BARBER ET AL. v. THOMAS, WARDEN
No. 09-5201
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued March 30, 2010—Decided June 7, 2010
560 U.S. 474
Stephen R. Sady argued the cause for petitioners. With him on the briefs was Lynn Deffebach.
Jeffrey B. Wall argued the cause for respondent. With him on the brief were Solicitor General Kagan, Assistant Attorney General Breuer, Deputy Solicitor General Dreeben, and Kevin R. Gingras.*
Federal sentencing law permits federal prison authorities to award prisoners credit against prison time as a reward for good behavior.
I
A
A federal sentencing statute provides:
“[A] prisoner who is serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term. . . . [C]redit for the last year or portion of a year of the term of imprisonment
shall be prorated and credited within the last six weeks of the sentence.” § 3624(b)(1) .
The Bureau of Prisons (BOP) applies this statute using a methodology that petitioners in this case challenge as unlawful. In order to explain the BOP method, we shall use a simplified example that captures its essential elements. The unsimplified calculations described by the BOP in its policy statement, see App. 96-100, will reach approximately the same results as, and are essentially the mathematical equivalent of, the simplified system we describe (there may be other ways to describe the calculation as well). To the extent that there are any differences between the methodology employed by the BOP and that reflected in our example, they are of no consequence to the resolution of petitioners’ challenge and are therefore not before us. Similarly, although petitioners committed their crimes before the current version of
In our example we shall imagine a prisoner who has received a sentence of 10 years’ imprisonment. We shall assume that his behavior throughout his confinement is exemplary and that prison authorities will consequently consider him to merit the maximum good time credit that the statute will allow. And we shall ignore leap years.
Thus, at the end of the first year (Year 1) that prisoner would earn the statute’s maximum credit of 54 days. The relevant official (whom we shall call the “good time calculator“) would note that fact and, in effect, preliminarily put the 54 days to the side. At the end of Year 2 the prisoner would earn an additional 54 days of good time credit. The good time calculator would add this 54 days to the first 54
Year 9 of the sentence will consequently become the prisoner’s last year of imprisonment. Further, because the prisoner has already earned 67 days of credit against that year (432 days already earned minus 365 days applied to Year 10 leaves 67 days to apply to Year 9), the prisoner will have no more than 298 days left to serve in Year 9. Now the good time calculator will have to work out just how much good time the prisoner can earn, and credit against, these remaining 298 days.
As we said, the statute provides that “good time” for this “last year or portion” thereof shall be “prorated.” Thus, the good time calculator must divide the 298 days into two parts: (1) days that the prisoner will have to serve in prison, and (2) credit for good behavior the prisoner will earn during the days served in Year 9. In other words, the number of days to be served in Year 9 plus the number of good time credit days earned will be equal to the number of days left in the sentence, namely, 298. And to keep the award of credit in the last year proportional to awards in other years, the ratio of these two parts of Year 9 (i. e., the number of good time days divided by the number of days served) must be 54 divided by 365, the same ratio that the BOP applies to full years served. We can use some elementary algebra, described in the Appendix, infra, to work out the rest. The
B
In this case petitioners claim that the BOP’s calculation method is unlawful. They say that
The District Court in each of these cases rejected the prisoner’s challenge. Civ. No. 08-226 MO (D Ore., Oct. 27, 2008), App. 13; Jihad-Black v. Thomas, Civ. No. 08-227 MO (D Ore., Oct. 27, 2008), App. 25. And in each instance the Court of
II
Having now considered petitioners’ arguments, we conclude that that we must reject their legal challenge. The statute’s language and its purpose, taken together, convince us that the BOP’s calculation method is lawful. For one thing, that method tracks the language of
We are unable similarly to reconcile petitioners’ approach with the statute. Their system awards credit for the sentence imposed, regardless of how much time is actually served. Thus, a prisoner under petitioners’ system could receive 54 days of credit for Year 10 despite the fact that he
We cannot say that this language (“at the end of,” “during that year“) found its way into the statute by accident. Under the previous good time provision, a prisoner was “entitled to a deduction from the term of his sentence beginning with the day on which the sentence commences to run.”
