OCTOBER TERM, 1992
Syllabus
FEX
v. MICHIGAN
CERTIORARI TO THE SUPREME COURT OF MICHIGAN No. 91-7873. Argued
December 8, 1992-Decided February 23,1993
Indiana and Michigan are parties to the Interstate Agreement on
Detainers (lAD), Article III(a) of which provides that a prisoner
of one party State who is the subject of a detainer lodged by
another such State must be brought to trial within 180 days "after
he shall have caused to be delivered" to the prosecuting officer
and the appropriate court of the latter State a request for final
disposition of the charges on which the detainer is based.
Petitioner Fex, a prisoner in Indiana, was brought to trial in
Michigan 196 days after he gave such a request to Indiana prison
authorities and 177 days after the request was received by the
Michigan prosecutor. His pretrial motion pursuant to Article V(c)
of the lAD, which provides for dismissal with prejudice if trial
does not commence within the 180-day period, was denied on the
ground that the statutory period did not begin until the Michigan
prosecutor received his request. His conviction was set aside by
the Michigan Court of Appeals, which held that the 180-day period
was triggered by transmittal of his request to the Indiana
officials. The State Supreme Court summarily reversed.
Held: It is self-evident that no one can have "caused
something to be delivered" unless delivery in fact occurs. The
textual possibility still exists, however, that
once delivery
has been made, the 180 days must be computed from the date the
prisoner "caused" that delivery. Although the text of Article
III(a) is ambiguous in isolation, commonsense indications and the
import of related provisions compel the conclusion that the 180-day
period does not commence until the prisoner's disposition request
has actually been delivered to the court and prosecutor of the
jurisdiction that lodged the detainer against him. Delivery is a
more likely choice for triggering the time limit than is causation
of delivery because the former concept is more readily identifiable
as a point in time. Moreover, if delivery is the trigger, the
consequence of a warden's delay in forwarding the prisoner's
request will merely be postponement of the starting of the 180-day
clock, whereas if causation is the trigger, the consequence will be
total preclusion of the prosecution, even before the prosecutor
knew it had been requested. Delivery as the critical event is
confirmed by the fact that the lAD provides for documentary
evidence of the time of receipt (by requiring the request
44
to be sent "by registered or certified mail, return receipt
requested," Article III(b)), but nowhere requires a record of when
the request is transmitted to the warden (if that is what
constitutes the "causation"). Finally, it is unlikely that if
transmittal were the critical event the lAD would be so indifferent
as to the manner of transmittal. Article III(b) says only that the
request "shall be
given or sent" (emphasis added). Fex's
"fairness" and "higher purpose" arguments are more appropriately
addressed to the legislatures of the States that have adopted the
lAD. Pp. 47-52.
439 Mich. 117,479 N. W. 2d 625, affirmed.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, O'CONNOR, KENNEDY, SOUTER, and THOMAS,
JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which
STEVENS, J., joined,
post, p. 52.
John B. Payne, Jr., by appointment of the Court, 505 U.
S. 1202, argued the cause and filed a brief for petitioner.
Jerrold Schrotenboer argued the cause and filed a brief
for respondent.
Richard H. Seamon argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were
Solicitor General Starr, Assistant Attorney General Mueller, and
Deputy Solicitor General Bryson.
JUSTICE SCALIA delivered the opinion of the Court.
This case arises out of a "detainer," which is a request filed
by a criminal justice agency with the institution in which a
prisoner is incarcerated, asking that the prisoner be held for the
agency, or that the agency be advised when the prisoner's release
is imminent. Indiana and Michigan, along with 46 other States, the
District of Columbia, and the United States, are parties to the
Interstate Agreement on Detainers (lAD). See Ind. Code §35-33-10-4
(1988); Mich. Compo Laws § 780.601 (1979); Pub. L. 91-538, 84 Stat.
