Lead Opinion
On Rehearing En Banc
Two years ago, in United States Parole Comm’n v. Noble,
The present case presents a question that we reserved in Noble: whether our holding would apply retroactively. Appellants are three D.C.Code offenders whose paroles were revoked prior to our decision in Noble. In computing the time remaining on appellants’ sentences following their reincarceration, the Department of Corrections initially credited them with their street time. After our decision in Noble, however, the Department recomputed appellants’ remaining sentences by withdrawing credit for street time, thereby increasing the amount of time that appellants had left to serve.
Appellants contend that our holding in Noble announced a new rule of law which enhances the punishment imposed on D.C.Code offenders if they violate the terms of their parole. Claiming that there was widespread reliance in the District of Columbia on the pre-Noble understanding that parole revocation would not result in loss of street time, appellants invoke the equitable balancing test that this court adopted in Mendes v. Johnson,
A division of this court upheld the retroactive application of Noble to appellants, with one judge dissenting. We vacated the decision of the division and granted rehearing en banc, in part because recent retroactivity decisions of the Supreme Court have undermined the viability of Mendes.
We conclude that the Department of Corrections acted properly when it recomputed appellants’ sentences in accordance with Noble. In reaching that conclusion,
BACKGROUND
This case has its genesis in a purported conflict between two statutes relating to street time. The first statute was enacted by Congress in 1932, and provides that a D.C.Code offender forfeits his accrued street time if he violates the conditions of his parole and is reincarcerated. The language of this statute is unequivocal: “If the order of parole shall be revoked, ... [t]he time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced.” D.C.Code § 24-206(a) (1996). The revocation of parole results in the prolongation of the time that an offender serves on his sentence by the amount of street time that is lost.
The second statute was enacted fifty-five years later by the Council of the District of Columbia as part of the Good Time Credits Act of 1986 (“GTCA”), D.C. Law 6-218, § 5, 34 D.C.Reg. 484 (1987). This statute, which took effect in 1987, provides among other things that D.C.Code offenders get credit for their street time against the service of their sentences. The language of the statute is that “[ejvery person shall be given credit on the maximum and the minimum term of imprisonment for time spent in custody or on parole as a result of the offense for which the sentence was imposed.” D.C.Code § 24-431(a) (1996). Unlike § 24-206(a), however, the GTCA does not specifically address whether a D.C.Code offender forfeits his street time credit if his parole is revoked.
Disagreement over whether the street time forfeiture provision of § 24-206(a) remained in force surfaced almost immediately after the GTCA went into effect. The District of Columbia Corporation Counsel advised the Department of Corrections that in its opinion the GTCA implicitly repealed the provision of § 24-206(a) that required forfeiture of street time upon revocation of parole. See Noble,
The United States Parole Commission promptly took issue with the Corporation Counsel’s statutory interpretation. See Noble,
Because the Commission and the District disagreed over whether the GTCA repealed the street time forfeiture provision of § 24-206(a), offenders sentenced in the District to imprisonment were subject to disparate treatment upon revocation of
Predictably, the Commission’s interpretation of the GTCA was soon challenged by a federally designated D.C.Code offender who was deprived of street time credit when his parole was revoked. Joseph Michael Tyler instituted this challenge by means of a habeas corpus petition in federal district court in Alaska after his parole was revoked in early 1988. The district court denied relief, and the Court of Appeals for the Ninth Circuit affirmed in Tyler v. United States,
Despite the decision in Tyler, the Corporation Counsel neither abandoned its interpretation of the GTCA nor sought a
For several years after Tyler the issue of implied repeal of § 24-206(a) by the GTCA did not come before this court. In a few habeas corpus cases brought by federally designated prisoners, judges of the Superior Court agreed with the District that the GTCA abrogated the street time forfeiture provision of § 24-206(a). See, e.g., Beaty v. Ridley, No. SP 138-93 (D.C.Super.Ct. Jan. 26, 1993). None of those decisions, however, were appealed. Our opinions did contain dicta suggesting that we would agree with the District’s position. See Franklin v. Ridley,
The issue was finally joined in a lawsuit commenced in 1995 in the United States District Court for the District of Columbia by a federally designated prisoner named Matthew Noble. The district court granted Noble habeas corpus relief, holding that the GTCA impliedly repealed § 24-206(a) and required the Commission to credit Noble for time he spent on parole for a D.C. offense even though his parole had been revoked. See Noble v. United States Parrole Comm’n,
