OCTOBER TERM, 1999
Syllabus
JOHNSON
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 99-5153. Argued February 22, 2000-Decided May 15,2000
The Sentencing Reform Act of 1984 replaced most forms of parole
with supervised release overseen by the sentencing court. If
release conditions are violated, that court may "revoke [the]
release, and require the person to serve in prison all or part of
the [supervised release] term ... without credit for time
previously served on postrelease supervision .... " 18 U. S. C. §
3583(e)(3). In March 1994, the District Court sentenced petitioner
Johnson to imprisonment followed by a term of supervised release.
After beginning supervised release in 1995, Johnson violated two
conditions of his release. The District Court revoked his release
and ordered him to serve an 18-month prison term to be followed by
an additional 12 months of supervised release. The court cited no
authority for ordering additional supervised release, but, under
Circuit law, it might have relied on 18 U. S. C. § 3583(h), a
subsection added to the statute in 1994, which explicitly gave
district courts that power. Johnson appealed, arguing that §
3583(e)(3) did not give the district courts power to order a new
supervised release term following reimprisonment, and that applying
§ 3583(h) to him violated the
Ex Post Facto Clause. Although
the Sixth Circuit had previously taken the same position as Johnson
with regard to § 3583(e)(3), it affirmed his sentence, reasoning
that § 3583(h)'s application was not retroactive because revocation
of supervised release was punishment for Johnson's violation of his
release conditions, which occurred after the 1994 amendments.
Held:
1. Section 3583(h) does not apply retroactively, so no
ex
post facto issue arises in this case. To prevail on his
ex
post facto claim, Johnson must show,
inter alia, that
the law operates retroactively. Contrary to the Sixth Circuit's
reasoning, postrevocation penalties are attributable to the
original conviction, not to defendants' new offenses for violating
their supervised release conditions. Thus, to sentence Johnson
under § 3583(h) would be to apply that section retroactively.
However, absent a clear statement of congressional intent, §
3583(h) applies only to cases in which the initial offense occurred
after the amendment's effective date, September 13, 1994. The
Government offers nothing indicating a contrary intent. The
decision to alter § 3583(e)(3)'s supervised release
695
rule does not reveal when or how that legislative decision was
intended to take effect; and the omission of an express effective
date simply indicates that, absent clear congressional direction,
it takes effect on its enactment date,
Gozlon-Peretz v.
United States, 498 U. S. 395,404. Nor
did Congress expressly identify the relevant conduct in a way that
would point to retroactive intent. Thus, this case turns not on an
ex post facto question, but on whether § 3583(e)(3)
permitted imposition of supervised release following a
recommitment. Pp.699-703.
2. Section 3583(e)(3), at the time of Johnson's conviction, gave
the District Court the authority to reimpose supervised release.
Subsection (e)(3) does not speak directly to this question. And if
the Court were to concentrate exclusively on the verb "revoke," it
would not detect any suggestion that reincarceration might be
followed by another supervised release term, for the conventional
understanding of "revoke" is to annul by recalling or taking back.
However, there are textual reasons to think that the option of
further supervised release was intended. Subsection (e)(l)
unequivocally "terminate[s]" a supervised release term without the
possibility of its reimposition or continuation at a later time.
Had Congress likewise meant subsection (3) to conclude any
possibility of supervised release later, it would have been natural
for Congress to write in like terms. That it chose "revoke" rather
than "terminate" left the door open to a reading of subsection (3)
that would not preclude further supervised release. The pre-1994
version of subsection (3) provided that a court could revoke a term
of supervised release and require the person to serve in prison all
or part of the "term of supervised release." This indicates that a
revoked supervised release term continues to have some effect. If
it could be served in prison, then the balance of it should remain
effective when the reincarceration is over. This interpretation
means that Congress used "revoke" in an unconventional way.
However, the unconventional sense is not unheard of, for "revoke"
can also mean to call or summon back without the implication of
annulment. There is nothing surprising about the consequences of
this reading. It also serves the congressional policy of providing
for supervised release after incarceration in order to improve the
odds of a successful transition from prison to liberty, and no
prisoner would seem to need it more than one who has tried liberty
and failed. This reading is also supported by
pre-Sentencing-Guidelines parole practice. Congress repeatedly used
"revoke" in providing for the consequences of parole violations,
and there seems never to have been a question that a new parole
term could follow a prison sentence imposed after revocation of an
initial parole term. Since parole revocation followed by rein
carceration was not a mere termination of a limited liberty that a
defendant could experience only once per conviction, it is fair to
suppose that,
696
absent some textual bar, revocation of parole's replacement,
supervised release, was meant to leave open the possibility of
further supervised release, as well. "Revoke" is no such bar, and
the Court finds no other. Pp.703-713.
181 F.3d
105, affirmed.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ.,
joined, and in which KENNEDY, J., joined in part. KENNEDY, J.,
filed an opinion concurring in part,
post, p. 713. THOMAS,
J., filed an opinion concurring in the judgment,
post, p.
715. SCALIA, J., filed a dissenting opinion,
post, p.
715.
Rita C. LaLumia argued the cause for petitioner. With her on the
briefs were Leah
J. Prewitt, David F. Ness, Jeffrey T.
Green, and Joseph S. Miller.
Paul R.
Q. Wolfson argued the cause for the United
States. With him on the brief were Solicitor General Waxman,
Assistant Attorney General Robinson, Deputy Solicitor General
Dreeben, and Richard A. Friedman.
*
JUSTICE SOUTER delivered the opinion of the Court.
The issue in this case grows out of an
Ex Post Facto
Clause challenge to the retroactive application of 18 U. S. C. §
3583(h), which authorizes a district court to impose an additional
term of supervised release following the reimprisonment of those
who violate the conditions of an initial term. The United States
argues that district courts had the power to do so under the prior
law, and that this cures any
ex post facto problems. We
agree with the Government as to the interpretation of prior law,
and we find that consideration of the
Ex Post Facto Clause
is unnecessary.
I
In the Sentencing Reform Act of 1984, § 212(a)(2), 98 Stat.
1999, Congress eliminated most forms of parole in favor of
* Edward M. Chikofsky and
Barbara E.
Bergman filed a brief for the National Association of Criminal
Defense Lawyers et al. as
amici curiae urging reversal.
697
supervised release, a form of postconfinement monitoring
overseen by the sentencing court, rather than the Parole
Commission. See
Gozlon-Peretz v.
United States,
498 U. S. 395,
400-401 (1991). The sentencing court was authorized to impose a
term of supervised release to follow imprisonment, with the maximum
length of the term varying according to the severity of the initial
offense. See 18 U. S. C. §§ 3583(a), (b). While on supervised
release, the offender was required to abide by certain conditions,
some specified by statute and some imposable at the court's
discretion. See § 3583(d). Upon violation of a condition, 18 U. S.
C. § 3583(e)(3) (1988 ed., Supp. V) authorized the court to "revoke
a term of supervised release, and require the person to serve in
prison all or part of the term of supervised release without credit
for time previously served on post-release supervision .... " 1
Such was done here.
In October 1993, petitioner Cornell Johnson violated 18 U. S. C.
§ 1029(b)(2), a Class D felony. In March 1994, the United States
District Court for the Eastern District of Tennessee sentenced him
to 25 months' imprisonment, to be followed by three years of
supervised release, the maximum term available under § 3583(b) for
a Class D felony. Johnson was released from prison on August 14,
1995, having received good-conduct credits, and began serving his
3-year term of supervised release. Some seven months into that
term, he was arrested in Virginia and later convicted of four state
forgery-related offenses. He was thus found to have violated one of
the conditions of supervised release made mandatory by § 3583(d),
that he not commit another crime during his term of supervised
release, and one imposed by the District Court, that he not leave
the judicial district without permission.
1 The current version of § 3583(e )(3) reads slightly
differently, but for reasons discussed below, we focus on the law
in effect at the time of Johnson's initial crime.
698
The District Court revoked Johnson's supervised release, imposed
a prison term of 18 months, and ordered Johnson placed on
supervised release for 12 months following imprisonment. App.