1397-1403, 18 U. S. C. App. § 2; 11 U. L. A. 213-214 (Supp. 1992)
(listing
45
jurisdictions). Two provisions of that interstate agreement give
rise to the present suit: Article III and Article V(c), which are
set forth in the margin.1
1 Title 18 U. S. C. App. § 2 contains the full text of the lAD,
and we refer to its provisions by their original article numbers,
as set forth there. Article III of the lAD provides in relevant
part as follows:
"(a) Whenever a person has entered upon a term of imprisonment
in a penal or correctional institution of a party State, and
whenever during the continuance of the term of imprisonment there
is pending in any other party State any untried indictment,
information, or complaint on the basis of which a detainer has been
lodged against the prisoner, he shall be brought to trial within
one hundred and eighty days after he shall have caused to be
delivered to the prosecuting officer and the appropriate court of
the prosecuting officer's jurisdiction written notice of the place
of his imprisonment and his request for a final disposition to be
made of the indictment, information, or complaint:
Provided,
That, for good cause shown in open court, the prisoner or his
counsel being present, the court having jurisdiction of the matter
may grant any necessary or reasonable continuance. The request of
the prisoner shall be accompanied by a certificate of the
appropriate official having custody of the prisoner, stating the
term of commitment under which the prisoner is being held, the time
already served, the time remaining to be served on the sentence,
the amount of good time earned, the time of parole eligibility of
the prisoner, and any decision of the State parole agency relating
to the prisoner.
"(b) The written notice and request for final disposition
referred to in paragraph (a) hereof shall be given or sent by the
prisoner to the warden, commissioner of corrections, or other
official having custody of him, who shall promptly forward it
together with the certificate to the appropriate prosecuting
official and court by registered or certified mail, return receipt
requested.
"(c) The warden, commissioner of corrections, or other official
having custody of the prisoner shall promptly inform him of the
source and contents of any detainer lodged against him and shall
also inform him of his right to make a request for final
disposition of the indictment, information, or complaint on which
the detainer is based."
Article V(c) of the lAD provides, in relevant part:
"[I]n the event that an action on the indictment, information,
or complaint on the basis of which the detainer has been lodged is
not brought to trial within the period provided in article III ...
hereof, the appropriate court of the jurisdiction where the
indictment, information, or complaint
46
On February 29, 1988, petitioner was charged in Jackson County,
Michigan, with armed robbery, possession of a firearm during a
felony, and assault with intent to murder. At the time, he was held
in connection with unrelated offenses at the Westville Correctional
Center in Westville, Indiana. The Jackson County Prosecuting
Attorney therefore lodged a detainer against him. On September 7,
1988, the Indiana correctional authorities informed petitioner of
the detainer, and he gave them his request for final disposition of
the Michigan charges. On September 22, the prison authorities
mailed petitioner's request; and on September 26, 1988, the Jackson
County Prosecuting Attorney and the Jackson County Circuit Court
received it. Petitioner's trial on the Michigan charges began on
March 22, 1989, 177 days after his request was delivered to the
Michigan officials and 196 days after petitioner gave his request
to the Indiana prison authorities. 439 Mich. 117, 118, 479 N. W. 2d
625 (1992) (per curiam).
Prior to trial, petitioner moved for dismissal with prejudice
pursuant to Article V(c) of the lAD, on the ground that his trial
would not begin until after the 180-day time limit set forth in
Article III(a). The trial court denied the motion, reasoning that
the 180-day time period did not commence until the Michigan
prosecutor's office received petitioner's request. App. 36.
Petitioner was convicted on all charges except assault with intent
to murder, but his conviction was set aside by the Michigan Court
of Appeals, which held that "the commencement of the 180-day
statutory period was triggered by [petitioner's] request for final
disposition to the [Indiana] prison officials."
Id., at 39.
The Supreme Court of Michigan summarily reversed. 439 Mich. 117,479
N. W. 2d 625 (1992) (per curiam). We granted certiorari. 504 U. S.
908 (1992).
has been pending shall enter an order dismissing the same with
prejudice, and any detainer based thereon shall cease to be of any
force or effect."
