OCTOBER TERM, 2000
Syllabus
LOPEZ
v. DAVIS, WARDEN, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
No. 99-7504. Argued October 30, 2000-Decided January 10,2001
Under 18 U. S. C. § 3621(e)(2)(B), "[t]he period a [federal]
prisoner convicted of a nonviolent offense remains in custody after
successfully completing a [substance abuse] treatment program may
be reduced by the Bureau of Prisons" (BOP). The BOP therefore
ranked ineligible for early release all inmates incarcerated for
"crime[s] of violence." Initially, the BOP defined the term "crimes
of violence" to include, among other offenses, a drug trafficking
conviction under 21 U. S. C. § 841, if the offender received a
two-level sentence enhancement under United States Sentencing
Commission, Guidelines Manual (USSG) § 2Dl.l(b)(1), for possessing
a dangerous weapon in connection with the drug offense. The Courts
of Appeals thereafter divided over the validity of classifying drug
offenses involving firearms possession as crimes of violence. The
Circuit division prompted the BOP to issue the regulation now
before the Court. That regulation denies early release to several
categories of prisoners, including inmates whose current offense is
a felony attended by "the carrying, possession, or use of a
firearm." 28 CFR § 550.58(a)(1)(vi)(B). The BOP rests this denial
not on a definition of "crimes of violence," but on the BOP's
asserted discretion to prescribe additional early release
criteria.
Petitioner Lopez was convicted of possession with intent to
distribute methamphetamine in violation of 21 U. S. C. § 841.
Finding that Lopez possessed a firearm in connection with his
offense, the District Court enhanced his sentence by two levels
pursuant to USSG § 2Dl.l(b)(1). While incarcerated, Lopez requested
substance abuse treatment. The BOP found him qualified for its
treatment program, but categorically ineligible, under 28 CFR §
550.58(a)(1)(vi), for early release. Ordering the BOP to reconsider
Lopez's eligibility for early release, the District Court held that
the BOP may not categorically count out, based upon sentencing
factors or weapon possession, inmates whose underlying conviction
was for a nonviolent crime. The Eighth Circuit reversed. It
reasoned that § 3621(e)(2)(B)'s
"may ... reduc[e]"
formulation allows the BOP discretion to devise a regime based on
criteria that can be uniformly applied. To the extent Congress left
a gap in § 3621(e)(2)(B) for the BOP to fill, the Court of Appeals
stated, deference is owed the BOP's interpretation under
Chevron
U. S.
A. Inc. v.
Natural Resources
231
Defense Council, Inc., 467 U. S.
837,843-845,866, so long as the interpretation is a permissible
construction of the statute. The BOP's decision to deny early
release to drug traffickers who carry firearms, the court
concluded, represents a manifestly permissible statutory
construction and an appropriate exercise of discretion.
Held: The regulation at issue is a permissible exercise
of the BOP's discretion under § 3621(e)(2)(B). Pp. 238-245.
(a) Section 3621(e)(2)(B) gives the BOP discretion to grant or
deny a sentence reduction, but leaves open the manner in which the
discretion is to be exercised. If an inmate meets the two statutory
prerequisites for sentence reduction-conviction of a nonviolent
offense and successful completion of drug treatment-then §
3621(e)(2)(B) instructs that the BOP "may," not that it must, grant
early release. The statute's use of the permissive "may" contrasts
with Congress' use of a mandatory "shall" elsewhere in § 3621 to
impose discretionless obligations,
e. g., the obligation to
provide drug treatment when funds are available, see § 3621(e)(1).
Sensibly read, § 3621(e)(2)(B)'s sentence reduction discretion
parallels the grant of discretion in § 3621(e)(2)(A) to retain a
prisoner who successfully completes drug treatment "under such
[custodial] conditions as the [BOP] deems appropriate." The
constraints Lopez urges-requiring the BOP to make individualized
determinations based only on postconviction conduct-are nowhere to
be found in § 3621(e)(2)(B). Beyond instructing that the BOP has
discretion to reduce the period of imprisonment for a nonviolent
offender who successfully completes drug treatment, Congress has
not identified any further circumstance in which the BOP either
must grant the reduction, or is forbidden to do so. In this
familiar situation, where Congress has enacted a law that does not
answer the precise question at issue, all this Court must decide is
whether the BOP, the agency empowered to administer the early
release program, has filled the statutory gap in a way that is
reasonable in light of the Legislature's revealed design.
E.
g.,
NationsBank of N. c.,
N. A. v.
Variable
Annuity Life Ins. Co., 513
(b) The BOP may categorically exclude prisoners from early
release eligibility based on their pre conviction conduct. The
Court rejects Lopez's argument that the BOP may take into account
only postconviction conduct. The BOP need not blind itself to pre
conviction conduct that the agency reasonably views as jeopardizing
life and limb. By denying eligibility to violent offenders, the
statute manifests congressional concern for pre conviction
behavior-and for the very conduct leading to conviction. The BOP
may reasonably attend to these factors as well. The statute's
restriction of early release eligibility to nonviolent offend-
232
ers does not cut short the considerations that may guide the BOP
in implementing § 3621(e)(2)(B). See
INS v.