A division of this court answered the certified question in United States Parole Comm’n v. Noble,
Because this court was addressing only the narrow question of law certified to it by the D.C. Circuit, we were not called upon in Noble to decide whether our ruling would apply “retroactively.” We expressed no opinion on that issue, though we recognized that prisoners might claim to have relied upon the Department of Corrections regulation which credited them with street time despite the revocation of their parole. Flagging the question of whether Matthew Noble himself had a legitimate reliance interest in that regulation, however, we observed that this was not a case of unconstitutional ex post facto legislation, because the legislature had not “given credits toward completion of a sentence and then taken them away” retroac
The Department of Corrections undertook to comply with our en banc ruling in Noble and the street time forfeiture requirement of § 24-206(a) by recalculating the sentences of all parole violators who were still in custody. The District exercised its enforcement discretion not to reincarcerate inmates who had been released from custody (either on re-parole or because their sentences had expired) based on erroneously awarded street time credit. Nonetheless, as appellants emphasize, the practical effect of the Department’s belated decision to rescind street time in accordance with § 24-206(a) was to add months or years to the sentences of upwards of one thousand former parolees who were still subject to the Department’s authority.
Meanwhile, the D.C. Circuit remanded Matthew Noble’s habeas corpus petition to the district court for resolution in light of our decision. The district court held that Noble could not complain about the application of our ruling to him, because as a federal prisoner he had no legitimate expectation otherwise, since the Commission had never credited D.C.Code offenders in federal custody with street time following revocation of their parole. Accordingly the district court denied Noble’s habeas corpus petition. See Noble v. United States Parole Comm’n,
On appeal once again to the D.C. Circuit, Noble argued on equal protection grounds that our ruling in his case should not be applied retroactively to him, because it was not being applied retroactively to former D.C. prisoners whose sentences had expired “early” after the Department of Corrections mistakenly credited them with street time despite the revocation of their parole. The appeals court rejected this argument even assuming that Noble was similarly situated to D.C. prisoners, “because the difficulty of rearresting inmates who have already been released would provide a rational basis for the disparate treatment.” Noble v. United States Parole Comm’n, 338 U.S.App. D.C. 362, 364,
Elsewhere, another federally designated D.C.Code offender named James F. Johnson challenged the retroactive application of our decision in Noble as a violation of due process rather than equal protection, on the theory that Noble effected an unforeseeable, after-the-fact increase in the statutorily authorized degree of punishment for D.C. offenses. In Johnson v. Kindt,
Like Matthew Noble and James F. Johnson, appellants in the present case were reimprisoned after violating the conditions of their parole during the interregnum between the enactment of the GTCA in 1987 and the decision in Noble a decade later.
Seeking to limit the resultant lengthening of the time that they would spend serving their sentences, appellants filed petitions for writs of habeas corpus in the Superior Court challenging the District’s retroactive application of Noble to them. Those petitions were denied, and on consolidated appeal a division of this court affirmed with one judge dissenting. We vacated the decision of the division and granted rehearing en banc, in order to reconsider the propriety of applying Noble to appellants and others similarly situated in conjunction with a reconsideration of the basic principles governing retroactive application of decisions of this court that announce “new” rules of law.
DISCUSSION
Emphasizing that Noble invalidated a formal regulation of the Department of Corrections and reversed the understanding, in the District of Columbia at least, that revocation of parole entails no loss of street time credit, appellants urge us to declare our holding in Noble to be purely prospective in effect, i.e., not applicable to persons who committed their offenses before the issuance of our decision. Appellants argue that in light of widespread reliance on the District’s pre-Noble interpretation of the GTCA, any retroactive application of Noble’s “new rule of law” would be unfair and contrary to this court’s equity-based retroactivity jurisprudence. Appellants also argue that since the practical impact of Noble was to increase the potential punishment for commission of a criminal offense, any retroactive application of that decision would violate the Constitutional prohibition against ex post facto laws and amount to a denial of due process of law.