47
The outcome of the present case turns upon the meaning of the
phrase, in Article III(a), "within one hundred and eighty days
after he shall have caused to be delivered." The issue,
specifically, is whether, within the factual context before us,
that phrase refers to (1) the time at which petitioner transmitted
his notice and request (hereinafter simply "request") to the
Indiana correctional authorities; or rather (2) the time at which
the Michigan prosecutor and court (hereinafter simply "prosecutor")
received that request.
Respondent argues that no one can have "caused something to be
delivered" unless delivery in fact occurs. That is self-evidently
true,2 and so we must reject petitioner's contention that a
prisoner's transmittal of an lAD request to
2 Not, however, to the dissent: "The fact that the rule for
marking the start of the 180-day period is written in a fashion
that contemplates actual delivery ... does not mean that it cannot
apply if the request is never delivered."
Post, at 55. Of
course it vastly understates the matter to say that the provision
is "written in a fashion that contemplates actual delivery," as one
might say Hamlet was written in a fashion that contemplates
16th-century dress. Causation of delivery is the very condition of
this provision's operation-and the dissent says it does not matter
whether delivery is caused.
The dissent asserts that "the logical way to express the idea
that receipt must be perfected before the provision applies would
be to start the clock 180 days 'after he has caused the request
to have been delivered.''' Post, at 53. But that
reformulation changes the meaning in two respects that have nothing
to do with whether receipt must be perfected: First, by using the
perfect indicative ("after he has caused") rather than the future
perfect ("after he shall have caused"), it omits the notion that
the "causing" is to occur not merely before the statutory deadline,
but
in the future; second, by using the perfect infinitive
("to have been delivered") rather than the present ("to be
delivered"), it adds the utterly fascinating notion that the
receipt is to occur before the causing of receipt. The omission of
futurity and the addition of a requirement of antecedence are the
only differences between saying, for example, "after he shall have
found the hostages to be well treated" and "after he has found the
hostages to have been well treated." In both cases good treatment
must be established, just as under both the statutory text and the
dissent's reformulation delivery must be established.
48
the prison authorities commences the 180-day period even if the
request gets lost in the mail and is never delivered to the
"receiving" State (i.
e., the State lodging the detainer,
see Article lI(c)). That still leaves open the textual possibility,
however, that,
once delivery has been made, the 180 days
must be computed, not from the date of delivery but from the date
of transmittal to the prison authorities. That is the only
possibility the balance of our discussion will consider; and for
convenience we shall refer to it as petitioner's
interpretation.
Respondent places great reliance upon the provision's use of the
future perfect tense
("shall have caused to be delivered").
It seems to us, however, that the future perfect would be an
appropriate tense for both interpretations:
The prisoner's transmittal of his request to the warden (if that
is the triggering event), or the prosecutor's receipt of the
request (if that is the triggering event), is to be completed
("perfected") at some date in the future (viewed from the time of
the lAD's adoption) before some other date in the future that is
under discussion (expiration of the 180 days). We think it must be
acknowledged that the language will literally
bear either
interpretation-i.
e., that the crucial point is the
prisoner's transmittal of his request, or that it is the
prosecutor's receipt of the request. One can almost be induced to
accept one interpretation or the other on the basis of which words
are emphasized: "shall have
caused to be delivered"
versus "shall have caused to be
delivered."3
3 The dissent contends that the phrase "he shall have caused"
puts the focus "on the prisoner's act, and that act is complete
when he transmits his request to the warden."
Ibid. It is
not evident to us that the act of "causing to be delivered" is
complete before delivery. Nor can we agree that, unless it has the
purpose of starting the clock running upon transmittal to the
warden, the phrase "he shall have caused" is "superfluous."
Ibid. It sets the stage for the succeeding paragraph, making
it clear to the reader that the notice at issue is a notice which
(as paragraph (b) will clarify) the prisoner is charged with
providing.