Yueh-Shaio
Yang, 519 U. S.
26, 31. The Court also rejects Lopez's argument that the BOP
must not make categorical exclusions, but may rely only on
case-by-case assessments. Even if a statutory scheme requires
individualized determinations, which this scheme does not, the
decisionmaker has the authority to rely on rulemaking to resolve
certain issues of general applicability unless Congress clearly
expresses an intent to withhold that authority.
E. g.,
Heckler v.
Campbell, 461 U. S. 458, 467. The
approach pressed by Lopez-case-by-case decisionmaking in thousands
of cases each year-could invite favoritism, disunity, and
inconsistency. Pp. 242-244.
(c) The regulation excluding Lopez is permissible. The BOP
reasonably concluded that an inmate's prior involvement with
firearms, in connection with the commission of a felony, suggests
his readiness to resort to life-endangering violence and therefore
appropriately determines the early release decision. P. 244.
186 F.3d
1092, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, SOUTER, THOMAS, and BREYER, JJ., joined. STEVENS,
J., filed a dissenting opinion, in which REHNQUIST, C. J., and
KENNEDY, J., joined,
post, p. 245.
Mark v:
Meierhenry argued the cause and filed
briefs for petitioner.
Beth S.
Brinkmann argued the cause for
respondents.
With her on the brief were Solicitor General Waxman, Assistant
Attorney General Robinson, and Deputy Solicitor General Dreeben.
*
JUSTICE GINSBURG delivered the opinion of the Court. Congress
has provided, in 18 U. s. C. § 3621(e)(2)(B), that the Bureau of
Prisons (Bureau or BOP) may reduce by up to one year the prison
term of an inmate convicted of a nonviolent felony, if the prisoner
successfully completes a substance abuse program. The Bureau's
implementing regula-
*Stephen R. Sady filed a brief for the National
Association of Criminal Defense Lawyers et al. as
amici
curiae urging reversal.
233
tion categorically denies early release to prisoners whose
current offense is a felony attended by "the carrying, possession,
or use of a firearm." 28 CFR § 550.58(a)(1)(vi)(B) (2000). The
validity of the Bureau's regulation is the question presented in
this case. We hold, in accord with the Court of Appeals for the
Eighth Circuit, that the regulation is a permissible exercise of
the Bureau's discretion under 18 U. S. C. § 3621(e)(2)(B).
I A
Title 18 U. S. C. § 3621 governs the imprisonment of persons
convicted of federal crimes. In 1990, Congress amended the statute
to provide that "[t]he Bureau shall ... make available appropriate
substance abuse treatment for each prisoner the Bureau determines
has a treatable condition of substance addiction or abuse." Pub. L.
101-647, § 2903, 104 Stat. 4913. Four years later, Congress again
amended § 3621, this time to provide incentives for prisoner
participation in BOP drug treatment programs. The incentive
provision at issue reads: "The period a prisoner convicted of a
nonviolent offense remains in custody after successfully completing
a treatment program may be reduced by the Bureau of Prisons, but
such reduction may not be more than one year from the term the
prisoner must otherwise serve." Pub. L. 103-322, § 32001, 108 Stat.
1897 (codified at 18 U. S. C. § 3621(e)(2)(B)).
In 1995, the Bureau published a rule to implement the early
release incentive. 60 Fed. Reg. 27692-27695; 28 CFR § 550.58.
Because the statute explicitly confined the incentive to prisoners
convicted of "nonviolent offense[s]," 18 U. S. C. § 3621(e)(2)(B),
the BOP ranked ineligible for early release all inmates currently
incarcerated for "crime[s] of violence," 60 Fed. Reg. 27692. As
explained in the Bureau's program statement, the BOP defined
"crimes of violence" to include a drug trafficking conviction under
21 U. S. C. § 841,
234
if the offender received a two-level sentence enhancement under
United States Sentencing Commission, Guidelines Manual (USSG) §
2D1.1(b)(1) (Nov. 2000), for possessing a dangerous weapon during
commission of the drug offense. Bureau of Prisons Program Statement
No. 5162.02, § 9 (July 24, 1995), reprinted in App. to Brief for
Petitioner 17-18.1 "[E]xercising [its] discretion in reducing a
sentence," the Bureau also excluded from early release eligibility
inmates who had a prior conviction "for homicide, forcible rape,
robbery, or aggravated assault." 60 Fed. Reg. 27692 (codified at 28
CFR § 550.58 (1995)).
The Courts of Appeals divided over the validity of the Bureau's
definition of crimes of violence to include drug offenses that
involved possession of a firearm. A majority of Circuits, including
the Eighth, held that § 3621(e)(2)(B) required the Bureau to look
only to the offense of conviction (drug trafficking), and not to
sentencing factors (firearm possession), in determining whether an
offender was convicted of a "nonviolent offense," and was therefore
eligible under the statute for the early release incentive.
