Skip to main content

tv   Key Capitol Hill Hearings  CSPAN  October 17, 2015 4:00am-6:01am EDT

4:00 am
about the jag luncheon you had? and jags female judges can takeh, the system care of this problem but it is not being properly used. there forced -- in their first point it is about climate. promotion and future in the service depends on how they handle these issues on the watch. and saying so-and-so did a really good job in afghanistan and iraq so i will look the other way because somebody is making a charge against him. that is not ok. they are part of their future and their performance, it is how they handle these issues that happen in their unit and suppressing them, moving them
4:01 am
off to the side, trying to pretend they are not happening, that is a career ending proposition for them. that is the first thing. the second thing is making the justice system work in holding people accountable so that their we should stop plea-bargaining. we should stop lowering charges. if some of the evidence is clear and there is a conviction we should be drumming these offenders out of the service with dishonorable discharges as publicly as we possibly can. should be making examples of them. one of the things that appears to be true although the data is a little bit squishy, back in the time of iraq when we had the surge and we had -- the army had to grow the force very quickly.
4:02 am
and they were keeping people in a place, not -- stoploss, they were extending and pulling out all the stops. part of what happened during that time was the army in particular granted an unprecedented number of waivers for people who had criminal convictions, domestic violence convictions, rape convictions. some of the serial offenders that have been found in the sexual assault domain are people who have those waivers and this people need to be found in driven out of the force. >> that was a mistake. >> thank you. >> thank you. my name is julie thompson. graduate student of international affairs. i am glad you talked about how the number of women in the pentagon has grown since the
4:03 am
1990's. i am -- just wanted to ask you about how that is continuing to grow. i feel that as somebody who wants to be a national security professional, we still feel as women that we are minorities and -- in our classes and internships, there is still not enough of us. i wanted to ask what advice do you have for women starting out a career in security but who want to be in your position? what advice to you have? >> first,, and in, the water is fine. do not shy away from the heart security issues or where women seem to be a minority. it gets better with every administration, round of appointees. women coming out of security-related our graduate programs are fully half. the pipeline is there.
4:04 am
the jobs are opening up more and more at the top. so i think by the time you get there the opportunities will be there. the second thing i would say is to the extent short of actual harassment when you encounter bias, one of my first meetings 29,he pentagon, i was civilian, female, democratic appointee. my counterpart who was a one star general said what is a nice girly do -- like you doing? in a week he will have no question about why i am here because i will knock his socks perform. -- how well i
4:05 am
and she isible woman not incredible because humans to put a sentence together. it's like the talking dog phenomenon. , let it be the other person's problem. focus on being excellent, focus on finding those buses and mentors who can see you for what you are and who appreciate your work and who will invest in you and promote you. >> that is great. -- excellence is always a cure for that kind of smallmindedness. look -- fascinating to listen to this. i study women in politics. i have a question and you just mentioned in your advice, don't
4:06 am
shy away from the heart security issues. it makes totally good sense but i was curious with the question about should that be an mr s or career path. oftentimes that is not good for their career. do you think this might be a dangerous career path for a woman seeking a career in the military? >> my worry about at thisionalizing is stage in the development of this issue, my worry is that is a fed i am theit becomes male infantry, i do not have to worry about this.
4:07 am
where i am the senior general, i do not have to think about this. i worry about it being used as a way to, we have these special women who deal with these women's issues as opposed to mainlining and mainstreaming and integrating this into how we think about approaching these operations at large. i think that part of this will depend on how the broader integration of women into a range of career fields but you would have women where they can pass the standards, women in a brown -- in a broad range of ground units. they can also be trained, to have that as part of their additional duties but it would theytally integrated and would not have to re-create it or is a special thing that others may that might
4:08 am
marginalize the issue. let's go to the side. >> good evening. graduate. my question is what about race? very fewround the room people of color here. color in thele of military. what conversations are happening about race in the military, and defense, insecurity that you have had experience with? >> when you look at national security at large, the statistics, the military have done a better job at integrating people of color than the rest of the national security apparatus. it is much easier to find qualified women in the pipeline thin it is to find people of
4:09 am
color. you look at the phd problem -- program. things we're doing to ,s a demonstration project there is a thurgood marshall .ollege fund and to create a pipeline for interns to be trained and have to launch into public service in the federal government, we are tiny. we are a tiny little thing but we will prove the concept that this works, you can find qualified talent, you can train them, you can make them and then we will go to any other think tank. we create more of a pipeline. trying to hire, the pipeline was appalling in regard to people of color.
4:10 am
>> we have time for one more question. >> i read with great interest about two women in the special the it was breathtaking what they accomplished and went through. for men and women. i could not help but think in reading about this, if this really necessary and i know you mentioned little bit that maybe some analysis was being done on exactly what is necessary to do these jobs. we have done it in police departments, we have done it in fire departments, and we found that there was a lot of stuff that was not really necessary. is there any work done, is there analysis being done, is that even touchable?
4:11 am
-- >> i thinkhat that work will be done, not a lot of waivers are requested, that will drive a much more rigorous approach to say do we really have the standards right because the truth is the standards for a marine corps platoon will be different than a standard for the ranger battalion. most men wash out of ranger training. they are the cream of the crop. they're doing things that we do not ask other people in the military to do. you have to go specialty by specialty and define what are the standards to do the job well. that is going to take some time. the scope of that effort will depend on how many waivers are requested.
4:12 am
but where waivers are requested i am quite confident that kind of work will be demanded. it is being done in a haphazard way that is not necessarily rigorous and objective. i think some of this has been done internally. i do not think that will be found to be acceptable. there will be a much more impartial and objective approach that says, that is looking at this issue. if the waivers are perceived on a large scale. >> thank you. we are about to take a 10 minute rate but before we do, join me in thanking our guest. >> it describes the effort to
4:13 am
theg the man-made world and natural world and harmony. to bring youthfulness delight to our whole environment. only begin with trees, flowers, and landscaping. >> lady bird was about beautifying the nation, her signature issue as first lady. she was a successful campaigner and businesswoman and partner to her husband lbj. lady bird johnson, this sunday night at 8:00 p.m. eastern on c-span's "first ladies." examining the public and private lives of the women who filled the positions of first lady and influence on the presidency from martha washington to michelle obama. sunday at 8:00 p.m. eastern on c-span3. a signature feature of booktv is also a coverage of book fairs
4:14 am
authors.onfiction here is our schedule beginning this weekend -- we are live from austin for the texas book festival. the following weekend, we are in in nation's heartland wisconsin, madison. at the end of the month, we will be in nashville with the southern festival of books. at the start of november, we are at the boston book festival. in the middle of the month, the louisiana book festival in baton rouge. at the end of november, we are in florida for the miami book fair international. and the international book awards from new york city. >> in 2012, the supreme court deemed life sentences for juveniles to be unconstitutional. this week, the justices have a normal argument on whether it would apply retroactively to
4:15 am
courts prior to the court's decision. this is one hour and 15 minutes. >> your argument first this 280,ng in case 14 montgomery versus louisiana. >> the issue is whether to decide there is wrecked activity in this case or the federal hate be as case such as johnson v. mannus number 15 -- one on today's docket. there is no jurisdiction on the question because the point of it is to enforce the supremacy clause. the supremacy clause states that "when the law applies, the judges -- keywords -- in every state shall be bound thereby." asre is no such thing separate federal law that depends on whether a particular state voluntarily makes federal
4:16 am
precedent finding. that, or thes state voluntarily adopt nonbinding federal precedents, that creates no right under federal law, which is what 1257 requires and michigan does not apply. >> how would you describe the adequate state ground in which this decision rested? richard bernstein: i would say the lack of the binding federal law question is an antecedent requirement to borrow the terminology before you get to the adequate and stake out it now just. next so i don't have jurisdiction to answer the question? bernstein: whether he is constitutional required in state collateral review reports in the second part of our brief said why it is not constitutionally required in state collateral review course and that is this court's precedents back to the
4:17 am
beginning in the fifth and it'san had said that exceptions are matters -- not matters of the constitution. statute oneral kb's its face only applies -- the statute onlys applies on its face and it releases and warranties under. the state says great knowledge we are holding a prison in contravention of federal law, but we choose to do nothing about it, then the answer is federal habeas corpus and there is not the second answer that the state could be under supremacy clause to enforce the federal law, if i were to argue the second position, i'm not sure what kiss would have to support me. yourrd bernstein: i think