49
Though the text alone is indeterminate, we think resolution of
the ambiguity is readily to be found in what might be called the
sense of the matter, and in the import of related provisions. As to
the former: Petitioner would have us believe that the choice of
"triggers" for the iSO-day time period lies between, on the one
hand, the date the request is received by the prosecutor and, on
the other hand, the date the request is delivered to the warden of
the prison. In fact, however, while the former option is clearly
identified by the textual term "delivered," there is no textual
identification of a clear alternative at the other end. If one
seeks to determine the moment at which a prisoner "caused" the
later delivery of a properly completed request, nothing in law or
logic suggests that it must be when he placed the request in the
hands of the warden. Perhaps it was when he gave the request to a
fellow inmate to deliver to the warden-or even when he
mailed it to the warden (Article III(b) provides that the
request "shall be given
or sent by the prisoner to the
warden" (emphasis added)). It seems unlikely that a legislature
would select, for the starting point of a statute of limitations, a
concept so indeterminate as "caused." It makes more sense to think
that, as respondent contends, delivery is the key concept, and that
paragraph (a) includes the notion of causality (rather than
referring simply to "delivery" by the prisoner) merely to be more
precise, anticipating the requirement of paragraph (b) that
delivery be made
by the warden upon the prisoner's
initiation.
Another commonsense indication pointing to the same conclusion
is to be found in what might be termed (in current political
jargon) the "worst-case scenarios" under the two interpretations of
the lAD. Under respondent's interpretation, it is possible that a
warden, through negligence or even malice, can delay forwarding of
the request and thus postpone the starting of the iSO-day clock. At
worst, the prisoner (if he has not checked about the matter for
half a year) will not learn about the delay until several hundred
days
50
have elapsed with no trial. The result is that he will spend
several hundred additional days under detainer (which entails
certain disabilities, such as disqualification from certain
rehabilitative programs, see
United States v.
Mauro,
436 U. S. 340, 359 (1978)), and will have his trial delayed
several hundred days.4 That result is bad, given the intent of the
lAD. It is, however, no worse than what regularly occurred before
the lAD was adopted, and in any event cannot be entirely avoided by
embracing petitioner's view that transmittal to the warden is the
measuring event. As we have said, the lAD unquestionably requires
delivery, and only after that has occurred can one entertain
the possibility of counting the 180 days from the transmittal to
the warden. Thus, the careless or malicious warden, under
petitioner's interpretation, may be unable to
delay
commencement of the 180-day period, but can
prevent it
entirely, by simply failing to forward the request. More
importantly, however, the worst-case scenario under petitioner's
interpretation produces results that are significantly worse: If,
through negligence of the warden, a prisoner's lAD request is
delivered to the prosecutor more than 180 days after it was
transmitted to the warden, the prosecution will be precluded before
the prosecutor even knows it has been requested. I t is possible,
though by no means certain, that this consequence could be avoided
by the receiving state court's invocation of
4 There is no substance to the dissent's assertion that one of
the "reasonEs] for the lAD's creation" was to prevent the inmate
from being "deprived of an opportunity to obtain a sentence to run
concurrently with the sentence being served at the time the
detainer is filed."
Post, at 56, 57 (citations and internal
quotation marks omitted). Since the lAD does not
require
detainers to be filed, giving a prisoner the opportunity to achieve
concurrent sentencing on outstanding offenses is obviously an
accidental consequence of the scheme rather than its objective.
Moreover, we are unaware of any studies showing that judges willing
to impose concurrent sentences are
not willing (in the same
circumstances) to credit out-of-state time. If they are (as they
logically should be), the opportunity of obtaining a concurrent
sentence would ordinarily have zero value.
51
the "good-cause continuance" clause of Article III(a) 5-but it
seems to us implausible that such a plainly undesirable result was
meant to be avoided only by resort to the (largely discretionary)
application of that provision. It is more reasonable to think that
the receiving State's prosecutors are in no risk of losing their
case until they have been
informed of the request for
trial.
Indications in the text of Article III confirm, in our view,
that the receiving State's receipt of the request starts the clock.