Martin v.
Gerlinski, 133 F.3d
1076, 1079
(CA8 1998); see also
Fristoe v.
Thompson, 144 F.3d
627, 631 (CAlO 1998);
Byrd v.
Hasty, 142 F.3d
1395, 1398 (CAll 1998);
Roussos v.
Menifee,
122 F.3d
159,
164 (CA3 1997);
Downey v.
Crabtree,
100 F.3d
662, 668
(CA9 1996). The Fourth and Fifth Circuits,
however, upheld the Bureau's classification of drug offenses
attended by firearm possession as violent crimes.
Pelissero
v.
Thompson, 170
1 Title 21 U. S. C. §§841(a)(1) and (2) make it unlawful "to
manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance," or
"to create, distribute, or dispense, or possess with intent to
distribute or dispense, a counterfeit substance." Section
2D1.1(b)(1) of the Sentencing Guidelines provides for a two-level
sentence enhancement if a dangerous weapon was possessed in
connection with the commission of a drug offense. See USSG §
2Dl.l(b)(1) and comment., n. 3 (Nov. 2000).
235
F. 3d 442, 447
(CA4 1999);
Venegas v.
Henman, 126 F.3d
760,
763 (CA5 1997).
This split among the Circuits prompted the Bureau in 1997 to
publish the regulation now before the Court. See 62 Fed. Reg.
53690-53691. Like the 1995 rule, the current regulation excludes
from early release eligibility offenders who possessed a firearm in
connection with their offenses. In contrast to the earlier rule,
however, the 1997 regulation does not order this exclusion by
defining the statutory term "prisoner convicted of a nonviolent
offense" or the cognate term "crimes of violence." Instead, the
current regulation relies upon "the discretion allotted to the
Director of the Bureau of Prisons in granting a sentence reduction
to exclude [enumerated categories of] inmates."
Id., at
53690. The regulation, designed to achieve consistent
administration of the incentive, now provides:
"(a) Additional early release criteria. (1) As an
exercise of the discretion vested in the Director of the Federal
Bureau of Prisons, the following categories of inmates are not
eligible for early release:
"(iv) Inmates who have a prior felony or misdemeanor conviction
for homicide, forcible rape, robbery, or aggravated assault, or
child sexual abuse offenses;
"(vi) Inmates whose current offense is a felony:
"(B) That involved the carrying, possession, or use of a firearm
or other dangerous weapon .... " 28 CFR § 550.58(a) (2000).
In sum, the 1995 rule defined the statutory term "prisoner
convicted of a nonviolent offense" to exclude categorically an
inmate who possessed a firearm in connection with his offense. The
current regulation categorically excludes such an inmate, not
because § 3621(e)(2)(B) so mandates, but pur-
236
suant to the Bureau's asserted discretion to prescribe
additional early release criteria. Drug traffickers who possess
firearms when they engage in crimes are no longer characterized as
"violent" offenders within the meaning of the statute. But they are
bracketed, for sentence reduction purposes, with persons currently
incarcerated for "nonviolent offense[s]" who in the past committed
crimes qualifying as violent. The preconviction conduct of both
armed offenders and certain redicivists, in the Bureau's view,
"suggest[s] that they pose a particular risk to the public." Brief
for Respondents 30.
B
In 1997, petitioner Christopher A. Lopez was convicted of
possession with intent to distribute methamphetamine, in violation
of 21 U. S. C. § 841. Upon finding that Lopez possessed a firearm
in connection with his offense, the District Court enhanced his
sentence by two levels pursuant to USSG § 2D1.1(b)(1). Lopez is
currently scheduled to be released from prison in June 2002.
While incarcerated, Lopez requested substance abuse treatment.
The Bureau found him qualified for its residential drug abuse
program,2 but categorically ineligible, under 28 CFR §
550.58(a)(1)(vi), for early release. App. 3-7.
When notified that he would not be a candidate for early
release, Lopez challenged the BOP's determination by filing a
petition for a writ of habeas corpus, under 28 U. S. C. § 2241, in
the United States District Court for the District of South Dakota.
The District Court granted the petition. In that court's view, the
Bureau's 1997 regulation did not correct the infirmity the Eighth
Circuit saw in the 1995 rule. See App. 17-18, and n. 4 (citing
Martin, 133 F. 3d, at 1079). "[I]t is true," the District Court
recognized, "that the BOP
2 To qualify for residential substance abuse treatment, an
inmate must be "determined by the Bureau of Prisons to have a
substance abuse problem" and be "willing to participate in [the]
program." 18 U. S. C. §§ 3621(e)(5)(B)(i), (ii).
