KENNEDY, J., DISSENTING
BARBER V. THOMAS
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 09-5201
MICHAEL GARY BARBER, et al., PETITIONERS
v. J. E. THOMAS, WARDEN
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 7, 2010]
Justice Kennedy, with whom
Justice Stevens and Justice Ginsburg join, dissenting.
The Court has interpreted a
federal sentencing statute in a manner that disadvantages almost
200,000 federal prisoners. See Pet. for Cert. 11, and n. 2. It
adopts this reading despite the existence of an alternative
interpretation that is more consistent with the statute’s text.
Absent a clear congressional directive, the statute ought not to be
read as the Court reads it. For the Court’s interpretation—an
interpretation that in my submission is quite incorrect—imposes
tens of thousands of years of additional prison time on federal
prisoners according to a mathematical formula they will be unable
to understand. And if the only way to call attention to the human
implications of this case is to speak in terms of economics, then
it should be noted that the Court’s interpretation comes at a cost
to the taxpayers of untold millions of dollars. See
id.,
at 11. The interpretation the Court adopts, moreover, will be
devastating to the prisoners who have behaved the best and will
undermine the purpose of the statute. These considerations, and
those stated below, require this respectful dissent.
I
The federal sentencing statute at
issue here provides:
“[A] prisoner who is serving a
term of
imprisonment of more than 1 year[,] other than a
term of
imprisonment for the duration of the prisoner’s life, may
receive credit toward the service of the prisoner’s sentence,
beyond the time served, of up to 54 days at the end of each year of
the prisoner’s
term of imprisonment, beginning at the end
of the first year of the term, subject to determination by the
Bureau of Prisons that, during that year, the prisoner has
displayed exemplary compliance with institutional disciplinary
regulations… . [C]redit for the last year or portion of a year
of the
term of imprisonment shall be prorated and credited
within the last six weeks of the sentence.” 18 U. S. C.
§3624(b)(1) (emphasis added).
According to the Court, the phrase “term of
imprisonment” must mean “time actually served” the third time that
it appears in this particular subsection. But the Court gives the
phrase a different interpretation the first two times it is used in
the very same sentence. This in itself indicates that something is
quite wrong here.
Petitioners invite the Court to read “term of
imprisonment” to mean “the sentence imposed.” This, too, seems
unworkable. And it can be acknowledged that the Court’s rejection
of this interpretation is correct.
The choice, however, is not just between the
Court’s reading and that offered by petitioners. There is a third
possibility, one more consistent with the statute than either of
these two alternatives.
A fair reading of the statute, and a necessary
reading to accomplish its purpose best, is to interpret the phrase
“term of imprisonment” to refer to the span of time that a prisoner
must account for in order to obtain release. The length of the term
is set at the outset by the criminal sentence imposed. The prisoner
earns release when that term has been fully completed. Most of the
term will be satisfied through time spent behind bars. Assuming the
prisoner is well behaved, however, he may earn good time credits
along the way; and those credits may substitute for actual prison
time. Each year of the term comprises a full 365 days, which must
be accounted for through a combination of prison time and credits.
Thus conceived, a prisoner’s “term” is the administrative period
along which progress toward eventual freedom is marked.
Consider the Court’s example of a prisoner
subject to a ten-year sentence. See
ante, at 2–4. The
sentence is divided into ten 365-day segments. Each segment
constitutes a year of the term. The prisoner will spend the first
365 days behind bars. In the statute’s words, he has reached “the
end of the first year of the term.” Now is the time for credit to
be awarded, and he may receive up to 54 days if sufficiently well
behaved. Because he has already completed a full year of his term,
those credits go toward completion of the next year. If, based on
good behavior, he has earned the maximum of 54 days, he would need
another 311 days behind bars before the second year of his term of
imprisonment is at an end (because 54 + 311 = 365). If he has
earned fewer than 54 days, a longer incarceration will be required
to reach 365. Regardless, once the prisoner reaches the end of the
second year of his term, he will again be eligible to receive good
time credits.
This process repeats itself for the third year
of the term, and so on. In the final year of his term (in this
example, the tenth segment into which his term has been divided),
the prisoner will receive credit in a prorated amount, to be
awarded “within the last six weeks of the sentence.” This ensures
that the prisoner does not reach the end of year ten, only to find
that he has just earned 54 days of credit he no longer needs.
