Barber v. Thomas

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Argued March 30, 2010. Decided June 7, 2010.

Authorship: Carl Cecere of Akin Gump

Docket: 09-5201

Issue: Does “term of imprisonment” in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require the computation of good time credits on the basis of the sentence imposed?

Contents

Briefs and Documents

Decision

AFFIRMED in a 6-3 decision with an opinion by Justice Breyer. Justice Kennedy dissented, joined by Justices Stevens and Ginsburg.]

Oral Argument

Transcript (March 30, 2010)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Opinion Recap

Carl Cecere originally wrote the following for SCOTUSblog:

On Monday, June 7, 2010, in Barber v. Thomas (No. 09-5201), the Court rejected a challenge by federal prisoners to the method used by the Bureau of Prisons to calculate “good time” sentence reductions. Had the case gone the other way, it could have been one of the Term’s biggest, affecting the sentence of virtually every federal prisoner. But even now, the decision remains noteworthy, both because it contains perhaps the most interesting split of the term (with Justices Breyer and Sotomayor joining forces with the conservative members of the Court while Justice Kennedy jumped ship to author a strongly worded dissent on behalf of Justices Stevens and Ginsburg), and also because it illustrates some of the confusion and contradiction still endemic in our federal penological statutes.

Under 18 U.S.C. § 3624(b)(1), a federal inmate is entitled to a credit of up to fifty-four days for every year of her “term of imprisonment” if she exhibits exemplary behavior during that year. The Bureau has consistently interpreted the phrase “term of imprisonment” to refer to the length of the sentence actually served by the inmate. But petitioners challenged that interpretation, insisting that the phrase “term of imprisonment” must refer to the entire length of an inmate’s sentence as imposed by the district judge, and contending that the Bureau’s interpretation would cost them months of good time credits.

In an opinion by Justice Breyer that was joined by the Chief Justice and Justices Scalia, Thomas, Alito, and Sotomayor, the Court sided with the Bureau, characterizing its interpretation as the most “natural reading” of the statute—not necessarily perfect, but more workable than any proffered alternative. Noting Congress’s requirement that good time awards be made “at the end of the year” for exemplary behavior “during that year,” the Court concluded that this could not be accomplished under the prisoners’ definition: if good time awards must be awarded annually for the entire length of a prisoner’s sentence, they would have to be made after the prisoner had already been released. Moreover, the Court emphasized, the prisoners’ interpretation would undermine the purpose of the Sentencing Reform Act (SRA), of which Section 3624(b) was a product. The SRA was intended to tie sentencing credits to actual inmate behavior, while the prisoners’ interpretation would award good time credits for time that was not actually served. The Court also rejected the prisoners’ citations to legislative history as too general to be of any use in divining the statute’s meaning. Finally, the Court rejected appeals for lenity and Chevron deference, reasoning that because the Bureau’s interpretation was the “most natural reading,” the statute was not actually ambiguous.

The Court acknowledged one failure in its own interpretation, however, because it would be impossible to impose it consistently through the Code—or even within Section 3624(b)(1) itself. As the Court noted, the phrase “term of imprisonment” is used many times in the Code. Sometimes, the Court noted, it could be read as consistent with time actually served—as in Section 3624(d), which requires the Bureau to “furnish a prisoner with . . . suitable clothing[,] . . . money, . . . and . . . transportation” [u]pon the release of [the] prisoner on the expiration of the prisoner’s term of imprisonment.” But in at least some circumstances, it could not have this meaning—for example, in Section 3624(a), which requires that “[a] prisoner shall be released” at the end of “the prisoner’s term of imprisonment, less any time credited” for good behavior)—the term must refer to the length of sentence imposed. Thus, the Court concluded, the term could not be given uniform meaning.

Justice Kennedy dissented, joined by Justices Stevens and Ginsburg. Those Justices would have rejected the interpretations advanced by both the Bureau and the prisoners. Instead, they would have interpreted the phrase “term of imprisonment” in a way that would retain the functional features of the prisoners’ interpretation—thereby providing additional good time credit—but that could also be applied consistently throughout the Code.

To the dissenters, the phrase “term of imprisonment” refers to “the span of time that a prisoner must account for in order to obtain release.” Under this formulation, the “term” is initially set by the sentence imposed, but it can be satisfied by a combination of prison time and good time credits. This interpretation, the dissent contended, could be applied to the phrase “term of imprisonment” universally, including in the examples above. Functionally, however, it would operate identically to the method that the prisoners advanced at oral argument. Under this method, good time credits are awarded annually, and once earned, are applied immediately to reduce the length of the next year of a prisoner’s sentence—making that subsequent year as short as 311 days if a full 54 days are awarded.

