include the homeless, the elderly, people who are institutionalized. there are a couple different groups of people listed in their legislation. their legislation also tends to be very specific in terms of what documents are going to be accepted, so we really wanted to
learn from the dmv officials about what decisions they are able to make in light of this very specific legislation, and then finally we're learning that hawaii's unique because their implementation doesn't actually happen at the state level. it's the county level, and the counties operate very independently and take the lead on this, so we are going to be learning more about that in the next couple of days. >> thank you. you mentioned actually documents here and i'd like to go back to nevada because i know there were some particular experience that you've had regarding documents and translations and some lessons learned that surprised you that we'd like to hear about. >> again, because we were not given any statutory authority over regulating the translation of foreign documents, we did include that into the regulatory process where we received the most feedback from the stakeholder groups. initially we wanted to have thes
met with great opposition. and then again going back to, you know, we also couldn't be so lax in our processes that we would allow, you know, a child to translate the document for a parent. so we did come to a consensus with the groups, and for the most part it has worked very well. it is a self-regulated process in the state of nevada which means you as an individual, you attest to us that you are authorized -- not that you're authorized but that you are eligible to translate documents from a particular language into english and so you self-certify that with your signature, and you have to provide that in its original form to the department and there is an attesttation associated with that that has a fraudulent perjurous statement so we take you on your face value. but we have no way of
authenticating that. so one of the first incidents of fraud that nevada experienced with the implementation of the driver authorization card was through an interpreter -- excuse me, through a translation piece. a person had self-certified to translate from spanish to english and they actually submitted a document that was in a language other and i don't recall which one specifically it was. let's say it was farsi. what that individual admitted to when they were consulted was that they had simply done a google translation. so they had entered the information from the foreign document into google and they had then provided that translation so we were then able to remove that person from our authorized translator's list. so one of the other pieces again going back to this is that learning lessons from utah is that they suggested that we did not allow businesses to register as translators because everybody wanted to be aaa interpreter services. so our specific regulations say
we would only allow that to be for a natural person. so you can be -- i can be terri albertson doing business as triple-a interpretation services but when i go up on our website which contains over 700 approved translators, that's how it's going to be listed is through alphabetical order. but i would encourage those of you that are working through the legislative process that if you can get the legislators to allow you to post the cost that the individual wants to charge individuals because it was -- it ranges from everything to hundreds of dollars for a simple birth certificate to free of charge. but, again, without the regulatory authority to oversee that or to provide oversight to that, and again you also need the resources in order to do that, it does leave, i believe, the community somewhat vulnerable because, again, when you have a list of 800 individuals and although our website will list what languages you are -- you can translate in, i mean, if you're going to run into 500 of them, what is the
likelihood that you're going to call, you know, a number of those individuals to get your documents translated to find out what they're charging? you're probably going to go with the first one that's on the list, you know, unless their cost is so exorbitant or prohibitive that you're going to continue down but there's nothing on the website, and again no regulatory or statutory process, to say you -- we need to be able to pors your fees so individuals can make that choice from that perspective. >> and i think you can all appreciate well at this point the challenge that issuing agencies in all of these states are having to try to serve a population they may not have served before and to recognize identification documents, credentials that are issued in different countries and different languages but still trying to maintain avenues of integrity in ensuring their you a authentication. california developed a unique model of electronically verifying certain documents with the mexican foreign ministry. can you talk a little bit about
that? >> i'll speak just briefly about it because the dmv representative probably would best be able to describe it, but we understand that the dmv was able to get into mous with countries like mexico to be able to develop technology that could, you know, verify a u.s. passport and other documentation that would easily be verifiable and where the customer can go from submitting their application, being cleared of tickets and being able to go from the ticket window where they first walk in to getting a driver's license within just a very short period of time which was the goal in our case. in a state like california, i was going to say in a country like california, that's the way it feels. in a state like california where you have so much diversity and so many immigrants from all over the world, there are countries