4:18 am
honor's opinion for the court at 1319tinez v. ryan to 1320, suggested that there deciding the federal kb is right rather than what the court called a freestanding constitutional claim. the major advantage is if you say that the state courts are bound by the exceptions, by the constitution, then when it goes befederal habeas there will reviewed. if you say that the redress question as the rationale indicated in state court is a matter of state law, then when the issue goes to federal the state court would not have decided the federal issue. there is a major difference. you'd be weakening the federal
4:19 am
statutetute -- habeas the court would benefit from lower percolation in the habeas courts are should be out the window because they will only be able and the court revealing them on appeals to apply the highly differential head work. just: kelly saying that the supremacy clause warrants -- are we saying that the supremacy clause wants the states only directt -- only in criminal proceedings? richard bernstein: it would be that the supremacy clause only binds the states in direct precedents and collateral proceedings where it is an old role because that is the equivalent of the right proceeding. talking about the retroactivity of a new rule, then that is
4:20 am
where the exceptions apply, new rules and collateral review, and those are basically statutory equitable discretion rather than the constitution. the court has already held that the wreck review and the implication of the bold move present federal questions. : differentiate this case from standard oil. richard bernstein: the issue was the underlying status of the federal government arm, and the court said that question is controlled by federal law. standard oil is like miller sl, where the issue was -- what does the eighth amendment require? that is the federal issue imply, and standard oil as accommodation of statue, regulations, and federal law, and federal law controlled the question. here, the statute does not apply other casesrt like
4:21 am
have go, like the federal rules of evidence do not apply in state courts, even though many courts follow a similar provision and certainly follow federal precedents in interpreting them. justice: we did say that state could define the exemption richard bernstein: in any which way it wanted. -- and many which are it wanted. richard bernstein: correct. justice: we announced what the federal law is, and the state said they would follow it, but i guess it might or might not be free to change its mind about doing that. richard bernstein: i think the difference in what makes this case special is the court has held murdoch versus city of memphis, almost 150 years ago, 87 from 326 10 327, the 1267 jurisdiction's question by question. it is not like 1331 case by case, it is question by question. i do not believe the court has jurisdiction to skip over the
4:22 am
question of whether federal law theies and then answer hypothetical, is federal law applies, what would it be? i think the question of whether federal law applies -- justice: let's think of the first exception. states hadt many sedition laws that makes certain conduct unlawful to the 1000 people in prison. this court in the new role holds you cannot criminalize that behavior. what is the law that would make that retroactive to people in prison? it sounds to me that it is not like some kind of statutory discussion rather there are human beings who are in prison who are there without having because any valid law
4:23 am
it was always protected by the first amendment. if that is right, it is the constitution, the due process clause that says they are being held, even though they committed the crime 22 years ago, they are now being held in confinement without due process of law because you cannot criminalize their behavior. do you see where i am going? that being so, it is a federal constitutional rule. richard bernstein: in your hypothetical, respectfully, i do not think i would be a new rule. justice: i have made it a new rule for the purpose of a hypothetical. richard bernstein: if it were a new rule, then fourth and going all the way back, the justices and parliaments opinion and mackey said we are not greeting
4:24 am
the substance of exception because the constitution requires that -- justice: the case was the states could be more generous, this was the opposite of generous, could they be more stingy? -- maybefind anything i will read it again -- but i cannot find anything there or in danforth that answers the question, so i thought it is any question, hence, that question i posed to you because i want your response. i do not think you can answered by means of precedents. i think you have to figure it out without the help of precedents. richard bernstein: if it is a held,le, the court has and sorry to cite the precedent, but there has been much activity on collateral review that it is not constitutional. justice: that is to put that we have tnt says we do not like the letter. thenre saying that we have maybe that is wrong.
4:25 am
why doesn't violate the person inon to hold a prison for 20 years for conduct which the constitution forbids making criminal? richard bernstein: it does filing the constitution. justice: it was not criminal at the time. richard bernstein: it was at the time he was convicted, right? richard bernstein: fair enough -- justice: fair enough. the constitution, according to the cases, is satisfied by the federal habeas. is thereernstein: anything else you could say? there were some people in salem who were imprisoned for being a witch and lo and behold in 1820, it was held by this court that that violated the constitution. made the more outrageous
4:26 am
example of the same thing. i wanted to say, i got your point, it did not violate the constitution but i also got the point that you have authority, anything else? this courtnstein: has been reluctant, even when there was a violation of the due process clause, to create a judicial remedy and imply judicial remedy on federal statutory remedy, that is cited in our brief. just as that is not what is happening, mr. bernstein. if you assume -- justice: that is not what is happening, mr. bernstein. if you assume the justice's hypothesis of keeping someone in prison who has not been criminalize, the state has set up the collateral review mechanism. you are not asking to set up a new mechanism. it does have the collateral review mechanism. the only question is whether it will comply with federal constitution law in that
4:27 am
collateral review mechanism. richard bernstein: the other question is whether that issue of retroactivity is itself a , ifral constitutional issue it is, obviously, there is jurisdiction. if not, i would select there is not jurisdiction, and that the proper remedy is federal habeas, if i may reserve the remainder of my time. justice: thank you. >> mr. chief justice and the miller versus alabama establish a new substitute role prohibiting mandatory life without parole for juveniles which should be applied after actively. this court has jurisdiction to hear the claimant because the louisiana supreme court relied exquisitely on jurisprudence. in miller, this court held that mandatory life in prison was
4:28 am
unconstitutional and it also held that life in prison would be an uncommon, even today. -- as: justice: could you just say we have a fourth amendment and the federal constitution has a fourth amendment. we are going to apply our own constitution, but in applying it, we will follow the federal precedent. i think we would say, in that case, that the case has been decided on the state constitutional grounds, even though the state court was interpreting the ground. even though it is looking to federal decisions. mark paisance: in this case, your honor, the federal court of louisiana did not state it was exercising independent grounds at all. justice: i've got the case is cited said that? cited an earlier louisiana supreme court case which made it very clear that it
4:29 am
les following the federal ru as a matter of discretion and not because it had to, and it could in a later opinion decide not to follow federal law. that was my interpretation. was myisance: it interpretation that the louisiana supreme court said -- we have a choice. t and they made the choice to applyeague. -- and they may be trusted to apply teague. they said they were dictated by the taken analysis and that is what was done in this case. justice: did you not say in taylor that they were not bound eague and they went to to make it clear they were not bound to do that? mark paisance: they did say that. justice: they never retracted that. but thesance: correct, choice insult is not necessarily a matter of state law. while the supreme court had the authority to make that decision,
4:30 am
it said we believe teague by choosing -- we believe by choosing teague, that is the better law we will follow the federal jurisprudence and law from teague in doing so. i believe that unless they state a clear, independent ground, this court can conclusively presume that they apply federal law as they believe. justice: i thought unless they clearly state otherwise, we will assume that they are applying federal law, and here they clearly did state otherwise. they said, we do not have to willw federal law, but we model our state law federal law. it seems to me that satisfies the exception requirement of michigan. mark paisance: it is my opinion lull indicates. that the state must say we are
4:31 am
following the law in making this decision. we are applying state law rather than federal. justice: they did say that. this is a matter of state law, we do not have to follow teague, but we choose to. i thought that is what they said . mark plaisance: i believe that is efficient to indicate to the court that it is applying federal law. justice: i think what people are saying to you is that it is different from your standard michigan question. this is a different question. it is a state that says we are , webound to follow teague can do something different, but we want to follow teague. in all the particulars, and then the question is, if the state commits the following teague, it does not think anybody else has committed it, but it's up commits the following teague at to following federal law, then what happens?
4:32 am
is there enough of a federal question to decide the case? that is not the michigan question. that is more like a merrell dow question or something like that were federal law and the state has chosen it but it is just partial of the claim because the state is so committed to following federal law and all the particulars. mark plaisance: i agree, and even in damper, the court said the question of interactivity is the question of federal law. justice: why don't you finish. mark plaisance: that is the answer to your explanation or hypothetical that you said if the state decided they were choosing federal law, then what is the next step? and the next step is retroactivity, which both the they said in danford that the question of march activity is appear question of federal law. justice: federal statutory law.