In his opinion for the Court, Justice Breyer criticized the dissent’s approach as equally unworkable under the terms of Section 3624. In the Court’s view, including credits in the term of imprisonment would render the latter half of Section 3624(a)—requiring that “[a] prisoner shall be released” upon “the expiration of the prisoner’s term of imprisonment, less any time credited” for good behavior) (emphasis added)—redundant. Additionally, providing immediate credit for good time awards would also conflict with Section 3624(b)(2)’s requirement that good time awards for most prisoners “vest on the date the prisoner is released from custody.”

Ultimately, there is something dissatisfying about the Court’s result in this case. Although the Court appears to have done the best that it could in interpreting the statute, it is troublesome that the Court was forced in the process to acknowledge an incoherence in Congress’s use of the phrase “term of imprisonment”—perhaps the key phrase in Section 3624. The dissent does, at least, confront this problem directly; however, in doing so, it is forced to undertake an extremely complex and counterintuitive definition of the phrase that is in tension with several provisions of the statute. Given the centrality of the phrase, and its importance in defining the period during which prisoners are to be deprived of their freedom, greater clarity certainly seems necessary.

Further, calculation of good time credits remains an extraordinarily complex affair—the Court devoted a two-page appendix solely to the algebra involved. It is apparent that one of the SRA’s purposes—to simplify the calculation of good time credits—simply hasn’t yet been achieved.

Argument Recap

Carl Cecere originally wrote the following for SCOTUSblog:

Tuesday’s argument in Barber v. Thomas (No. 09-5201) is perhaps best summed up through the terse words of Justice Stevens. While the case seems pretty simple (given, as I mentioned here, that the Court need only grapple with a single phrase – “term of imprisonment” – in 18 U.S.C. § 3624(b)(1)), the argument about that phrase’s meaning was anything but. This is because, as Justice Stevens said, Section 3624(b)(1) “is an awfully hard statute to understand.”

Confusion on the part of both the parties and the Court was evident throughout the argument, which was almost entirely consumed by the justices’ attempts to figure out how Section 3624(b)(1) ought to operate. They proposed numerous hypotheticals in which even fairly straightforward prisoner sentences gave rise to illogical results. And, after the statute was run through this Socratic threshing-machine, the essential question—whether there really is any feasible way to calculate good time credits in conformance with the language that Congress used in Section 3624(b)(1)—was probably left unanswered.

At argument, the basic challenge that the petitioners face is to show that their reading of the phrase “term of imprisonment”—to mean the entire length of sentence—conforms with Congress’s command that good time awards be made annually. If Congress intended good time awards to be made every year, how could prisoners receive credit for good time based on the entire length of their sentence, which would necessarily require annual good time awards to be made after the prisoner had already been released?

Petitioners respond by trying to cram an entire year into 311 days. They agree that good time credits should be awarded at the end of each year. But, adopting an argument that only their amici had fully briefed, petitioners contend that good time credit should immediately reduce an inmate’s sentence. To petitioners, if a prisoner is awarded 54 days of good time on the 365th day of his sentence, that award should be credited to his time right away, such that on the award date, the prisoner would already be 54 days into his next year of sentence. Under this method, this second year would be deemed to have begun 54 days before, on the 312th day the prisoner was actually in prison. That way, good time need not be awarded after an inmate’s release in order for an inmate to receive an award of good time for every year of sentence.

Justice Alito questions the basic logic of this method. Instead, he wonders whether it would make more sense for each year of imprisonment to end at the termination of the year it is served. Further, he is concerned about what ought to happen if a prisoner were to misbehave after day 311 of his sentence, but before day 365. Would the reduction for bad behavior occur in the first year, or the second year? Petitioners respond that they would leave such matters to the discretion of the Bureau.

Justice Breyer, echoing a concern raised by Justice Sotomayor, notes that although petitioners had criticized the method used by the Bureau of Prisons as overly complex, their proposed system may not be any simpler. Further, he wonders whether it makes sense to provide good time credit to a prisoner based on time that the prisoner did not actually serve, as petitioners suggest.

The government in turn, must face the problems raised by really short sentences. Under the Bureau’s method, awards of good time are given every year and subtracted from the end of a prisoner’s sentence. But Justices Breyer and Sotomayor note the problem of the year-and-a-day sentence—the shortest sentence entitled to good time credit. They raise concern that, for these sentences, the government’s method suffers the same flaw as petitioners’. How could such a prisoner be awarded good time at the “end” of the year, they ask, when the prisoner would be released by the 365th day of sentence?