40-41. For this last order, the District Court did not identify the
source of its authority, though under Circuit law it might have
relied on § 3583(h), a subsection added to the statute in 1994, see
Violent Crime Control and Law Enforcement Act of 1994, §
1l0505(2)(B), 108 Stat. 2017. Subsection (h) explicitly gave
district courts the power to impose another term of supervised
release following imprisonment, a power not readily apparent from
the text of § 3583(e)(3) (set out
infra, at 704).
Johnson appealed his sentence, arguing that § 3583(e)(3) gave
district courts no such power and that applying § 3583(h) to him
violated the
Ex Post Facto Clause of the Constitution, Art.
I, § 9. The Sixth Circuit, joining the majority of the Federal
Courts of Appeals, had earlier taken Johnson's position as far as
the interpretation of § 3583(e)(3) was concerned, holding that it
did not authorize a district court to impose a new term of
supervised release following revocation and reimprisonment. See
United States v.
Truss, 4 F.3d
437 (CA6 1993).2 It nonetheless affirmed the District
Court, judgt. order reported at
181 F.3d
105 (1999), reasoning that the application of § 3583(h) was not
retroactive at all, since revocation of supervised release was
punishment for Johnson's violation of the conditions of
supervised
2 Of the 11 Circuits to consider the issue, 9 had reached this
conclusion.
See, e. g., United States v. Koehler,
973
F.2d 132 (CA2 1992); United States v. Malesic,
18 F.3d
205 (CA3 1994); United States v. Cooper,
962
F.2d 339 (CA4 1992); United States v. Holmes,
954 F.2d
270 (CA5 1992); United States v. Truss,
4 F.3d
437 (CA6 1993); United States v. McGee,
981
F.2d 271 (CA7 1992); United States v. Behnezhad,
907 F.2d
896 (CA9 1990); United States v. Rockwell,
984 F.2d
1112 (CAlO 1993); United States v. Tatum,
998
F.2d 893 (CAll 1993). Two, the First and the Eighth, found that
§ 3583(e)(3) did grant district courts such power. See United
States v. O'Neil,
11 F.3d
292 (CA1 1993); United States v. Schrader,
973 F.2d
623 (CA8 1992).
699
release, which occurred after the 1994 amendments. With no
retroactivity, there could be no
Ex Post Facto Clause
violation. See App. 49 (citing
United States v.
Abbington, 144 F.3d
1003, 1005
(CA6), cert. denied, 525 U. S. 933 (1998)).
Other Circuits had held to the contrary, that revocation and
reimprisonment were punishment for the original offense. From that
perspective, application of § 3583(h) was retroactive and at odds
with the
Ex Post Facto Clause.3 We granted certiorari to
resolve the conflicts, 528 U. S. 950 (1999), and now affirm.
II
The heart of the
Ex Post Facto Clause, U. S. Const., Art.
I, § 9, bars application of a law "that changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime,
when committed .... "
Calder v.
Bull, 3 Dall. 386,
390 (1798) (emphasis deleted). To prevail on this sort of
ex
post facto claim, Johnson must show both that the law he
challenges operates retroactively (that it applies to conduct
completed before its enactment) and that it raises the penalty from
whatever the law provided when he acted. See
California Dept. of
Corrections v.
Morales, 514 U. S. 499, 506-507,
n. 3 (1995).
A
The Sixth Circuit, as mentioned earlier, disposed of the
ex
post facto challenge by applying its earlier cases holding the
application of § 3583(h) not retroactive at all: revocation
3 See,
e. g., United States v.
Eske,
189 F.3d
536, 539
(CA7 1999);
United States v.
Lominae, 144 F.3d
308, 312
(CA4 1998);
United States v.
Dozier, 119 F.3d
239, 241
(CA3 1997);
United States v.
Collins, 118 F.3d
1394, 1397
(CA9 1997);
United States v.
Meeks, 25 F.3d
1117, 1124
(CA2 1994) (addressing § 3583(g)). In
contrast to these cases, the First and Eighth Circuits, relying on
their broader construction of § 3583(e)(3), concluded that
application of § 3583(h) did not violate the
Ex Post Facto
Clause. See
United States v.
Sandoval, 69 F.3d
531 (CA1 1995) (unpublished), cert. denied, 519 U. S.
821 (1996);
United States v.
St. John, 92 F.3d
761 (CA8 1996).
700
of supervised release "imposes punishment for defendants' new
offenses for violating the conditions of their supervised release."
United States v.
Page, 131 F.3d
1173, 1176 (1997). On this theory, that is, if the violation of
the conditions of supervised release occurred after the enactment
of § 3583(h), as Johnson's did, the new law could be given effect
without applying it to events before its enactment.
While this understanding of revocation of supervised release has
some intuitive appeal, the Government disavows it, and wisely so in
view of the serious constitutional questions that would be raised
by construing revocation and reimprisonment as punishment for the
violation of the conditions of supervised release. Although such
violations often lead to reimprisonment, the violative conduct need
not be criminal and need only be found by a judge under a
preponderance of the evidence standard, not by a jury beyond a
reasonable doubt. See 18 U. S. C. § 3583(e)(3) (1988 ed., Supp. V).
Where the acts of violation are criminal in their own right, they
may be the basis for separate prosecution, which would raise an
issue of double jeopardy if the revocation of supervised release
were also punishment for the same offense. Treating postrevocation
sanctions as part of the penalty for the initial offense, however
(as most courts have done), avoids these difficulties. See,
e.
g., United States v.
Wyatt, 102 F.3d
241, 244-245
(CA7 1996) (rejecting double jeopardy
challenge on ground that sanctions for violating the conditions of
supervised release are part of the original sentence);
United
States v.
Beals, 87 F.3d
854, 859-860
(CA71996) (noting that punishment for
noncriminal violations must be justified by reference to original
crimes), overruled on other grounds,
United States v.
Withers, 128 F.3d
1167 (1997);
United States v.
Meeks, 25 F.3d
1117, 1123
(CA2 1994) (noting absence of constitutional
procedural protections in revocation proceedings). Cf.
Gagnon v.
Scarpelli, 411 U. S. 778, 782 (1973)
("Probation revocation ... is not a stage of a crimi-
701
nal prosecution"). For that matter, such treatment is all but
entailed by our summary affirmance of
Greenfield v.
Scafati, 277 F. Supp. 644 (Mass. 1967) (three-judge court),
summarily aff'd,
390
U. S. 713 (1968), in which a three-judge panel forbade on
ex
post facto grounds the application of a Massachusetts statute
imposing sanctions for violation of parole to a prisoner originally
sentenced before its enactment. We therefore attribute
postrevocation penalties to the original conviction.
B
Since postrevocation penalties relate to the original offense,
to sentence Johnson to a further term of supervised release under §
3583(h) would be to apply this section retroactively (and to raise
the remaining
ex post facto question, whether that
application makes him worse off). But before any such application
(and constitutional test), there is a question that neither party
addresses. The
Ex Post Facto Clause raises to the
constitutional level one of the most basic presumptions of our law:
legislation, especially of the criminal sort, is not to be applied
retroactively. See,
e. g., Lynce v.
Mathis, 519 U. S. 433, 439
(1997);
Landgraf v.
USI Film Products, 511 U. S. 244, 265
(1994). Quite independent of the question whether the
Ex Post
Facto Clause bars retroactive application of § 3583(h), then,
there is the question whether Congress intended such application.
Absent a clear statement of that intent, we do not give retroactive
effect to statutes burdening private interests. See
id., at
270.
The Government offers nothing indicating congressional intent to
apply § 3583(h) retroactively. The legislative decision to alter
the rule of law established by the majority interpretation of §
3583(e)(3) (no authority for supervised release after revocation
and reimprisonment) does not, by itself, tell us when or how that
legislative decision was intended to take effect. See
Rivers
v.
Roadway Express,
702
Inc., 511
U. S. 298, 304-307 (1994). Neither is there any indication of
retroactive purpose in the omission of an express effective date
from the statute. The omission simply remits us to the general rule
that when a statute has no effective date, "absent a clear
direction by Congress to the contrary, [it] takes effect on the
date of its enactment."
