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SJC-13505 Commonwealth v. a juvenile.
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Okay, Attorney Koes.
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Good morning, Your Honors.
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May it please the court.
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My name is Matthew Koes,
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and I represent the juvenile defendant.
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To comply with Article 26, this court held in Perez one
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that a juvenile non-homicide offender
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could not be sentenced to more than 15 years
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of parole ineligible incarceration unless there is a finding
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of extraordinary circumstances after a Miller hearing.
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For this juvenile defendant and a handful
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of other juvenile defendants sentenced after Perez,
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the addition of straight probation
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to their revised sentences is illegal.
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This is because any sentence following a probation violation
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is essentially, just a deferred component
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of the overall aggregate sentence or aggregate punishment
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that causes the bottom number of the sentence
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to increase above and beyond the 15 years
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that's permissible under Perez.
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What causes that to increase above and beyond
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what is allowable under Perez?
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Isn't it the violation of the probation
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that causes that or is it the probation?
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It is, Your Honor.
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It is the violation of the probation,
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because what we're talking about
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is the parole ineligible incarceration.
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Right, so if the cause is the violation of the probation
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and not the probation itself,
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isn't it different than what was not allowed in Perez one?
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I disagree, I think that.
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I can you explain why though I guess.
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Yes, sure.
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If you agreed we wouldn't be here.
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In Perez one, the court looked at
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the entire aggregated sentence that Mr. Perez had.
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If you look at footnote two,
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there was a series of concurrent and consecutive sentences,
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and it did include a 10-year term
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of probation in that sentence.
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So essentially, what happens is
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the court in Perez set a bottom number.
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It left the top number
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to the sentencing judge in their discretion.
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But anytime that bottom number comes above 15 years,
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it's presumptively disproportionate
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and it triggers a re-sentencing hearing.
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That sentence cannot stand unless
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until there's a finding of extraordinary circumstances.
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But that was, 'cause it was beyond
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your parole eligibility date went beyond 15 years.
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This person's out after 15 years.
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Isn't that totally different?
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Well, I think the problem lies,
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because of the differences between parole and probation.
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A sentence that involves parole,
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if someone is released and they go out onto parole,
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if they violate parole,
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they're brought back in on the original sentence,
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because they violated parole.
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On probation, if someone violates probation,
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they can be resentenced based upon the underlying conduct
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and therein lies the problem.
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For example, in this particular case,
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the juvenile defendant, he could be resentenced
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on any of those terms of probation.
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There's several of those offenses are life felonies.
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And if you were to be resentenced
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to life after a probation violation,
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he might not be parole eligible again for another 15 years.
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And now, he's in a situation where he's served 30 years
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until he's parole eligible,
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which is far beyond what is allowed for under Perez.
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So, can we go back to first principles?
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Why is it that juveniles can't be sentenced,
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cannot have a parole ineligible sentence beyond 15 years?
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What was the basis for that in Miller, et cetera?
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Well, the basis in Perez was that,
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if you was proportionality.
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If you compare a juvenile non-murderer defendant sentence
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to a juvenile murder defendant sentence,
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it can't be disproportionate.
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And the way that the court calculated that proportionality
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was by looking at the parole eligibility date.
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Again, the top number for juvenile non-murder defendants
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is left to the discretion of the sentencing court.
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But anytime a juvenile non-murderer.
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But I guess going back to first principles.
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Isn't it because juveniles are different,
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children are different than adults
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and we treat them differently than adults,
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because of the prospects for rehabilitation
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things that are beyond their control
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and their immediate environment unlike adults?
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You know, those four factors
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that really gave rise to this whole jurisprudence.
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How can you look at those factors and tell me how it is
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that those factors require
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this sentence to be unconstitutional?
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Well, it is a combination of the factors
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of involving juveniles,
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but it's also a combination of the fact
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that we're not dealing with
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a murder offense or a homicide offense
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and children or juveniles who do not.
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So, let's stick with the former, right?
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I get this is not a homicide defense,
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but looking at why children are different
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for purposes of punishment,
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can you look at those factors and tell me why
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probation like this is unconstitutional?
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It's unconstitutional, because it's a punishment
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of the original underlying offense.
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But that's not why it's unconstitutional.
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Why? You know, the fact that children are different.
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Tell me something about how children are different
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that makes this straight probation unconstitutional.
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Right, like look at rehabilitation, right?
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That sort of as one factor, right?
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Children change you, we know that from the science.
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Their brains are different,
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more likely to be erratic behavior,
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subject to peer pressure.
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How does that inform whether or not straight probation
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for non-homicide is unconstitutional in your client's case?
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I think it's because at a certain point
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there becomes too much punishment for,
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because of these factors for juvenile offenders.
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So, how is letting somebody out into the community
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on probation similar to incarcerating somebody for life?
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Because the exposure to additional parole
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ineligible incarceration puts the sentence into.
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But that you're talking about the proportionality
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between homicide and non-homicide.
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I'm focused on why children are different
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and how giving a child the opportunity
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to grow up in the community
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and either violate probation or not
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is impacted by the Miller factors, the grand factors.
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How do we analyze that?
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Well, I think moving forward,
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I think in this particular case,
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we're talking about a very unique set of circumstances
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about an individual who is incarcerated,
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spent a substantial period of time incarcerated,
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and then was placed onto probation.
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Moving forward with juveniles that can all be taken care of
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and encompassed in the juvenile sentencing
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in the juvenile court.
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There are many dispositional options.
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I guess maybe you don't have an answer to this
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and I can ask your opposing counsel.
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How is it that these things that science has identified
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that make children different,
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how is giving the child an opportunity
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to be in the community by probation,
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how is that not considering those things?
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Do you understand my question?
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You know, like the fact that
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they're not in control of their environment,
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that they might be more subject
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to peer pressure than an adult,
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that they are more likely
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to be less than thoughtful in their conduct?
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How is it that leaving them to probation
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violates those principles?
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I don't think that it would violate those principles.
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I think it would be helpful to most juveniles
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and I think community supervision
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would be appropriate in certain circumstances,
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Isn't this a one-off in a certain way?
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I mean, your client asks for probation.
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It helps sell the change.
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Then, now 15 years later, he violates probation.
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He's 33 years old.
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So, we're not dealing with
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anything related to juveniles at this point.
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And I mean, are you saying by the way that every time
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someone gets probation now after the 15 years,
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we need a Miller exigent circumstances finding?
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Is that, I mean, it's gonna be easy, right?
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Someone like your client had this issue been joined,
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it would've been exigent circumstances for this.
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It's not a difficult thing,
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but no one contested it and no one litigated it.
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It just seems like we're dealing with
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sort of an odd case here.
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Well, I agree that this is unique circumstances.
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I think as the Amicus brief points out,
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we're only dealing with about four or five individuals
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who find themselves in this particular circumstances
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where they've been resentenced after Perez
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and they find themselves with probation
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having exposure to more than the.