237
may exercise a great deal of discretion in determining who among
the eligible nonviolent offenders may be released." App. 17. But,
the District Court held, the BOP may not categorically count out,
"based upon sentencing factors or weapon possession," inmates whose
underlying conviction was for a nonviolent crime.
Id., at
18. Accordingly, the District Court ordered the BOP "to reconsider
Lopez's eligibility for early release."
Id., at 19.
The Eighth Circuit reversed.
Bellis v.
Davis,
186 F.3d
1092 (1999). Section 3621(e)(2)(B), the Court of Appeals
observed, "states only that the prison term of an inmate convicted
of a nonviolent offense
'may be reduced by the Bureau of
Prisons.'"
Id., at 1094 (quoting 18 U. S. C. §
3621(e)(2)(B)). This discretionary formulation, the Eighth Circuit
reasoned, allows the Bureau to devise a regime based on criteria
that can be uniformly applied. The statute grants no entitlement to
any inmate or class of inmates, the Court of Appeals noted, and it
does not instruct the Bureau to make "individual, rather than
categorical, assessments of eligibility for inmates convicted of
nonviolent offenses." 186 F. 3d, at 1094. The court further
reasoned that, to the extent Congress left a gap in § 3621(e)(2)(B)
for the Bureau to fill, deference is owed the BOP's interpretation
under
Chevron U. S.
A. Inc. v.
Natural Resources
Defense Council, Inc., 467 U. S. 837, 843-845,
866 (1984), so long as the interpretation is a permissible
construction of the statute. 186 F. 3d, at 1095. The Bureau had
elected to deny early release to certain categories of prisoners,
notably recidivists and firearms carriers, whose "conduct indicates
that they pose a serious risk to public safety."
Ibid. That
decision, the Court of Appeals concluded, "represents a manifestly
permissible construction of the statute and an appropriate exercise
of the BOP's discretion."
Ibid.
The Eighth Circuit next explained why its earlier decision in
Martin did not control this case, which trains on the BOP's
1997 regulation:
Martin addressed only the Bureau's 1995
238
attempt to interpret the statutory term "nonviolent offense";
the court in that case did not address "whether the BOP may, as an
exercise of its discretion, ... look to sentencing factors in
deciding which individuals among statutorily eligible inmates are
appropriate candidates for early release." 186 F. 3d, at 1095.
Facing that issue, the Court of Appeals held such an exercise of
discretion proper.
Ibid.
The Courts of Appeals have again divided, now over the
permissibility of the Bureau's current (1997) regulation. The Tenth
and Eleventh Circuits, in line with their prior decisions
invalidating the 1995 rule, have concluded that § 3621(e)(2)(B)
permits no categorical exclusions of nonviolent offenders based on
sentence enhancements.
Ward v.
Booker, 202 F.3d
1249, 1256-1257 (CAlO 2000);
Kilpatrick v.
Houston, 197 F.3d
1134, 1135 (CAll 1999). The Ninth Circuit, on the other hand,
has agreed with the Eighth Circuit that precedent invalidating the
1995 rule does not control and that, in 1997, the BOP permissibly
exercised its discretion under § 3621(e)(2)(B) when it
categorically excluded from early release consideration inmates who
possessed a firearm in connection with their nonviolent offenses.
Bowen v.
Hood, 202 F.3d
1211, 1218-1220 (2000).
We granted certiorari to resolve this conflict, 529 U. s. 1086
(2000), and now affirm the judgment of the Eighth Circuit.
II
The statute provides: "The period a prisoner convicted of a
nonviolent offense remains in custody after successfully completing
a treatment program may be reduced by the Bureau of Prisons .... "
18 U. s. C. § 3621(e)(2)(B). The measure thus categorically denies
early release eligibility to inmates convicted of violent offenses.
The question we address is whether the Bureau has discretion to
delineate, as an additional category of ineligible inmates, those
whose current offense is a felony involving a firearm. 28 CFR §
550.58(a)(1)(vi)(B) (2000).
239
Lopez urges that the statute is unambiguous. He says that, by
identifying a class of inmates ineligible for sentence reductions
under § 3621(e)(2)(B), i.
e., those convicted of a violent
offense, Congress has barred the Bureau from identifying further
categories of ineligible inmates. "If Congress wanted the BOP to
reduce the categories of inmates eligible for the early release
incentive (beyond the one identified by Congress), Congress would
have specifically placed this grant of authority in the language of
the statute." Brief for Petitioner 23. As to the statutory
instruction that the Bureau "may" reduce sentences, Lopez initially
suggests it is merely a grant of authority to the BOP to reduce a
sentence that, prior to the enactment of § 3621(e)(2)(B), could not
be reduced for successful completion of drug treatment: "The power
granted was to give reductions not the power to decide who was
eligible to receive reductions."
Id., at 21. He alternately
contends that the Bureau may take into account only
"post-conviction conduct," not "pre-conviction conduct." Reply
Brief 4-5. Acting on a case-by-case basis, Lopez asserts, the
Bureau may "deny early release to those inmates [who] are
statutorily eligible, but who do not deserve early release based on
their conduct while in prison."