GozlonPeretz, 498 U. S., at
404.4
Nor, finally, has Congress given us anything expressly
identifying the relevant conduct in a way that would point to
retroactive intent. It may well be that Congress, like the Sixth
Circuit, believed that § 3583(h) would naturally govern sentencing
proceedings for violations of supervised release that took place
after the statute's enactment, simply because the violation was the
occasion for imposing the sanctions.5 But Congress gave us no clear
indication to this effect, and we have already rejected that
theory; the relevant conduct is the initial offense. In sum, there
being no contrary intent, our longstanding presumption directs that
§ 3583(h) applies only to cases in which that initial offense
occurred after the effective date of the amendment, September 13,
1994.
Given this conclusion, the case does not turn on whether Johnson
is worse off under § 3583(h) than he previously was under §
3583(e)(3), as subsection (h) does not apply, and the
ex post
facto question does not arise. The case turns, in-
4 Indeed, the Sentencing Guidelines identify the effective date
of § 3583(h) as September 13, 1994. United States Sentencing
Commission, Guidelines Manual § 7B1.3, comment., n. 2 (Nov. 1998)
(USSG). So, too, have the federal courts. See,
e. g.,
United States v.
Hale, 107 F.3d
526, 529, n. 3
(CA7 1997).
5 The failure to specify an effective date evidences at least
arguable diffidence on this point. Another section of the same Act
that added § 3583(h) amended 18 U. S. C. § 3553 to limit the
applicability of some statutory minimum sentences. See § 80001, 108
Stat. 1985. That amendment, the section made explicit, "shall apply
to all sentences imposed on or after the 10th day beginning after
the date of enactment of this Act." § 80001(c), 108 Stat. 1986.
703
stead, simply on whether § 3583(e)(3) permitted imposition of
supervised release following a recommitment.6
III
Section 3583(e), at the time of Johnson's conviction, authorized
a district court to
"(1) terminate a term of supervised release and discharge the
person released at any time after the expiration of one year of
supervised release, pursuant to the provisions of the Federal Rules
of Criminal Procedure relating to the modification of probation, if
it is satisfied that such action is warranted by the conduct of the
person released and the interest of justice;
"(2) extend a term of supervised release if less than the
maximum authorized term was previously imposed, and ... modify,
reduce, or enlarge the conditions of supervised release, at any
time prior to the expiration or termination of the term of
supervised release, pursuant to the provisions of the Federal Rules
of Criminal Procedure relating to the modification of probation and
the provisions applicable to the initial setting of the terms and
conditions of post-release supervision;
6We took a similar approach in
Cisneros v.
Alpine
Ridge Group, 508 U. S. 10 (1993). The respondents in that case
were private developers who had entered into contracts with the
Department of Housing and Urban Development. When the Department
sought to recalibrate payments it owed under the contracts, the
developers sued, and the Ninth Circuit ruled that the Department's
proposed method of calculating payments was prohibited by the
contracts. Congress subsequently passed legislation explicitly
authorizing that method of calculation. The developers resisted
application of that legislation to their contracts on the grounds
that it retroactively deprived them of vested contractual rights,
in violation of the Due Process Clause. We ruled (disagreeing with
the Ninth Circuit's earlier holding) that the Department's
methodology was acceptable under the contracts as signed. Finding
the governmental action permitted by the old law, we declined to
consider the constitutional consequences of a legislative attempt
to change the applicable law.
704
"(3) revoke a term of supervised release, and require the person
to serve in prison all or part of the term of supervised release
without credit for the time previously served on postrelease
supervision, if it finds by a preponderance of the evidence that
the person violated a condition of supervised release, pursuant to
the provisions of the Federal Rules of Criminal Procedure that are
applicable to probation revocation and to the provisions of
applicable policy statements issued by the Sentencing Commission
.... "
The text of subsection (e)(3) does not speak directly to the
question whether a district court revoking a term of supervised
release in favor of reimprisonment may require service of a further
term of supervised release following the further incarceration. And
if we were to concentrate exclusively on the verb "revoke," we
would not detect any suggestion that the reincarceration might be
followed by another term of supervised release, the conventional
understanding of "revoke" being simply "to annul by recalling or
taking back." Webster's Third New International Dictionary 1944
(1981). There are reasons, nonetheless, to think that the option of
further supervised release was intended.
First, there are some textual reasons, starting with the
preceding subsection (e)(l). This is an unequivocal provision for
ending the term of supervised release without the possibility of
its reimposition or continuation at a later time. Congress wrote
that when a court finds that a defendant's conduct and the
interests of justice warrant it, the court may "terminate a term of
supervised release and discharge the person released," once at
least a year of release time has been served. If application of
subsection (3) had likewise been meant to conclude any possibility
of supervised release later, it would have been natural for
Congress to write in like terms. It could have provided that upon
finding a defendant in violation of the release conditions the
court could "terminate a term of supervised release" and order the
de-
705
fendant incarcerated for a term as long as the original
supervised release term. But that is not what Congress did. Instead
of using "terminate" with the sense of finality just illustrated in
subsection (1), Congress used the verb "revoke" and so at the least
left the door open to a reading of subsection (3) that would not
preclude further supervised release after the initial revocation.7
In fact, the phrasing of subsection (3) did more than just leave
the door open to the nonpreclusive reading.
As it was written before the 1994 amendments, subsection (3) did
not provide (as it now does) that the court could revoke the
release term and require service of a prison term equal to the
maximum authorized length of a term of supervised release. It
provided, rather, that the court could "revoke a term of supervised
release, and require the person to serve in prison all or part of
the term of supervised release .... " So far as the text is
concerned, it is not a "term of imprisonment" that is to be served,
but all or part of "the term of supervised release." But if "the
term of supervised release" is being served, in whole or part, in
prison, then something about the term of supervised release
survives the preceding order of revocation. While this sounds very
metaphysical, the metaphysics make one thing clear: unlike a
"terminated" order of supervised release, one
7 The dissent offers an erudite explanation of the different
senses of the two words, intending to demonstrate that Congress
displayed "an admirably precise use of language," by using "revoke"
to mean "annul" and "terminate" to indicate that "[t]he supervised
release is treated as fulfilled, and the sentence is complete."
Post, at 717 (opinion of SCALIA, J.). That is virtuoso
lexicography, but it shows only that English is rich enough to give
even textualists room for creative readings. This one encounters
serious difficulties; the very same section of the statute (as in
effect at the time of Johnson's offense) provides that if the
person released is found in possession of a controlled substance,
"the court shall terminate the term of supervised release and
require the defendant to serve in prison not less than one-third of
the term of supervised release." 18 U. S. C. § 3583(g) (1988
ed.).
706
that is "revoked" continues to have some effect. And since it
continues in some sense after revocation even when part of it is
served in prison, why can the balance of it not remain effective as
a term of supervised release when the reincarceration is over?
8
Without more, we would have to admit that Congress had used
"revoke" in an unconventional way in subsection (3), but it turns
out that the unconventional sense is not unheard of. See
United
States v.
O'Neil, 11 F.3d
292, 295-296
(CA1 1993). Webster's Third New
International Dictionary (our edition of which was issued three
years before the 1984 Act) reveals that "revoke" can mean "to call
or summon back," without the implication (here) that no further
supervised release is subsequently possible. It gives "recall" as a
synonym and comments that "RECALL in this sense indicates a calling
back, suspending, or abrogating, either finally as erroneous or
ill-advised or tentatively for deliberation .... "
Ibid.9
The unconventional dictionary definition is not, of
8JUSTICE SCALIA,
post, at 721, thinks the "term" survives
only as a measure of duration, but of course the statute does not
read "require the person to serve a term in prison equal to all or
part of the term of supervised release .... "
9 While this sense is of course less common, the most recent
editions of the most authoritative dictionaries do not tag it as
rare or obsolete. The Oxford English Dictionary gives five examples
of this usage, albeit hardly recent ones: three are drawn from the
late 16th century and the most recent from 1784. 13 Oxford English
Dictionary 838 (2d ed. 1989). But the OED is unabashedly
antiquarian; of its examples for the more common meaning of
"revoke," the most recent dates from 1873.