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Is it your argument that whenever someone gets probation,
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we're gonna need an exigent circumstances finding
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justifying that going forward?
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I understand you didn't bring it up,
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they didn't contest it, it sort of happened,
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but going forward is that gonna be a requirement each time?
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I think it would be a requirement,
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if a juvenile sentence to an adult sentence
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that requires more than 15 years
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of parole ineligible incarceration.
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I think that there are many different ways
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that it can be structured to,
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if, you know, a creative sentencing judge
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can get around that and put community supervision.
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If I could give the court an example.
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I mean, I'm just trying to get a sense
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of what this case is really about,
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because when you violate parole and you go back,
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you're back in prison.
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When you violate probation, you're back in prison,
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because you blew your second chance.
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Both of them are the same, right?
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Well, I disagree.
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I think when probation is revoked and parole is revoked,
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you have different consequences.
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But you're back in prison
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and potentially for a long period of time
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for something you did when you were no longer a juvenile.
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You did it as an adult, which is just what we've been,
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we've been emphasizing the importance
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of a second chance for juveniles based on the brain science,
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but we haven't been emphasizing
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that it's a violation when someone does it as an adult.
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Well, I think that the case law is clear
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that we're looking at the sentence
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as at the time it was imposed as a juvenile.
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So, I think you can't separate that from the analysis,
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because we are dealing with essentially a juvenile sentence.
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That's where the sentence was created.
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Counsel, could you please, sorry to interrupt,
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could you please address what you think
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the nature of the extraordinary circumstances inquiry
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that you're suggesting should occur
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at the time of probation revocation?
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Because I don't think that's been discussed.
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And in your answer, could you address the fact
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that there's already been a finding,
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although it was not requested
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by the Commonwealth about extraordinary circumstances here.
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Correct. So, that's correct.
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Your Honor, I did propose that in my reply brief,
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I suggested that there would be
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an alternative solution to this problem,
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and essentially, give the Commonwealth another opportunity
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to make a finding or demonstration
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of extraordinary circumstances.
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But can you just address particularly the nature,
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the ordinary extraordinary circumstances inquiry
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is supposed to take place at the original sentencing
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where the judge is looking forward into the future saying,
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you know, do I think there are extraordinary circumstances
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to believe that this juvenile
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should be sentenced to longer than 15 years?
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How should a judge even think about that inquiry
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at the time of a probation revocation hearing?
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Well, I think the sentencing judge
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can take a broad holistic approach
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to the sentencing at the time of the revocation.
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I think the case is like Costa and even Perez two
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suggests that post sentencing conduct
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can be considered as part of that decision-making process.
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And I think in these particular circumstances,
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if the court wanted to include that post sentencing conduct
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00:14:21.450 --> 00:14:23.883
as part of its decision making, it could.
271
00:14:25.830 --> 00:14:28.860
How is that different from just sentencing
272
00:14:28.860 --> 00:14:32.550
the defendant on the probation revocation?
273
00:14:32.550 --> 00:14:33.540
I think it's different,
274
00:14:33.540 --> 00:14:36.360
because the court will still have to take into account
275
00:14:36.360 --> 00:14:38.583
the characteristics of youth.
276
00:14:39.510 --> 00:14:42.660
The individual's personal circumstances
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00:14:42.660 --> 00:14:45.090
in addition to the nature of their crime
278
00:14:45.090 --> 00:14:47.940
and perform that balancing test and determine
279
00:14:47.940 --> 00:14:51.150
whether or not the extraordinary circumstances are there.
280
00:14:51.150 --> 00:14:54.150
Even after a probation violation, the court might determine
281
00:14:54.150 --> 00:14:57.000
that there is not extraordinary circumstances
282
00:14:57.000 --> 00:14:59.380
and might find that further incarceration
283
00:15:00.390 --> 00:15:04.200
does not benefit the juvenile or benefit the public.
284
00:15:04.200 --> 00:15:06.330
Will it benefit the juvenile,
285
00:15:06.330 --> 00:15:10.080
if you take away from a juvenile sentencing judge
286
00:15:10.080 --> 00:15:12.543
the ability to include straight probation?
287
00:15:13.650 --> 00:15:16.980
Because judges do this all the time for this reason.
288
00:15:16.980 --> 00:15:18.210
And what you're gonna force,
289
00:15:18.210 --> 00:15:21.300
if we go into the world that you're advocating for,
290
00:15:21.300 --> 00:15:24.330
is juveniles are just going get hit with sentences.
291
00:15:24.330 --> 00:15:25.500
They're just not going to give us
292
00:15:25.500 --> 00:15:27.930
account with straight probation for the future.
293
00:15:27.930 --> 00:15:29.700
They're just going to give 'em a custodial sentence
294
00:15:29.700 --> 00:15:31.410
and that'll be it.
295
00:15:31.410 --> 00:15:33.900
Well, I'm suggesting that, you know,
296
00:15:33.900 --> 00:15:36.840
straight probation certainly isn't off the table.
297
00:15:36.840 --> 00:15:38.880
The Commonwealth always has the opportunity
298
00:15:38.880 --> 00:15:43.880
to request a Perez hearing and make its demonstration.
299
00:15:43.950 --> 00:15:48.150
I would also suggest that this problem can be avoided
300
00:15:48.150 --> 00:15:52.533
by using suspended sentences a little bit more creatively.
301
00:15:53.490 --> 00:15:56.790
A situation, for example, this particular case,
302
00:15:56.790 --> 00:15:59.400
a judge might consider giving.
303
00:15:59.400 --> 00:16:01.350
You'd need extraordinary circumstances
304
00:16:01.350 --> 00:16:03.927
to justify that beyond 15 years, wouldn't you?
305
00:16:03.927 --> 00:16:07.470
The 15 years of the parole ineligible incarceration,
306
00:16:07.470 --> 00:16:10.080
again, I'm talking about the bottom number here.
307
00:16:10.080 --> 00:16:11.610
The judge always has discretion
308
00:16:11.610 --> 00:16:14.640
with the top number on the sentence.
309
00:16:14.640 --> 00:16:16.860
So, in terms of the example.
310
00:16:16.860 --> 00:16:18.630
But I'm confused though.
311
00:16:18.630 --> 00:16:21.930
If the judge thought, okay, these are serious crimes,
312
00:16:21.930 --> 00:16:24.600
I'm giving you the full 15 years,
313
00:16:24.600 --> 00:16:28.650
but Diatchenko and Perez one and Perez two
314
00:16:28.650 --> 00:16:32.430
put limits on the ability to provide for more.
315
00:16:32.430 --> 00:16:36.000
But if they give you a suspended sentence over 15,
316
00:16:36.000 --> 00:16:38.430
you need extraordinary circumstances, right?
317
00:16:38.430 --> 00:16:39.990
The same way I think you're arguing
318
00:16:39.990 --> 00:16:43.860
you need extraordinary circumstances to justify probation,
319
00:16:43.860 --> 00:16:47.220
straight probation, any kind of probation afterwards.