The most significant is the provision of Article III(b) requiring
the warden to forward the prisoner's request and accompanying
documents "by registered or certified mail, return receipt
requested." The lAD thus provides for documentary evidence of the
date on which the request is delivered to the officials of the
receiving State, but requires no record of the date on which it is
transmitted to the warden (assuming that is to be considered the
act of "causing"). That would be peculiar if the latter rather than
the former were the critical date. Another textual clue, we think,
is the lAD's apparent indifference as to the manner of transmittal
to the warden: Article III(b) says only that the request "shall be
given or sent by the prisoner to the warden" (emphasis
added). A strange nonchalance, if the giving or sending (either
one) is to start the 180 days. Petitioner avoids this difficulty by
simply positing that it is the warden's
receipt, no matter
what the manner of giving or sending, that starts the clock-but
there is simply no textual
5 Some courts have held that a continuance must be requested and
granted before the 180-day period has expired. See,
e. g.,
Dennett v.
State, 19 Md. App. 376, 381, 311 A. 2d 437,
440 (1973) (citing
Hoss v.
State, 266 Md. 136, 143,
292 A. 2d 48, 51 (1972));
Commonwealth v.
Fisher, 451
Pa. 102, 106, 301 A. 2d 605, 607 (1973);
State v.
Patterson, 273 S. C. 361, 363,256 S. E. 2d 417, 418 (1979).
But see,
e. g., State v.
Lippolis, 107 N. J. Super.
137, 147,257 A. 2d 705, 711 (App. Div. 1969), rev'd, 55 N. J. 354,
262 A. 2d 203 (1970)
(per curiam) (reversing on reasoning of
dissent in Appellate Division). We express no view on this
point.
52
basis for that; surely the "causing" which petitioner considers
central occurs upon the giving or sending.
Petitioner makes the policy argument that "[f]airness requires
the burden of compliance with the requirements of the lAD to be
placed entirely on the law enforcement officials involved, since
the prisoner has little ability to enforce compliance," Brief for
Petitioner 8, and that any other approach would "frustrate the
higher purpose" of the lAD, leaving "neither a legal nor a
practical limit on the length of time prison authorities could
delay forwarding a [request]," id., at 20. These arguments,
however, assume the availability of a reading that would give
effect to a request that is never delivered
at all.
(Otherwise, it remains within the power of the warden to frustrate
the lAD by simply not forwarding.) As we have observed, the textual
requirement "shall have caused to be delivered" is simply not
susceptible of such a reading. Petitioner's "fairness" and "higher
purpose" arguments are, in other words, more appropriately
addressed to the legislatures of the contracting States, which
adopted the lAD's text.
Our discussion has addressed only the second question presented
in the petition for writ of certiorari; we have concluded that our
grant as to the first question was improvident, and do not reach
the issue it presents. We hold that the i80-day time period in
Article III(a) of the lAD does not commence until the prisoner's
request for final disposition of the charges against him has
actually been delivered to the court and prosecuting officer of the
jurisdiction that lodged the detainer against him. The judgment of
the Supreme Court of Michigan is affirmed.
It is so ordered.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins,
dissenting.
I am not persuaded that the language of Article III is
ambiguous. The majority suggests that a search for the literal
53
meaning of the contested phrase comes down to an unresolvable
contest between a reading that emphasizes the word "caused" and one
that emphasizes the word "delivered." But Article III contains
another word that is at least as significant. That word favors
petitioner's interpretation. The word is "he." The 180-day clock
begins after
he-the prisoner-"shall have caused" the request
to be delivered. The focus is on the prisoner's act, and that act
is complete when he transmits his request to the warden. That is
the last time at which the inmate can be said to have done anything
to "have caused to be delivered" the request. Any other reading
renders the words "he shall have caused" superfluous.
Even if the provision's focus on the prisoner's act were not so
clear, the statute could not be read as Michigan suggests. The
provision's use of the future perfect tense is highly significant.
Contrary to the majority's contention that "the future perfect
would be an appropriate tense for both interpretations,"
ante, at 48, the logical way to express the idea that
receipt must be perfected before the provision applies would be to
start the clock 180 days "after he has caused the request
to
have been delivered." But the lAD does not say that, nor does
it use the vastly more simple, "after delivery."