Appellants advocate these positions with admirable force and imagination, but
The Due Process Clause does not bar retroactive enforcement of Noble either, because our decision in that case, even if contrary to the District’s position and not expected by appellants or others in the District, was not unforeseeable. Rather, in rejecting the argument that the GTCA impliedly repealed the street time forfeiture provision of § 24-206(a), Noble employed accepted principles of statutory interpretation and approved the same construction of the GTCA that the United States Parole Commission adopted when that legislation first took effect, and that the Ninth Circuit endorsed in 1991. In the decade between the enactment of the GTCA and our decision in Noble, it was foreseeable to every D.C.Code offender that revocation of parole might result in loss of street time pursuant to § 24-206(a) notwithstanding the GTCA, depending on whether the offender was designated to the custody of federal or District authorities, or on whether the federal or the District view of the effect of the GTCA ultimately prevailed.
We also conclude that equitable considerations such as those advanced by appellants do not justify prospective-only operation of Noble. Taking this occasion to reconsider our retroactivity jurisprudence and conform it to that of the Supreme Court, we adopt today a firm rule of retro-activity for our decisions expounding District of Columbia law. Our holding in Noble was a definitive statement of that law, and of what the Council did and did hot do when it enacted the GTCA. In the absence of any due process or other Constitutional impediment to retroactive application of our holding, we have no warrant to exempt the parties before us from the law that governed them.
A. Constitutional Challenges to Retroactivity
1. Prohibition Against Ex Post Facto Laws
In response to our decision in Noble, the Department of Corrections stopped abiding by its 1988 regulation which preserved street time credit following revocation of parole, and started applying the rule that prisoners forfeited their street time when their parole was revoked. Appellants argue that the 1988 regulation was the law in effect when they committed their offenses, and that therefore the Department’s retroactive application of a new rule which made their punishment more onerous by depriving them of street time credit infringed the Constitutional prohibition against ex post facto laws.
Retroactive application of a law that imposes a greater punishment than the law in effect when the crime was committed is forbidden by the Ex Post Facto
These principles are of no avail to appellants, however, because our holding in Noble means that the regulation promulgated by the Department of Corrections in 1988 was not a valid regulation. When this court interpreted the GTCA in Noble, we did not “undo” its repeal of the street time forfeiture provision of § 24-206(a); rather, we declared that the GTCA never effected a repeal of that provision, and that § 24-206(a) continued in full force and effect after the GTCA was enacted. See Rivers v. Roadway Express, Inc.,
2. Due Process
Appellants have a second string to their Constitutional bow, and with it they aim their arrow directly at this court’s decision in Noble. Citing Bouie v. City of Columbia,
There is force to appellants’ argument. Prior to Noble the prevailing view in this jurisdiction — as expressed in legal opinions and briefs of the Corporation Counsel, a regulation promulgated by the Department of Corrections, decisions of the Superior Court, dicta in two opinions of this court, and the first district court decision on Matthew Noble’s habeas petition — was that the GTCA impliedly repealed the street time forfeiture provision of § 24-206(a). The Department of Corrections officially informed prisoners who were recommitted to its custody after the revocation of their parole that they would retain credit for their street time. Over the course of a decade the Department calculated the sentences of thousands of prisoners in accordance with that rule. Although in Noble the D.C. Circuit deemed the issue a clouded one on which we had sent “mixed signals,” 317 U.S.App. D.C. at 308,
Under Bouie, however, the due process issue turns not solely on whether Noble was unexpected, but on whether it was “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Bouie,
We agree with the Tenth Circuit’s conclusion in Johnson v. Kindt that our decision in Noble was not unforeseeable in the Bouie sense. Noble did not overrule a previous decision of this court. Cf. Marks,