Id., at 5. Under this
reading, the Bureau may exercise discretion in denying early
release, but only on an individual basis, taking account solely of
postconviction conduct.
In the Bureau's view, § 3621(e)(2)(B) establishes two
prerequisites for sentence reduction: conviction of a nonviolent
offense and successful completion of drug treatment. Brief for
Respondents 18. If those prerequisites are met, the Bureau "may,"
but also may
not, grant early release. The BOP opposes
Lopez's argument that Congress barred the Bureau from imposing
limitations categorically or on the basis of preconviction conduct.
According to the Bureau, Congress simply "did not address how the
Bureau should exercise its discretion within the class of inmates
who satisfy the statutory prerequisites for early release."
Id., at 23. Because
240
Congress left the question unaddressed, the Bureau maintains,
the agency may exclude inmates either categorically or on a
case-by-case basis, subject of course to its obligation to
interpret the statute reasonably, see
Chevron, 467 U. S., at
844, in a manner that is not arbitrary or capricious, see 5 U. S.
C. § 706(2)(A). In this instance, the Bureau urges, it has acted
reasonably: Its denial of early release to all inmates who
possessed a firearm in connection with their current offense
rationally reflects the view that such inmates displayed a
readiness to endanger another's life; accordingly, in the interest
of public safety, they should not be released months in advance of
completing their sentences.3
We agree with the Bureau's position. Preliminarily, we note
conspicuous anomalies in Lopez's construction. If § 3621(e)(2)(B)
functions not as a grant of discretion to determine early release
eligibility, but both as an authorization and a command to reduce
sentences, then Congress' use of the word "may," rather than
"shall," has no significance. And if the BOP does have discretion
to deny early release to certain inmates, but only based on
individualized assessments of postconviction conduct, then the
agency cannot categorically deny early release even to recidivists
with prior (perhaps multiple) convictions for "homicide, forcible
rape ... , or child sexual abuse offenses." 28 CFR §
550.58(a)(1)(iv) (2000). For that provision, as much as the
exclusion of inmates imprisoned for offenses involving a firearm,
see
supra, at 235, entails no individualized determination
based on postconviction conduct. Furthermore,
3 The dissent straddles the fence, agreeing with Lopez that the
statute addresses his case unambiguously, but disagreeing with him
on precisely what the statute says. Lopez reads the statute to
exclude Bureau consideration of pre conviction conduct, Reply Brief
4-5; the dissent reads the same words to permit BOP consideration
of such conduct,
post, at 248 (opinion of STEVENS, J.).
These divergent readings hardly strengthen the dissent's assertion
that Congress supplied a definitive answer to the "precise
question" at issue. See
post, at 245.
241
Lopez's position would confine the BOP's discretion under §
3621(e)(2)(B) to consideration of factors of the kind the Bureau
already may consider in granting credit for "satisfactory
behavior." See 18 U. S. C. § 3624(b)(1) ("a prisoner [serving a
term of more than one year and less than life] may receive credit
toward the service of the prisoner's sentence ... subject to
determination by the Bureau of Prisons that, during that year, the
prisoner has displayed exemplary compliance with such institutional
disciplinary regulations").
We turn now to the Bureau's reading of the statutory text, which
instructs that the agency "may" reduce the sentence of a nonviolent
offender who has successfully completed a drug treatment program.
Congress' use of the permissive "may" in § 3621(e)(2)(B) contrasts
with the legislators' use of a mandatory "shall" in the very same
section. Elsewhere in § 3621, Congress used "shall" to impose
discretionless obligations, including the obligation to provide
drug treatment when funds are available. See 18 U. S. C. §
3621(e)(1) ("Bureau of Prisons shall, subject to the availability
of appropriations, provide residential substance abuse treatment
(and make arrangements for appropriate aftercare)"); see also,
e. g., § 3621(b) ("The Bureau shall designate the place of
the prisoner's imprisonment .... In designating the place of
imprisonment or making transfers under this subsection, there shall
be no favoritism given to prisoners of high social or economic
status."). Sensibly read, the grant of discretion in §
3621(e)(2)(B) to decide whether to reduce a sentence parallels the
grant of discretion in § 3621(e)(2)(A) to retain a prisoner who
successfully completes drug treatment "under such [custodial]
conditions as the Bureau deems appropriate." § 3621(e)(2)(A). When
an eligible prisoner successfully completes drug treatment, the
Bureau thus has the authority, but not the duty, both to alter the
prisoner's conditions of confinement and to reduce his term of
imprisonment.
The constraints Lopez urges-requiring the BOP to make
individualized determinations based only on postconviction
242
conduct-are nowhere to be found in § 3621(e)(2)(B). Beyond
instructing that the Bureau has discretion to reduce the period of
imprisonment for a nonviolent offender who successfully completes
drug treatment, Congress has not identified any further
circumstance in which the Bureau either must grant the reduction,
or is forbidden to do so. In this familiar situation, where
Congress has enacted a law that does not answer "the precise
question at issue," all we must decide is whether the Bureau, the
agency empowered to administer the early release program, has
filled the statutory gap "in a way that is reasonable in light of
the legislature's revealed design."