Ibid. Webster's,
it should be noted, includes the less common meaning, without
antiquarian reproach, in its third edition. Webster's Third New
International Dictionary 1944 (1981).
As JUSTICE SCALIA remarks, in relying on an uncommon sense of
the word, we are departing from the rule of construction that
prefers ordinary meaning, see
post, at 715. But this is
exactly what ought to happen when the ordinary meaning fails to fit
the text and when the realization of clear congressional policy
(here, favoring the ability to impose supervised release) is in
tension with the result that customary interpretive rules would
deliver. See,
e. g., Commissioner v.
Brown, 380 U. S. 563, 571 (1965)
(recognizing "some 'scope for adopting a restricted rather than a
literal or
707
course, dispositive (although the emphasis placed upon it by
JUSTICE SCALIA might suggest otherwise, see
post, at
718719). What it does do, however, is to soften the strangeness of
Congress's unconventional sense of "revoke" as allowing a "revoked"
term of supervised release to retain vitality after revocation. It
shows that saying a "revoked" term of supervised release survives
to be served in prison following the court's reconsideration of it
is consistent with a secondary but recognized definition, and so is
saying that any balance not served in prison may survive to be
served out as supervised release.
A final textually based point is that the result of recognizing
Congress's unconventional usage of "revoke" is far less remarkable
even than the unconventional usage. Let us suppose that Congress
had legislated in language that un-
usual meaning of its words where acceptance of that meaning ...
would thwart the obvious purpose of the statute''') (quoting
Helvering v.
Hammel, 311 U. S. 504, 510-511
(1941);
In re Chapman, 166 U. S. 661, 667 (1897)
("[N]othing is better settled, than that statutes should receive a
sensible construction, such as will effectuate the legislative
intention, and, if possible, so as to avoid an unjust or an absurd
conclusion"). When text implies that a word is used in a secondary
sense and clear legislative purpose is at stake, JUSTICE SCALIA'S
cocktail-party textualism,
post, at 718, must yield to the
Congress of the United States. (Not that we consider usage at a
cocktail party a very sound general criterion of statutory meaning:
a few nips from the flask might actually explain the solecism of
the dissent's gunner who "revoked" his bird dog,
post, at
719-720, n. 4; in sober moments he would know that dogs cannot be
revoked, even though sentencing orders can be. His mistake, in any
case, tells us nothing about how Congress may have used "revoke" in
the statute. The gunner's error is, as JUSTICE SCALIA notes, one of
current usage. (It is not merely that we do not "revoke" dogs in a
"literal" sense today, as JUSTICE SCALIA puts it; we do not revoke
them at all.) The question before us, however, is one of definition
as distinct from usage: when Congress employed the modern usage in
providing that a term of supervised release could be revoked, was
it employing the most modern meaning of the term "revoke"? Usage
can be a guide but not a master in answering a question of meaning
like this one. JUSTICE SCALIA'S argument from the current
unacceptability of the dog and ox examples thus jeopardizes sound
statutory construction rather more severely than his sportsman ever
threatened a bird.)
708
equivocally supported the dissent, by writing subsection (3) to
provide that the judge could "revoke" or "terminate" the term of
supervised release and sentence the defendant to a further term of
incarceration. There is no reason to think that under that regime
the court would lack the power to impose a subsequent term of
supervised release in accordance with its general sentencing
authority under 18 U. S. C. § 3583(a). This section provides that
"[t]he court, in imposing a sentence to a term of imprisonment for
a felony or a misdemeanor, may include as a part of the sentence a
requirement that the defendant be placed on a term of supervised
release after imprisonment .... " Thus, on the dissent's reading,
when Johnson's supervised release was revoked and he was committed
to prison, the District Court "impos[ed] a sentence to a term of
imprisonment." See,
e. g., App. 36, 39. And that
sentence was, as already noted, imposed for his initial offense,
the Class D felony violation of § 1029(b)(2). See
supra, at
699-701. Nor would it be mere formalism to link the second prison
sentence to the initial offense; the gravity of the initial offense
determines the maximum term of reimprisonment, see § 3583(e)(3),
just as it controls the maximum term of supervised release in the
initial sentencing, see § 3583(b). Since on the dissent's
understanding the resentencing proceeding would fall literally and
sensibly within the terms of § 3583(a), a plain meaning approach
would find authority for reimposition of supervised release there.
Cf.
United States v.
Wesley, 81
F.3d 482, 483-484
(CA4 1996) (finding that § 3583(a)
grants power to impose a term of supervised release following
reimprisonment at resentencing for violation of probation).
There is, then, nothing surprising about the consequences of our
reading. The reading also enjoys the virtue of serving the evident
congressional purpose. The congressional policy in providing for a
term of supervised release after incarceration is to improve the
odds of a successful transition
709
from the prison to liberty. See,
e. g., United
States v.
Johnson, ante, at 59 ("Congress intended
supervised release to assist individuals in their transition to
community life. Supervised release fulfills rehabilitative ends,
distinct from those served by incarceration"). The Senate Report
was quite explicit about this, stating that the goal of supervised
release is "to ease the defendant's transition into the community
after the service of a long prison term for a particularly serious
offense, or to provide rehabilitation to a defendant who has spent
a fairly short period in prison for punishment or other purposes
but still needs supervision and training programs after release."
S. Rep. No. 98-225, p. 124 (1983).
Prisoners may, of course, vary in the degree of help needed for
successful reintegration. Supervised release departed from the
parole system it replaced by giving district courts the freedom to
provide postrelease supervision for those, and only those, who
needed it. See
id., at 125 ("In effect, the term of
supervised release provided by the bill takes the place of parole
supervision under current law. Unlike current law, however,
probation officers will only be supervising those releasees from
prison who actually need supervision, and every releasee who does
need supervision will receive it"). Congress aimed, then, to use
the district courts' discretionary judgment to allocate supervision
to those releasees who needed it most. But forbidding the
reimposition of supervised release after revocation and
reimprisonment would be fundamentally contrary to that scheme. A
violation of the terms of supervised release tends to confirm the
judgment that help was necessary, and if any prisoner might profit
from the decompression stage of supervised release, no prisoner
needs it more than one who has already tried liberty and failed. He
is the problem case among problem cases, and a Congress asserting
that "every releasee who does need supervision will receive it,"
ibid., seems very un-
710
likely to have meant to compel the courts to wash their hands of
the worst cases at the end of reimprisonment.1o
The idea that a sentencing court should have authority to
subject a reincarcerated prisoner to further supervised release has
support, moreover, in the pre-Guidelines practice with respect to
nondetentive monitoring, as illuminated in
United States v.
O'Neil, 11 F.3d
292 (CA1 1993). The Sentencing Guidelines, after all,
"represent an approach that begins with, and builds upon,"
pre-Guidelines law, see USSG, ch. 1, pt. A, intro. comment. 3, and
when a new legal regime develops out of an identifiable
predecessor, it is reasonable to look to the precursor in fathoming
the new law. Cf.
INS v.
Cardoza-Fonseca, 480 U. S. 421, 432-434
(1987) (examining practice under precursor statute to determine
meaning of amended statute).
Two sorts of nondetentive monitoring existed before the
introduction of supervised release: probation and parole. Of these
pre-Guidelines options, the one more closely analogous
10 JUSTICE SCALIA attributes the strong preference for
supervised release at the conclusion of a prison term to this
Court,
post, at 724, when that view of penal policy comes
not from the Court but from Congress. The point is crucial. Our
obligation is to give effect to congressional purpose so long as
the congressional language does not itself bar that result. See,
e. g., Holloway v.
United States, 526 U. S. 1, 9 (1999)
(noting that statutory language should be interpreted in light of
congressional policy);
Caron v.
United States,
524 U. S. 308,
315 (1998) (rejecting petitioner's reading of a statute because it
"yields results contrary to a likely, and rational, congressional
policy"). One who believes that courts must not look beyond text
might well find any invocation of policy unjustified (even
willful), at least when the policy does not rise unbidden from the
words of the statute, but we have never treated the text as such a
jealous guide and have traditionally sought to construe a statute
so as to reach results consistent with what Chief Justice Taney
called "its object and policy." See
United States v.