where the country of origin of the individual may have documentation that is, you know, appropriate for that country but doesn't meet the security features that our state requires specifically for the implementation of this bill, and so moving in that direction, you know, for california with a large population of undocumented individuals who are seeking driver's licenses, it's going to result for us in, you know, less wait time, more expedited process, and an ability to be able to serve all customers, including the ab-60 applicants more efficiently. people get very discouraged when they go to the ticket window without an appointment and then it ends up being several weeks and months before they get direction about they don't have the appropriate documentation and because of the large number of people through the dmv, it
could be several months in the worst case scenario. the dmv is very sensitive to that, the legislature as well. so we're very excited about that kind of technology. >> to open it up a little bit, how important are foreign consulates in your work? how important partners are they? did you really have to seek them out? >> for us, we've been working with the mexican consulate and that's proven to be very beneficial for us, and just eye-opening in potential number of individuals but they were very proud and happy to show us their issuance process. we like to think we're kind of the be all, end all of document issuance at dmv because we take it very seriously. to go there and see how they issue the mexican passports, consular i.d. cartsds and the vetting process was eye-opening
for us. we will have a high level of confidence that the proper vetting took place before they come in to see us. that was beneficial. they're remaining a part of the conversation. i chair the transportation subcommittee for the delaware hispanic commission and they've been coming to our meetings and just being a part of the conversation as we plan that out and we're reaching out to other consulates as well. >> the same holds true for nevada. when we started having the community town hall meetings with our public information officers, again, we included not only law enforcement but also the consulate office -- excuse me, the consulate representatives as well as representatives from local churches, as many as we could think of to invite, the hispanic chambers of commerce, all those organizations that have greater outreach to the community to help us get the word out. >> i want to pause and see if there are questions in the room.
go ahead. tim, could you approach the mic? >> hi. tim henderson from pew state line. quick question for scott. when you talk about fingerprinting, does that go through any of the process that -- for secure communities, does it go to immigration authorities as well? >> no. the fingerprinting process that will be used for this is what our state police agency deems their applicant fingerprinting process. if you're going to become a school bus driver, taxicab driver, school teacher, what have you, you're in an applicant fool of fingerprinting and that same pool -- it doesn't co-mingle with say criminal fingerprinting records or anything like that. it's not reported to any agencies like that. it's a completely separate
process, but it still gives them the tools they need so they can compare against the things that they need to. so to be a part of that applicant pool. >> you looked like you wanted to jump in. >> i want to chime in on this question because i think, you know, when we talk about what other states are going to do, they should better understand how existing mous between immigration and enforcement and dmv works. also between law enforcement information systems which are hosted by the dmv and immigration enforcement works. so for california we put a lot -- you know, our members of the legislature were very sensitive, and they wanted to make sure there was the greatest access, but in this, you know, conversation about we didn't know what we didn't know, we
have in california the california law enforcement telecommunications system and that's the system that hosts when you have -- let's say you get stopped by, you know, a traffic officers and they going to write you a ticket. you know, they look you up and find your information. so there's existing mous between law enforcement and the dmv in california that allow this access. that access also happens to be at the national level. so while there's protections in place that you can't use this information specifically to arrest somebody, knowledge that this person has an ab-60 license in california does not automatically mean that this person is undocumented. we've made that very clear in statute. we've also said that it's a crime to discriminate based on that. but if -- and immigration
enforcement can't just go to the dmv and say, well, i want the entire list of all ab-60 applicants and those that have licenses. they can't do that. but what they could do is if immigration enforcement is looking for an individual because they have a deportation order, they have existing mous so they have a court order that allows them to go to the dmv, and the dmv must comply and say, hey, i'm looking for this person, we want to pick them up, can you please give us their address. and in that case that person may be found and deported accordingly. and so that is not something that's driven by the states. it is a federal -- it's driven at the federal level. and so in the conversation about states and moving to the direction of driver's licenses, one of the key messages and lessons learned for california was that the statutes about discrimination and keeping