NationsBank of N. c., N.
A. v.
Variable Annuity Life Ins. Co., 513 U. S. 251, 257 (1995)
(citing
Chevron, 467 U. S., at 842); see also
Reno v.
Koray, 515 U.
S. 50, 61 (1995) (deferring to BOP's interpretation of
statute). We think the agency's interpretation is reasonable both
in taking account of preconviction conduct and in making
categorical exclusions.
First, as the dissent but not Lopez recognizes, see
post,
at 248, the Bureau need not blind itself to preconviction conduct
that the agency reasonably views as jeopardizing life and limb. By
denying eligibility to violent offenders, the statute manifests
congressional concern for preconviction behavior-and for the very
conduct leading to conviction. The Bureau may reasonably attend to
these factors as well. Its regulation in this regard is kin to the
Attorney General's order upheld in
INS v.
Yueh-Shaio
Yang, 519 U. S.
26 (1996). That case involved a statute authorizing the
Attorney General to waive deportation of aliens deportable for
entry fraud. The Attorney General had refused to waive deportation
for one alien because of "acts of fraud ... in connection with his
entry."
Id., at 27. The alien argued that because the
statute made aliens who had committed entry fraud eligible for
waiver, the Attorney General was precluded from taking such conduct
into account "at all" in deciding whether to grant relief.
Id., at 30. We rejected this view, stating
243
that the statute "establishes only the alien's
eligibility for the waiver. Such eligibility in no way
limits the considerations that may guide the Attorney General in
exercising her discretion to determine who, among those eligible,
will be accorded grace."
Id., at 31. Similarly in this case,
the statute's restriction of early release eligibility to
nonviolent offenders does not cut short the considerations that may
guide the Bureau. Just as the Attorney General permissibly
considered aspects of entry fraud, even though entry fraud was a
criterion of statutory eligibility, so the Bureau may consider
aspects of the conduct of conviction, even though the conviction is
a criterion of statutory eligibility.4
We also reject Lopez's argument, echoed in part by the dissent,
post, at 248-249, that the agency must not make categorical
exclusions, but may rely only on case-by-case assessments.5 "[E]ven
if a statutory scheme requires individual-
4 Lopez contends that the Bureau's creation of additional
hurdles to receipt of a sentence reduction defeats Congress'
purpose of giving inmates an incentive to undergo drug treatment.
Brief for Petitioner 24-29. In
INS v.
Yueh-Shaio
Yang, 519 U. S.
26 (1996), we said that "[i]t could be argued that if the
Attorney General determined that
any entry fraud or
misrepresentation, no matter how minor and no matter what the
attendant circumstances, would cause her to withhold waiver, she
would not be exercising the conferred discretion at all, but would
be making a nullity of the statute."
Id., at 31. In this
case, it is plain that the Bureau has not rendered § 3621(e)'s
incentive a nullity. A total of 6,559 inmates have received
sentence reductions under § 3621(e)(2)(B), including 2,633 inmates
in Fiscal Year 1999 alone. Bureau of Prisons, Substance Abuse
Treatment Programs in the Federal Bureau of Prisons, Report to
Congress 8 (Jan. 2000). Moreover, inmates who do not qualify for
early release, like inmates who do, receive other incentives to
participate in substance abuse treatment. See 28 CFR §§
550.57(a)(1), (3) (2000) ("An inmate may receive incentives for his
or her satisfactory involvement in the residential [drug treatment]
program," including "[l]imited financial awards" and "[l]ocal
institution incentives such as preferred living quarters or special
recognition privileges.").
5 The dissent appears to acknowledge that the Bureau may give
"neardispositive weight to preconviction criteria."
Post, at
249. To the extent the dissent would permit the BOP to accord heavy
weight to preconviction
244
ized determinations," which this scheme does not, "the
decisionmaker has the authority to rely on rulemaking to resolve
certain issues of general applicability unless Congress clearly
expresses an intent to withhold that authority."
American
Hospital Assn. v.
NLRB, 499 U. S. 606, 612
(1991); accord,
Heckler v.
Campbell, 461 U. S. 458, 467
(1983). The approach pressed by Lopez-case-by-case decisionmaking
in thousands of cases each year, see
supra, at 243, n.
4-could invite favoritism, disunity, and inconsistency. The Bureau
is not required continually to revisit "issues that may be
established fairly and efficiently in a single rulemaking
proceeding."