Heirs of Boisdore, 8 How. 113, 122 (1849). And in what Chief
Justice Marshall called the attempt "to discover the design of the
legislature," we have "seize[d] every thing from which aid can be
derived."
United States v.
Fisher, 2 Cranch 358, 386
(1805).
711
to supervised release following imprisonment was parole, which
by definition was a release under supervision of a parole officer
following service of some term of incarceration. Courts have
commented on the similarity. See,
e. g.,
Meeks, 25 F. 3d, at 1121 ("[S]upervised release is
essentially similar to parole");
United States v.
Paskow, 11 F.3d
873, 881
(CA9 1993) ("Supervised release and parole are
virtually identical systems").
In thinking about this case, it is striking that the provisions
of the former parole scheme dealing with the consequences of
violating parole conditions repeatedly used the verb "revoke." See,
e. g., 18 U. S. C. § 4214(d)(5) (1982 ed.) (repealed
1984, Pub. L. 98-473, § § 218(a)(5), 235, 98 Stat. 2027, 2031)
(revocation of parole); 21 U. S. C. § 841(c) (1982 ed.) (repealed
1984) (revocation of special parole). And yet there seems never to
have been a question that a new term of parole could follow a
prison sentence imposed after revocation of an initial parole termY
See,
e. g., 28 CFR § 2.52(b)
11 The same is true of special parole, part of the required
sentence for certain drug offenses. Though the special parole
statute did not explicitly authorize reimposition of special parole
after revocation of the initial term and reimprisonment, the Parole
Commission required it. See 28 CFR § 2.57(c) (1999). Some courts
have recently decided that this regulation is inconsistent with 21
U. S. C. § 841 (c) (1982 ed.), see,
e. g.,
Evans v.
United States Parole Comm'n, 78 F.3d
262 (CA7 1996), but this does not affect the backdrop
against which Congress legislated in 1984.
As for probation, the sentencing court's power to order a new
term following revocation was the subject of some disagreement. The
preGuidelines statute authorized the court to "revoke the probation
and ... impose any sentence which might originally have been
imposed." 18 U. S. C. § 3653 (1982 ed.) (repealed). The statute
thus clearly specified that the options for postrevocation
sentencing were those available at the original sentencing; courts
disputed only whether probation was a "sentence" that could be
imposed. See
O'Neil, 11 F. 3d, at 298-299 (collecting
cases). The dispute over what counted as a sentence does not affect
the broader point that a court's powers at the original sentencing
are the baseline from which powers at resentencing are determined.
Nor is our
712
(1999) (following revocation of parole, Sentencing Commission
will determine whether reparole is warranted);
O'Neil,
supra, at 299;
United States Parole Comm'n v.
Williams, 54 F. 3d 820, 824
(CADC 1995) (noting "the
established preGuidelines sentencing principle that parole is
available unless expressly precluded" (citation and internal
quotation marks omitted)).12 Thus, "revocation" of parole followed
by further imprisonment was not a mere termination of a limited
liberty that a defendant could experience only once per conviction,
and it is fair to suppose that in the absence of any textual bar
"revocation" of parole's replacement, supervised release, was meant
to leave open the possibility of further supervised release, as
well.
As seen already, "revoke" is no such bar, and we find no other.
The proceeding that follows a violation of the conditions of
supervised release is not, to be sure, a precise reenactment of the
initial sentencing. Section 3583(e)(3) limits the possible prison
term to the duration of the term of supervised release originally
imposed. (If less than the maximum has been imposed, a court
presumably may, before revoking the term, extend it pursuant to §
3583(e)(2); this would allow the term of imprisonment to equal the
term of supervised release authorized for the initial offense.) The
new prison term is limited further according to the gravity of the
original offense. See § 3583(e)(3). But nothing in these
specific
analysis of supervised release drawn into question by the fact
that courts could not, for violations of probation, impose
imprisonment followed by probation. Probation, unlike supervised
release, was an alternative to imprisonment. Courts did not have
the power to impose both at the original sentencing, so their
inability to do so at subsequent sentencings is no surprise.
12 The dissent seems to misconstrue our discussion of
pre-Guidelines practice, see
post, at 724-726, claiming that
the practice is unilluminating because the possibility of parole
inhered in any prison sentence. But our point simply is that,
metaphysics aside, Congress gave no indication that it thought
supervised release after reincarceration would be less valuable
than reparole after reincarceration had been.
713
provisions suggests that the possibility of supervised release
following imprisonment was meant to be eliminated.13
In sum, from a purely textual perspective, the more plausible
reading of § 3583(e)(3) before its amendment and the addition of
subsection (h) leaves open the possibility of supervised release
after reincarceration. Pre-Guidelines practice, linguistic
continuity from the old scheme to the current one, and the obvious
thrust of congressional sentencing policy confirm that, in applying
the law as before the enactment of subsection (h), district courts
have the authority to order terms of supervised release following
reimprisonment.
The judgment of the Court of Appeals for the Sixth Circuit
is
Affirmed.
JUSTICE KENNEDY, concurring in part.
The Court holds that 18 U. S. C. § 3583(e)(3), as it stood
before the amendment adding what is now subsection (h), permits a
trial court to impose further incarceration followed by a period of
supervised release after revoking an earlier supervised release
because the conditions were violated. In my view this is the
correct result. The subsection permits a court to "require [a]
person to serve in prison all or part of the term of supervised
release" originally imposed. 18 U. S. C. § 3583(e)(3) (1988 ed.,
Supp. V). This indicates that after the right to be on supervised
release has been revoked there is yet an unexpired term of
supervised release that can be allocated, in the court's
discretion, in whole or in part to confinement and to release on
such terms and conditions
13 Nor does our traditional rule of lenity in interpreting
criminal statutes demand a contrary result. Lenity applies only
when the equipoise of competing reasons cannot otherwise be
resolved (not the case here), and in any event the rule of lenity
would be Delphic in this case. There is simply no way to tell
whether sentencing courts given the option of supervised release
will generally be more or less lenient in fixing the second prison
sentence.
714
KENNEDY, J., concurring in part
as the court specifies. This was the convincing analysis adopted
by the Court of Appeals for the First Circuit in reaching the same
conclusion, and it suffices to resolve the case. See
United
States v.
O'Neil, 11 F.3d
292 (1993). The analysis, moreover, is no less fair than
JUSTICE SCALIA'S,
post, at 722, n. 5 (dissenting opinion),
which, after explaining at length that the only possible meaning of
"revoke a term" is "'to annul'" it,
post, at 715, to
"'cancel''' it,
post, at 716, and to treat it "as though it
had never existed,"
post, at 717, explains away the
statute's later inconvenient reference to "the term of supervised
release" as "describ[ing] the
length of the permitted
imprisonment by reference to that nowdefunct term of supervised
release,"
post, at 721. This, of course, is not what the
text says. Indeed, for support JUSTICE SCALIA turns to Congress'
use of "terminate" in § 3583(g)-which JUSTICE SCALIA elsewhere
concedes "was a mistake."
Post, at 718, n. 2. Faced with a
choice between two difficult readings of what all must admit is not
optimal statutory text, the Court is correct to adopt the
interpretation that makes the most sense.
I would not go on to suggest, as the Court does, that a court
could extend a term of supervised release pursuant to § 3583(e)(2)
prior to revoking the term under § 3583(e)(3).
Ante, at 712.
The subparts of § 3583(e) are phrased in the disjunctive; and §
3583(e)(3) must stand on its own. This suggests the term of
imprisonment plus any further term of supervised release imposed
under § 3583(e)(3) may not exceed the original term of supervised
release that had been imposed and then violated.
Nor would I invoke 18 U. S. C. § 3583(a),
ante, at 708,
which raises more issues than it resolves, not the least of which
is the description of the District Court's action as "imposing a
sentence." Petitioner's sentence was imposed upon conviction. What
is at issue in this case is the appropriate adjustment to make to
that sentence when the prisoner has violated the conditions of
supervised release.
715
With these observations I join the opinion of the Court, save
for its parenthetical discussion of § 3583(e)(2),
ante, at
712, and its dictum regarding § 3583(a),
ante, at 708.
JUSTICE THOMAS, concurring in the judgment.