information private does not preclude enforcement officers from being able to find people who have deportation orders. so, for example, my senator, senator lara, he talks about the opportunity cost. this is an opportunity for as many people to get access to this driver's license, to drive your children to school, but if you have a deportation order or you have some questions about your history or your background, you should probably consult an attorney before you go to the dmv. i needed to make sure to state that because i think while there's a lot of protections in place, there are things that are not in the state's control to manage. >> thank you. invest another questioner. >> hi, i'm becky theiss with pew. just was wondering if other states are contacting you in their exploration of this? we saw the map and there were a bunch of states that haven't yet
considered this, so are you hearing from states that are looking into this and also speaking to michelle's point about vermont, if we did see other states pursue this, would that cut down on fraud? >> well, in the case of nevada, obviously when california implemented their law, they reached out to us and again we were very happy. i think there was a group of five or six of us that went and spent half a day with the director and her administrators and her deputies just to share the lessons learned and again it's invaluable what you can learn from the other states and i know scott has alluded to amba, the american association of administrators. a very valuable networking resource and i would be happy to share lessons learned with any jurisdiction that would be interested. >> and we're the state reaching out to everybody right now. nobody is talking to us. >> for california, it's interesting you bring up that
point. so as a legislative staff and also for my senator, we've been very engaged in ncsl, specifically my boss sits on the immigration task force. >>s that the national conference of state legislatures. >> of course. and so it really gives -- through the conversations, through the immigration task force, it gives legislators and their staff an opportunity to talk off the record really about lessons learned, about things you may want to admit, you may not want to admit, and really build a relationship with those members that then you can pick up the phone and call the member yourself, you know, member to member and say, hey, i'm thinking about these things and how could this work or who can you connect me to in california? and so absolutely states are reaching out, and specifically in our experience through ncsl and the immigration task force so it's been wonderful.
>> we've talked a bit will implementation and some challenges and experiences. i'm curious now a little bit about outreach. as we've talked about a little bit offline in the course of this conversation. in the case of california california with a high estimate of 1.4 million people that would be served down to vermont's 1500. but these are all estimates. new populations and no one can really put their finger on how they can be serve fed. what their nationalities are, what languages they speak. i'm curious of the panel, your outreach approaches, what lessons you've learned and do you feel you've found that sweet spot in reaching and serving this population who if they don't know they can apply thr these licenses, the program's not going to be very successful. >> one area we're focusing on is our hispanic population. simply due to statistics that make up about 10% of our
population in delaware. so that's going to be our largest area that's going to be affected by this legislation, so, i mentioned i serve on the hispanic commission, which gives the dmv access to a great reach within the community. be speaking on spanish radio and mentioned that earlier about d.c. and everything else and later this month is when we're really going to start publicizing this, saying these are the requirements, these are the things you should expect. but obviously, this population is not the only population we need to serve, so reaching out to as many as we can think of to start having those conversations with other nationality, other communities. we're doing things you know, simple things like making sure our translate button on our website is visible and easy to use, so somebody can see that now, it's bury at the bottom of the website. i didn't know it was there. print material will be in english and spanish.
there are other areas, but our main focus is in the hispanic community. >> a similar experience, on erica's comment, you don't know what you don't know. until think come forward, with the request for information or services, that's when you find sout, so, what we had found, although we have in excess of 700 translators, we did have a request for an individual for a unique language. i don't recall the specifically which one it was, but we reached out to the local university who was then able to provide them with the translation services they needed, so we had to make an exception to our rule because we only allowed a natural person to be an approved translator, but again through policy, we were able to authorize the university to provide that service. >> for california. i mentioned earlier, the dmv did
a really phenomenal job of beginning their work before the implementation to the workshops, they were getting, they slis itted information from the community about what types of documents would you subject they use if you can't use traditional documents, so started the eng e engagement early, then had over 200 workshops and ledge islators had a lot of interest in doing outreach and educate the community about it. the media played a key role in it. spanish media played a key role in it. you know, i'll say at the staff level, i've been very impressed with the amount of outreach the dmv has done and we're very pleased. >> you have another question. >> thank you. >> i'm austin, from georgetown university and we are doing our research project on the rollout in d.c. and one of the things we're doing is interviewing some