The preceding discussion might suggest that appellants and other D.C.Code offenders were only theoretically on notice that § 24-206(a) might require forfeiture of street time. We think that is not so. D.C.Code offenders were given actual warning of our eventual holding in Noble by the actions taken by the United States Parole Commission after the GTCA took effect. Pursuant to D.C.Code § 24-425,
It is true that prisoners placed in the custody of the Department of Corrections after revocation of their parole were officially told that they would receive credit for their street time. Appellants argue that those prisoners understandably relied on what they were told as they planned for their release from prison and the end of their sentences. Their reasonable expectations were raised and then frustrated when the Department of Corrections corrected their sentences by subtracting street time credit in compliance with Noble. This was indeed regrettable. Cf. Breest v. Helgemoe,
The general rule is otherwise. An expectation of early release from prison (or from service of a sentence) that is induced not by a valid statute or regulation but by the mistaken representations of officials does not without more give rise to a liberty interest entitled to protection under the Due Process Clause. See Jago v. Van Curen,
We conceive of the possibility that, under “extreme” circumstances, a belated correction of a sentence might be “so unfair that it must be deemed inconsistent with fundamental notions of fairness embodied in the Due Process Clause.” De-Witt v. Ventetoulo,
This possibihty of actual prejudice in a few cases does not require us to conclude that due process bars retroactive application of Noble in all cases. There is another remedy. If the Board would not have revoked parole in a particular case but for its misapprehension of the law, its decision would be vulnerable to a chabenge in court for abuse of discretion. “ ‘A district court by definition abuses its discretion when it makes an error of law,’ Koon v. United States,
We have concluded that retroactive application of Noble comports with due process. The remaining question is whether equitable considerations may yet require us to deny retroactive effect to our holding in Noble even where the Constitution does not. In other words, though lacking constitutional justification, are we nonetheless required — are we even permitted — to disregard the governing law when we happen to think it “fair” to do so, and thus to excuse prisoners from serving their statutorily mandated sentences?
1. Non-Retroactivity Under Mendes v. Johnson
In asking us to exempt Noble from “the fundamental rule of ‘retrospective operation’ that has governed ‘judicial decisions ... for nearly a thousand years,’ ”
Although Mendes itself addressed the retroactive effect of a decision that overruled prior precedent, we have deemed the principles of that case applicable to non-overruling decisions which otherwise announce a “new rule of law.” The test, we have said, “is whether the rule is a ‘clear break’ from the past, a ‘newly minted principle,’ ... or a rule that an attorney ‘should have known’ was ‘about to be changed, because of either judicial or legislative intimations to that effect.’ ” Nimetz v. Cappadona,
Appellants argue that our holding in Noble announced a new rule of law subject to the retroactivity principles of Mendes because — even if Noble was foreseeable and did not overrule prior precedent — it decided “a matter of first impression in a manner not clearly foreshadowed” in the District of Columbia. This court’s decision in French lends support to appellants’ claim.
The same points could be made about Noble, which also rejected a Corporation Counsel opinion of long standing. Indeed, appellants have a stronger argument that our holding in Noble resolved a matter of first impression in this jurisdiction and was not clearly foreshadowed. The Corporation Counsel’s opinion that the GTCA impliedly repealed the street time forfeiture provision of D.C.Code § 24-206(a) was embodied in a formal regulation of the Department of Corrections. That opinion had prevailed in Superior Court. And it was supported by dicta in opinions of this court, including dicta that specifically cast doubt on the Ninth Circuit decision in Tyler which rejected the implied repeal argument. Moreover, unlike in French, the language of the statute in question in Noble (the GTCA) was inconclusive, requiring us to examine the legislative history to interpret it. See Noble,
Appellants further argue that, as in French, the factors enumerated in Mendes weigh in favor of limiting Noble’s new rule of law to purely prospective application.