For another thing, the BOP’s method better furthers the statute’s basic purpose. The “good time” provision in
Thereafter, the sentence the judge imposed would be the sentence the offender actually served, with a sole statutory exception for good time credits. Mistretta, supra, at 367 (a “prisoner is to be released at the completion of his sentence reduced only by any credit earned by good behavior while in custody” (citing
The BOP’s approach furthers the objective of
III
A
We are not convinced by petitioners’ several arguments against the BOP’s methodology. First, petitioners point to the statement in
The problem for petitioners, however, is that this presumption is not absolute. It yields readily to indications that the same phrase used in different parts of the same statute means different things, particularly where the phrase is one that speakers can easily use in different ways without risk of confusion. Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932); General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 595-596 (2004). See, e. g., id., at 596-597 (“age” has different meanings in the Age Discrimination in Employment Act of 1967); United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213 (2001) (same for “wages paid” in the Internal Revenue Code); Robinson v. Shell Oil Co., 519 U. S. 337, 343-344 (1997) (same for “employee” in Title VII of the Civil Rights Act of 1964).
The phrase “term of imprisonment” is just such a phrase. It can refer to the sentence that the judge imposes, see, e. g.,
Second, petitioners seek to draw support from the statute’s legislative history. But those who consider legislative history significant cannot find that history helpful to petitioners here. Petitioners point, for example, to a statement in the Senate Report accompanying the Sentencing Reform Act, which says that the “method of calculation” of good time “will be considerably less complicated than under current law in many respects,” and that “credit toward early release is earned at a steady and easily determined rate that will have an obvious impact on the prisoner’s release date.” S. Rep. No. 98-225, pp. 146-147 (1983); see Brief for Petitioners 31-32. But these statements are consistent with the BOP’s interpretation of the statute. Its method, as we understand it, is not particularly difficult to apply and it is certainly less complex than prior law, which provided for the accumulation of two different kinds of good time credit (general and industrial), calculated in different manners (prospectively and retrospectively), and awarded at different rates, depending on the length of sentence imposed on the prisoner (5 to 10 days per month for general) or the year of employment (3 or 5 days per month for industrial). See
Petitioners also point to various statements contained in the Act’s Conference Report and made by individual legislators that describe good time credit as providing sentence reductions of 15%. See Brief for Petitioners 34-36 (citing, e. g., H. R. Conf. Rep. No. 98-1159, p. 415 (1984); 131 Cong. Rec. 488 (1985) (remarks of Rep. Hamilton)). But there is nothing in the context of these statements to suggest that they amounted to anything other than rough approximations or that they were made with the present controversy in mind. See, e. g., H. R. Conf. Rep. No. 98-1159, at 415 (noting simply that an increase in the amount of maximum annual credit from 36 days to 54 days “increases ‘good time’ that
Third, petitioners rely on a statement in the United States Sentencing Commission’s Supplementary Report on the Initial Sentencing Guidelines and Policy Statements issued in 1987 (hereinafter Supplementary Report). In that Report, the Commission summarized its analysis of recent pre-Guidelines sentencing practice, which it had used to help draft the Guidelines. The results of the analysis were presented in a table that permits comparison of the likely prison-time consequences of the new Guidelines with prison time actually served under pre-Guidelines practice (specifically, by identifying the Guidelines “offense level that is closest to the average time . . . served by first-time offenders” convicted of a particular crime, Supplementary Report 23). Because the Guidelines “refer to sentences prior to the awarding of good time” (i. e., because a Guidelines sentence of, say, 30 months’ imprisonment does not necessarily mean that the offender will serve the entire 30 months in prison), the Commission adjusted the average time served “by dividing by 0.85 good time when the term exceeded 12 months.” Ibid. This adjustment, the Commission explained, “made sentences in the [t]able comparable with those in the guidelines.” Ibid.