Heckler, 461 U. S., at 467.6
Having decided that the Bureau may categorically exclude
prisoners based on their preconviction conduct, we further hold
that the regulation excluding Lopez is permissible. The Bureau
reasonably concluded that an inmate's prior involvement with
firearms, in connection with the commission of a felony, suggests
his readiness to resort to lifeendangering violence and therefore
appropriately determines the early release decision.7
conduct, the structured "[i]ndividualized [BOP] consideration"
the dissent would allow,
post, at 249, seems but a shade
different from the forthright categorical exclusion the Bureau has
adopted.
6 Amici urge reversal on the ground that the Bureau
violated the notice and comment requirements of the Administrative
Procedure Act when it published the 1997 regulation. Brief for
National Association of Criminal Defense Lawyers et al. as
Amici
Curiae 18-24. We decline to address this matter, which was not
raised or decided below, or presented in the petition for
certiorari.
Blessing v.
Freestone, 520 U. S. 329, 340,
7 Lopez invokes the rule of lenity in urging us to accede to his
interpretation. Because, as discussed above, the statute cannot be
read to prohibit the Bureau from exercising its discretion
categorically or on the basis of pre conviction conduct, his
reliance on the rule is unavailing. See
Caron v.
United
States, 524 U. S.
308, 316 (1998) ("The rule of lenity is not invoked by a
grammatical possibility. It does not apply if the ambiguous reading
relied on is an implausible reading of the congressional
purpose.").
245
For the reasons stated, the judgment of the Court of Appeals for
the Eighth Circuit is
Affirmed.
JUSTICE STEVENS, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY
join, dissenting.
The question at issue in this case is whether all, or merely
some, of the federal prisoners who were convicted of nonviolent
offenses and who have successfully completed a Bureau of Prisons
(BOP or Bureau) drug treatment program are eligible for a sentence
reduction pursuant to 18 U. S. C. § 3621(e)(2)(B). For the reasons
outlined below, I believe that Congress has answered that precise
question. The statute expressly states that the sentence of every
prisoner in that category "may be reduced."
Ibid. The
disposition of this case is therefore governed by the first step in
the familiar test announced in
Chevron U. S.
A. Inc.
v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843
(1984), for "Congress has directly spoken to the precise question
at issue."
Id., at 842.
I
In drafting the statute in question, Congress was faced with a
difficult policy choice: whether the commission of particular
crimes made certain categories of offenders so dangerous that the
costs of offering them early release in return for the successful
completion of a drug treatment program outweighed the rewards. The
initial drafts of the bill answered that question in the negative
and made all federal prisoners eligible for a sentence reduction of
up to one year if they successfully completed a drug treatment
program. See,
e. g., H. R. Rep. No. 103-320, p. 2 (1993).
However, the inclusion of those convicted of violent offenses
within the category of those eligible for the inducement soon
became a fulcrum of criticism for the larger crime bill within
246
which the statute was embedded.1 Perhaps as a result of these
criticisms,2 the statute ultimately adopted limited the inducement
to "prisoner[s] convicted of ... nonviolent offense[s]." 18 U. s.
C. § 3621(e)(2)(B).
Both the text of the statute and the aforementioned history
demonstrate that Congress directly addressed the "precise question"
of what offenses ought to disqualify prisoners from eligibility for
a sentence reduction, and that its unambiguous answer was "violent
offenses." Under the statute as enacted, those who commit crimes of
violence are categorically barred from receiving a sentence
reduction while those convicted of nonviolent offenses "may"
receive such an inducement.
IThroughout 1993 and 1994, Republican leaders gave numerous
speeches contrasting their proposed crime bill and the
administration's. One contrast repeatedly stressed was that the
Republican bill set aside more money for prison construction while
the Democratic bill allocated greater funds to drug treatment. This
difference allegedly reflected differing views as to how society
should deal with violent criminals. To this end, Republican leaders
repeatedly criticized the inclusion of violent criminals in the
sentence reduction provision. See,
e. g., 139 Congo Rec.
27209 (1994) (remarks of Sen. Hatch) ("Their treatment allows all
Federal prisoners, including the most violent, to have their
sentences reduced, if you will, at the Bureau of Prisons'
discretion if they complete a drug treatment program. Boy, I can
see where everybody is going to do that. You can imagine the
sincerity of that"); 139 Congo Rec. 27460 (1993) (remarks of Sen.
Hatch) ("The Democratic crime bill actually permits the Bureau of
Prisons to decrease the sentence of Federal inmates-violent
offenders included-who complete drug treatment programs. Their bill
also proposes that States be given grant money which can be used to
implement home confinement and other alternative sanctions for
violent offenders").
2 The House initially approved a version of the bill that would
have extended the inducement to all federal prisoners. The Senate,
where the criticism of the inclusion of violent offenders was more
pronounced, see n. 1,
supra, limited the provision to
nonviolent offenders. The Conference Committee accepted the
Senate's limitation. H. R. Conf. Rep. No. 103711, p. 381
(1994).