Appellants may well overstate the strength of the reliance factor in this case. Disappointment of expectations is not the same thing as detrimental reliance. The record does not establish that appellants (or any other D.C.Code offenders who were adversely affected by Noble) actually did rely to their detriment on the pre-Noble “rule,” in the sense that they irrevocably changed their position, or would have acted differently if they had known that revocation of parole would entail loss of street time credit. The record likewise
The soundness of those retroactivity principles is, however, in doubt, because “[i]n the intervening years, the Supreme Court has discarded its previous approach to retroactivity — the very approach on which this court based its decision in Mendes.” Washington v. Guest Services, Inc.,
2. Rethinking Retroactivity
The Mendes court derived its approach to retroactivity from Linkletter, the case in which the Supreme Court abandoned its historic adherence to the rule that judicial decisions necessarily apply retrospectively and adopted instead of that rule a tripartite balancing test. Pursuant to that test, the retroactive application of a new rule of law turned on the results of a judicial inquiry into the purpose of the new rule, the extent of reliance on prior understanding of the law, and the effect of retroactive application on the administration of justice.
We need not trace the evolution of retro-activity doctrine in the Supreme Court in detail. As Judge Mack, the author of the majority opinion in Mendes, observed for the court in Kirk v. United States,
It was not long before a majority of the Supreme Court agreed with Justice Harlan, and by 1993, Linkletter was overruled and its retroactivity doctrine swept away. The Supreme Court has summarized the change that took place by saying that “[w]hile it was accurate in 1974 to say that a new rule announced in a judicial decision was only presumptively applicable to pending cases, we have since established a firm rule of retroactivity.” Landgraf v. USI Film Products,
When this court took note of these Supreme Court developments in 1998, it recognized that they “substantially undermined” the retroactivity jurisprudence of Mendes. Washington,
Preliminarily, our use of the term “reconsideration” suggests that we have some choice in the matter. In their arguments before us, the parties to this case have assumed that we are free to choose either to embrace Griffith and Harper or to adhere to Mendes, at least when we articulate new rules of local, i.e., District of Columbia, law.
On its merits, the Mendes retroactivity doctrine is subject to the same criticisms that felled Linkletter in the Supreme Court. First, on its own terms, the doctrine is difficult to apply in a principled and predictable fashion. There is, for instance, considerable ambiguity in the threshold requirement that this court must announce a “new” legal rule in order to trigger the Mendes inquiry. When is a legal rule “new” enough to meet this requirement? To say that the test is whether the new rule is a “clear break,” or “newly minted,” or “not clearly foreshadowed,” offers little real guidance; not only do such standards invite subjective adjudication, but they also are not consistent with each other. “Not clearly foreshadowed” is a more lenient standard than “clear break” while “newly minted” sounds like it falls somewhere else on the continuum of novelty — though exactly where is not easy to say. Our holding in Noble, for example, may not have been “clearly foreshadowed,” but it was hardly a “newly minted” principle given that it was based on a hoary old principle of statutory construction and that it ratified an interpretation of the GTCA that had held sway in the federal system for a decade. Whether our holding was a “clear break” from the past is debatable, because that depends on what is included in “the past.”
Passing the threshold inquiry of whether the court has announced a new legal rule, the criteria that Mendes requires the court to investigate and balance are also problematic — none more so than the rebanee factor on which appellants place so much weight in the present case. Under Mendes, the court must consider “[t]he degree of rebanee by the btigants before the court, and in some cases by the pubhc at large, on the legitimacy of the prior rule,” whether the rebanee was “reasonable” in view of any “intimations” that the prior rule might change, and “the degree of hardship that the parties before the court, and others in general, may sustain” if the rebanee interests are overridden by retrospective appbeation of the new rule.
Appellants’ reliance claims in the present case exemplify these problems. Appellants contend that D.C.Code offenders may have relied on the understanding that revocation of parole would not result in loss of street time credit when they tendered guilty pleas, decided to violate conditions of their parole, defended themselves against revocation of parole, or planned for their anticipated reparole. Appellants further contend that Superior Court judges may have relied on the prior understanding when they sentenced some offenders, and that the Parole Board may have relied on that erroneous understanding when it revoked the parole of some offenders. These are all hypothetical possibilities, but what are we to make of them when the record does not tell us, for example, whether such reliance on the pre-Noble rule actually occurred, how many people were adversely affected, how those people were affected, or who those people were? Again, appellants contend that it was reasonable for D.C.Code offenders to rely on the information about their sentences which they received from the Department of Corrections prior to Noble. Yet there was information available to these offenders which could have alerted them that the Department’s sentence computations were subject to correction. This information included the regulation issued by the United States Parole Commission, the Ninth Circuit’s decision in Tyler, and the fact that for a decade after the GTCA was enacted, D.C.Code offenders in federal custody continued to forfeit street time credit when their parole was revoked. The record is silent as to whether and to what extent D.C.Code offenders were aware of these facts.