4:33 am
i thought that was supportive danforth. they can go beyond what federal interpretation is because we are talking about the federal miller v. alabama -- the federal habeas statue. mark plaisance: that is correct, but if they consider the state of the merit of the claim and the merit is, is mr. montgomery serving under the constitutional sentence? is miller attracted to say he is serving in a constitutional sentence -- justice: to mr. bernstein's point, are you saying that your client would be worse off, if you are correct, that is if the question comes up on federal habeas and the federal court decides that without any [indiscernible] but it to state court goes first, then federal review is truncated? mark plaisance: that would be my
4:34 am
understanding, your honor, that while jurisdiction in this court does not depend on what has occurred so far, it depends on what the court does decide. whether he can go to federal court or his court, does not affect the jurisdiction. the question is -- -- oh,: had you answered i suppose you are right, but your victory is going to leave your client in the worst addition because any get to federal court, he will be saddled with -- mark plaisance: not if the court ands they have jurisdiction makes miller attracted, and then he would not be going to federal court. the question is -- is mr. montgomery being held unconstitutionally? miller said that a mandatory life in prison sentence is unconstitutional because it fails to address the fact of the
4:35 am
matter that this court believes kids are different. justice: on the jurisdictional point, let me see if i understand what you are arguing. rules ofstates procedure model dr. federal rules -- are modeled after federal rules. they follow federal rules but as a matter of choice and not because they think they are bound by the federal rules. let's say there is a disagreement in federal court about what federal rule of .vidence 403 means the state court says, we will follow the federal rule and we think the right course between these two divergent federal courts of appeals is the second circuit, so we will follow the second circuit's interpretation of federal rule 403.
4:36 am
would we have jurisdiction to review that decision as a decision on the question of federal law? mark plaisance: if it was clear to the court that the state court made a conscious choice enough of a signal to the court that it was adopting federal law to use as state law, but in this case, there is no indication that the state of supreme court of louisiana was making that decision. they said that we are -- our analysis is dictated by teague. mr.oing so, they found that -- they would not apply at miller interactive and that is the real issue -- miller retroactive and that is the issue of this case. justice: suppose we held that, we can review and we have jurisdiction because the state court said they would follow teague and then we go on and we say that under teague, miller
4:37 am
can be applied on collateral review, and the kid goes back to the louisiana supreme court and they say, we said previously in taylor that we would follow teague, but that was based on our understanding of teague at that time and now that we have seen what it has been interpreted to mean by the supreme court, we will not follow teague. then what would happen? mark plaisance: i think louisiana would be bound to follow this court's ruling. justice: why? because it's a we would voluntarily follow it? -- because it said we would voluntarily follow it? mark plaisance: in doing so, it must follow this court's jurisprudence. they had changed their mind and chosen the chose -- and chosen not to follow. justice: what forces them to stay where they were? it is a matter of state law. they did not do that in this
4:38 am
case. -- mark plaisance: they did not do that in this case. justice: not yet, but if we agree with you and we send it back and they say, that is what teague means, we won't follow teague. what stops them from doing that? doesn't that make us look foolish? mark plaisance: if the state considers the merit of federal claim, it must grant the relief that federal court -- justice: but the question is what is the federal claim? quite a few site standard oil v. johnson? mark plaisance: that was the case cited by the solicitor general and i believe my friend from the solicitor general's office can probably answer that question a little bit better. justice: are you asking us to octoberhe question of
4:39 am
-- the question is left open in stamford? -- danforth? danford said there could be because additional minimum but it did not answer the question. mark plaisance: i am saying you do not need to get to that question. justice: let's assume. mark plaisance: i was at the balance of my time. justice: u.s., council. -- thank you, council. >> thank you, mr. chief justice. --s court does have louisiana has upon fairly incorporated into its law a holy federal standard and in this court's decision with three affiliated tribes have most recently with ohio versus minor, the court has recognized that when the state has chosen to adopt federal law to guide the
4:40 am
decisions and binds itself to federal law, there is a federal question. justice: they can change their mind, right? you said voluntarily chose to follow it, they can voluntarily choose not to follow it anymore. michael dreeben: the same is grue in any michigan v. lon case. it has jurisdiction under section 1257 to resolve state court resolutions of federal law and it will presume that a state constitutional decision of an image of the fourth amendment will be binding, that recognized that the only circumstance in which the court will not treat federal law as governing both questions is one the state makes clear that it would reach the same result under state it didutional law as under federal law. it did not preclude the option of the state going back and reaching a different decision
4:41 am
once enlightened by the court asked of the content of federal law. standard oil is completely clear on this. it says the state chosen to use federal law to determine whether federall exchange with mentality, and we will correct the understanding of federal law, but on remand, the state can't now, free from misapprehension of federal law, decide what it thinks state law requires. if it does not, then there may be a federal constitutional question. justice: how does it work? i looked at the indian case and that seemed a little far out. it definitely gives you support on your statement. suppose you to justice scalia's example, we have iowa state rule 56, we interpret iowa state will 56 the same way as the federal rules of civil procedure.
4:42 am
now, this is what it means in that case. they say, we are doing it under iowa state rule and you say we can review that because they said that iowa state rule is the same as the federal. is that right? how do you fit that in the words of 1257? doubt thateben: i would satisfy the court. there is a theoretical and practical answer. i will give the practical answer first. ule prettyl r uniformly say they will treat president as guidance in the decision as persuasive value. they recognize there are state of procedure and state rules of evidence that would belong to the state. justice: they say in a particular case, it is a great guidance, we agree, our interpretation is the federal interpretation. kelly review that because it was -- can we reviewed that because
4:43 am
it was federal interpretation? yes or no? michael dreeben: there is a distinction to in this case and that that may suggest that this kit with the court has jurisdiction over and that would does not. justice: you say it does not in the example of federal rules of procedure? michael dreeben: i am doubtful the court would have jurisdiction or choose to exercise it because i except for premises of the argument of your hypothetical, but in the real world, it does not happen. that is ahen you say doubtful case, i think you are acknowledging that if we adopt your argument, we're going to get that case and lots of similar cases. we are going to have to parse the words, the words that were used, by the state supreme court. guidede are following or by it or strongly guided by it, or adopted, we will get all of those cases. why should we go down that road when there is a perfectly
4:44 am
available and possibly superior remedy available to the petition by filing a federal habeas? michael dreeben: several reasons, first of all, i do not think it will come up in that way to the court because that's not the way the states treat their procedure. there is a principal in the cases that went federal law has been adopted as federal law, the court will review it even if the state could have chosen a different path. justice: what is the problem -- justice: could you list, when federal laws adopted as state law, the federal court can review it, is that what you meant to say? you are careful and don't make mistakes, but -- michael dreeben: justice kennedy -- justice: you said when federal law adopts federal law as federal law -- in line michael dreeben: -- michael dreeben: the state has reason teague for no
4:45 am
with the cases and that is because the state lawwill be applied to that federal case in a habeas case, so they have decided consciously to synchronize their lot with the law that they know will be applied. an important federalism purpose. the state says if we have to rectify in a constitutional error in our case that has become final, we would like the opportunity to do it. if the federal habeas court will treat this as retroactive, we would like the first crack at it. justice: you are saying hooray that the federal habeas court will be downed by it because the state got there first. michael dreeben: there is an elementary reason why that is not so. applies to state determinations on the merits, the only time that the deference provision takes them. a determination under teague is a special determination that
4:46 am
comes before the decision on the merits. this court has said that in any number of cases. it is not a marriage resolution of the case comes of deference to a state determination on retroactivity would never occur. justice: i was just going to suggest you are a little bit more on the merits. michael dreeben: certainly, mr. chief justice. -- the rule in miller v. alabama goes beyond where youths are sentenced for homicide crimes. it compels the state to adopt sentencingute options. an option that is less severe than life without parole. the only other time that this court has ever invalidated a mandatory sentencing provision was lipson versus north carolina in 1976. we went something like 36 years