That this construction was intentional is supported by the
drafting history of the lAD. When the Council of State Governments
proposed the agreement governing interstate detainers, it also
proposed model legislation governing intrastate detainers. See
Suggested State Legislation Program for 1957, pp. 77-78 (1956).
Both proposals contained language virtually identical to the
language in Article III(a). See id., at 77. The Council stated that
the intrastate proposal was "based substantially on statutes now
operative in California and Oregon."
Id., at 76. Critically,
however, neither State's provision referred to a delivery "caused"
by the prisoner. The Oregon statute required trial "within 90 days
of receipt" by the district attorney of the prisoner's
54
notice, Act of Apr. 29, 1955, ch. 387, § 2(1), 1955 Ore. Laws
435, and the California law required trial "within ninety days
after [he] shall have delivered" his request to the prosecutor, Act
of May 28, 1931, ch. 486, § 1, 1931 Cal. Stats. 1060-1061. If, as
Michigan insists here, see Tr. of Oral Arg. 23, 26, 37, the
Council's use of "caused to be delivered" was somehow meant to
convey "actual receipt," then the drafters' failure to follow the
clear and uncomplicated model offered by the Oregon provision is
puzzling in the extreme. When asked at oral argument about this
failure, counsel for
amicus the United States replied that
"the problem with using the verb receive rather than the verb
deliver in Article III is that ... [t]hat would shift the focus
away from the prisoner, and the prisoner has a vital role under
article III ... because he initiates the process."
Id., at
41. I submit that the focus on the prisoner is precisely the point,
and that the reason the drafters used the language they did is
because the 180day provision is triggered by the action of the
inmate.
Nevertheless, the majority finds the disputed language to be
ambiguous,
ante, at 47-48, and it exhibits no interest in
the history of the lAD. Instead, the majority asserts that the
answer to the problem is to be found in "the sense of the matter."
Ante, at 49. But petitioner's reading prevails in the arena
of "sense," as well.
I turn first to the majority's assumption that the 180-day
provision is not triggered if the request is never delivered.
Because "the lAD unquestionably requires
delivery, and only
after that has occurred can one entertain the possibility of
counting the 180 days from the transmittal to the warden,"
ante, at 50, the majority attacks as illogical a reading
under which the negligent or malicious warden-who can prevent
entirely the operation of the 180-day rule simply by failing to
forward the prisoner's request-could not
delay the starting
of the clock.
Ante, at 49-50. That premise is flawed.
Obviously, the rule anticipates actual delivery. Article III(b)
requires prison officials to forward a prisoner's request
55
promptly, as well. The fact that the rule for marking the start
of the 180-day period is written in a fashion that contemplates
actual delivery, however, does not mean that it cannot apply if the
request is never delivered. Although the lAD assumes that its
signatories will abide by its terms, I find nothing strange in the
notion that the 180-day provision might be construed to apply as
well to an unanticipated act of bad faith.1
Even on its own terms, the majority's construction is not
faithful to the purposes of the lAD. The lAD's primary purpose is
not to protect prosecutors' calendars, or even to protect
prosecutions, but to provide a swift and certain means for
resolving the uncertainties and alleviating the disabilities
created by outstanding detainers. See Article I;
Carchman v.
Nash, 473 U.
S. 716, 720 (1985); Note, The Effect of Violations of the
Interstate Agreement on Detainers on Subject Matter Jurisdiction,
54 Ford. L. Rev. 1209, 1210, n. 12 (1986). If the 180 days from the
prisoner's invocation of the lAD is allowed to stretch into 200 or
250 or 350 days, that purpose is defeated.
In each of this Court's decisions construing the lAD, it
properly has relied upon and emphasized the purpose of the lAD. See
Carchman v.
Nash, 473 U. S., at 720, 729-734;
Cuyler v.
Adams, 449 U. S. 433, 448-450
(1981);
United
1 For the prisoner aggrieved by a flagrant violation of the lAD,
other remedies also may be available. The Courts of Appeals have
split over the question of an lAD violation's cognizability on
habeas. Compare,
e. g.,
Kerr v.