The controlling rule is that each year of the
prisoner’s term—each of the ten administrative segments—comprises
365 days that must be completed through a combination of service
and credits. By combining actual prison time with the credits he
has earned, a prisoner may complete a particular year of his term
in less than 365 calendar days. As a result, credits may enable a
well-behaved prisoner to complete his ten-year sentence before ten
calendar years have elapsed. For a ten-year (3,650-day) sentence, a
prisoner will serve 3,117 days behind bars if he earns a maximum of
approximately 533 credits. This is 63 more days of credit than
under the Court’s reading—more than 6 additional credit days for
every year of the sentence imposed.
Reading “term of imprisonment” this way is
consistent with all parts of the statute. The prisoner receives his
credit “at the end of each year of [his] term of imprisonment,” a
process that “begin[s] at the end of the first year of the term.”
Credit is only awarded if the prisoner has proven well behaved
“during that year.” This interpretation fulfills the “objective of
§3624”—rewarding a prisoner for exemplary conduct during the
preceding year. See
ante, at 8.
This approach also has a textual integrity
that the Court’s reading does not: It gives “term of imprisonment”
the same meaning each time it is used by the statute. Every time it
appears in §3624(b)(1), “term of imprisonment” refers to the
administrative period that a prisoner must complete in order to
earn his freedom. The Court, by contrast, would read this phrase to
mean “time actually served” the third time it is used, but “the
sentence imposed” the first two times it is used (“ ‘a
prisoner who is serving a
term of imprisonment of more
than 1 year[,] other than a
term of imprisonment for the
duration of the prisoner’s life’ ”). See
ante, at
8–9. The Court’s interpretation thus runs afoul of the
“ ‘presumption that a given term is used to mean the same
thing throughout a statute.’ ”
Ante, at 9 (quoting
Brown v.
Gardner,
513 U. S. 115, 118
(1994)). The inconsistency here is particularly egregious because
all three uses appear in the same sentence. See
id., at
118 (“[The] presumption [is] surely at its most vigorous when a
term is repeated within a given sentence”).
The Court responds by noting another part of
the statute, a provision stating that prisoners shall receive
clothing, money, and transportation “[u]pon the release of [the]
prisoner on the expiration of the prisoner’s term of imprisonment.”
§3624(d). A prisoner is released at the end of his actual time
behind bars, says the Court, and so “term of imprisonment” must
here refer to time actually served. Yet release also comes at the
end of a prisoner’s “term” in the sense described above—that is,
when the balance of the sentence has been reduced to zero through a
combination of prison time and good time credits. Indeed, this
administrative use of the phrase fits well with the word
“expiration,” which in its most natural sense in this context
refers to the close of a formal accounting period. See Black’s Law
Dictionary 619 (8th ed. 2004) (“A coming to an end; esp., a formal
termination on a closing date”). By contrast, it is awkward at best
to say, as the Court would have it, that a prisoner’s actual time
behind bars is something that “expires.”
The Court’s approach produces yet another
oddity. The statute requires that prorated credit be awarded for
“the last year or portion of a year of the term of imprisonment.”
One might naturally assume that the last year of a ten-year term
would be year ten. That is how things work under the approach
described above, in which a ten-year sentence is subdivided into
ten administrative segments.
But under the Court’s reading, a prisoner
serving a ten-year sentence will never reach year ten of his term;
year ten simply does not exist. According to the Court, year nine
is the final year, and even year nine is not a full year: It lasts
“no more than 298 days.”
Ante, at 3. If this sounds
confusing, it will be all the more so to the prisoner who has just
received his sentence and turns to the statute books to figure out
when to expect his freedom.
The Court does not even attempt to defend
these flaws. Instead, it points to four supposed defects in the
approach described above. None withstands examination.
First, the Court notes that the statute
requires the release of a prisoner “upon ‘the expiration of the
prisoner’s term of imprisonment, less any time credited’ for good
behavior.”
Ante, at 15 (quoting §3624(a)). But if “term of
imprisonment” truly refers to the entire span that a prisoner must
complete to earn his freedom—a period that accounts both for actual
time and for good time credits—then why would the “less any time
credited” language be appropriate? The answer is that this
provision—which appears at the very beginning of the section
entitled “Release of a prisoner”—announces to a prisoner when
release may be expected: when the prisoner’s term expires, taking
into account credit days “as provided in subsection (b).” §3624(a)
(bold face deleted). This use of language is common. A debtor who
says “I will write a check for what I owe you, less what you owe
me” is simply saying “I will pay what I owe, taking into account
your debts to me.” Perhaps the same meaning could have been
conveyed using different words, but this is hardly probative.
Second, the Court alleges that the above
approach conflicts with the statute’s requirement that credit be
awarded “at the end of each year” based upon behavior “during that
year.” After all, if a year of the term can be satisfied in part
through credit, then it may last less than a full calendar year.