Pointing to this adjustment and a reference in later editions of the Guidelines to a potential credit of “approximately fifteen percent for good behavior,” see, e. g., USSG § 1A3, p. s., at 3 (Nov. 2009), petitioners maintain that the Commis-
Again, however, we can find no indication that the Commission, in writing its Supplementary Report or in the Guidelines themselves, considered or referred to the particular question here before us, that is, whether good time credit is to be based on time served or the sentence imposed. The Guidelines Manual itself, a more authoritative account of the Commission’s interpretive views than the Supplementary Report, says nothing directly on that subject. Moreover, with respect to comparisons between Guidelines sentences and pre-Guidelines practice, the original 1987 Manual cautioned that the Guidelines did not “simply cop[y] estimates of existing practice as revealed by the data,” but rather “departed from the data at different points for various important reasons.” USSG § 1A3, p. s., at 1.4; see also id., § 1A4(g), p. s., at 1.11 (while “Guideline sentences in many instances will approximate existing [i. e., pre-Guidelines] practice,” the Commission did “not conside[r] itself bound by existing sentencing practice” (emphasis added)). Because the Commission has expressed no view on the question before us, we need not decide whether it would be entitled to deference had it done so. If it turns out that the calculation of good time credit based on prison time served rather than the sentence imposed produces results that are more severe than the Commission finds appropriate, the Commission remains free to adjust sentencing levels accordingly. See id.,
Fourth, petitioners ask us to invoke the rule of lenity and construe
Finally, we note that petitioners urge us not to defer to the BOP’s implementation of
B
Acknowledging that petitioners’ arguments cannot carry the day, the dissent has proposed a “third possibility,” post, at 495 (opinion of KENNEDY, J.), not raised by either party nor, to our knowledge, used elsewhere in the Criminal Code. The dissent reads the statutory phrase “term of imprisonment” to refer to “the administrative period along which progress toward eventual freedom is marked.” Ibid. It derives from this reading the following method of calculation as applied to our 10-year example. First, “[t]he sentence is divided into ten 365-day segments.” Ibid. At the end of the first segment, a prisoner may receive up to 54 days of credit for good behavior. These credits immediately “go toward completion of the next year” so that the prisoner need only serve “another 311 days behind bars before the second year of his term of imprisonment is at an end.” Post, at 496. This process repeats itself until the “10th segment,” in which a prisoner receives an unspecified “credit in a prorated amount.” Ibid. In the end, the prisoner will have served 10 “administrative segments,” ibid., collectively comprising 3,117 days in prison and 533 days of credit.
The dissent claims “[r]eading ‘term of imprisonment’ this way is consistent with all parts of the statute.” Ibid. We see at least four problems. First, the opening sentence of
Second,
Third, under the dissent’s approach, credit is earned at different rates during a single sentence. For the first “administrative segmen[t]” in its 10-year example, the prisoner serves 365 days and earns 54 days of credit. The ratio of credit earned to days served is 0.148. For the second “administrative segmen[t],” the prisoner serves 311 days and earns 54 days of credit. This time, the ratio of credit earned to days served is 0.174. (For the last “administrative segmen[t],” the dissent tells us the prisoner will receive “credit in a prorated amount,” but it does not tell us which ratio should be used for the proration. Post, at 496.) The use of different rates finds no support in the statute. The dissent objects that the statute “prescribes no particular rate,” post, at 499, but in fact it does—54 days of credit per year of good behavior—and it further requires that credit for the last year
Fourth,
Finally, the dissent, like petitioners, invokes the rule of lenity to support its interpretation. But, the best efforts of the dissent notwithstanding, we still see no “grievous ambiguity or uncertainty” that would trigger the rule’s application. We remain convinced that the BOP’s approach reflects the most natural reading of the statutory language and the most consistent with its purpose. Whatever the merits of the dissent’s policy arguments, the statute does not require the BOP to accept them.
For all of these reasons, we conclude that the BOP’s methodology is lawful. The Ninth Circuit’s judgment is
Affirmed.
APPENDIX
A fuller example of the BOP’s method for calculating “credit for the last year or portion of a year of the term of imprisonment”
The defendant is sentenced to 10 years’ imprisonment. As a prisoner he exhibits exemplary behavior and is awarded the maximum credit of 54 days at the end of each year served in prison. At the end of Year 8, the prisoner has 2 years remaining in his sentence and has accumulated 432 days of good time credit. Because the difference between the time remaining in his sentence and the amount of accumulated credit (i. e., 730 minus 432) is less than a year (298 days), Year 9 is the last year he will spend in prison. (Year 10 has been completely offset by 365 of the 432 days of accumulated credit.) Further, Year 9 will be a partial year of 298 days (the other 67 days of the year being offset by the remainder of the accumulated credit).
Here is where the elementary algebra comes in. We know that x, the good time, plus y, the remaining time
We also know that the ratio of good time earned in the portion of the final year to the amount of time served in that year must equal the ratio of a full year’s good time credit to the amount of time served in a full year. The latter ratio is 54 ÷ 365 or 0.148. Thus, we know that x ÷ y = 0.148, or to put it another way, x = 0.148y. Because we know the value of x in terms of y, we can make a substitution in our first equation to get 0.148y + y = 298. We then add the two y terms together (1.148y = 298), and we solve for y, which gives us y = 260. Now we can plug that value into our first equation to solve for x (the good time credit). If we subtract 260 from 298, we find that x = 38.
The offender will have to serve 260 days in prison in Year 9, and he will receive 38 days additional good time credit for that time served. The prisoner’s total good time is 470 days (432 + 38 = 470). His total time served is 3,180 days.