320
00:16:47.220 --> 00:16:49.230
What I'm suggesting to the court is
321
00:16:49.230 --> 00:16:50.640
that there could be a range.
322
00:16:50.640 --> 00:16:53.970
For example, like a 12 to 18
323
00:16:53.970 --> 00:16:56.430
on the incarcerated portion of the sentence
324
00:16:56.430 --> 00:16:59.760
and then do a suspended sentence for three years.
325
00:16:59.760 --> 00:17:02.880
And then that way if probation is violated,
326
00:17:02.880 --> 00:17:05.100
you're able to have the 15 years
327
00:17:05.100 --> 00:17:07.770
of parole ineligible incarceration.
328
00:17:07.770 --> 00:17:10.680
You could even do a sentencing range
329
00:17:10.680 --> 00:17:13.770
on the suspended sentence as well
330
00:17:13.770 --> 00:17:17.970
to kind of keep that in context.
331
00:17:17.970 --> 00:17:22.050
But I think overall, my point and the reason
332
00:17:22.050 --> 00:17:25.590
for this case is, you know, Perez says what it says.
333
00:17:25.590 --> 00:17:28.980
15 years of parole ineligible incarceration
334
00:17:28.980 --> 00:17:31.230
is unconstitutional
335
00:17:31.230 --> 00:17:36.230
and sometimes the constitutionality of the sentence
336
00:17:36.960 --> 00:17:41.670
must overcome or supersede the judge's
337
00:17:41.670 --> 00:17:46.670
well-intentioned desires to place the juvenile on probation.
338
00:17:47.910 --> 00:17:50.207
If there's no further questions?
339
00:17:50.207 --> 00:17:51.707
Okay, thank you.
340
00:17:55.007 --> 00:17:56.674
Attorney Steinfield.
341
00:18:03.960 --> 00:18:04.793
Thank you very much.
342
00:18:04.793 --> 00:18:06.060
Good morning, may it please the court?
343
00:18:06.060 --> 00:18:07.530
Kenneth Steinfield for the Commonwealth.
344
00:18:07.530 --> 00:18:09.400
I'd like to begin by first addressing
345
00:18:10.320 --> 00:18:13.740
Justice Kafker's question about what this case is about.
346
00:18:13.740 --> 00:18:15.780
It's obviously, about this defendant
347
00:18:15.780 --> 00:18:18.600
and the few defendants like him who are similarly situated,
348
00:18:18.600 --> 00:18:20.520
whose cases are set out in the Amicus brief
349
00:18:20.520 --> 00:18:22.533
and what happens to them.
350
00:18:23.430 --> 00:18:26.940
It also involves going forward in the future,
351
00:18:26.940 --> 00:18:28.680
what options will be available
352
00:18:28.680 --> 00:18:31.050
to a juvenile court sentencing judge
353
00:18:31.050 --> 00:18:34.080
when a juvenile has committed very, very serious offenses
354
00:18:34.080 --> 00:18:36.780
and the judge has to determine what the best way
355
00:18:36.780 --> 00:18:40.680
to punish that defendant in conformity with Perez
356
00:18:40.680 --> 00:18:42.900
and protect the public is.
357
00:18:42.900 --> 00:18:44.880
So, if he wants or she wants
358
00:18:44.880 --> 00:18:48.480
to give the maximum parole ineligible time,
359
00:18:48.480 --> 00:18:49.770
whether it's 15 years or not,
360
00:18:49.770 --> 00:18:52.590
if it happens after, now of course, it's different,
361
00:18:52.590 --> 00:18:56.910
because of the statutory amendments in 2012 and '14.
362
00:18:56.910 --> 00:19:00.060
But assuming that it's the 15 years from before that,
363
00:19:00.060 --> 00:19:04.680
if a judge is concerned with what to do in the future,
364
00:19:04.680 --> 00:19:06.810
that judge has to have the flexibility
365
00:19:06.810 --> 00:19:08.910
to sentence a person to probation.
366
00:19:08.910 --> 00:19:11.490
Otherwise, as Justice Georges has pointed.
367
00:19:11.490 --> 00:19:12.810
He or she can do that,
368
00:19:12.810 --> 00:19:14.700
if they find extraordinary circumstances.
369
00:19:14.700 --> 00:19:16.197
Right, but I think.
370
00:19:16.197 --> 00:19:17.880
But you're arguing you don't,
371
00:19:17.880 --> 00:19:21.300
are you arguing you don't need extraordinary circumstances
372
00:19:21.300 --> 00:19:22.830
to provide for probation?
373
00:19:22.830 --> 00:19:24.120
Absolutely do not.
374
00:19:24.120 --> 00:19:25.350
Yeah, that's what I thought you would.
375
00:19:25.350 --> 00:19:27.050
Yeah, no, that is my absolute point.
376
00:19:27.050 --> 00:19:30.000
And I think that it's no secret or surprise
377
00:19:30.000 --> 00:19:32.880
after Perez two that the bar is very high
378
00:19:32.880 --> 00:19:35.490
this court had set for when that occurs,
379
00:19:35.490 --> 00:19:37.140
when there's no reasonable possibility
380
00:19:37.140 --> 00:19:39.180
that a juvenile can be rehabilitated
381
00:19:39.180 --> 00:19:42.870
within the time that it would take for a first degree murder
382
00:19:42.870 --> 00:19:44.760
or first degree to be eligible for parole.
383
00:19:44.760 --> 00:19:47.460
So, I am basically, talking about most cases,
384
00:19:47.460 --> 00:19:49.860
I think it's true in which the Commonwealth will not seek
385
00:19:49.860 --> 00:19:52.470
or be able to show extraordinary circumstances.
386
00:19:52.470 --> 00:19:53.853
Those are the cases that I'm talking about.
387
00:19:53.853 --> 00:19:57.780
That this case, this court's opinion in this case
388
00:19:57.780 --> 00:19:59.880
will have an effect on what does
389
00:19:59.880 --> 00:20:01.680
a trial judge do in that situation.
390
00:20:01.680 --> 00:20:04.410
And I think it is far more beneficial to the juvenile
391
00:20:04.410 --> 00:20:06.540
and to the public that, that judge
392
00:20:06.540 --> 00:20:09.030
be able to put him or her on probation
393
00:20:09.030 --> 00:20:10.080
rather than give a 15.
394
00:20:10.080 --> 00:20:13.200
I agree with you about the huge value of probation,
395
00:20:13.200 --> 00:20:16.020
but what I'm not sure of
396
00:20:16.020 --> 00:20:19.290
is whether you need extraordinary circumstances or not,
397
00:20:19.290 --> 00:20:24.290
because isn't that probation on top of a sentence
398
00:20:25.410 --> 00:20:28.713
that is greater than you would get for murder?
399
00:20:30.270 --> 00:20:31.170
Am I wrong on that?