4:47 am
before we had another decision i concluded that the law must change to accommodate the compelling interest in having the characteristics of youth that mitigate culpability in the sentencing process. justice: is it enough if the state simply says, ok, with prospective people who were mandatorily sentenced to life without parole, we will provide parole? michael dreeben: yes, that would be the same remedy the court graham v. florida case which held that use who did not commit homicide but are convicted of other crimes, cannot be sentenced to life without parole at all. the court remedied for that problem and could either be a sentence of terms of years or simply converting the life without parole sentence to life with parole sentence. explain how do you your articulation of your text would not supply -- applied to
4:48 am
the guideline change? michael dreeben: i think the key difference is that with respect to the guidelines, there was setys a minimum and maximum by statute, and the guidelines, even when they were mandatory, did not preclude judges from sentencing outside the guidelines depending upon the presence of aggravating or mitigating factors that were not taken into account. as justice alito's opinion for the court in ud united states v. why do this, even the top of a mandatory guideline range was not truly mandatory. even under the mandatory guidelines, which for the six the limit purposes, were treated as if they establish elementary offense, for the purposes that we are looking at here, they are not mandatory in the same way. so if brought about the procedural change. justice: [indiscernible] between your formulation and petitioner's formulation, it
4:49 am
says this is substantive because it has done away with mandatory life in prison. you are articulating it is slightly different. tommy what you see as the difference of white your articulation -- michael dreeben: i don't think there is any substantive to use the word between the daylight and petitioner's position and ours. the description of the crime of the issue as punishable by life as aison as to did category sums up the reality of what is happening. we broke it out into the component parts because at the get facilitates the allen -- the analysis of it to understand that miller does have a procedural component, sentencing court must now consider the mitigating characteristics of morebut it also and fundamentally contains a substantive component that required a change in the law. the change would expand the range of outcomes. previously, or the court analyzed sensitive changes from
4:50 am
the law, there have been changes the form ofted outcome. for example, in justice breyer's hypothetical of privity -- of privity punishment at all, but if you trace back the origins of the substantive category to justice harlan's opinion in whate, -- n maki, this is justice harlan had in mind. justice harlan said the clearest case of injustice and not rule retroactively is when it puts all criminal punishment. you cannot say that it is the only case. if you consider what is going on in miller and the reasons for the rule, the court made clear that it believed that of the 2000 people that were in prison and under mandatory life for juvenile homicide, the court believed that that penalty was frequently disproportionate and that it would be uncommonly imposed in the future and that it was not a sentence that was consistent in most cases with
4:51 am
the mitigating characteristics of youth that have been recognized in roper, graham, and miller. justice: would it be accurate to say that google is substantive if it makes -- that a rule is substantive if it makes an outcome much less likely that much, much less likely than was previously the case? michael dreeben: probably the last, justice alito. when the court characterized substantive roles -- justice: much less likely or much, much less likely? michael dreeben: the court has said that the substantive rule creates a significant risk that the person is serving a sentence that is not appropriate for that legallymaybe not even available. it did not say absolutely, , it saidely significant risk. in contrast when the court has talked about procedural rules, rules that govern the manner and
4:52 am
was -- in which the case is adjudicated, it said the potential for a different outcome is speculative. if you put this case on the speculative significant risk access, this case falls in the significant risk domain, precisely because of the reasons why the court said it was deciding miller. the reason why the court decided miller had to do with the reduced culpability of youth and the capacity of youth to mature, change, and achieve a degree isry -- rehabilitation that consistent with something less than the most harsh sentence available or used to commit murder, terrible crime, but still the harshest sentence the court that would be reserved for worst of the worst which was what louisiana said when it amended its statutes substantively to conform them to miller. instead life without parole should be reserved to the worst offenders who commit the worst crimes. when you combine the fact that not is not a rule that does
4:53 am
just govern procedure and evidence, it also mandates changes in outcomes as an available option with the very genesis of the miller rule in the conclusion that, for the people in this class, the appropriateness of the punishment of the harshest degree, life without parole, will be relatively uncommon and seems clear that the miller rule falls on the substantive side rather than on the procedural side. justice: any state with miller habeas has retroactive on state habeas? michael dreeben: -- justice: any state with miller has attracted on this date habeas? yes, they have: concluded miller is retroactive and most have been asked substantive law. there are a couple of opinions that talk about the watershed exception which is not the way that we think this case should be analyzed, but not only did the states do that, but the
4:54 am
united states has taken that position with respect to the juveniles that were sentenced before miller to life without parole as the mandatory sentence. the resentencing of those that have taken place so far, only about 10, but those defendants have almost uniformly received sentences that our terms of years significantly shorter. justice: what is the population we are dealing with is most states to apply the miller retroactively? is it the figure of 2000 people with life without parole? michael dreeben: i have not -- may i answer? i have not broken it down numerically, but michigan has not applied it retroactively and it has a large population of juveniles who are in the miller class and i don't think pennsylvania has resolved or not favorably yet for the defendants. justice: thank you, counsel.
4:55 am
mr. duncan? mr. duncan: i was going to begin by saying i would proceed to the i believe there are serious questions about jurisdiction so i would like to begin there. we are in opposition with respect intersection because we went to the fifth circuit on federal habeas which is not that miller is not retroactive. why have we not contested jurisdiction? we believe as the believe this is a straightforward case and not the standard v michigan. l case but anv. long interwoven case, meaning that there is no doubt that in the previous louisiana supreme court opinion that the states of we ,ould voluntarily adopt teague no doubt about that, we think that raises the possibility for an opinion from the court. why do we say it does not? in cases like coleman and
4:56 am
thompson, the court said the federal law holds integral to the disposition of the matter and there is no risk of an advisory opinion. later in common, the court said only a resolution to the federal court could not affect the judgment is the risk of an advisory opinion. we do not think there is the risk of an advisory opinion, it is within the rock of possibility, we doubt it will happen but it could happen, what on remand, the supreme court could say, we have seen what you think about teague, we will adopt out retroactivity as some states have done, and that is does this make this court's opinion advisory? we think not. the solicitor general has talked about cases like standard oil v. johnson, where the state was under no obligation to tether its state law -- justice: it did not say so, though. in the standard oil, this is a quote -- "the relationship
4:57 am
between both exchanges and the government of the united states is controlled by federal law." kyle duncan: that is right, my point is that was embedded in -- a tax exception statute. it made certain taxes exempt from the statute and the exemption -- justice: that would have been to no matter what the state did, right? we are deciding the question of federal law that would have applied on its own. kyle duncan: well, with respect to standard oil, my point is that the state did not have to make their tax exempt status turn on a federal question, it did, so that resulted -- justice: i'm not just saying it made the tax exemption log turn on federal law because there is federal constitutional requirements in that area, could the state have taxed -- there is the question of whether or not
4:58 am
the supremacy clause would permit the state to tax sales to the post exchanges? think that is possible but they do not make the decision dependent on that. justice: the provision i just quoted said the relationship between most exchanges and the government of the united states is controlled by federal law. the instancetake of ohio where the state made the transaction with statute turn on the validity of privilege. this court addressed that discrete federal issue. justice: isn't it quite similar when justice scalia uses controlled by which that louisiana supreme court has used similar language. it is dictated by teague. it is only dictated by teague because they have chosen to make it dictated by teague, but once the choice has been made, all outcomes are dictated by teague. kyle duncan: we agree with that.