As a final matter, while we have described the foregoing as the method to calculate credit for the portion of the last year to more transparently track the relevant statutory language, we note that the mathematical formula can be used to calculate the amount of maximum available credit for an entire sentence. Using the equations supplied above, if we divide the total number of days in a sentence by 1.148, we get the minimum number of days that a defendant must serve in that sentence. If we then subtract the number of days served from the total number of days in the sentence, we arrive at the maximum number of good time credit days the prisoner can earn. The statute, however, awards them on a yearly basis (but for the “last year or portion” thereof).
JUSTICE KENNEDY, with whom JUSTICE STEVENS and JUSTICE GINSBURG join, dissenting.
The Court has interpreted a federal sentencing statute in a manner that disadvantages almost 200,000 federal prison-
I
The federal sentencing statute at issue here provides:
“[A] prisoner who is serving a term of imprisonment of more than 1 year[,] other than a term of imprisonment for the duration of the prisoner‘s life, may receive credit toward the service of the prisoner‘s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner‘s term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. . . . [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.”
18 U. S. C. § 3624(b)(1) (emphasis added).
According to the Court, the phrase “term of imprisonment” must mean “time actually served” the third time that it ap
Petitioners invite the Court to read “term of imprisonment” to mean “the sentence imposed.” Brief for Petitioners i. This, too, seems unworkable. And it can be acknowledged that the Court‘s rejection of this interpretation is correct.
The choice, however, is not just between the Court‘s reading and that offered by petitioners. There is a third possibility, one more consistent with the statute than either of these two alternatives.
A fair reading of the statute, and a necessary reading to accomplish its purpose best, is to interpret the phrase “term of imprisonment” to refer to the span of time that a prisoner must account for in order to obtain release. The length of the term is set at the outset by the criminal sentence imposed. The prisoner earns release when that term has been fully completed. Most of the term will be satisfied through time spent behind bars. Assuming the prisoner is well behaved, however, he may earn good time credits along the way; and those credits may substitute for actual prison time. Each year of the term comprises a full 365 days, which must be accounted for through a combination of prison time and credits. Thus conceived, a prisoner‘s “term” is the administrative period along which progress toward eventual freedom is marked.
Consider the Court‘s example of a prisoner subject to a 10-year sentence. See ante, at 477-479. The sentence is divided into ten 365-day segments. Each segment constitutes a year of the term. The prisoner will spend the first 365 days behind bars. In the statute‘s words, he has reached “the end of the first year of the term.” Now is the time for credit to be awarded, and he may receive up to 54 days if sufficiently well behaved. Because he has already com
This process repeats itself for the third year of the term, and so on. In the final year of his term (in this example, the 10th segment into which his term has been divided), the prisoner will receive credit in a prorated amount, to be awarded “within the last six weeks of the sentence.” This ensures that the prisoner does not reach the end of year 10, only to find that he has just earned 54 days of credit he no longer needs.
The controlling rule is that each year of the prisoner‘s term—each of the 10 administrative segments—comprises 365 days that must be completed through a combination of service and credits. By combining actual prison time with the credits he has earned, a prisoner may complete a particular year of his term in less than 365 calendar days. As a result, credits may enable a well-behaved prisoner to complete his 10-year sentence before 10 calendar years have elapsed. For a 10-year (3,650-day) sentence, a prisoner will serve 3,117 days behind bars if he earns a maximum of approximately 533 credits. This is 63 more days of credit than under the Court‘s reading—more than 6 additional credit days for every year of the sentence imposed.
Reading “term of imprisonment” this way is consistent with all parts of the statute. The prisoner receives his credit “at the end of each year of [his] term of imprisonment,” a process that “begin[s] at the end of the first year of the term.” Credit is only awarded if the prisoner has proven well behaved “during that year.” This interpreta
This approach also has a textual integrity that the Court‘s reading does not: It gives “term of imprisonment” the same meaning each time it is used by the statute. Every time it appears in
The Court responds by noting another part of the statute, a provision stating that prisoners shall receive clothing, money, and transportation “[u]pon the release of [the] prisoner on the expiration of the prisoner‘s term of imprisonment.”
The Court‘s approach produces yet another oddity. The statute requires that prorated credit be awarded for “the last year or portion of a year of the term of imprisonment.” One might naturally assume that the last year of a 10-year term would be year 10. That is how things work under the approach described above, in which a 10-year sentence is subdivided into 10 administrative segments.
But under the Court‘s reading, a prisoner serving a 10-year sentence will never reach year 10 of his term; year 10 simply does not exist. According to the Court, year nine is the final year, and even year nine is not a full year: It lasts “no more than 298 days.” Ante, at 478. If this sounds confusing, it will be all the more so to the prisoner who has just received his sentence and turns to the statute books to figure out when to expect his freedom.