400
00:20:31.170 --> 00:20:35.100
Well, I don't think it's on top of or greater,
401
00:20:35.100 --> 00:20:38.130
because a murder defendant, juvenile defendant,
402
00:20:38.130 --> 00:20:39.810
will be on parole when he gets out
403
00:20:39.810 --> 00:20:41.460
for the rest of his life, right?
404
00:20:41.460 --> 00:20:42.750
But then it's that difference
405
00:20:42.750 --> 00:20:44.070
between parole and probation.
406
00:20:44.070 --> 00:20:45.630
I don't know if there's a meaningful difference,
407
00:20:45.630 --> 00:20:46.740
but there is a difference.
408
00:20:46.740 --> 00:20:48.240
Well, I think that the duration
409
00:20:48.240 --> 00:20:51.390
is certainly shorter if you're on parole
410
00:20:51.390 --> 00:20:52.620
after serving a sentence with life parole,
411
00:20:52.620 --> 00:20:54.120
you're on parole for life.
412
00:20:54.120 --> 00:20:55.440
Whereas if you're on probation,
413
00:20:55.440 --> 00:20:57.720
you're on probation for five years, eight years,
414
00:20:57.720 --> 00:21:00.060
10 years, whatever it is, and then you're done.
415
00:21:00.060 --> 00:21:01.320
And of course, all that you have to do
416
00:21:01.320 --> 00:21:04.620
to avoid being sent back to prison is not break the law
417
00:21:04.620 --> 00:21:07.293
or violate the terms of your probation.
418
00:21:11.520 --> 00:21:14.370
So, I think that it's a key component
419
00:21:14.370 --> 00:21:17.280
and that the probation has to be part of the tools
420
00:21:17.280 --> 00:21:20.013
that are available to the sentencing, Judge.
421
00:21:22.349 --> 00:21:23.400
I'm sorry, I was gonna say.
422
00:21:23.400 --> 00:21:28.200
Counsel, because as could you address the point that,
423
00:21:28.200 --> 00:21:30.390
because some of these offenses
424
00:21:30.390 --> 00:21:33.900
on which he's being sentenced for the first time,
425
00:21:33.900 --> 00:21:38.520
because of the probation are life eligible.
426
00:21:38.520 --> 00:21:42.660
He could actually receive a much longer sentence.
427
00:21:42.660 --> 00:21:43.680
Could you address that point?
428
00:21:43.680 --> 00:21:46.260
Which is different I think than the parole situation.
429
00:21:46.260 --> 00:21:51.260
He could, but only if as a biologically mature adult
430
00:21:51.300 --> 00:21:53.520
who has not been rehabilitated
431
00:21:53.520 --> 00:21:56.760
then commits further offenses.
432
00:21:56.760 --> 00:21:57.917
That's why I think I was going,
433
00:21:57.917 --> 00:21:59.860
I talk about Justice Wendlandt's
434
00:22:00.870 --> 00:22:04.170
references to first principles of why we have these rules
435
00:22:04.170 --> 00:22:06.540
is because the lack of maturity, the vulnerability,
436
00:22:06.540 --> 00:22:09.450
and the character not being formed of a juvenile,
437
00:22:09.450 --> 00:22:14.450
which were the animating principles of those cases
438
00:22:15.030 --> 00:22:17.520
are simply not present in a situation here
439
00:22:17.520 --> 00:22:19.380
where you have a juvenile who is at least
440
00:22:19.380 --> 00:22:21.630
in his or her thirties at the time
441
00:22:21.630 --> 00:22:22.920
when he or she gets out and then.
442
00:22:22.920 --> 00:22:25.740
So, that all makes sense to me,
443
00:22:25.740 --> 00:22:30.420
but does this mean that we'd be overruling Perez one?
444
00:22:30.420 --> 00:22:31.253
Well, absolutely not.
445
00:22:31.253 --> 00:22:33.990
I think this is entirely, this is a Perez case.
446
00:22:33.990 --> 00:22:35.220
I think that if this court goes back
447
00:22:35.220 --> 00:22:38.040
to the holding in Perez, and I apologize for reading,
448
00:22:38.040 --> 00:22:39.000
I'll do it very briefly.
449
00:22:39.000 --> 00:22:42.397
This court was very clear what it's holding in Perez was,
450
00:22:42.397 --> 00:22:44.310
"We conclude that were a juvenile sentence
451
00:22:44.310 --> 00:22:46.170
for a non-murder offense or offenses,
452
00:22:46.170 --> 00:22:49.440
and the aggregate time to be served
453
00:22:49.440 --> 00:22:52.200
prior to parole eligibility exceeds that applicable
454
00:22:52.200 --> 00:22:53.460
to a juvenile convicted of murder,
455
00:22:53.460 --> 00:22:55.980
the sentence cannot be reconciled with Article 26
456
00:22:55.980 --> 00:22:58.980
in the absence of extraordinary circumstances
457
00:22:58.980 --> 00:23:02.160
that warrant treating a juvenile more harshly
458
00:23:02.160 --> 00:23:05.910
for parole purposes than a juvenile convicted of murder."
459
00:23:05.910 --> 00:23:08.460
And if you have, say, if you compare
460
00:23:08.460 --> 00:23:12.930
a juvenile rapist and a juvenile murderer
461
00:23:12.930 --> 00:23:15.510
and both commit the crimes in say like in this case
462
00:23:15.510 --> 00:23:19.050
like in '04 and convicted in '07,
463
00:23:19.050 --> 00:23:21.360
so we're talking about 15 years,
464
00:23:21.360 --> 00:23:24.510
the juvenile murderer will get
465
00:23:24.510 --> 00:23:27.720
the maximum parole time he's not eligible
466
00:23:27.720 --> 00:23:29.610
and then he'll be out on parole for the rest of his life,
467
00:23:29.610 --> 00:23:31.770
which could be 30, 40, 50 years.
468
00:23:31.770 --> 00:23:35.610
Whereas the probationer, I am sorry,
469
00:23:35.610 --> 00:23:37.950
the juvenile rapist gets the same amount,
470
00:23:37.950 --> 00:23:40.110
the maximum parole ineligible time,
471
00:23:40.110 --> 00:23:41.910
but then is only on the hook
472
00:23:41.910 --> 00:23:44.130
for a very small number of years.
473
00:23:44.130 --> 00:23:47.730
Therefore, I don't think that it's fair to say
474
00:23:47.730 --> 00:23:50.070
that a juvenile non-homicide offender,
475
00:23:50.070 --> 00:23:51.660
in this case an aggravated rapist,
476
00:23:51.660 --> 00:23:56.040
has been treated more harshly than the juvenile murderer.
477
00:23:56.040 --> 00:23:58.770
It seems to be clear and obvious that the juvenile murderer
478
00:23:58.770 --> 00:24:00.960
has been treated more harshly,
479
00:24:00.960 --> 00:24:03.930
because of he's on parole for the rest of his life.
480
00:24:03.930 --> 00:24:06.030
Counsel, could I ask one question though?