4:59 am
we believe it is "binding" within the meaning of binding federal law because the state has chosen to do it and it has never shown it would not do it. we think -- if the court disagrees with us on that -- rhino, isn ohio v. there any other way in which the state could of retained review of the state supreme court's erroneous determination that the witness in question did not ask a fifth amendment privilege because she said she did not commit the crime? kyle duncan: i don't think so. justice: you don't think there is a decision between that case and this case? kyle duncan: if the teague standard is a discrete, federal standard the state has incorporated, well, the louisiana supreme court -- the defendant could go to federal habeas, but it does not seem to talk about their view of the supreme court decision within a thisrent with respect to
5:00 am
court's jurisdiction. it might mean this court will -- thatr a more robust this court will wait for more robust case but this case goes to the second reason why we have not looked at jurisdiction and all, because there robust split on this direct -- on this specific issue that extends to something like state and federal courts. they are all deciding the same federal issue. as a seems to us that practical matter this court ought to weigh in. it's going to weigh in sooner or mother -- later on a federal habeas corpus state court. justice scalia: we weigh in when
5:01 am
we have jurisdiction. you don't think that matters at all? mr. duncan: of course it matters, justice scalia, of course it does. justice scalia: what you said doesn't make much sense. mr. duncan i think it makes : sense. justice scalia: let's get in there quickly whether we have , jurisdiction or not. you are not saying that, are you? duncan: we are not saying that. we are saying the federal issues generally into open with state law and there's no independent then this court has jurisdiction to decide the case. otherwise, wait for a federal habeas corpus. receiving to the merit. in miller this court was invited -- breyer: we
5:02 am
deliberately have jurisdiction, don't we? i'm trying to figure this out. in my mind we have jurisdiction where there is a person that's the defendant and the defendant says the court's decision that's your courts decision is contrary to the constitution or statute of the united states. that's just what they say. mr. duncan that answers the : question. justice breyer: so we have jurisdiction to answer the question. now, the question is how do we dispose of the case in which we have jurisdiction? and we have three cases, i guess, in which the court has done in disposing of such a case once solicitor general says. namely, they have said, we are we are not going to say whether he's right in saying it's contrary to the constitution. that's because there might be an
5:03 am
adequate state ground; there might not be. the adequate state ground was one that was was elucidated 24 or explained as being flowing flowin -- flowing from a certain interpretation of federal law. mr. duncan: well that is -- justice breyer: we will say their interpretation of federal law was wrong, and now we will send it back to see what they do. is that right? have i got that right? mr. duncan: that is our position. and by the way -- justice scalia: what is the federal law you are talking about? mr. duncan: the application of teague to miller. justice scalia: and teague is an
5:04 am
interpretation of that federal law. mr. --duncan: well justice scalia: was that federal law at issue in this case? mr. duncan: the teague standard. justice scalia: of course it wasn't. justice breyer: but the teague standard, the teague exceptions and dwell because traditionally required. the teague exception -- justice scalia: have we ever said that? mr. duncan: you have not. and that is why we do not take a position on that. justice scalia: you want us to hold that in this case? mr. duncan: we do not want you to say that in this case. chief justice roberts: did we say that in danforth?
5:05 am
duncan: you left the question open in danforth. justice sotomayor: could you thatme why you would think something like atkins would not be retroactive to states? mr. duncan: -- compulsion, 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 an equitable education to federal hideous statute, it's not constitutionally binding on the state, and that the court left open whether the expect patience -- exceptions are binding, but exceptions were part and parcel of justice harlan's mackey understanding of how he thought
5:06 am
thought cbs ought to apply. and so where is atkins creates a binding constitutional right, the question of remedy, though. the question of the state constitutionally bound to offer that remedy. and this court has recognized, in cases in pennsylvania versus finlay, for example, that the states have a white discretion in structuring the past conviction. and the next point, it has to do with fidelity. justice sotomayor: it has to do something different because as justice breyer pointed out when 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 am offering to process, is there not a check, a substantive check id process? well -- justice sotomayor, that you have to offer 19 minimum? well, i mean, that
5:07 am
is the question. so this court has found that there is a substantive check into processing griffith where were talking about direct review. were talking about collateral review, our vehicle although we haven't taken and if -- a position on it, collateral review is a different animal for purposes of -- : but wece sotomayor have a number of cases where the states have viewed the exceptions is controlling the fact that they have to operate because constitutional minimum. mr. duncan: this court has ever held that. justice sotomayor: hasn't yet. duncan: unless -- >> justice and we are, and why shouldn't we? mr. duncan: i understand. justice sotomayor: that's really the serious question. mr. duncan: it it it is a serious question.
5:08 am
we, as again we have nothing in position on that question because deal but the federal law is a matter of state retroactivity. wasiller, this court invited to categorically bar the penalty of life without parole for juveniles who commit murder, but he decided not to do so. now the decision is strictly to view,nclusion, in our subject to is not substantial rule undertakes first exception. consideration of the teague framework, teague policies, and teague precedent points instead to the conclusion that miller is procedural and not a substantive rule. so we think summerlin most how fully sets out the framework that ought to govern this justice: can i give you just a hypothetical.
5:09 am
suppose that there is a stated was a mandatory minimum for a theft. for theftentor name is 20 years. and suppose a court looks at the and says you know what, that is incredibly disproportionate to a lot of theft and so strikes the mandatory minimum. you cannot have a minimum order or like that, make it lower. would that be a substantive ruling? mr. duncan: we don't think so. justice kagan because the : mandatory aspect of it goes to the manner of imposing a ballot -- imposing a penalty. justice kagan: it does not go to the manner of imposing. mesh nothing about the manner of imposing. what it does is it just increases the range of something possibilities. and actually is it to the course. it says that fully nothing about what factors are to be taken into account. nothing about that at all. all is says is you cannot have a mandatory minimum of 20 years for theft and make it lower.
5:10 am
mr. duncan: well, so in in if in that hypothetical that doesn't go to the manner of imposing penalty, that is different than miller because miller made very clear that the mandatory aspect of the penalty is to the manner of imposing the penalty. justice kagan: so if you're saying, no, that's different because there's something else .n miller there is a cause. there is a process voted of miller, and a question about it, where the court says what courts are supposed to look at is the interest of youth and are supposed to try to figure out whether these terrible crimes or functions, in part of the majority or not. whether you really are looking at it in corridor bull defendant. process component. but that process component is nothing with effect that there is a completely separate,
5:11 am
self-sufficient component as to what the range of punishment has to be. that's completely on all fours with the hypothetical i gave you. mr. duncan: lawyer justice, the relevant difference in terms of teague analysis is that this court in miller did not take the punishment of life about for all, the distinction of category of punishment of life for a desktop roll off the table. this court has never held that it noncategorical rule is substantive undertake. and it's done that for good reasons. that would fly in the face of the politics that policies that inform the teague analysis. justice kagan: no, you're exactly right. it did not take lwop punishment off the table. but similarly, in my hypothetical a 20 year sentence thetheft was not taken off table. with the court has done is to say there has to be other options. there has to be an option of 10 years or five years or two years, whatever it is. so they've expanded the range of possibilities. they've just made the senses different because this sentence is to find both by the upper end
5:12 am
and its lower end. they made the sentence different. mr. duncan: i understand that. but making this is different doesn't necessarily make it substantive under the pink framework. here's another way of looking at it. the defendant in a juvenile murderer who committed murder life withoutg a parole sentence today, pre-miller, is not facing a punishment the law cannot impose upon them. and we know that from miller because eller said that the court's decision does not preclude a punishment. and so that goes to fidelity. the finale interests underlie convictions do not yield with the state still has the power to impose the punishment. , justin interest yield inlan explained in mackey this court adopted into, finale intersex yield only when this lacks the power. that's where the fidelity interest crumble so to speak up
5:13 am
because the state no liquor can impose that category of ability. would go for roper. it would go for graham. it would go for justice breyer's sedition or which crimes. somebody is in jail because they were accused of being a witch --n the state has interest no fidelity interest in keeping that person in jail. but by the same token, if the punishment is death for a juvenile, the state as the fidelity interest in doing that. saluting the punishment on the table is crucial. if he doesn't take it off, it's not listed to the second policy reason for teague is avoiding adverse consequences of retrial. we think miller is even more clearly not substantive under that standard because categorical rules apply , as justice harlan explained, because they do not carry the adverse consequences of retrial. you don't make it go back and redo the trial and unearth all facts and reinstate resources and come up with a distorted retrial. miller, by its nature, envisioned a fact intensive
5:14 am
hearing that considers multiple characteristics at the same time. justice kennedy: but you don't have a distorted new trial if if you're just granted a parole hearing. mr. duncan: that's right. but that's, of course, not what miller would require. that's what graham would require. 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 before whether to give a parole hearing. whether the person can be eligible for parole at the outset. that we're talking about in that's the inquirythat 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 miller hearing into a parole hearing which shows that it doesn't quite work in terms of adverse procedures.