I agree with the Court's textual analysis of 18 U. S. C. §
3583(e)(3) (1988 ed., Supp. V), and think that analysis sufficient
to resolve this case. I agree with JUSTICE KENNEDY that the Court's
discussions of § 3583(a),
ante, at 707-708, and §
3583(e)(2),
ante, at 712, are unnecessary to the result. I
would not rely, as the Court
(ante, at 708-710) and JUSTICE
KENNEDY
(ante this page (opinion concurring in part)) do, on
any apparent congressional purpose supporting the Court's reading
of § 3583(e)(3). With these observations, I concur in the
judgment.
JUSTICE SCALIA, dissenting.
I agree with Parts I and II of the Court's opinion, and thus,
like the Court, believe that the case ultimately turns on the
meaning of 18 U. S. C. § 3583(e)(3) (1988 ed., Supp. V). I do not
agree, however, with the Court's interpretation of that provision.
The section provides that when the conditions of supervised release
are violated, the court may "revoke a term of supervised release,
and require the person to serve in prison all or part of the term
of supervised release without credit for time previously served on
postrelease supervision." Finding in this an authorization for
imposition of
additional supervised release is an act of
willpower rather than of judgment.
The term "revoke" is not defined by the statute, and thus should
be construed "in accordance with its ordinary or natural meaning."
FDIC v.
Meyer, 510 U. S. 471, 476
(1994). As the Court recognizes, the ordinary meaning of "revoke"
is " 'to annul by recalling or taking back.'"
Ante, at 704
(quoting Webster's Third New International Dictionary 1944 (1981));
see also American Heritage Dictionary 1545 (3d ed.
716
1992) (defining "revoke" as "[t]o void or annul by recalling,
withdrawing, or reversing; cancel; rescind"). Under this reading,
the "revoked" term of supervised release is simply canceled; and
since there is no authorization for a new term of supervised
release to replace the one that has been revoked, additional
supervised release is unavailable.
The Court is not content with this natural reading, however, and
proceeds to adopt what it calls an "unconventional" reading of
"revoke,"
ante, at 706, as meaning "to call or summon back"
without annulling,
ibid.1 It thereby concludes that
the revoked term of supervised release retains some effect, and
thus that additional supervised release may be required after
reimprisonment. The Court suggests that its abandonment of ordinary
meaning is justified by the text, by congressional purpose, and by
analogy to pre-Guidelines practice regarding nondetentive
monitoring. None of the proffered reasons is convincing.
The Court claims textual support for its "unconventional"
reading in the fact that subsection (e)(3), at issue here, uses the
term "revoke," while subsection (e)(l) uses the term "terminate."
Since, the Court reasons, the two terms should not be interpreted
to have exactly the same meaning, (1) the statute must intend a
"less common" meaning of "revoke," namely, "call back," see
ante, at 706, and n. 9; and (2) this "less common" meaning
authorizes the later imposition of supervised release. Each part of
this two-step analysis is patently false.
1 Describing the Court's reading as "unconventional" makes it
sound perfectly O. K. There are, after all, unconventional houses,
unconventional hairdos, even unconventional batting stances, all of
which are fine. Houses, hairdos, and batting stances, however, have
an independent existence apart from convention, whereas words are
nothing but a conventionparticular sounds which by agreement
represent particular concepts, and (in the case of most written
languages) particular symbols which by agreement represent
particular sounds. Thus, when the Court admits that it is giving
the word "revoke" an "unconventional" meaning, it says that it is
choosing to ignore the word "revoke."
717
As to the first: The usual, ordinary-English definition of
"revoke" is already amply distinguishable from "terminate," and
does not have to be tortured into Old English (or actually,
transliteration from Old Latin) in order to explain the choice of
words. "Terminate" connotes completion rather than cancellation.
See American Heritage Dictionary 1852 (3d ed. 1992) (defining
"terminate" as "[t]o bring to an end or a halt" or "[t]o occur at
or form the end of; conclude or finish"); Webster's New
International Dictionary 2605 (2d ed. 1942) (defining "terminate"
as "[t]o put an end to; to make to cease; to end ... to form the
conclusion of ... "). Using "terminate" in subsection (e)(l) and
"revoke" (in its ordinary sense) in subsection (e)(3) is not only
not inexplicable; it reflects an admirably precise use of language.
In subsection (e)(l), the term of supervised release is
"terminated" ("brought to an end") because termination is warranted
"by the conduct of the defendant released and the interest of
justice." The supervised release is treated as fulfilled, and the
sentence is complete. In subsection (e)(3), by contrast, the
supervised release term is not merely brought to an end; it is
annulled and treated as though it had never existed, the defendant
receiving no credit for any supervised release served. It would be
hard to pick two words more clearly connoting these distinct
consequences than "terminate" and "revoke." 2
2 The Court is correct,
ante, at 705, n. 7, that my
suggested explanation of the difference between "terminate" and
"revoke" does not comport with the use of "terminate" in § 3583(g).
But the use of the term in that subsection
also contradicts
the Court's explanation of the difference between the two
terms-viz., that "terminate," unlike in its view "revoke,"
"conclude[s] any possibility of supervised release later,"
ante, at 704. For the Court evidently believes (contrary to
the use of "terminate" in § 3583(g)) that further supervised
release is available when a supervisee is reimprisoned for
possession of a controlled substance. It would be "fundamentally
contrary" to the congressional scheme, the Court asserts, if
supervised release following reimprisonment were not available for
"one who has already tried liberty and failed,"
ante, at
709. But the use of "terminate" in
718
The first step of the Court's analysis-its inference that the
use of "terminate" in subsection (e)(l) requires its alternative
meaning of "revoke" in subsection (e)(3)-is also wrong because the
alternative meaning that the Court posits ("to call or summon
back," without the implication of annulment,
ante, at 706)
is not merely (as the Court says) "less common,"
ante, at
706, n. 9; in the context that is relevant here, it is utterly
unheard of. One can "call or summon back" a person or thing without
implication of annulment, but it is quite impossible to "call or
summon back" an order or decree without that implication-which is
precisely why the primary meaning of revoke has shifted from its
root meaning ("call or summon back") to the meaning that it bears
in its most common context, i.
e., when applied to orders or
decrees ("cancel or annul"). Of course the acid test of whether a
word can reasonably bear a particular meaning is whether you could
use the word in that sense at a cocktail party without having
people look at you funny. The Court's assigned meaning would surely
fail that test, even late in the evening. Try telling someone,
"Though I do not cancel or annul my earlier action, I revoke it."
The notion that Con-
§ 3583(g) prescribes just that. Further, § 3583(g) undermines
the Court's argument that because § 3583(e)(3) authorizes the court
to "revoke a term of supervised release" and then to require "all
or part of the term" to be served in prison, the revoked term must
retain some metaphysical vitality. See
ante, at 705-706.
This is so because § 3583(g) provides that the court shall
"terminate the term of supervised release" (hence extinguishing it
even in the Court's view), and yet goes on to provide that the
court shall require the defendant to serve at least one-third of
"the term of supervised release" in prison. See
infra, at
721. So on either the Court's interpretation of the difference
between "terminate" and "revoke" or on mine, the use of "terminate"
in § 3583(g) was a mistake-which is why Congress has since amended
it to read "revoke." See § 110505,108 Stat. 2017. See also Brief
for United States 25, n. 20 ("Congress apprehended that the term
'terminate' was inappropriate [in § 3583(g)]"). If we both concede
it was a mistake, that leaves my explanation of the difference
between "terminate" in § 3583(e)(1) and "revoke" in § 3583(e)(3)
uncontradicted.
719
gress, by the phrase "revoke a term of supervised release,"
meant "recall but not cancel a term of supervised release" is both
linguistically and conceptually absurd.
The dictionary support that the Court seeks to enlist for its
definition is fictitious. It is indeed the case that both the
Oxford English Dictionary and Webster's Third New International
Dictionary give as a meaning of "revoke" "to call or summon back";
but neither of them adds the fillip that is essential to the
Court's point-that the thing called back "retain vitality."