The government responds by reference to Congress’ catch-all statement at the end of Section 3624(b)(1): “Credit for the last year or portion of a year of the time of imprisonment shall be prorated and credited within the last six weeks of sentence.” The government emphasizes the Bureau’s practice of simply prorating such awards within the final six weeks of sentence. But this response gives rise to logical problems of its own, because, as the Court notes, the first year of sentence must count as the “last year” for this catch-all provision to apply. A “last year” presumes that other years came before it.

All of this textual wrangling may not ultimately be decisive, however, if a plurality of the Court concludes that Section 3624(b)(1) is ambiguous. Justice Ginsburg suggests as much by asking what the Court should do “if we consider both methods plausible,” a point later reiterated by Justice Kennedy. And Justices Sotomayor and Breyer express frustration with the positions taken both sides throughout the argument.

The question then becomes how this ambiguity ought to be resolved. Justice Ginsburg suggests that the legislative history might be determinative. In turn, Justice Kennedy strongly urges that the rule of lenity might apply, given that determining the length of sentence through good time awards “has all the force of the State detaining a person for a criminal act.”

And the justices also spend a sizable amount of time on whether Chevron deference ought to apply. Justice Breyer heavily criticizes the petitioners’ reliance on what he called a simple “staff conclusion” of Sentencing Commission personnel as not having the requisite weight of formal agency adoption behind it. But the Bureau is considered an equally unlikely candidate for deference by Justice Sotomayor, who criticized the lack of any administrative record behind the Bureau’s interpretation beyond an affidavit from agency personnel submitted in support of the government’s brief—an affidavit that Justice Scalia gleefully lampoons as being even worse than legislative history in the form of legislators’ post hoc statements. So no likely victor emerges in the battle of which agency, between the Commission and the Bureau, ought to receive Chevron deference, making it difficult to determine how the ultimate decision is eventually going to shake out.

The Court is expected to issue its decision prior to summer recess in late June.

Pre-Argument Articles

Argument Preview

Carl Cecere originally wrote the following for SCOTUSblog:

On Tuesday, March 30, 2010, the Court will hear argument in Barber v. Thomas, a habeas challenge to the method used by the Bureau of Prisons to calculate “good time” sentence reductions for federal inmates. The issue presented is extremely narrow, divining the meaning of a single phrase within 18 U.S.C. § 3624(b)(1), the statute governing awards of good time. But this casre could have enormous significance, potentially affecting the sentence of every prisoner in the federal system.

Section 3624(b)(1) came into being with the Sentencing Reform Act of 1984 (the “SRA”). It provides that prisoners serving sentences longer than one year who exhibit good behavior are eligible to receive a credit against their sentence of up to fifty-four days per year of the prisoner’s “term of imprisonment.”

At issue is the meaning of this last phrase—“term of imprisonment.” Since the enactment of Section 3624, the Bureau of Prisons has interpreted the phrase to refer to the period of time actually served by the prisoner. Under the Bureau’s practice, prisoners are awarded their fifty-four days on each anniversary of their incarceration date, upon review of the prisoner’s behavior during the previous year. For sentences greater than a whole number of years, the award is prorated at the end of the incarceration period. Awards are thus both reviewed and awarded retrospectively, accruing only after the time period served by the prisoner, and taking into account the actual days served in determining whether good time credits had accrued.

Petitioners Michael Barber and Tahir Jihad-Black are serving time in federal prison. They contend that the Bureau’s interpretation of the phrase “term of imprisonment” is erroneous and shortchanges their good-time awards. They contend that the phrase “term of imprisonment” is a term of art that unambiguously refers to the entire sentence imposed by the judge. Thus, they contend, they are entitled to fifty-four days of good time for every year of their sentence—essentially a prospective fifteen-percent reduction of the entire sentence. This interpretation changes the good time calculation because inmates’ sentences are usually longer than the time they actually serve, in no small part because of the reduction in sentence caused by good time awards. Because the Bureau’s method takes into account less time for a given sentence, a smaller good time award results. For a sentence of a year and a day (the shortest entitled to good time credit), the difference amounts to approximately seven days. For Petitioners Black and Barber, serving sentences of 320 and 262 months respectively, the disparity adds months to their prison time.