5:15 am
suppose you look at the watershed procedural change. my impression from the case you cited, severally, is that deciding whether it is retroactive in parts. i think we were unanimous on this point. the two parts were, is it implicit in the concept of ordered liberty, and here it would seem to be because it's applicable to the states. and the second is, is essential to an accurate determination that life without roll is a legally appropriate punishment? and the rule that mandatory cannot exist essential to making that what whole point of the miller opinion. so this the correct analysis for the watershed rule, procedural rule, that's retroactive if i'm an -- accurate about that, why doesn't it fit within that category? theeking: what let's take first one. it is not just implicit in the concept of ordered liberty. the way that the watershed rule has been stated and the first prong of it is is that has to
5:16 am
alter our understanding of bedrock procedural elements necessary for fundamental fairness. and this would be strange case to find that it because miller itself does not represent ephedra revolution in sentencing practices. it takes us into practice from another arrogant and puts it in this new area. susan incremental change in that sense. it is not a wholesale discovery of new bedrock procedural elements the way we had in a case like idiot versus ray and white. and so i think this court explained important versus boxing that it is not enough that the will be fundamental in some abstracts cents. but it has to itself represent a change in bedrock central understandings. and we don't think miller does that. we also does think it is necessary to an accurate determination of a sentence. it would enhance the accuracy of sense, but it is not necessary. and the other point there is this court has never held that a sentence that if your sentencing role can qualify under watershed because after all this court has on many occasions said that he watershed rules necessary to the
5:17 am
accurate determination of guilt or it is and here we are talking about a sentence. so we agree with united dates that watershed procedural analysis is not the way to go here but it does raise an interesting question. in summerland, because after all we do part company quite strongly from united's when the united states says we need an outcome in alteration to the definition of substantive rules undertake we say that's just a slight sweet -- tweaked to take. but that is is a change in the of standing up one of substantive rule as brave substantive rules undertake analysis of never been depended on the frequency with which the outcomes might come about under the new procedures. in fact, in summerland and this goes back into my original point about the framework. summerland explained that a criminal defendant under a procedural rule does have the opportunity of getting a more leading in the new procedures. and nonetheless summerland said that not much procedural rules are not applied retroactively. and so, as justice alito he was
5:18 am
saying, this difference between a substantive and procedural rule undertake is that when it is very likely or very likely to result in a new outcome. new ruleut whether the categorically removes the part of the state to impose a category of punishment. that is what a categorical rule does. it is not what miller does. miller may express a next occasion but the way that the miller hearings will come out. and that we are enough and fast the future. wouldcan point to cases criminal defendants have had a occurring since he'll been received with life without parole. several in to particular from the state of louisiana under his new miller procedures. but the being that the idea five changing outcomes -- the idf changing outcomes, which is what the entire states entire argument depends on is built as the procedural side of tea can not the substantive side. the substantive side is -- >> i think not.
5:19 am
i think are your definitions fits him substantive side. he said he can categorically remove an outcome. in essence" miller does. as long as innocent, which i think you're greeted with, as defined by both its upper and lower and, effectively with the court said in miller was that the sentence, which is the mandatory life without parole sense, cannot control for juveniles cents range. there has to be the one that includes other punishments. the --t increases >> it does not categorically bar .n penalty justice kagan: it allows something within the range. but it has completely changed the rain that's given for any juvenile defendants. and the rate is important. it's not the just the top end. that's what we said in alleyne, that you can't think about a sentence without the kebab of parsons sense, the maximum and minimum.
5:20 am
and when you decide with her substantive change in athens has been made for you have maximum and the minimum. hope this is concept. i think after miller we would see two categories of punishment on the table. we would see a lifewithoutparole category and lifewithparole, for example. but my point is is that miller does not ban the first category and that is determinative or whether or not some think is substantive. justice scalia: i'm i would i not describe changing the range of sentences available as changing the sentence. mr. duncan: concealment on the table, i is what most you would say. justice scalia call it doesn't change the sentence. mr. duncan: yes. justice scalia: necessarily. mr. duncan right. : justice scalia: you still get the same sentence.
5:21 am
mr. duncan coley is still absolutely get the same sentence. we said, it's possible to justice kagan: that is what we said last year. we said it is possible to disassociate the floor of sensing range from the penalty effects of the crime. a criminalty with statutes have long specified both the floor and ceiling of sensing ranges will which is evidence that both define the legally prescribed penalty. justice kagan: that is the penalty. mr. duncan: right. justice kagan: is the range. mr. duncan: it it 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 a putting in penalty on the table, which is the point of the united states argument. there is a new possibility. and our point is to say the creative possibility of the table to static with the state's power to impose field category of punishment. justice sotomayor: we know that we do not ever look
5:22 am
at this issue. wrong one. i apologize. but you really think that we -- that any state would have not applied woodson retroactively? justice sotomayor: they all did. probably not your honor. the question is that course a preaching case. it raises the question, is woodson substantive or procedural undertake. and our argument is that it's a procedural rule. justice sotomayor: why? mr. duncan: it's a procedural rule 7 . justice sotomayor: it just said you couldn't have mandatory death penalty's. just like your company cannot have mandatory life without role. mr. duncan: right. it required an individualized sentencing. justice sotomayor: it says this exactly. mr. duncan: process which we say is 14 procedure. justice sotomayor: and to give census less than -- >> it would put new --
5:23 am
>> mandatory death. but they still could have given death. they could have. so the question is whether it's at substantive or procedural under the t gruber, which of course it was a preaching case. i think the most we can say about it is not stance of undertake for the reasons that we have set. now the question is was it a watershed procedural rule. justice breyer: all right. but that's the language red rock. i do not think it is the railing which because that was the language or for two incentives and mckay. i've just been looking it up. in tickets of, justice o'connor try to get the right words and when she has appears that the procedural is the first test, first part, and be addressed by limiting the scope of the second exception. best of watershed rule toprocedures without which the likelihood of an accurate depiction is seriously diminished. ok. mr. duncan: that's the first one.
5:24 am
justice breyer: and that's joined by the chief justice, justice scalia, and the fourth, i cannot remember. but is it seriously diminished? when we read through miller, industry hard to say. paragraphjust filled after paragraph about how mandatory requirement for life without parole fails to take into account all the characteristics or many characteristics inherited is. it is pretty hard to convoy from mandatoryng under life of parole committee seriously diminished in see of imposing life without parole when you apply it to a youth justice breyer: no, no. but you have to say the accuracy is seriously diminished. i do not think there will be any such cases. mr. duncan: well, again, take we haven't talked about capital sensing cases, but take a case like o'dell were the capital jury was not informed of the defendants parole eligibility will consider its future dangerousness. i mean one could easily say that
5:25 am
the accuracy of the resulting death sentence under the old role seriously diminished and yet this court said it no doubt that it is not a watershed procedural rule. a goat on the line with these cases, the beard case of the sawyer case. these are cases in which the defendant did good of said can safely diminished accuracy. and yet the court found a watershed rule. and of course the bedrock is what the word was referring to in the exception particularly in whorton v. bockting. justice ginsburg: is there any watershed procedural rule other than gideon? mr. duncan: well, this court said, it is doubtful and he will emerge break so we think this case is an implausible case for a new watershed rule to emerge as the role and back to the better point it is not creating revolutionary bedrock understanding of procedure. it's an incremental step instead of saying juveniles -- something -- sentencing juveniles. notolk is like crawford is
5:26 am
a watershed procedural rule, then it's is difficult to understand how this one would be. justice ginsburg: we have one brief that tells us this court has never hard part is meant as cruel, unusual on the eighth and mr. the eighth admin, refused to make the decision retroactive. mr. duncan: well, we disagree with that. there are cases take the take the case that refused to make retroactive the rule in caldwell v. mississippi. that's an eighth amendment case that goes to the accuracy of a tech that capital jury sends a determination of death. and this court didn't make that will and found that is procedural and non-watershed same time. so we take issue with that. words about the united states proposed expansion of take. it would shift the whole focus of what is substantive rule from the category nature of rule to the effects of the role. so that if any defendant in these couples and cases we've been talking about would now have the argument headed to the sayse unit is days that
5:27 am
that rule gave me the opportunity for a better outcome. i might not a cow the death penalty of my jury had been properly instructed. we don't ownership of the united states new role in this case can be combined where only a mandatory sentences taken off the table. >> but you said yourself, the difference is one where there's a category some cases that to refer to process, how decision-maker makes a particular resulted in the category of cases referred to what we called substance, which is the result on the table, what category punishment is on the table. and that's the difference between this and all the other kinds of things you're mentioning. justice kagan: this is not about punishments on the table. mr. duncan: well, i just have to push back on the premises little bit, where our position is not that a substantial rules about what punishments are on the table. a substantive rule is about theher a state category has power to impose a category punishment.