Ante, at 707. They say nothing at all about the implication
of calling or summoning back-which, in the case of calling or
summoning back an order or decree, is necessarily annulment.3
Further, while the dictionaries the Court mentions do not give its
chosen meaning "antiquarian reproach,"
ante, at 706, n. 9,
many dictionaries do. The New Shorter Oxford shows this usage as
obsolete, see New Shorter Oxford English Dictionary 2583 (1993),
and the previous edition of Webster's New International shows it as
rare, see Webster's New International Dictionary 2134 (2d ed.
1942). Other dictionaries also show the Court's chosen meaning as
rare,
e. g., Chambers English Dictionary 1257 (1988),
as obsolete or archaic,
e. g., Cassell Concise
English Dictionary 1149 (1992); Funk and Wagnalls New Standard
Dictionary 2104 (1957), or do not give it as a meaning at all,
e. g., American Heritage Dictionary 1545 (3d ed.
1992).4
3 As the Court suggests in its quotation of Webster's Third's
definition of "RECALL," see
ante, at 706, the annulment may
be only temporary (a "suspension"); but that is so only if there is
some authority for repromulgation after the revocation-which leaves
the Court no further along than it was before it dipped into the
more obscure meanings of "revoke": it must identify some authority
to reimpose supervised release. This blends into the next point
made in text.
4 Whether one attributes any currency to "revoke" in the sense
of "call back" depends, I think, on whether one counts as current
usage
figurative usage. The OED, while not showing the
meaning "to call back" as obsolete, does indicate that its current
usage is "chiefly fig[urative]." 13 Ox-
720
As for the second step of the Court's analysis: Even if there
were justification for giving "revoke" something other than its
normal meaning, and even if the meaning the Court adopts were not
unheard of, the latter meaning
still does not provide the
needed authorization for reimposition of supervised release. The
statute does not say that the court may "revoke" ("call back," as
the Court would have it) only
part of the term of supervised
release, so there is no argument that some portion remains in place
for later use. Thus, even if "revoke" means "call back," a court
would need statutory authorization to reimpose this "called back"
term of supervised release. But § 3583(e)(3) provides no such
authorization. The court is empowered to "revoke" the term; it is
empowered to require that "all or part" of the term be served in
prison; it is not empowered to reimpose "all or part" of the term
as a later term of supervised release.
ford English Dictionary 838 (2d ed. 1989) (OED). Just as current
usage would allow one to say that "the emperor called back his
decree," so also it would allow one to say that the emperor
"revoked" his decree
in that figurative sense of "calling it
back"-i.
e., in the sense of canceling it. It is assuredly
not current usage, however-I think not even
rare
current usage-to use "revoke" to connote a literal calling back.
("Since my bird dog was ranging too far afield, I revoked
him.")
The Court chastises this example, suggesting that only a
tippling hunter would "revoke" his bird dog, as "dogs cannot be
revoked, even though sentencing orders can be."
Ante, at
707, n. 9. I could not agree more. However, the definition the
Court employs ("call back" without the implication of cancellation)
envisions that dogs
can be revoked-thus illustrating its
obscurity. The OED definition on which the Court relies, see
ante, at 706, n. 9, defines "revoke" as "to recall; to call
or summon back ... an animal or thing." 13 OED 838 (2d ed. 1989).
The first example it gives of this usage is as follows: "These
hounds ... being acquainted with their masters watchwordes, eyther
in revoking or imboldening them to serve the game."
Ibid. Of
course the Court's "not unheard of" usage,
ante, at 706, is
not limited to recalling dogs-oxen can be revoked as well, as the
OED's third example illustrates: "Ye must revoke The patient Oxe
unto the Yoke." 13 OED 838.
721
The Court opines that no authorization for further supervised
release is needed, because the fact that the district court may
require "all or part of the term of supervised release" to be
served in prison demonstrates that the revoked term continues to
have some metaphysical effect,
ante, at 705-706, so that
"the balance of it [can] remain effective as a term of supervised
release when the reincarceration is over,"
ante, at 706. It
demonstrates no such thing. In allowing the district court to
require that "all or part of the term of supervised release" be
spent in prison, the statute simply describes the
length of
the permitted imprisonment by reference to that now-defunct term of
supervised release. It is quite beyond me how the Court can believe
that the statute "does not read" this way,
ante, at 706, n.
8, and the concurrence that "[t]his ... is not what the text says,"
ante, at 714. A "term of supervised release" in what might
be called the
substantive rather than the
temporal
sense-i.
e., the sentence to a period of supervised
release-cannot possibly be served in prison. To be in prison is not
to be released. The
only sense in which "all or part of the
term of supervised release" can be served in prison is the temporal
sense. Cf.
United States v.
Johnson, ante, at 57 ("To
say respondent was released while still imprisoned diminishes the
concept the word intends to convey"). The Court's unrealistic
reading is also undermined by the fact that § 3583(g) provides for
serving in prison part of "the term of supervised release," in
spite of the fact that the term there has been "terminated," so
that even the Court would not claim it has ongoing vitality. See n.
2,
supra. And finally, in concluding that the term of
supervised release remains in place, the Court essentially reads
the phrase "revoke a term of supervised release" out of the
statute, treating the subsection as if it did no more than
authorize the court to "require the person to serve in prison all
or part of the term of supervised release" originally imposed, §
3583(e)(3). Of course the statute could have been drafted to say
just that-allowing the court to require
722
part of the term of supervised release to be served in prison,
with the rest of the term remaining in place to be served on
supervised release. In the text actually adopted, however, the
supervised-release term is
not left in place, but is
explicitly "revoked." 5
Further, if one assumes, as the Court does, that a revoked term
somehow "survives the ... order of revocation,"
ante, at
705, and retains effect (even without any statutory authorization
for reimposition or reactivation), then it would follow that
whatever part of it is not required to be served in prison is
necessarily still in effect. Thus the district court would
have no discretion
not to require the remainder of the term
to be served on supervised release. Yet the Court seems to view
further supervised release as only an "option."
Ante, at
704, 713, n. 13; accord,
ante, at 713-714 (KENNEDY, J.,
concurring in part).
The Court's confusing discussion of how § 3583(a) would produce
consequences similar to those its opinion achievesand consequences
that are entirely reasonable-if § 3583(e)(3) read differently from
the way it does read,
ante, at 707-708, is entirely
irrelevant. I do not contend that the result the Court reaches is
any way remarkable, only that it is not the result called for by
the statute. The Court carefully
does not maintain-and it
could not, for reasons I need not describe-that subsection
(a) justifies imposition of post-
5 The concurrence adjusts for that inconvenient fact by simply
changing the object of the verb, concluding that "after
the
right to be on supervised release has been revoked there is yet
an unexpired term of supervised release that can be allocated ...
in whole or in part to confinement and to release .... "
Ante, at 713 (KENNEDY, J., concurring in part) (emphasis
added). The statute, however, does not revoke "the right to be on
supervised release"; it revokes the "term of supervised release"
itself, see § 3583(e)(3), which is utterly incompatible with the
notion that the term remains in place. Switching the object of
"revoke" is no fair in itself, and it leaves the provision entirely
redundant, since revoking "the right to be on supervised release"
adds nothing to "requir[ing] the person to serve in prison all or
part of the term," § 3583(e)(3).
723
revocation supervisory release given the
actual text of
subsection (e)(3), and nothing more is pertinent here. Hypothetical
discussion of what role § 3583(a) might play had Congress
legislated differently is beside the point.
The Court next turns to questions of policy-framed as an inquiry
into "congressional purpose."
Ante, at 708. Citing
legislative history (although not legislative history discussing
the particular subsection at issue),
ante, at 709-710, the
Court explains what it views as the policies Congress seeks to
serve with supervised release generally, and then explains how
these general policies would be undermined by reading § 3583(e)(3)
as written. "Our obligation," the Court says, "is to give effect to
congressional purpose so long as the congressional language does
not itself bar that result."
Ante, at 710, n. 10. I think
not. Our obligation is to go as far in achieving the general
congressional purpose as the text of the statute fairly
prescribes-and no further. We stop where the statutory language
does, and do not require explicit prohibition of our carrying the
ball a few yards beyond. In any event, as read by any English
speaker except one who talks of revoking a dog, the statute does
"bar" the result the Court reaches here. The proper canon to govern
the present case is quite simple: "[W]here, as here, the statute's
language is plain, 'the sole function of the courts is to enforce
it according to its terms,'"
United States v.
