Calculation of â€œgood timeâ€ sentencing credits
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.