Yet the statute does not require that credit be awarded at the end
of a calendar year for good behavior during a calendar year. What
it requires is that credit be awarded “at the end of each year of
the prisoner’s term of imprisonment” for good behavior “during that
year.” And this is precisely what the above approach does.
Third, the Court frets that, under the
approach above, prisoners will earn credit at different rates
during a single sentence. It admonishes that “[t]he use of
different rates finds no support in the statute.”
Ante, at
16. This response is telling. The statute, in fact, prescribes no
particular rate—and certainly no formula based on a rate—except as
embodied in one clear directive: Prisoners are eligible to earn “up
to 54 days at the end of each year of the prisoner’s term of
imprisonment.” As to that command, the above approach is perfectly
faithful.
Fourth, the Court suggests that the above
approach causes credit to vest immediately, contrary to the
statute. Again, this is not true. As per the statute, credit only
vests “on the date the prisoner is released from custody,”
§3624(b)(2), meaning that it can be revoked at any time before that
date. This gives prisoners approaching their release date an extra
incentive to behave.
As a fallback, the Court wonders what would
happen if a prisoner misbehaved on the final day of his ten-year
sentence. Would the Bureau of Prisons (BOP) be forced to
“retroactively adjust the duration of all of his [term years] to
365 days”?
Ante, at 17. The answer is what one might
suppose: A prisoner whose credits are revoked will find himself
precisely where he would have been if those credits had never been
earned. All years of the term remain 365 days, as they always have.
But a misbehaving prisoner who had formerly earned, say, 500
credits will find himself without the benefit of those 500 days.
That will leave him with more of his term to complete—500 days
more, to be precise. If he behaves well again, he can resume
earning credit for the remainder of his term, but he has lost the
opportunity to earn credits for any prior years. See §3624(b)(1).
This is not at all confusing for a prisoner; and certainly it is as
straightforward, if not more so, than the Court’s approach. The
Court’s view causes a prisoner’s “term of imprisonment” to shrink
over time according to an algebraic formula, only to expand again
if he misbehaves.
Finally, the Court speculates that BOP might
find the above approach difficult to administer. The Court
identifies no basis for this claim, nor does one exist. The
information used to calculate a prisoner’s term under the above
approach is the same as it is under the Court’s approach. True, a
prisoner may become eligible to be awarded credit on different
calendar days during the course of his term. But under the Court’s
approach, this also happens when awarding credit in the final year.
And, it goes without saying, federal prisoners begin their
incarceration on different calendar days anyway, so that under any
approach, BOP will be forced to evaluate prisoners throughout the
calendar year.
II
The Court’s reading of
§3624(b)(1), therefore, is less consistent with the text than the
reading explained above. But even if these interpretations were in
equipoise, under any fair application the rule of lenity should tip
the balance in petitioners’ favor. When a penal statute is
susceptible of two interpretations, the one more favorable to the
defendant must be chosen unless “text, structure, and history …
establish that the [harsher] position is unambiguously correct.”
United States v.
Granderson,
511 U. S. 39, 54 (1994).
Resolving ambiguity in favor of lenity ensures that statutes
provide “fair warning[,] … in language that the common world will
understand, of what the law intends to do if a certain line is
passed.”
United States v.
Bass,
404 U. S. 336, 348
(1971) (internal quotation marks omitted). The rule thus applies
“not only to interpretations of the substantive ambit of criminal
prohibitions, but also to the penalties they impose.”
Bifulco v.
United States,
447 U. S. 381, 387
(1980).
The Court assumes without
deciding that §3624(b) is penal in nature. See
ante, at
13. No assumption is necessary: The statutory provision awarding
good time credits “in fact is one determinant of [a] prison term,”
so that a prisoner’s “effective sentence is altered once this
determinant is changed.”
Weaver v.
Graham,
450 U. S. 24, 32
(1981). In
Weaver, the Court considered whether an
amendment to Florida’s statutory formula for calculating good time
credits implicated the
Ex Post Facto Clause. The
Court concluded that it did, as the new statute “substantially
alter[ed] the consequences attached to a crime already completed,
and therefore change[d] ‘the quantum of punishment.’ ”
Id., at 33 (quoting
Dobbert v.
Florida,
432 U. S. 282,
294 (1977)). For the same reason, the penal effect of §3624(b)(1)
is substantial enough to implicate the rule of lenity. We should
not disadvantage almost 200,000 federal prisoners unless Congress
clearly warned them they would face that harsh result.