individuals looking to apply for the license or are in the process. asking them what are some of the reasons you might be held back from doing it, why you are not applying. one of the things we're finding is that some people, whether or not it's rational or not, are afraid of coming out of the shadows to apply for this license. my question is for anybody on the panel. has there been in reports or evidence, i know probably hard to find, of police discriminating on the basis of seeing that mark on the license. i know you've spoke to how states can't control for everything as far as immigration and customs enforcement. have there been any reports of the mark on the license resulting in any diskrcriminati for people pulled over on the road or anything like that. >> we, to date, we have not. we have not heard those stories. we do require in statute in the legislation that there be a
report annually. indicating any cases of discrimination that get reported to the state and so, in california, again, it's a crime to discriminate based on that marked card. and it's in violation of the jesse civil rights act, so, in the coming years as we get reports from coming you know, from reports from the community or so on, we may have data at this point. i haven't even heard anecdotely, it's been a problem and i think if r us, what's been helpful is during the presentations with the dmv, usually, there was law enforcement sitting next to the dmv saying don't be afade fray, we want you to come out, get your license, get insurance. everybody will be safer, so i think that helped, but we haven't seen that. >> thank you. >> picking up on that question, so, i heard a couple of times when you were discussing your own outreach plans reaching out
to those community based ethnic orgs, did you encounter resistance as officials contacting these partners who serve what would be vulnerable communities to partner with government? was that an easy sell? >> in nevada, that responsibility was delegated to our public information officers and they welcomed the opportunity to join with us. the community groups did. we absolutely had no resistance and we had law enforcement officials there that we had educated on the process again encouraging the individuals, don't be afraid. come forward and do this. because you know, when that individual is driving behind their car, there's no marking on their car that indicates to the law enforcement officer that that person has a driver's authorization card inside. it's only when the officer has then determined that there's a need to pull that person over because they found cause that only at that point in time when they pull that license out of
their wallet and show it to the officer, only then would the officer have any indication that that person was a driver's au t authorization card holder and not the holder of a standard issued license. >> same thing along the lines of what terry just said. about the marking on the card. same thing with us. it's a class d license just like the one that i possess myself, so for all-purposes within our systems, it's a class d driver license holder. it's the visible card that makes that indicator. we have been, the folks we've been reaching out to have been very open and willing and very eager to talk to us, to work with us, because this is going to help their communities. there is concern with some of the provisions we have in there and one of the things we're doing, it was a sister piece of legislation along with our bill, was to have our task force reconvene this may. this coming may. may of 2016. to study the kind of the early parts of the implementation to see if there's anything that you
know, was passed in the legislation that's kind of chilling participation. as well as is there anything we can do different and so, the task force will be coming back together to evaluate things like outreach. is there concern because of government officials, law enforcement and anything of that nature. >> so, for california and nevada, the states that are currently implementing, how ting it's going? how would your own evaluations be on your own efforts thus far? >> you know, i think our community is happy that they have access. in california, there were a lot of people losing their vehicles. getting impounded. we have laws in place that require impoundment and then the vehicle gets held for 30 days, which makes it very costly for people to get their property back. so, our residents generally represent the area that senator marrow represents.
our community is happy they have a tool. whether they want to take advantage of it right now or not. i think it depends on the person's level of comfort about whether they have a special circumstance or not, but i think overall, people have been genuinely very, very pleased they have a mechanism. the concern about the marked card remains for some. it's a philosophical right now since we have a -- woun you know, the idea of having a marked card is just, it feels bad to some people. if they don't, they consult with an attorney accordingly. my boss is certainly very pleased and a lot of our community members are as well. >> i'm hearing a plug for more research, right? these programs are still new. >> i would agree.
given the estimates of approximately 60,000 individuals that will apply for this in nevada and we're well over a year into our implementation and we've met barely half of that, i would encourage continued outreach with the community groups. if it's requested at this point in time, to provide information to these individuals because again, we can say you know, based on 14 months of experience, we've nod had any negative activity associated to individuals having a driver's authorization card and i can't think of a better group to come out and speak to others to encourage them to also be compliant by obtaining the driver's authorization card, so, again, that's all a matter of resources and time that it takes to do that. but i think that would be something that maybe the community groups should consider. is to go out and start reeducating individuals and get people to have a card to sit on the panel to talk to others and say, you don't have anything to be afraid of. >> we are