The equitable balancing that Mendes requires is subject to the further criticism that it is ad hoc and standardless. In the present case for example, Mendes would require us to weigh the extent of reliance on the pre-Noble rule against such considerations as the interest in treating D.C.Code offenders the same whether they are under federal or local supervision; public safety concerns over the premature release of felons who have demonstrated their inability to comply with parole conditions; and the longstanding principle that a convicted defendant must serve the sentence mandated by law, and cannot rely on an administrative mistake to insist on a more lenient sentence. Once these and other factors are identified, however, the court is on its own as far as balancing them is concerned.
In addition to the difficulty of applying Mendes in a principled way, there is a more fundamental objection to be made. By allowing courts to exercise their discretion to make their legal rulings prospective, the Mendes doctrine is antithetical to basic principles governing the role of courts. Unlike legislation, which is presumptively prospective in operation, judicial decisions are presumptively retrospective. In every case, the court’s ruling is a statement to the parties before it telling them what the law was that governed the acts and events leading up to the lawsuit— not what the law should have been or what it ought to be. Saying what the law was rather than what it should be is the judicial mandate in a democratic polity, distinct from the legislative mandate to make
If we do not resolve all cases before us on direct review in light of our best understanding of governing ... principles, it is difficult to see why we should so adjudicate any case at all.... In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.
Griffith,
As Justice Harlan’s statement implies, a prospective-only ruling is indeed a statement by the court that it is at liberty to “disregard” what it has determined to be the governing law in the case before it. The same may be said of a ruling that is only “partially” or “selectively” retrospective, i.e., that is retroactively applied only to the parties before the court in the case in which it is announced — it is a statement that the court may “disregard” the governing law when similarly situated parties come before it.
As Bouie illustrates, the Constitution does impose specific limits on the retroac-tivity of judicial decisions. The existence of these Constitutional limits, some of which overlap with the criteria identified in Mendes, responds to the fairness concerns which underlay our opinion in that case. In Landgraf the Supreme Court identified several provisions of the Constitution that embody antiretroactivity principles:
The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation. Article I, § 10, cl. 1, prohibits States from passing another type of retroactive legislation, laws ‘impairing the Obligation of Contracts.’ The Fifth Amendment’s Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a ‘public use’ and upon payment of ‘just compensation.’ The prohibitions on ‘Bills of Attainder’ in Art. I, §§ 9-10, prohibit legislatures from singling outdisfavored persons and meting out summary punishment for past conduct.... The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute’s prospective application under the Clause ‘may not suffice’ to warrant its retroactive application.
Landgraf,
The Constitution is not the only source of legal principles that may operate to limit the retroactivity of new rules of law announced in judicial decisions. The Supreme Court has referred to “the unsurprising fact that, as courts apply ‘retroactively’ a new rule of law to pending cases, they will find instances where that new rule, for well-established legal reasons, does not determine the outcome of the case.” Reynoldsville Casket Co. v. Hyde,
Thus, a court may find (1) an alternative way of curing the ... violation, or (2) a previously existing, independent legal basis (having nothing to do with retroac-tivity) for denying relief, or (3) as in the law of qualified immunity, a well-established general legal rule that trumps the new rule of law, or (4) a principle of law, such as that of “finality” present in the Teague context, that limits the principle of retroactivity itself.
Id.,
We are persuaded by the foregoing considerations that the time has come to abandon the retroactivity doctrine of Mendes and conform our jurisprudence to that of the Supreme Court. We adopt the “firm rule of retroactivity,” Landgraf,
It remains to apply that rule to our holding in Noble.