5:28 am
here it's clear from the miller opinion and from the grayer from -- from the graham opinion that the relevant categories life without parole in the state still has the failure to impose that punishment, and that's what is a sharp distinction from what i see droll rule is. newhe united states conception of what a substantive rule is would wear that a recall and question all of the capital sensing cases and i heard a question, about booker. and resurrection to that is the grazing matter of six amendment under sensing mandatory. and it really opened up new sentencing outcomes. and so by what reason would a federal atheist petitioner now. sandra the men's eights new test it is retroactive or alleyne for that matter. alleyne overturned the mandatory under the sixth amendment, opening up new sentencing outcomes. why couldn't a federal defendant on federal hideous say i also get the benefit of that rule retroactively. our position is those cases are clearly procedural, as is this explained in sierra v.
5:29 am
summerlin. they're clearly procedural under the teague rubric. and what the united states could do is learn these categories. if there are no further questions. chief justice roberts: thank you, counsel. mr. bernstein, you have three minutes 14 remaining. mr. bernstein: what this fantastic discussion has shown is why the the court, as it has in the pass code should keep the tea sections as a matter of equitable discretion rather than the constitutional are met. for freedom, met generally speaking on the matter of equitable discretion that it is unconstitutional or miss. >> all weekend long, on the road to the white house, we are taking your comments on twitter, facebook, and by phone. every campaign event we cover is available on our website at residentialc
5:30 am
killing hillary clinton was in new hampshire friday for a town hall at keene state college. debt,lked about student lgbt writes, and drug addiction. safety, discussed gun and an alternative group to the national rifle association. this is an hour and a half ms. clinton: thank you. i know, as you said, this was
5:31 am
not easy to do. but thank you. i want more people to hear stories like that. so that this is not just some political debate about something happening far away. but people can really begin to think about standing in the shoes of those who have been victims of gun violence. and trying to understand what we can all do together. clay survived that brutal, hateful attack in her own home. 90 people a day don't survive because of guns. 33,000 people a year die, by homicide, by suicide, or by accidents, using firearms. i think we are better than that, as a nation. i think we can do something about that. that is why i have been talking about it. have been laying out my policies toward it. some people say that we should
5:32 am
not talk about it. some say we should not shout about it. that i should not shout about it. i think we have to keep talking, but more importantly, we have to act. we have to be willing to take on those who are not in favor of sensible gun safety measures. that includes the nra. and it includes a of people in public life today, who are intimidated. i think that is no longer feasible. it is no longer right. what i have said is yes, as president, i will push and achieve universal background checks, something that the majority of americans support and the majority of gun owners support. sensible, responsible gun owners support it. [applause]
5:33 am
ms. clinton: the brady bill has kept 2 million guns from being sold into the wrong hands. because of that background check, despite its loopholes, prohibited purchasers because they were felons, fugitives, stalkers, domestic abusers, people with serious mental illness. as bad as the gun carnage is, i like to think that at least, 2 million prohibited purchasers were not part of that. i also think it is critically important to close those loopholes. close the gun show loophole and the online loophole. back when the brady bill was passed in 1994, all my purchases were not an issue.
5:34 am
purchases were not an issue. we now know they are. so we have to go for universal background checks and we have to close those loopholes. i have said that if the congress does not cooperate, i would use executive action to make sure that sellers are held accountable. [applause] --w believe which it we should close was called the charleston loophole. to seller have three days conduct a background check, and if it is not completed by the end of three days, the purchaser gets to buy the gun anyway.
5:35 am
the recent is called the charleston loophole is the code the killer of those nine people that bible study in mother emmanuel church in charleston got his gun not because he was it wase, because in fact learned shortly after, he was not eligible. he had a felony record. loophole heof this was able to go back in the end of three days and by the gun used to kill those nine innocent people. finally, we have to repeal the broad immunity that has been given to gun manufacturers and sellers in america. [applause] which has shielded them from any sale ofbility for their
5:36 am
guns and ammunition. either.r manufacture of just recently there was some small glimmer of hope when a jury of wisconsin found a seller for a stronge purchase. is you arerson is not eligible, you are a felon, n order against you. the shooter at virginia tech have been treated for outpatient mental health. but he still got a gun. the purchaser send
5:37 am
somebody in with a clean record to buy the gun for him. there is video and other evidence that the seller knew that the gun was for somebody else, and sold it anyway. he turns it over to the real purchaser who shoots two police officers and interest both seriously. -- interest both seriously. when the police officer sued the gun seller, the jury heard the evidence, and came in with a verdict in favor of the police officers. now we are going to see whether or not the verdict stands up under this broad immunity that has been given to the gun industry. there is really no other industry in america that has this kind of blanket permission. negligent,ess, to be to sell defective products even.
5:38 am
i'm going to be looking into this issue, looking into why this can be such an issue. but i also written appealing to responsible gun owners. organize an alternative to the editor which is nothing that a lobby for the most absolute just positions that the gun manufacturers and sellers demand. we have so many responsible gun owners.
5:39 am
i am not against guns for my dad taught me to shoot when i was a little girl. i've even gone duckhunting in arkansas, standing in the cold water. at sunrise. enough, getting up that early to stand in the cold water, i can tell you that much rate [laughter] -- not much. [laughter] that is the kind of scary types you will hear from the nra. they do.this is what they scare responsible people into thinking that their black helicopter is going to lay it in the front yard and somebody's going to show up and take your cons. that is nonsense that it needs to be called out for what it is the fight against the nra -- [applause] shouldn't be led by a new organization of gun owners. i'm collecting names of people who are stepping up writing
5:40 am
about their feelings as people enjoy hunting, enjoy target shooting, enjoy collecting, but are sick and tired of the violins. people who are killed and injured. i am very grateful to my good friend, your senator, molly kelly. clickm very grateful to for sharing what is a very painful personal story to try to save lives. want just look forward to working with a ground swell of people across our country who know we can do better than this, we are better than this. with that, let me throw this open to questions on any issues or concerns you might have.
5:41 am
we have some microphones, i think. your hands, we will try to get to as many as possible. woman in the back. my name is leslie rule. i have a question about the nsa. snowden, we have trader on one end of the spectrum, and nutrient on the other end of the spectrum. i'm wondering where you stand on left, and why you stand that way. until it you know that i consider him very close to a patriot. the intermission he released is something the american people needed to know and to have that have publicized. [applause] >> let me say this. believe that he had gone public and released the information about the collection
5:42 am
of information on americans under whistleblower protection. he could have done it within the tradition in our country that shields people who come forth, acting out of conscience to present information that they believe the public should have. i do not know why he felt compelled to steal a lot of information that by any definition had nothing to do ,ith american civil rights liberties, and privacy, but instead were about terrorist and s due to try toon gather information about us and what our government tries to do to prevent that and to try to get information about them.
5:43 am
if you than a whistleblower, and if he had confined himself to releasing information that i think it did provide the right kind of discussion in our country and is led to some changes which i approve of, then i think people could cross all spectrums and say thank you for bringing the store attention and thank you for giving us your community to respond. because he took valuable information and went first to china, and then is now under the protection of vladimir putin, it raises a lot of russians about else he did. i do not think he should escape having to return an answer for what he has done. [applause] continue theed to
5:44 am
balance on silver liberties, privacy, and security. it is always a challenge. congressort what the passed, because i did take it had some good changes. we have to remain vigilant. but it is always a balance it is not just all one-sided. if you go too far toward security, you do infringe upon the legitimate rights of americans. that is what we are trying to end. privacyo too far toward and civil liberties, you can leave us vulnerable and we're trying to prevent that as well that is the kind of hard choice balancing act the president obama hasn't been attempting to do. i support the changes that he has been making from the executive level i support the new legislation that the congress passed. [applause] just a minute.