Finkbeiner,
757 F.2d
604 (CA4) (denying habeas relief), cert. denied,
474 U. S. 929
(1985), with
United States v.
Williams, 615 F.2d
585, 590 (CA3 1980) (lAD violation cognizable on habeas). See
generally M. Mushlin & F. Merritt, Rights of Prisoners 324
(Supp. 1992); Note, The Effect of Violations of the Interstate
Agreement on Detainers on Subject Matter Jurisdiction, 54 Ford. L.
Rev. 1209,1212-1215 (1986); Note, Federal Habeas Corpus Review of
Nonconstitutional Errors: The Cognizability of Violations of the
Interstate Agreement on Detainers, 83 Colum. L. Rev. 975 (1983). At
argument, the State and the United States, respectively, suggested
that a sending State's failures can be addressed through a 42 U. S.
C. § 1983 suit, Tr. of Oral Arg. 33, or a mandamus action, id., at
44.
56
States v.
Mauro, 436 U. S. 340, 361-362
(1978). The majority, however, gives that purpose short shrift,
focusing instead on "worst-case scenarios,"
ante, at 49, and
on an assessment of the balance of harms under each interpretation.
Two assumptions appear to underlie that inquiry. The first-evident
in the cursory and conditional nature of the concession that to
spend several hundred additional days under detainer "is bad, given
the intent of the lAD,"
ante, at 50-is that the burden of
spending extra time under detainer is relatively minor. The failure
to take seriously the harm suffered by a prisoner under detainer is
further apparent in the majority's offhand and insensitive
description of the practical impact of such status. To say that the
prisoner under detainer faces "certain disabilities, such as
disqualification from certain rehabilitative programs," ibid., is
to understate the matter profoundly. This Court pointed out in
Carchman v.
Nash, that the prisoner under detainer
bears a very heavy burden:
"'[T]he inmate is (1) deprived of an opportunity to obtain a
sentence to run concurrently with the sentence being served at the
time the detainer is filed; (2) classified as a maximum or close
custody risk; (3) ineligible for initial assignments to less than
maximum security prisons (i. e., honor farms or forestry camp
work); (4) ineligible for trustee [sic] status; (5) not allowed to
live in preferred living quarters such as dormitories; (6)
ineligible for study-release programs or work-release programs; (7)
ineligible to be transferred to preferred medium or minimum custody
institutions within the correctional system, which includes the
removal of any possibility of transfer to an institution more
appropriate for youthful offenders; (8) not entitled to preferred
prison jobs which carry higher wages and entitle [him] to
additional good time credits against [his] sentence; (9) inhibited
by the denial of possibility of parole or any commutation of his
sentence; (10) caused anxiety and
57
thus hindered in the overall rehabilitation process since he
cannot take maximum advantage of his institutional opportunities.'"
473 U. S., at 730, n. 8, quoting Cooper v. Lockhart,
489 F.2d
308, 314, n. 10 (CA8 1973).
These harms are substantial and well recognized. See,
e.
g.,
Smith v.
Hooey, 393 U. S. 374, 379
(1969);
United States v.
Ford, 550
F.2d 732, 737-740 (CA2 1977) (citing cases), aff'd
sub nom.
United States v.
Mauro, 436 U. S. 340 (1978); L.
Abramson, Criminal Detainers 29-34 (1979); Note, 54 Ford. L. Rev.,
at 1210, n. 12. More important for our purposes, they were the
reason for the lAD's creation in the first place. The majority's
sanguine reassurance that delays of several hundred days, while
"bad," are "no worse than what regularly occurred before the lAD
was adopted,"
ante, at 50, is thus perplexing. The fact that
the majority's reading leaves prisoners no worse off than if the
lAD had never been adopted proves nothing at all, except perhaps
that the majority's approach nullifies the ends that the lAD was
meant to achieve. Our task, however, is not to negate the lAD but
to interpret it. That task is impossible without a proper
understanding of the seriousness with which the lAD regards the
damage done by unnecessarily long periods spent under detainer.
