Here, Carl Cecere of Akin Gump recaps Tuesday’s oral argument in Barber v. Thomas.  You can read Carl’s preview of the proceedings here.  Check the Barber v. Thomas (09-5201) SCOTUSwiki page for additional updates.

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.

Posted in Barber v. Thomas, Merits Cases, Uncategorized