247
The BOP regulation challenged here operates to redefine the set
of prisoners categorically ineligible for a sentence reduction, a
set unambiguously defined in the text of the statute. It does so by
taking a group of prisoners whose offenses the Bureau acknowledges
are "nonviolent" within the meaning of the statute 3 and imposing
the same sanction-categorical ineligibility-upon them as the
statute imposes upon violent offenders. In so doing, the Bureau
ignores Congress' express determination that, when evaluating
eligibility for a sentence reduction, the salient distinction is
the line between violent and nonviolent offenses. By moving this
line, the BOP exceeded its authority and sought to exercise its
discretion on an issue with regard to which it has none. See,
e.
g., Chevron, 467 U. S., at 842-843 ("First, always, is the
question whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress");
United States v.
Haggar Apparel Co., 526 U. S. 380, 392 (1999)
("In the process of considering a regulation in relation to
specific factual situations, a court may conclude the regulation is
inconsistent with the statutory language or is an unreasonable
implementation of it. In those instances, the regulation will not
control").
3 The BOP regulation challenged here treats an otherwise
nonviolent offense where a gun was carried as a "nonviolent
offense" within the meaning of the statute, and the case was argued
on that assumption. As the majority notes,
ante, at 233-236,
the BOP initially attempted to classify such crimes as violent
offenses, but receded when the Courts of Appeals divided over the
validity of such a construction. The question over which the Courts
of Appeals initially divided is not before us today. If it were,
the arguments raised by both sides would be quite different, with
the debate likely focusing on whether "nonviolent offense" is best
understood as a term of art or in relation to a more colloquial
understanding of violence.
248
II
I fully agree with the majority that federal prisoners do not
become entitled to a sentence reduction upon their successful
completion of a drug treatment program; the words "may be reduced"
do not mean "shall be reduced." Nonetheless, while the statute does
not entitle any prisoner to a sentence reduction, it does guarantee
nonviolent offenders who successfully complete a drug treatment
program consideration for such a reduction.
For every nonviolent offender who participates in a drug
treatment program, the BOP may be required to make two
individualized determinations: (1) whether he or she has
successfully completed that program; and (2), if so, whether his or
her preconviction conduct, postconviction conduct, and prospects
for rehabilitation justify a sentence reduction. In evaluating
whether or not a particular individual is entitled to a sentence
reduction, the BOP may give great weight to whichever of these
factors it determines to be most relevant. That, however, is a far
cry from categorically excluding from consideration prisoners who
Congress explicitly intended to obtain such consideration.4
The majority's concern about the risks and burdens associated
with case-by-case decisionmaking in a large number of cases is
understandable yet ultimately misguided. In order to fulfill the
statute's requirements, the BOP must already
4 This Court's decision in
INS v.
Yueh-Shaio Yang,
519 U. S. 26
(1996), relied upon by the majority,
ante, at 242-243, is
not to the contrary.
Yueh-Shaio Yang did not involve an
effort by an administrative agency to categorically exclude from
consideration for a benefit a particular class of individuals
because of a characteristic considered and rejected by Congress as
a basis for categorical exclusion. Rather, that case involved the
related yet distinct question whether such a characteristic may be
given any weight by the agency in making an individualized
case-by-case determination whether to grant the benefit to a
particular individual. If the issue in this case were whether the
BOP could even consider the nature of the offense in determining
whether to grant a particular sentence reduction,
Yueh-Shaio
Yang would be relevant to our analysis.
249
evaluate every prisoner seeking the sentence reduction on an
individual basis to determine whether that prisoner "successfully
completed" his or her drug treatment program. Individualized
consideration of the second salient question involves consideration
of many of the same personalized factors that go into determining
whether a prisoner's course of drug treatment has been
"successful." To the extent that answering the second question
requires consideration of additional factors with a concomitant
administrative burden, the costs of such a scheme are, in Congress'
judgment, outweighed by the benefits of encouraging drug treatment
and of carefully distinguishing between those prisoners who have
earned an early return to their communities and those who require
further incarceration.
The majority's worry that individualized decisionmaking might
lead to "favoritism, disunity, and inconsistency" is similarly
misplaced.
Ante, at 244. To suggest that decisionmaking must
be individualized is not to imply that it must also be
standardless. If the Court today invalidated the regulation in
question, its decision would not preclude the BOP from adopting a
uniform set of criteria for consideration in evaluating
applications for sentence reductions. Nor would it necessarily
preclude the Bureau from giving dispositive weight to certain
postconviction criteria or neardispositive weight to preconviction
criteria. Cf.
Heckler v.
Campbell, 461 U. S. 458, 467
(1983). The Bureau would remain free to structure its
decisionmaking in any way it saw fit as long as in so doing it did
not contravene policy decisions explicitly made by the statute's
drafters. As Congress has already addressed preincarceration
conduct in § 3621(e)(2)(B), the Bureau may not categorically
exclude a prisoner not convicted of a violent offense from
consideration for early release on the basis of such conduct
without exceeding the limits of its discretion.
Accordingly, I respectfully dissent.
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