The majority's misunderstanding of the stakes on the inmate's
side of the scale is matched by its miscalculation of the interest
of the State. It is widely acknowledged that only a fraction of all
detainers ultimately result in conviction or further imprisonment.
See J. Gobert & N. Cohen, Rights of Prisoners 284 (1981);
Dauber, Reforming the Detainer System: A Case Study, 7 Crim. L.
Bull. 669, 689-690 (1971); Note, 54 Ford. L. Rev., at 1210, n. 12.
It is not uncommon for a detainer to be withdrawn just prior to the
completion of the prisoner's sentence. See
Carchman v.
Nash, 473 U. S., at 729-730; Note, 54 Ford. L. Rev., at
1210, n. 12; Comment, Interstate Agreement on Detainers and the
Rights It Created, 18 Akron L. Rev. 691, 692 (1985). All too
often,
58
detainers are filed groundlessly or even in bad faith, see
United States v.
Mauro, 436 U. S., at 358, and n. 25,
solely for the purpose of harassment, see
Carchman v.
Nash, 473 U. S., at 729, n. 6. For this reason, Article III
is intended to provide the prisoner" 'with a procedure for bringing
about a prompt test of the substantiality of detainers placed
against him by other jurisdictions.'"
Id., at 730, n. 6
(quoting House and Senate Reports).
These two observations-that detainers burden prisoners with
onerous disabilities and that the paradigmatic detainer does not
result in a new conviction-suggest that the majority has not
properly assessed the balance of interests that underlies the lAD's
design. Particularly in light of Article IX's command that the lAD
"shall be liberally construed so as to effectuate its purposes," I
find the majority's interpretation, which countenances lengthy and
indeterminate delays in the resolution of outstanding detainers,
impossible to sustain.
Finally, I must emphasize the somewhat obvious fact that a
prisoner has no power of supervision over prison officials. Once he
has handed over his request to the prison authorities, he has done
all that he can do to set the process in motion. For that reason,
this Court held in
Houston v.
Lack, 487 U. S. 266 (1988),
that a
pro se prisoner's notice of appeal is "filed" at the
moment it is conveyed to prison authorities for forwarding to the
district court. Because of the prisoner's powerlessness, the lAD's
inmate-initiated 180day period serves as a useful incentive to
prison officials to forward lAD requests speedily. The Solicitor
General asserts that the prisoner somehow is in a better position
than are officials in the receiving State to ensure that his
request is forwarded promptly, because, for example, "the prisoner
can insist that he be provided with proof that his request has been
mailed to the appropriate officials." Brief for United States as
Amicus Curiae 16-17. This seems to me to be severely out of
touch with reality. A prisoner's demands
59
cannot be expected to generate the same degree of concern as do
the inquiries and interests of a sister State. Because of the lAD's
reciprocal nature, the signatories, who can press for a speedy
turnaround from a position of strength, are far better able to bear
the risk of a failure to meet the 180day deadline.2
The lAD's 180-day clock is intended to give the prisoner a lever
with which to move forward a process that will enable him to know
his fate and perhaps eliminate burdensome conditions. It makes no
sense to interpret the lAD so as to remove from its intended
beneficiary the power to start that clock. Accordingly, I
dissent.
2 Even the Solicitor General acknowledged that "a State that has
been negligent in fulfilling its duty may well be subject to
political pressure from other States that are parties to the lAD."
Tr. of Oral Arg. 44. The fact that nevertheless in some cases the
ISO-day rule may cause legitimate cases to be dismissed is no small
matter, but dismissal is, after all, the result mandated by the
lAD. Moreover, where a diligent prosecutor is surprised by the late
arrival of a request, I would expect that, under appropriate
circumstances, a good-cause continuance would be in order. See
Article III (a). (I acknowledge, however, that, as the majority
points out,
ante, at 51, n. 5, some courts have refused to
grant a continuance after the expiration of the ISO-day period.)
The majority finds this obvious solution "implausible," but to me
it is far more plausible than a regime under which the inmate is
expected to "insist" that recalcitrant prison authorities move more
quickly.
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