481
00:24:06.030 --> 00:24:07.650
The foundational question.
482
00:24:07.650 --> 00:24:12.060
So, if the straight probation count on the violation
483
00:24:12.060 --> 00:24:14.790
and the court holds the hearing finds the preponderance
484
00:24:14.790 --> 00:24:17.310
and says that they're going to now on the count
485
00:24:17.310 --> 00:24:21.180
that the original sentencing judge gave straight probation
486
00:24:21.180 --> 00:24:25.590
now is going to impose a term of years,
487
00:24:25.590 --> 00:24:30.540
does that sentence go back to the original conduct
488
00:24:30.540 --> 00:24:32.430
for purposes of Perez?
489
00:24:32.430 --> 00:24:34.650
Well, it goes back to the conduct,
490
00:24:34.650 --> 00:24:36.130
because he's being sentenced to the underlying.
491
00:24:36.130 --> 00:24:39.570
It does not go back though to the original sentence.
492
00:24:39.570 --> 00:24:41.790
There's no reason to add the term of years
493
00:24:41.790 --> 00:24:44.580
that were imposed as a result of the probation violation
494
00:24:44.580 --> 00:24:45.870
to the initial term of years.
495
00:24:45.870 --> 00:24:47.700
As I said in my brief, the defendant essentially
496
00:24:47.700 --> 00:24:51.240
wants to relate back take that time
497
00:24:51.240 --> 00:24:53.040
that should he ever get it,
498
00:24:53.040 --> 00:24:55.560
to automatically add it to the time
499
00:24:55.560 --> 00:24:58.230
that he got for the parole ineligibility.
500
00:24:58.230 --> 00:25:00.240
Therefore you need extraordinary circumstances.
501
00:25:00.240 --> 00:25:01.650
And I don't think the case law
502
00:25:01.650 --> 00:25:03.690
or logic supports that position
503
00:25:03.690 --> 00:25:05.910
that it should automatically be added on,
504
00:25:05.910 --> 00:25:08.520
because as this case said,
505
00:25:08.520 --> 00:25:10.230
it talks about the aggregate time to be served
506
00:25:10.230 --> 00:25:11.610
prior to parole eligibility.
507
00:25:11.610 --> 00:25:14.160
Well, here we don't even just have parole eligibility.
508
00:25:14.160 --> 00:25:16.380
He was released, he got 15 to 15 and a day,
509
00:25:16.380 --> 00:25:17.340
so he is on the street,
510
00:25:17.340 --> 00:25:21.090
which is an even superior form of relief
511
00:25:21.090 --> 00:25:23.490
than having access to parole.
512
00:25:23.490 --> 00:25:26.130
So, I don't think there's any basis to add time
513
00:25:26.130 --> 00:25:27.990
that was imposed as a result of a violation.
514
00:25:27.990 --> 00:25:32.990
As I say by a biologically mature unrehabilitated defendant
515
00:25:33.000 --> 00:25:35.910
to add that time to his initial time.
516
00:25:35.910 --> 00:25:37.140
Of course, this court can say
517
00:25:37.140 --> 00:25:39.150
that Article 26 prohibits that.
518
00:25:39.150 --> 00:25:40.350
There's nothing to say that,
519
00:25:40.350 --> 00:25:43.950
but I don't think the law as it now stands,
520
00:25:43.950 --> 00:25:45.150
says that at all.
521
00:25:45.150 --> 00:25:47.070
And I think Perez would imply the opposite.
522
00:25:47.070 --> 00:25:50.160
So my answer, this is absolutely a straight Perez case.
523
00:25:50.160 --> 00:25:53.040
Well, I'm not asking this court to do anything to Perez
524
00:25:53.040 --> 00:25:56.040
or to change it at all, just apply it,
525
00:25:56.040 --> 00:25:59.490
and here he got probation.
526
00:25:59.490 --> 00:26:02.190
Otherwise, the probationary terms,
527
00:26:02.190 --> 00:26:03.600
which were imposed initially,
528
00:26:03.600 --> 00:26:05.880
and during the re-sentencing are meaningless
529
00:26:05.880 --> 00:26:08.430
because as the Amicus says, the only possible punishment
530
00:26:08.430 --> 00:26:10.080
that you could get for those
531
00:26:10.080 --> 00:26:13.200
would be time served or guilty filed.
532
00:26:13.200 --> 00:26:15.990
And that's not a, I'm sorry, that's not an incentive
533
00:26:15.990 --> 00:26:18.720
for the defendant to behave at all while on probation.
534
00:26:18.720 --> 00:26:21.390
That's basically, that's a nullity that's void.
535
00:26:21.390 --> 00:26:22.860
So, that doesn't really mean anything
536
00:26:22.860 --> 00:26:24.810
to putting someone on probation.
537
00:26:24.810 --> 00:26:26.370
So, to adopt my brother's argument,
538
00:26:26.370 --> 00:26:28.500
you would prohibit a juvenile court judge
539
00:26:28.500 --> 00:26:30.480
from ever placing a defendant
540
00:26:30.480 --> 00:26:34.830
who got the maximum parole ineligible time on probation,
541
00:26:34.830 --> 00:26:36.692
which I think is both bad policy and
542
00:26:36.692 --> 00:26:37.920
Well, you could add, you could do it
543
00:26:37.920 --> 00:26:40.440
by requiring the exigent circumstances file.
544
00:26:40.440 --> 00:26:42.030
Yes, right. Well.
545
00:26:42.030 --> 00:26:44.673
It's not that hard, but you can do it that way.
546
00:26:46.020 --> 00:26:50.040
Well, the standard set out in Perez two
547
00:26:50.040 --> 00:26:52.020
seems pretty hard to reach
548
00:26:52.020 --> 00:26:55.020
and it says it'll be a rare case in which it happens.
549
00:26:55.020 --> 00:26:56.880
And I agree, you're right, that's the standard.
550
00:26:56.880 --> 00:26:59.317
So, I don't think, and that's why in this case,
551
00:26:59.317 --> 00:27:01.200
you know, the Commonwealth chose not
552
00:27:01.200 --> 00:27:03.690
to exercised its discretion not to.
553
00:27:03.690 --> 00:27:05.730
It may have if it sought to,
554
00:27:05.730 --> 00:27:09.480
but it determined that it didn't.
555
00:27:09.480 --> 00:27:11.303
So, but in some cases.
556
00:27:11.303 --> 00:27:13.203
Well, here's my question for you is,
557
00:27:14.970 --> 00:27:17.310
so I understand the sort of idea of
558
00:27:17.310 --> 00:27:20.880
letting the juvenile grow up in the community
559
00:27:20.880 --> 00:27:22.620
and you know, if they violate probation,
560
00:27:22.620 --> 00:27:26.850
they're presumably an adult is in this case at the time.