III
The Government—although not the
Court—argues that we should embrace its interpretation out of
deference to BOP. BOP has been charged by the Attorney General with
responsibility for “[a]pproving inmate disciplinary and good time
regulations.” 28 CFR §0.96(s) (2009). BOP has long followed the
same credit-calculation method now advocated by the Court. The
Government argues that we should defer to BOP’s choice as a
permissible exercise of its delegated responsibility.
This argument fails on multiple
levels. There is no indication that BOP has exercised the sort of
interpretive authority that would merit deference under
Chevron
U. S. A. Inc. v.
Natural Resources Defense Council,
Inc.,
467 U. S.
837 (1984). The statute does not create a legislative gap for
BOP to fill. To the contrary, the procedures that govern the timing
of credit awards are spelled out in great detail. Cf.
Lopez v.
Davis,
531 U. S. 230, 241–242
(2001) (where statute says that BOP “may” grant early release to
certain prisoners, without specifying further criteria, Congress
deliberately created a “statutory gap”). The statute even goes so
far as to explain what to do “[i]f the date for a prisoner’s
release falls on a Saturday, a Sunday, or a legal holiday.”
§3624(a). This legislative specificity as to timing contrasts with
other provisions that do delegate authority to BOP.
E.g.,
§3624(b)(1) (awarding of credit is “subject to determination” by
BOP that the prisoner “has displayed exemplary compliance with
institutional disciplinary regulations”).
BOP has not claimed that its view is the
product of any “formal administrative procedure tending to foster
the fairness and deliberation that should underlie a pronouncement”
with the force of law.
United States v.
Mead
Corp.,
533 U.
S. 218, 230 (2001). In 2005, BOP made final an administrative
rule adopting its preferred methodology. 70 Fed. Reg. 66752
(adopting 28 CFR §523.20). But when pressed during an earlier stage
of this litigation, BOP conceded that it had “failed to articulate
in the administrative record the rationale upon which it relied
when it promulgated” the rule.
Tablada v.
Thomas,
533 F. 3d 800, 805 (CA9 2008). The Court of Appeals accepted
BOP’s concession,
ibid., and that aspect of its ruling has
not been appealed.
As a fallback position, the Government argues
that BOP’s interpretation should receive at least some deference
under
Skidmore v.
Swift & Co.,
323 U. S. 134 (1944).
But under
Skidmore, an agency decision only merits
“respect proportional to its ‘power to persuade.’ ”
Mead,
supra, at 235 (quoting
Skidmore,
supra, at 140). BOP’s position is of long standing, but
the administrative record is noteworthy for what it does not
contain—namely, any reasoned justification for preferring BOP’s
methodology over statutorily permissible alternatives. BOP has
consistently adhered to its mistaken belief that its approach is
the only one that can be squared with the text. See 62 Fed. Reg.
50786 (1997) (explanation to interim rule asserting that the
correct methodology “had been clearly stated by statute since the
implementation of the Sentencing Reform Act of 1984”). For example,
at no point did BOP consider, much less consciously reject, the
interpretation outlined here. Cf.
Reno v.
Koray,
515 U. S. 50,
60–61 (1995) (deferring to BOP’s reasoned decision to reject one
interpretation in favor of another). An agency need not consider
all possible alternatives. But deference is not owed to an agency
view, however consistently held, that from the start has been
premised on legal error. See
Mead,
supra, at 228;
Skidmore,
supra, at 140.
* * *
The straightforward
interpretation urged here accords with the purpose of the statute,
which is to give prisoners incentive for good behavior and dignity
from its promised reward. Prisoners can add 54 days to each year.
And when they do so, they have something tangible. In place of that
simple calculation, of clear meaning, of a calendar that can be
marked, the Court insists on something different. It advocates an
interpretation that uses different definitions for the same phrase
in the same sentence; denies prisoners the benefit of the rule of
lenity; and caps off its decision with an appendix that contains an
algebraic formula to hang on a cell wall.
To a prisoner, time behind bars
is not some theoretical or mathematical concept. It is something
real, even terrifying. Survival itself may be at stake. See Dept.
of Justice, Bureau of Justice Statistics, C. Mumola, Suicide
and Homicide in State Prisons and Local Jails (NCJ 210036,
Aug. 2005), online at http://
bjs.ojp.usdoj.gov/content/pub/pdf/shsplj.pdf (all Internet
materials as visited June 2, 2010, and available in Clerk of
Court’s case file) (prison homicide rates); National Prison Rape
Elimination Commission Re- port, p. 4 (June 2009)
(citing a national survey estimating that 60,500 state and federal
prisoners had been sexually abused during the preceding year). To
this time, the Court adds days—compounded to years. We should not
embrace this harsh result where Congress itself has not done so in
clear terms. I would reverse the judgment of the Court of
Appeals.
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