The Court does not even attempt to defend these flaws. Instead, it points to four supposed defects in the approach described above. None withstands examination.
First, the Court notes that the statute requires the release of a prisoner “upon the expiration of the prisoner‘s term of imprisonment, less any time credited for good behavior.” Ante, at 489 (quoting
Second, the Court alleges that the above approach conflicts with the statute‘s requirement that credit be awarded “at the end of each year” based upon behavior “during that year.” After all, if a year of the term can be satisfied in part through credit, then it may last less than a full calendar year. Yet the statute does not require that credit be awarded at the end of a calendar year for good behavior during a calendar year. What it requires is that credit be awarded “at the end of each year of the prisoner‘s term of imprisonment” for good behavior “during that year.” And this is precisely what the above approach does.
Third, the Court frets that, under the approach above, prisoners will earn credit at different rates during a single sentence. It admonishes that “[t]he use of different rates finds no support in the statute.” Ante, at 490. This response is telling. The statute, in fact, prescribes no particular rate—and certainly no formula based on a rate—except as embodied in one clear directive: Prisoners are eligible to earn “up to 54 days at the end of each year of the prisoner‘s term of imprisonment.” As to that command, the above approach is perfectly faithful.
Fourth, the Court suggests that the above approach causes credit to vest immediately, contrary to the statute. Again, this is not true. As per the statute, credit only vests “on the date the prisoner is released from custody,”
As a fallback, the Court wonders what would happen if a prisoner misbehaved on the final day of his 10-year sentence. Would the Bureau of Prisons (BOP) be forced to “retroac
Finally, the Court speculates that BOP might find the above approach difficult to administer. The Court identifies no basis for this claim, nor does one exist. The information used to calculate a prisoner‘s term under the above approach is the same as it is under the Court‘s approach. True, a prisoner may become eligible to be awarded credit on different calendar days during the course of his term. But under the Court‘s approach, this also happens when awarding credit in the final year. And, it goes without saying, federal prisoners begin their incarceration on different calendar days anyway, so that under any approach, BOP will be forced to evaluate prisoners throughout the calendar year.
II
The Court‘s reading of
The Court assumes without deciding that
III
The Government—although not the Court—argues that we should embrace its interpretation out of deference to BOP. BOP has been charged by the Attorney General with responsibility for “[a]pproving inmate disciplinary and good time regulations.”
This argument fails on multiple levels. There is no indication that BOP has exercised the sort of interpretive authority that would merit deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The statute does not create a legislative gap for BOP to fill. To the contrary, the procedures that govern the timing of credit awards are spelled out in great detail. Cf. Lopez v. Davis, 531 U. S. 230, 241-242 (2001) (where statute says that BOP “may” grant early release to certain prisoners, without specifying further criteria, Congress deliberately created a “statutory gap“). The statute even goes so far as to explain what to do “[i]f the date for a prisoner‘s release falls on a Saturday, a Sunday, or a legal holiday.”
BOP has not claimed that its view is the product of any “formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement” with the force of law. United States v. Mead Corp., 533 U. S. 218, 230 (2001). In 2005, BOP made final an administrative rule adopting its preferred methodology. 70 Fed. Reg. 66752 (adopting
* * *
The straightforward interpretation urged here accords with the purpose of the statute, which is to give prisoners incentive for good behavior and dignity from its promised reward. Prisoners can add 54 days to each year. And when they do so, they have something tangible. In place of that simple calculation, of clear meaning, of a calendar that can be marked, the Court insists on something different. It advocates an interpretation that uses different definitions for the same phrase in the same sentence; denies prisoners the benefit of the rule of lenity; and caps off its decision with an
To a prisoner, time behind bars is not some theoretical or mathematical concept. It is something real, even terrifying. Survival itself may be at stake. See Dept. of Justice, Bureau of Justice Statistics, C. Mumola, Suicide and Homicide in State Prisons and Local Jails (NCJ 210036, Aug. 2005), online at http://bjs.ojp.usdoj.gov/content/pub/pdf/shsplj.pdf (as visited June 2, 2010, and available in Clerk of Court‘s case file) (prison homicide rates); National Prison Rape Elimination Commission Report, p. 4 (June 2009) (citing a national survey estimating that 60,500 state and federal prisoners had been sexually abused during the preceding year). To this time, the Court adds days—compounded to years. We should not embrace this harsh result where Congress itself has not done so in clear terms. I would reverse the judgment of the Court of Appeals.