561
00:27:26.850 --> 00:27:28.800
But at the end of the day,
562
00:27:28.800 --> 00:27:32.760
if you take a snapshot post violation of probation,
563
00:27:32.760 --> 00:27:37.760
we are giving a juvenile defendant for non-homicide,
564
00:27:39.030 --> 00:27:44.030
more parole ineligible time than the homicide defendant.
565
00:27:44.370 --> 00:27:47.010
And just if you take that snapshot,
566
00:27:47.010 --> 00:27:49.350
and it does seem odd to me
567
00:27:49.350 --> 00:27:52.410
that, that would be okay under Perez one.
568
00:27:52.410 --> 00:27:54.060
I don't think you're giving him
569
00:27:54.060 --> 00:27:56.520
more parole ineligible time.
570
00:27:56.520 --> 00:28:00.780
You are giving him new parole ineligible time.
571
00:28:00.780 --> 00:28:01.950
It's not the same.
572
00:28:01.950 --> 00:28:05.010
You don't aggregate them or add them.
573
00:28:05.010 --> 00:28:06.390
I think that's a fundamental,
574
00:28:06.390 --> 00:28:07.917
I dunno if it's disagree, that's my position.
575
00:28:07.917 --> 00:28:09.060
But why not, why not?
576
00:28:09.060 --> 00:28:11.730
As a practical matter, the defendant,
577
00:28:11.730 --> 00:28:16.050
the juvenile defendant, is going to be serving more time.
578
00:28:16.050 --> 00:28:17.250
But only because there was,
579
00:28:17.250 --> 00:28:20.550
you might think of it as a superseding, intervening cause
580
00:28:20.550 --> 00:28:23.610
he has violated the law here very seriously,
581
00:28:23.610 --> 00:28:25.233
which makes him eligible.
582
00:28:27.310 --> 00:28:30.180
And he got out, as you said, he got better than parole.
583
00:28:30.180 --> 00:28:32.310
He got better than parole, he got.
584
00:28:32.310 --> 00:28:34.200
And then he blew his second chance.
585
00:28:34.200 --> 00:28:35.700
He got the very next day
586
00:28:35.700 --> 00:28:37.800
and then about six months later he was arrested
587
00:28:37.800 --> 00:28:39.780
and charged with some very, very serious crimes,
588
00:28:39.780 --> 00:28:43.320
which he's now being held as dangerous
589
00:28:43.320 --> 00:28:44.730
in the Suffolk Superior Court.
590
00:28:44.730 --> 00:28:46.610
Also being held on a probation detainer
591
00:28:46.610 --> 00:28:47.943
in this case as well.
592
00:28:48.930 --> 00:28:53.460
So yeah, it is entirely within his control or her control,
593
00:28:53.460 --> 00:28:56.220
if he violates the law or not.
594
00:28:56.220 --> 00:28:57.540
And of course, if the commonwealth
595
00:28:57.540 --> 00:29:00.060
can't show there's a violation, then he will be free,
596
00:29:00.060 --> 00:29:01.890
but if it can, it should have the option
597
00:29:01.890 --> 00:29:03.480
to protect the people.
598
00:29:03.480 --> 00:29:06.360
He has demonstrated that he has not been rehabilitated.
599
00:29:06.360 --> 00:29:10.650
If there's a violation that is found and therefore,
600
00:29:10.650 --> 00:29:13.950
while once when he was a juvenile,
601
00:29:13.950 --> 00:29:17.340
had an enhanced amenability to rehabilitation.
602
00:29:17.340 --> 00:29:20.370
Any defendant here in this circumstance and situation
603
00:29:20.370 --> 00:29:23.160
has shown that he's actually not rehabilitated.
604
00:29:23.160 --> 00:29:26.040
So, I don't see any reason why he should not,
605
00:29:26.040 --> 00:29:29.220
he or she should not then be sentenced to additional,
606
00:29:29.220 --> 00:29:31.440
well, to prison time for something
607
00:29:31.440 --> 00:29:33.330
that he was never sentenced on before.
608
00:29:33.330 --> 00:29:36.540
And I just fundamentally disagree that the term of years
609
00:29:36.540 --> 00:29:38.550
that's imposed for a violation probation
610
00:29:38.550 --> 00:29:40.530
should be added to the initial 15,
611
00:29:40.530 --> 00:29:42.510
because so has happened since then.
612
00:29:42.510 --> 00:29:44.687
It takes it outside the realm.
613
00:29:44.687 --> 00:29:47.700
The vice that Diatchenko, Perez, and Miller.
614
00:29:47.700 --> 00:29:50.090
You're confronted with the technical problem
615
00:29:50.090 --> 00:29:53.160
that he's being, when he's violated,
616
00:29:53.160 --> 00:29:56.460
we're re-sentencing him on the original conduct.
617
00:29:56.460 --> 00:29:59.220
So, there's at least technical appearance
618
00:29:59.220 --> 00:30:02.700
that it's a longer sentence for the original one.
619
00:30:02.700 --> 00:30:03.660
That's exactly right.
620
00:30:03.660 --> 00:30:06.150
But I would argue that it is purely technical,
621
00:30:06.150 --> 00:30:09.661
not a meaningful substantive distinction
622
00:30:09.661 --> 00:30:12.990
that should make this violate Article 26.
623
00:30:12.990 --> 00:30:16.110
I absolutely agree that, that is something to be considered.
624
00:30:16.110 --> 00:30:18.870
The fact that he's being sentenced for the underlying,
625
00:30:18.870 --> 00:30:20.490
I'm sorry for the initial offense
626
00:30:20.490 --> 00:30:21.393
as to which he got probation.
627
00:30:21.393 --> 00:30:22.830
Yes, it does it matter if it's
628
00:30:22.830 --> 00:30:27.363
straight probation versus the alternative.
629
00:30:29.460 --> 00:30:34.380
So, if he were given a suspended sentence of two years,
630
00:30:34.380 --> 00:30:37.890
it looks more like it's on the original, right?
631
00:30:37.890 --> 00:30:38.723
Yes, it does,
632
00:30:38.723 --> 00:30:41.640
but I think the same principles would apply.
633
00:30:41.640 --> 00:30:43.020
I haven't given a great deal of thought
634
00:30:43.020 --> 00:30:46.170
to what the implications of getting a suspended sentence
635
00:30:46.170 --> 00:30:49.740
were as opposed to a straight probation as here,
636
00:30:49.740 --> 00:30:50.940
but I think it's more common now.
637
00:30:50.940 --> 00:30:53.490
Although I can't for sure that the straight probation
638
00:30:53.490 --> 00:30:56.760
is the scenario that happened here.
639
00:30:56.760 --> 00:30:57.870
And obviously, I think that's the one
640
00:30:57.870 --> 00:31:00.390
that's most obvious and most often
641
00:31:00.390 --> 00:31:02.910
and it's the one that we're concerned with
642
00:31:02.910 --> 00:31:04.770
rather than a suspended sentence.
643
00:31:04.770 --> 00:31:06.450
But I don't see why the same principles
644
00:31:06.450 --> 00:31:08.473
wouldn't apply to those as well.
