Statutory incoherence takes the fun out of good time credits under Section 3624(b)(1)

Carl Cecere is an associate at Akin Gump.

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 Terms 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 inmates sentence as imposed by the district judge, and contending that the Bureaus 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 statutenot necessarily perfect, but more workable than any proffered alternative.  Noting Congresss 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 prisoners 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 statutes meaning.  Finally, the Court rejected appeals for lenity and Chevron deference, reasoning that because the Bureaus 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 Codeor 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 servedas 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 prisoners term of imprisonment.  But in at least some circumstances, it could not have this meaningfor example, in Section 3624(a), which requires that [a] prisoner shall be released at the end of the prisoners 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 interpretationthereby providing additional good time creditbut 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 (which I outlined here).  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 prisoners sentencemaking 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 dissents approach as equally unworkable under the terms of Section 3624.  In the Courts 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 prisoners 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 Courts 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 Congresss use of the phrase term of imprisonmentperhaps 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 affairthe Court devoted a two-page appendix solely to the algebra involved.  It is apparent that one of the SRAs purposesto simplify the calculation of good time creditssimply hasnt yet been achieved.