Ron Pair
Enterprises, Inc., 489 U. S. 235, 241 (1989)
(quoting
Caminetti v.
United States, 242 U. S. 470, 485
(1917)).
Perhaps there is a scrivener's error exception to that canon,
see,
e. g., Holloway v.
United States, 526 U. S. 1, 19, n. 2
(1999) (SCALIA, J., dissenting);
Green v.
Bock Laundry
Machine Co., 490
U. S. 504, 527-528 (1989) (SCALIA, J., concurring in judgment),
but the words of today's author in another case well describe why
that is inapplicable here: "This case is a far cry from the rare
one where the effect of implementing the ordinary meaning of the
statutory text would be patent absurdity or demonstrably at odds
with the inten-
724
tions of its drafters."
BFP v.
Resolution Trust
Corporation, 511
U. S. 531, 563 (1994) (SOUTER, J., dissenting) (citations and
internal quotation marks omitted). It would have been entirely
reasonable for Congress to conclude that a prisoner who had broken
the terms of supervised release seriously enough to be
reincarcerated should not be trusted in that status again; and that
a judge should not be tempted to impose an inappropriately short
period of reimprisonment by the availability of further supervised
release. Congress might also have wished to eliminate the
unattractive prospect that a prisoner would go through one or even
more repetitions of the violation-reimprisonment-supervised-release
sequence-which is avoided by requiring the district court
confronted with a violation either to leave the prisoner on
supervised release (perhaps with tightened conditions and
lengthened term, as § 3583(e)(2) permits) or to impose
imprisonment, but not to combine the two. Because the
interpretation demanded by the text is an entirely plausible one,
this Court's views of what is prudent policy are beside the point.
And that is so whether those policy views are forthrightly stated
as such ("[I]f any prisoner might profit from the decompression
stage of supervised release, no prisoner needs it more than one who
has already tried liberty and failed,"
ante, at 709), or
whether, to give an interpretive odor to the opinion, they are
recast as policies that it "seems very unlikely" for Congress to
have intended ("Congress ... seems very unlikely to have meant to
compel the courts to wash their hands of the worst cases at the end
of reimprisonment,"
ante, at 709-710).
Finally, the Court appeals to pre-Guidelines practice with
regard to nondetentive monitoring. But this cannot cure the lack of
statutory authorization for additional supervised release. Even if
the language of § 3583(e)(3) were ambiguous (which it is not), that
history would be of little relevance, since the Sentencing Reform
Act's adoption of supervised release was meant to make a
significant break with prior
725
practice, see
Mistretta v.
United States, 488 U. S. 361, 366 (1989)
(describing the Act's "sweeping reforms");
GozlonPeretz v.
United States, 498 U. S. 395, 407 (1991)
("Supervised release is a unique method of postconfinement
supervision invented by the Congress for a series of sentencing
reforms").6 The Court's effort to equate parole and supervised
release,
ante, at 710-712, is unpersuasive. Unlike parole,
which replaced a portion of a defendant's prison sentence,
supervised release is a separate term imposed at the time of
initial sentencing. Compare 18 U. S. C. § 3583(a) with 18 U. S. C.
§§ 4205(a), 4206 (1982 ed.) (repealed); see also USSG ch. 7, pt. A,
intro. comment. 2(b). This distinction has important consequences
for the present question, since when parole was "revoked" (unlike
when supervised release is revoked), there was no need to impose a
new term of imprisonment; the term currently being served (on
parole) was still in place. Similarly, there was no occasion to
impose a new term of parole, since the possibility of parole was
inherent in the remaining sentence. See 18 U. S. C. § 4205(a) (1982
ed.) ("Whenever confined and serving a definite term
6 United States Sentencing Commission, Guidelines Manual ch. 1,
pt. A, intro. comment. 3 (Nov. 1998) (USSG), is not to the
contrary. The Court quotes the comment for the broad proposition
that "[t]he Sentencing Guidelines, after all, 'represent an
approach that begins with, and builds upon,' pre-Guidelines law."
Ante, at 710. The comment itself, however, makes the much
more narrow point that data on sentences imposed preGuidelines were
used as a "starting point" in devising sentencing ranges under the
Guidelines. The sentence from which the Court quotes states:
"Despite ... policy-oriented departures from pre-guidelines
practice, the guidelines represent an approach that begins with,
and builds upon, empirical data." USSG ch. 1, pt. A, intro.
comment. 3. This sheds no light on the extent to which prior
practice in matters other than length of sentence underlay the
Guidelines, much less on the extent to which such prior practice is
a meaningful guide to statutory interpretation in general-and even
less to statutory interpretation pertaining to supervised release,
which the Guidelines elsewhere refer to as "a new form of
post-imprisonment supervision created by the Sentencing Reform
Act,"
id., ch. 7, pt. A, intro. comment. 2(b).
726
or terms of more than one year, a prisoner shall be eligible for
release on parole after serving one-third of such term ... "). The
question whether further supervised release may be required after
revocation of supervised release is so entirely different from the
question whether further parole may be accorded after revocation of
parole, that the Court's appeal to the parole practice demonstrates
nothing except the dire scarcity of arguments available to support
its conclusion.7
7 The Court also appeals to pre-Guidelines practice regarding
probation and special parole.
Ante, at 711-712, n. 11. The
pre-Guidelines probation practice is altogether inapt, since the
governing statute explicitly provided for resentencing after
violation, and specifically allowed the court to "impose any
sentence which might originally have been imposed." 18 U. S. C. §
3653 (1982 ed.) (repealed). This makes it quite impossible for
probation practice to support the Court's "broader point that a
court's powers at the original sentencing are the baseline from
which powers at resentencing are determined,"
ante, at 711,
n. 11; all it proves is that they are the baseline where the
statute says so. Indeed, the fact that the statute found it
necessary to say so tends to contradict the Court's position.
Special parole, while more akin to supervised release than
either parole or probation, hardly provides clear support for the
Court's reading of § 3583(e)(3). In fact, the majority of Courts of
Appeals have read the relevant statute regarding special parole, 21
U. S. C. § 841 (c) (1982 ed.) (repealed), as not allowing
reimposition of special parole in circumstances analogous to those
at issue here. See
Manso v.
Federal Detention Center,
182 F.3d
814, 817 (CAll 1999) (citing cases). The Court's reliance on
the Parole Commission's 1977 interpretation of the special parole
statute, see 28 CFR § 2.57(c) (1999), is misplaced. The principle
that Congress is presumed to legislate in light of existing
administrative interpretations does not stretch to cover an
administrative interpretation of a statute dealing with a different
subject, of recent vintage, and unsupported by judicial opinion.
Cf.
Bragdon v.
Abbott, 524 U. S. 624, 645 (1998)
(repetition of existing statutory language assumed to incorporate
"uniform body of administrative and judicial precedent" that had
"settled the meaning" of existing provision);
Haig v.
Agee, 453 U.
S. 280, 297 (1981) (assuming congressional awareness of
"longstanding administrative construction"). Further, some courts
have found it unclear whether the Parole Commission's regulation
itself envisions reimposition of special parole. See,
e.
g., Fowler v.
United States Parole Commission,
94 F.3d
835, 841
(CA3 1996).
727
***
This is not an important case, since it deals with the
interpretation of a statute that has been amended to eliminate, for
the future, the issue we today resolve. But an institution that is
careless in small things is more likely to be careless in large
ones; and an institution that is willful in small things is almost
certain to be willful in large ones. The fact that nothing but the
Court's views of policy and "congressional purpose" supports to
day's judgment is a matter of great concern, if only because of
what it tells district and circuit judges. The overwhelming
majority of the Courts of Appeals-9 out of ll-notwithstanding what
they might have viewed as the more desirable policy arrangement,
reached the result unambiguously demanded by the statutory text.
See
ante, at 698, n. 2. Today's decision invites them to
return to headier days of not-too-yore, when laws meant what judges
knew they ought to mean. I dissent.
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