645
00:31:08.473 --> 00:31:11.921
I understand why you're saying it's sort of technical
646
00:31:11.921 --> 00:31:15.990
that the case law considers him
647
00:31:15.990 --> 00:31:20.100
to be being sentenced for the first time many years later,
648
00:31:20.100 --> 00:31:22.410
but it seems very not technical in the sense
649
00:31:22.410 --> 00:31:25.140
that he may get an extremely long sentence.
650
00:31:25.140 --> 00:31:27.030
And that sentence is for the conduct
651
00:31:27.030 --> 00:31:28.980
that he committed as a juvenile, correct?
652
00:31:28.980 --> 00:31:30.060
Right, but it's only triggered,
653
00:31:30.060 --> 00:31:33.300
as I've said, by his post release conduct.
654
00:31:33.300 --> 00:31:35.268
But he's not being sentenced for the post-release conduct.
655
00:31:35.268 --> 00:31:36.101
[Attorney Steinfield] No, he's not.
656
00:31:36.101 --> 00:31:37.290
That is the subject of a separate criminal matter
657
00:31:37.290 --> 00:31:38.610
on which he could receive a sentence
658
00:31:38.610 --> 00:31:41.280
that would with respect to which he would not get
659
00:31:41.280 --> 00:31:43.140
any sort of special treatment as a juvenile.
660
00:31:43.140 --> 00:31:44.730
Right, that's absolutely true.
661
00:31:44.730 --> 00:31:46.470
So, can you talk about, just briefly,
662
00:31:46.470 --> 00:31:49.980
about what is the function and meaning and limits
663
00:31:49.980 --> 00:31:53.310
of the idea that he has never been sentenced before?
664
00:31:53.310 --> 00:31:55.950
Because I think that's the basis of the disagreement
665
00:31:55.950 --> 00:31:58.620
about whether to aggregate here.
666
00:31:58.620 --> 00:31:59.910
I think that's a bit of an issue
667
00:31:59.910 --> 00:32:02.010
of first impression here now actually.
668
00:32:02.010 --> 00:32:05.070
It is sort of sui generis.
669
00:32:05.070 --> 00:32:06.720
As to what that means practically
670
00:32:06.720 --> 00:32:08.160
as this court has said many, many times
671
00:32:08.160 --> 00:32:10.290
being sentenced for the underlying conduct.
672
00:32:10.290 --> 00:32:11.460
It's a fact that I can't avoid
673
00:32:11.460 --> 00:32:12.870
and I don't have any better answers
674
00:32:12.870 --> 00:32:15.060
than the ones that I've given so far
675
00:32:15.060 --> 00:32:19.620
as to why it shouldn't matter for Article 26 purposes.
676
00:32:19.620 --> 00:32:22.163
The fact that he later has committed a crime,
677
00:32:22.163 --> 00:32:25.530
that's my answer to that question.
678
00:32:25.530 --> 00:32:27.084
That's what separates it.
679
00:32:27.084 --> 00:32:28.800
But it's true that he is being sentenced
680
00:32:28.800 --> 00:32:29.730
for the underlying conduct.
681
00:32:29.730 --> 00:32:31.140
I can't escape or avoid that.
682
00:32:31.140 --> 00:32:33.240
I don't know if I have a more satisfying answer
683
00:32:33.240 --> 00:32:34.200
to that question, Your Honor.
684
00:32:34.200 --> 00:32:35.550
Could you address the Judge Dewar,
685
00:32:35.550 --> 00:32:38.850
if you got a really long one does that,
686
00:32:38.850 --> 00:32:43.320
so you get 10 more years, does that create a problem?
687
00:32:43.320 --> 00:32:46.710
Does it not become technical, if it's or 15 years,
688
00:32:46.710 --> 00:32:50.310
or, you know, does that change things?
689
00:32:50.310 --> 00:32:52.293
I don't think that the term of years.
690
00:32:53.970 --> 00:32:56.507
Without a finding of, I mean I'm again.
691
00:32:56.507 --> 00:32:57.540
Right, right, right, of course we're all talking about.
692
00:32:57.540 --> 00:32:58.860
Right, I'm only talking about a case
693
00:32:58.860 --> 00:33:00.600
in which there's no extraordinary circumstances
694
00:33:00.600 --> 00:33:02.790
where there's given probation and a violation.
695
00:33:02.790 --> 00:33:05.280
Then there's, as Justice Dewar just proposed,
696
00:33:05.280 --> 00:33:07.890
and then a long new hit.
697
00:33:07.890 --> 00:33:09.243
Right., well.
698
00:33:11.520 --> 00:33:12.660
What's your answer to that?
699
00:33:12.660 --> 00:33:14.790
Why that isn't a problem?
700
00:33:14.790 --> 00:33:19.680
'Cause that does seem more than a technical issue.
701
00:33:19.680 --> 00:33:22.290
Well, but it is a function of course,
702
00:33:22.290 --> 00:33:24.843
of the crime that he has committed afterwards.
703
00:33:25.824 --> 00:33:27.630
And we're sentencing him not on that.
704
00:33:27.630 --> 00:33:29.370
We're sentencing him.
705
00:33:29.370 --> 00:33:31.260
We're re-sentencing him on his original,
706
00:33:31.260 --> 00:33:32.970
but giving him a big.
707
00:33:32.970 --> 00:33:35.970
If that happens, he can still argue.
708
00:33:35.970 --> 00:33:36.960
He doesn't have to rely on
709
00:33:36.960 --> 00:33:41.960
the presumptive disproportionality of Perez and Diatchenko.
710
00:33:44.580 --> 00:33:46.800
He could then make an argument
711
00:33:46.800 --> 00:33:50.460
that under a sepalonous analysis
712
00:33:50.460 --> 00:33:52.950
that, that sentence would be disproportionate.
713
00:33:52.950 --> 00:33:54.360
And I think that's an outlet
714
00:33:54.360 --> 00:33:56.010
that he would have then at that point,
715
00:33:56.010 --> 00:33:59.340
if he gets a whopper of a sentence on probation,
716
00:33:59.340 --> 00:34:01.320
he can make a straightforward, you know,
717
00:34:01.320 --> 00:34:04.650
the tripartite sepalonous analysis
718
00:34:04.650 --> 00:34:07.140
separate from here we are only talking about
719
00:34:07.140 --> 00:34:09.900
the presumptive disproportionality
720
00:34:09.900 --> 00:34:13.050
that arises when a juvenile non-homicide offender
721
00:34:13.050 --> 00:34:14.623
is sentenced more harshly
722
00:34:14.623 --> 00:34:17.190
than a juvenile homicide offender.
723
00:34:17.190 --> 00:34:20.730
So, I think a straight argument then
724
00:34:20.730 --> 00:34:23.670
would be something that could be litigated,
725
00:34:23.670 --> 00:34:26.250
if he gets that punishment at that time.