The interpretive battle between petitioners and the federal government begins with a tour through the United States Code for textual clues of Congress’s meaning. Petitioners cite three other instances of the phrase “term of imprisonment” in Section 3624(b)(1) itself, along with more than one hundred other statutory examples elsewhere in the Code. They contend that in each example, Congress unambiguously meant “sentence imposed.”

The government, on the other hand, readily admits that—at least in isolation—the phrase “term of imprisonment” is ambiguous. It argues that Congress fell prey to this ambiguity and conferred both meanings on the phrase in different instances in Section 3624(b)(1) and throughout the Code, making it impossible to resolve meaning through petitioners’ suggested intra- or intertextual analysis. Instead, the government contends, the ambiguity is resolved through a functional look at the structure of Section 3624(b)(1) itself. The government notes that in Section 3624 Congress required that good time credits be awarded annually. In the government’s view, this makes purely prospective awards impossible, because the good time credits cannot be awarded at the beginning of incarceration and still comply with Congress’s requirement. Moreover, petitioners’ interpretation would also be contrary to Congress’s intent that good time credits be awarded during time being served. To give the phrase “term of imprisonment” the meaning petitioners suggest, the Bureau would have to conduct good time awards even after petitioners had been released from prison, an absurd result.

Both sides next resort to the statutory history of good time awards. Petitioners emphasize that in Congress’s original good time statutes, which date back to the nineteenth century, awards of good time were explicitly prospective, and measured according to the full term of the prisoner’s sentence. Good time credits were automatically deducted from the prisoner’s total sentence when incarceration began, and only withdrawn for misconduct. In 1949, Congress added a requirement that such awards be made on a monthly basis. But Congress observed that certain courts interpreted this monthly accrual requirement to require retrospective assessments according to time served, citing concerns similar to those raised by the petitioners here—that retroactive assessments shortchanged prisoners. To prevent this result, Congress then withdrew the monthly assessment requirement—a clear indication, petitioners argue, that Congress did not want retroactive assessment according to time served.

The government, for its part, focuses less on this earlier history and more on the changes instituted by the SRA itself in 1987. The government argues that because Congress in the SRA imposed a periodic review process, it knew from previous experience that this would lead to retrospective assessments according to time actually served. So with the SRA they were deliberately returning to the more stringent good time awards they had rejected before.

The parties even sprinkle a bit of legislative history in with their textualist arguments. Petitioners argue that floor statements by members of Congress on legislation similar to the SRA support their reading. This argument, however, earns a stern rebuke from the government, which both denounces the specious nature of such “post enactment” legislative history and then more gently suggests that perhaps the legislators mentioned might have been mistaken in their math.

Beyond the statute itself, both sides also spend considerable time navigating the more obscure aspects of Chevron deference, each attempting to draft different agencies as their interpretive champions. Petitioners argue that the Bureau’s position should not control because of the agency’s largely ministerial role in granting good time credits—a role they see as restricted to implementing, rather than interpreting, Section 3654(b)(1). Instead, petitioners argue, Chevron deference should be given to an interpretation by the United States Sentencing Commission, which used a flat fifteen-percent assumption of good time awards as part of its calculations in creating the sentencing ranges in the Guidelines. This interpretation is controlling, petitioners contend, because the Sentencing Commission has actually been charged with interpreting the appropriate lengths for federal sentences.

For its part, the government counters that the Bureau is entitled to Chevron deference because it has broad authority over prison administration generally, and also because Congress tasked it with administering Section 3624. Deference to the Sentencing Commission is inappropriate, the government continues, because the Sentencing Commission is only responsible for setting sentencing ranges and has no role in implementing them. It also argues that the executive branch has internally assigned authority to promulgate regulations on the award of good time credit by executive order, and the Sentencing Commission itself has noted the Bureau’s authority in this area. By allocating interpretive authority among its own agencies, the government contends, the executive branch itself has decided that the Bureau’s position ought to be preferred.

Finally, as an alternative to Chevron deference, petitioners appeal to the rule of lenity, whereby ambiguous criminal statutes are always construed in favor of the criminal defendant to ensure that proper notice of the consequences of the crime is given. They contend that Section 3624(b)(1)(a) is effectively a criminal statute—and thus subject to the rule of lenity—because it determines the “quantum of punishment” that a criminal defendant will receive. The government counters that it is not enough for a statute to merely relate to either criminality in general or determining the quantum of punishment in particular. Instead, the rule of lenity only applies to “interpretations of the substantive ambit of criminal prohibitions.” Because Section 3624(b)(1) has nothing to do with the underlying crime, but rather only the length of sentence, the Government argues, it is not a “criminal” statute, and lenity is inapplicable.

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