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Argument analysis: Justices skeptical of government’s claim that pretrial imprisonment tolls a term of federal supervised release

At Tuesday’s oral argument in Mont v. United States, the justices considered whether a term of federal supervised release is tolled, or put on hold, when someone on supervised release is held in pretrial detention on a new criminal charge. In analyzing this question, the justices focused on the text of 18 U.S.C. § 3624(e), which provides that supervised release does not run “during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.”

The legal dispute before the Supreme Court concerned the expiration date of Jason Mont’s federal supervised-release term. Mont had been sentenced in federal court to 84 months in prison and five years of supervised release, a form of post-custodial supervision in the federal system. Mont began his supervision term in 2012, but he was later arrested in state court on new charges. He entered state pretrial custody on the new charges roughly 10 months before his federal supervised-release term had been set to expire. Although Mont was ultimately convicted and sentenced on the new state charges, the federal judge overseeing Mont’s behavior on supervised release did not issue a warrant for a violation of supervised release until after the initial end date of Mont’s federal supervision term.

Vanessa Malone, representing Jason Mont, went first. She began with a forceful textual argument, laying great emphasis on the present-tense nature of Section 3624(e), which allows for the tolling of supervised release whenever a person “is imprisoned” in connection with a conviction. Malone stressed that someone held in pretrial detention cannot be said to be imprisoned for a conviction, because that person has yet to be convicted.

Malone received immediate pushback from Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Samuel Alito, who pointed out that all 10 months of Mont’s pretrial detention were ultimately credited to his new state sentence. The justices pressed Malone to explain why the fact that this 10-month period was credited toward his state sentence did not render it imprisonment “in connection with” the state conviction.

Justice Sonia Sotomayor intervened in support of Malone’s arguments, highlighting the different purposes served by pretrial detention and by imprisonment for a conviction. Sotomayor stressed that when someone is held in pretrial detention, that person is held because of public safety and/or risk-of-flight concerns, not because of a conviction.

Alito continued to challenge Malone’s position, picking up on the argument in the government’s brief that the present-tense nature of the statute does not preclude courts from looking back at a period of pretrial detention and concluding that the detention should be considered imprisonment “in connection with a conviction” because the detention ultimately was credited to the new conviction.

In response, Malone argued that this look-back approach would create confusion and uncertainty. Once a person on supervised release entered pretrial detention, the federal judge would not know from moment to moment whether the person’s supervised release was being tolled. If the person were released or acquitted, there would be no tolling, which could catch the federal judge overseeing that supervised-release term by surprise.

Sotomayor clearly thought the look-back approach made little practical sense. In her view, the uncertainty created by the government’s approach weighed in favor of Mont’s position.

However, several justices pushed Malone to explain whether the calculus changed once a person pleaded guilty and remained in pretrial custody pending the sentencing hearing. Was this now imprisonment in connection with a conviction? Malone responded that her arguments remained the same, because it is possible to be released on bond during the period between the guilty plea and a sentencing hearing. In addition, in Malone’s view, the word “conviction” requires a final judgment, and the entry of judgment happens only after a judge has sentenced a defendant.

When Jenny Ellickson, an assistant to the solicitor general, rose to begin her argument, she faced immediate skepticism from the bench. Like Malone, Ellickson began her remarks with an appeal to the plain language of Section 3624(e), which she contended provides for the broad tolling of periods of pretrial imprisonment “in connection with a conviction.” Justice Elena Kagan quickly cut off this textual argument, warning Ellickson that “whatever this is, I don’t think it’s really clear.”

The tone of the questioning remained broadly skeptical throughout Ellickson’s time at the podium. Kagan and Justice Stephen Breyer both suggested that accepting Ellickson’s reading of the “in connection with” language would require changing the tense of the statute. Several justices then debated various ways that Congress might have drafted the statute to get closer to the government’s interpretation of its meaning.

Ellickson tried a different approach, arguing that a federal probation officer cannot effectively supervise someone in pretrial detention, defeating the purposes of supervised release. In response, several justices stressed that arguments about the difficulty of supervising people in pretrial custody would apply equally to situations in which the person was released within 30 days or ultimately acquitted, even though the statute clearly did not allow for the tolling of supervised release in these circumstances.

The justices then turned to the government’s alternative argument, its claim that at minimum, tolling began after Mont pleaded guilty to his state crimes and remained in pretrial custody while waiting for his state sentencing hearing. Both Sotomayor and Justice Neil Gorsuch asked Ellickson to explain why the Supreme Court should decide this question, as it had not been fully litigated in the courts below. When Ellickson urged the court to go ahead and decide the question, Gorsuch’s response encapsulated the general tenor of the questioning. He asked Ellickson, “Even if you lose that one too?”

When Malone rose for her rebuttal, she pressed her advantage. Highlighting the present-tense nature of the statute, she argued that adopting the government’s analysis would create so much ambiguity that it would not be workable. She also pushed back on the claim that federal probation officers could not properly monitor individuals being held in pretrial detention.

By the end of the hour, the tone of the argument strongly suggested that Mont’s position is likely to prevail.

Editor’s Note: Analysis based on transcript of oral argument.

Recommended Citation: Fiona Doherty, Argument analysis: Justices skeptical of government’s claim that pretrial imprisonment tolls a term of federal supervised release, SCOTUSblog (Feb. 27, 2019, 3:04 PM),