726
00:34:26.250 --> 00:34:29.250
If he gets a life sentence or 20 years or whatever,
727
00:34:29.250 --> 00:34:30.570
then he can make that argument
728
00:34:30.570 --> 00:34:31.890
and he has a chance to win on that.
729
00:34:31.890 --> 00:34:33.240
And this court might be amenable
730
00:34:33.240 --> 00:34:34.800
to that sort of a situation.
731
00:34:34.800 --> 00:34:36.780
But in the ordinary run, if he gets a three to five
732
00:34:36.780 --> 00:34:39.363
or if he gets, you know, something less than that,
733
00:34:40.440 --> 00:34:42.150
you know, then I don't think it's a problem.
734
00:34:42.150 --> 00:34:45.120
But if he does, as I said, get whacked,
735
00:34:45.120 --> 00:34:47.940
then he has this alternative option of a sepalonous claim.
736
00:34:47.940 --> 00:34:50.883
Well, I thought Perez one was all about sepalonous.
737
00:34:53.070 --> 00:34:55.283
Well, it,
738
00:34:55.283 --> 00:34:57.960
I mean, the whole analysis is about the tripartite.
739
00:34:57.960 --> 00:35:00.780
Analysis when determining, but it's holding is
740
00:35:00.780 --> 00:35:02.460
that if it's more harsh
741
00:35:02.460 --> 00:35:05.013
then it is presumptively disproportionate.
742
00:35:08.520 --> 00:35:12.150
It uses the sepalonous three part test.
743
00:35:12.150 --> 00:35:13.579
Right, to get the presumption.
744
00:35:13.579 --> 00:35:14.412
[Justice Wendlandt] Yeah.
745
00:35:14.412 --> 00:35:17.010
So, if that presumption no longer applies,
746
00:35:17.010 --> 00:35:18.900
which I say that it would not apply,
747
00:35:18.900 --> 00:35:22.080
if he's being sentenced for a probation violation,
748
00:35:22.080 --> 00:35:23.730
he can then argue that rather
749
00:35:23.730 --> 00:35:28.350
than the presumptive disproportionality, his whole sentence
750
00:35:28.350 --> 00:35:31.500
that includes both the initial and the probation sentence
751
00:35:31.500 --> 00:35:34.500
would itself be disproportional
752
00:35:34.500 --> 00:35:36.153
separate from the presumption.
753
00:35:38.640 --> 00:35:40.590
I'm not sure if that answers Your Honor's question.
754
00:35:40.590 --> 00:35:41.970
I'll have to diagram it out.
755
00:35:41.970 --> 00:35:44.143
It seems like you're saying,
756
00:35:44.143 --> 00:35:47.040
sepalonous gives you a presumption
757
00:35:47.040 --> 00:35:49.770
and then sepalonous allows the defendant
758
00:35:49.770 --> 00:35:52.380
to make an argument on violation of probation.
759
00:35:52.380 --> 00:35:53.370
Is that what you're saying?
760
00:35:53.370 --> 00:35:56.009
Right, because sepalonous is just a general framework,
761
00:35:56.009 --> 00:35:56.842
[Justice Wendlandt] Of course.
762
00:35:56.842 --> 00:35:58.020
For determining when a sentence
763
00:35:58.020 --> 00:36:00.270
violates Article 26 or the Eighth Amendment.
764
00:36:00.270 --> 00:36:04.050
Right, but Perez one says you can't give
765
00:36:04.050 --> 00:36:06.600
parole ineligible time beyond the 15 years
766
00:36:06.600 --> 00:36:09.450
to a juvenile non-homicide defendant,
767
00:36:09.450 --> 00:36:12.060
because under that tripartite test,
768
00:36:12.060 --> 00:36:13.256
there is this presumption, right?
769
00:36:13.256 --> 00:36:14.089
[Attorney Steinfield] Yes, exactly.
770
00:36:14.089 --> 00:36:16.200
That because he's a juvenile,
771
00:36:16.200 --> 00:36:20.430
that these scientific factors in the brain development
772
00:36:20.430 --> 00:36:23.520
require extraordinary circumstances.
773
00:36:23.520 --> 00:36:25.350
And I guess what you're saying is that
774
00:36:25.350 --> 00:36:27.810
the sepalonous argument would then apply
775
00:36:27.810 --> 00:36:31.050
in the violation of probation in the absence
776
00:36:31.050 --> 00:36:34.440
of any analysis of the juvenile circumstances?
777
00:36:34.440 --> 00:36:39.240
Well, in the absence of the presumption.
778
00:36:39.240 --> 00:36:42.450
I'm not sure what the contours of a sepalonous analysis
779
00:36:42.450 --> 00:36:44.790
would look like in the future.
780
00:36:44.790 --> 00:36:47.430
It may take into account the fact that
781
00:36:47.430 --> 00:36:49.080
as a juvenile he committed the offense
782
00:36:49.080 --> 00:36:50.040
for which he's now being.
783
00:36:50.040 --> 00:36:51.030
Well, isn't that exactly
784
00:36:51.030 --> 00:36:53.190
what the defendant argues in the reply brief?
785
00:36:53.190 --> 00:36:54.407
That that's where it should,
786
00:36:54.407 --> 00:36:56.490
that something like that could happen?
787
00:36:56.490 --> 00:36:58.170
Well, but I'd say that's only
788
00:36:58.170 --> 00:37:00.900
if he gets hit with a sentence that is so harsh
789
00:37:00.900 --> 00:37:04.380
that he can argue with a straight face
790
00:37:04.380 --> 00:37:08.100
that it is standing on its own disproportional
791
00:37:08.100 --> 00:37:09.720
rather than totally relying on
792
00:37:09.720 --> 00:37:13.173
the presumptive disproportionality provided by Perez.
793
00:37:16.260 --> 00:37:20.160
Because Perez said, you're entitled to this chance,
794
00:37:20.160 --> 00:37:22.740
this second chance, right?
795
00:37:22.740 --> 00:37:25.320
That's the fundamental first principle of Perez.
796
00:37:25.320 --> 00:37:27.963
You get a second chance of parole eligibility.
797
00:37:29.040 --> 00:37:33.330
But then when we, so you've blown your second chance
798
00:37:33.330 --> 00:37:35.370
and then we're looking at disproportionality
799
00:37:35.370 --> 00:37:37.290
in the context of a blown second chance.
800
00:37:37.290 --> 00:37:39.330
I don't know, it gets complicated what we're doing.
801
00:37:39.330 --> 00:37:41.640
Oh, there's no doubt about that, Your Honor.
802
00:37:41.640 --> 00:37:43.090
I don't dispute that.
803
00:37:43.090 --> 00:37:44.450
[Justice Wendlandt] Okay.
804
00:37:44.450 --> 00:37:46.470
If the members of the court have no further questions,
805
00:37:46.470 --> 00:37:47.760
I'd be happy to rest the of my briefing.
806
00:37:47.760 --> 00:37:49.640
Thank you very much.
Thank you.