5:45 am
i will get to you, i promise. i would like to go in a broad sweep. we'll hear from you. where's the microphone that we can get to you? it's great having people so eager. [laughter] >> tijuana. after the recent organ shooting some of what president obama said was that our hearts and prayers go out, and he said gun control is not enough. what we need is a culture of gun safety. we need to add to what we are doing. >> i agree with you on that. [applause] i like to refer to what i'm advocating as gun safety measures. the gentleman makes a very good point. you, i'm reading news online.
5:46 am
headline, which said something i recall, toddlers are killing more people with guns. i stopped, and said what? whu? y? with whom they live had loaded guns in their homes and cars. and children are curious. they are picking up loaded guns. i was shocked after i read this headline. the toddler in the backseat, or the results a loaded gun, picking up and looking at it and shooting his grandmother. the gentleman is absolutely right. if you're going to have a gun, please, exercise
5:47 am
commonsense safety and keep those guns away from children. --dlers, young killed scum young kids, tj proper respect guns. one of the worst cases i read about was 11 gerald ford asked to see the new puppy of the eight-year-old girl who lived near him. and the little girl said no for whatever reason. fathershome, he got his loaded shotgun, he went back and he killed her. , pretty common sense. this lace theis loopholes, to review the immunities from liability. we need the technology to get instant back to dust background checks for real, not just saying it. but ultimately people have to exercise commonsense in dealing with these weapons.
5:48 am
and keeping them away from children should be will number one in my opinion. tijuana. -- thank you. [applause] the stuff right there in the gray t-shirt? >> hello. i love your commitment to clean energy. but i was wondering, junior consider the extraction and use of shale gas to be clean energy, and as president, what kind of regulation would you like to see implemented or the fracking industry and the use of gas? >> it is a great question. it is one i give the obama administration a lot of credit in the last two years in particular. for their energy and planet change policy. [applause] they have been struggling with this. they have begun to come out with
5:49 am
recommended regulation, like for example, to control methane emissions. i think you also have to have very tough water standards. expertsfrom talking to in the obama administration, and on the outside, here is what they have convinced me of. this is the following. there are some places in our country where this extraction technique may be appropriate if wedo more research, and figure out how to cut the methane emissions and keep the water clean. there are lots of other places where it is not. part of what the federal government needs to start doing is drawing some lines and informing states and localities. should also never forget states and localities from saying no. if a local government says no, not here, they should be able to do that. [applause]
5:50 am
and part of the reason why i think the obama administration experts have taken this position is we have to go through a transition. we have to move away from fossil gas, but thatng gas can be a useful bridge, especially as we move away from coal and we move away from dirtier oil and some of the really bad alternatives. more fossileep fuels under the ocean and in the ground. that is why i am against arctic drilling and why i am against offshore drilling. i do not think we should that. [applause] i am trying to listen to people who i know caroline about the environment and care about climate change. -- trying to figure out how what are the smart steps we can take. in some instances i can go along with the command and others i cannot need to be moving at a
5:51 am
possible 100% clean and renewable energy. that should be our goal and we should do nothing that interferes with or undermines our efforts to reach that goal as soon as possible. [applause] the lady, right there? >> it a follow-up to that. southern new hampshire is actually fighting a pipeline right now which i believe you know about. is of our biggest problems that it is coming new hampshire, it is not for us, we do not need it, it is for export. one of my concerns is about our story -- realtor commission. what will you do to change first? some candidates say it is a local issue. it is not.
5:52 am
it is out of our control. what will you do to help us? [applause] >> made a very important point. i do not really focus on this until i have been traveling around new hampshire. the concerns that residents have expressed about this really are legitimate. the process that they are employing does not give enough theht to public opinion in locations for the pipelines are going through. it does not pay enough attention to all of the other issues, whether they be health issues, safety issues or the like. tom going to do what i can make it absolutely the case that they have to, in any of these decisions pay much more attention's two local communities and do much more to evaluate whatever the consequences are the downsides
5:53 am
of these decisions are. right now, their mandates seems to be only about delivery of of anywhere, anytime. i do nothing that is adequate in today's world. >> [inaudible] let's not confuse the two issues. when you say supported, they are not paid for by oil and gas. they are certainly, as a regulator for oil and gas used to paying attention to what the oil and gas industry says. i will give you that. w that they have raised this with me, they need to be part of that national commitment.
5:54 am
that is my view on how we have to alter a lot of parts of the federal government. you know, it is not just the epa that needs to be focused on combating climate change, every part of the federal government needs to be focused. because i want to have a national goal. i said, look, i want to have, by the end of my first term, half a million solar panels installed, and by the end of my term, enough renewable energy to power every home in america. [applause] if those are our goals, it is really important that we don't have the right hand doing something different than the left hand, in the old saying. it would be my intention, if regulatory changes are necessary, to undertake those,
5:55 am
but also appoint people who will be really focused on how everyone works towards this big, overarching, national goal. and not have, you know, kind of have "old-think." there was a time when we needed more energy. some of us are able to remember. being in very long gas lines, at least i remember those days. we were pretty much captive to middle east oil. we had a different mindset. now, we have to change that. i think your question is not only a specific what about a particular decision, but it raises a larger issue about what we are going to do to change our values, our goals. that is what i'm going to try to do. [applause] >> secretary clinton, the national student debt level has breached $1.1 trillion. the average student graduating from a new hampshire college will graduate with $30,000, and honestly, i would be surprised to meet someone with that little. what will you do about students graduating from college? [applause] ms. clinton: great question.
5:56 am
let me ask, how many in this room currently have student debt? wow! keep your hands up. how many have ever had student debt? that is a healthy majority here. that is a great question. your statistics are right. we have 40 million people with student debt that now reaches $1.2 trillion. the first the most important thing is we need to make it possible for every person with student debt, current, and those who have graduated, refinance that debt. [applause] you know, that, to me, is the number one goal. if you think about it, everyone else can refinance their debt. corporations can refinance their debt. you can refinance your
5:57 am
mortgage, your car payment. why is it that students cannot refinance their debt? the worst injustice to me is that we have had 0% interest rates for years. i want to ask, how many of you know that you are paying an interest rate of at least 7%? yeah. we have people who are paying interest rates far beyond what the real interest rates are. so i want everybody to be able to refinance. and then i want everybody to be able to do much more to get into income contingency repayment plans. what is that? this is what i had when i went to law school, so did my husband. we both borrowed money. we worked, we borrowed money. the loans we had, when we graduated, we both were teachers. we taught at the university of arkansas law school. my first job was with the children's defense fund, and
5:58 am
then with the university of arkansas. i recall making between $14,000-$17,000 per year. we couldn't have paid some big fixed rate based on a high interest rate. we paid on a monthly basis about, as i recall it was like 10%, it took 15 years. it did not have the burden that i hear about because of the high fixed rates. the other thing i would like to do more of his make sure that people who go into our public service and national service jobs get a lower rate, more forgiveness faster, and a discount because they are doing something that serve their community. [applause]
5:59 am
ms. clinton: then, to have a date certain when their obligations end. if you have been a responsible payer and taken advantage of all of the opportunities that i will provide, there will be an endpoint, and you can count on that. this is a big deal to me because too many people are being held back because of this debt. you say $32,000 -- that is one of the highest averages in the country. students in new hampshire are bearing. it is a big problem for everybody, but particularly for students here, and i have met a lot of them, who because of their student debt, cannot take jobs that they would like to take, because they cannot afford them. i met a young woman who said she had the job of her life in boston, but she could not afford to pay her student debt, and live there, so like so many students today, she is still living with her parents. that is nice, but you deserve the chance to make decisions about where you will live and
6:00 am
work. and all of rest of it. that is what i want to do. [applause] ms. clinton: i will make a very high priority. ok. what does that say? oh, you are from mount holyoke. oh a fellow seven sister. does that mean you want to ask a mount holyoke question? ms. clinton: i could see you holding up, and i had to get close to read it. >> my question -- i actually have two if that's ok. >> you talk about empowering women. i was wondering if you are going to do something about human trafficking the. my second, which goes along


info Stream Only

Uploaded by TV Archive on