Appellants argue that Griffith and Harper do not require this result because the Supreme Court did not rule out the possibility of purely prospective rulings in exceptional cases. Rather, appellants emphasize, the Court ultimately held only that “[wjhen this Court does not ‘reserve the question whether its holding should be applied to the parties before it,’ ” then the new rule must be applied retroactively. Harper,
We are not persuaded by this argument, because its factual premise is flawed. Our opinion in Noble “reserved” the question of whether our ruling should be applied retroactively because we were only answering a question of law that was certified to us from the D.C. Circuit. It was not our place to do more. But when Matthew Noble’s case returned to the federal courts, those courts did apply our holding to him; and had the issue been before us, we would have been hard pressed to disagree with that outcome. Moreover, the rule that we announced in Noble has not been applied just to the prisoner in that case. By the time we decided Noble, that rule had already been applied, properly, to an untold number of D.C.Code offenders who were in federal custody. And following Noble, the Tenth Circuit held our ruling retroactive in Johnson v. Kindt. If the principal thrust of Griffith and Harper was to end selective retroactivity, those cases mandate retroactive application here.
In addition, we think that appellants’ argument is also flawed on the conceptual level. The Supreme Court did not “rethink retroactivity” and reject the Linklet-
CONCLUSION
The Department of Corrections acted properly when it corrected appellants’ sentences in accordance with our holding in Noble that the GTCA did not repeal the street time forfeiture provision of D.C.Code § 24-206(a). The Superior Court therefore acted properly when it denied appellants’ petitions for writs of habeas corpus which challenged the correction of their sentences on Constitutional and equitable grounds. Accordingly, the orders on appeal are
Affirmed.
Notes
. In the National Capital Revitalization and Self-Government Improvement Act of 1997, Pub.L. No. 105-33 ("Revitalization Act”), § 11201, 111 Stat. 712, 734 (1997), Congress provided, among other things, for the transfer of the District’s prison system to federal authority. By December 31, 2001, Lorton Correctional Complex is to be closed and all Lorton inmates — D.C.Code felony offenders— are to be transferred to facilities operated or contracted for by the Bureau of Prisons. See D.C.Code § 24-1201 (2000 Supp.). For purposes of this opinion it is not necessary to address the potential impact of the changes wrought by the Revitalization Act on the claims of the parties, and we refrain from doing so.
. Id. at 454. See Morton v. Mancan,
. The subtraction of improper street time credit extended what the affected prisoners previously had been told was their full term, and also resulted in later dates for mandatory release from prison. The recalculation did not necessarily mean longer periods of incarceration, however. Prisoners who, with street time credit, were about to be released did remain incarcerated longer than they had expected. Otherwise, where parole rehearing dates had already been scheduled (prior to the former mandatory release date), those rehearing dates were not changed. Where no parole rehearing had been scheduled prior to the former mandatory release date, the prisoner's file was reviewed (by the Parole Board or, following a transfer of jurisdiction, by the Commission) to determine if a re-parole hearing was warranted. Thus, the District contends, "there [has been] in place a process by which, on a case-by-case basis, the equities regarding particular prisoners can be weighed against the threat they pose to public safety in determining whether release is proper."
We nonetheless fully appreciate, as appellants argue, that even if the effect of the sentence recalculation required by Noble was mitigated by release from prison, the extension of the parole term (and the concomitantly increased risk of revocation and reimpris-onment) in itself represented a substantial restriction on liberty.
. Appellant Randall Patrick Martin was sentenced in 1992 to two to six years for attempted distribution of cocaine. He was released on parole in 1995. In February 1998, the D.C. Board of Parole issued a parole violator warrant for Martin, because Martin had been charged with assault. The Board revoked Martin's parole in April 1998 after a hearing. Crediting him with his accrued street time, the Department of Corrections advised Martin that his sentence would terminate the following month, in May 1998. In the wake of our en banc decision in Noble, however, the Department rescinded Martin’s street time credit shortly before he was scheduled to be released. Martin remained in prison for eight months before he was re-paroled, and the loss of street time credit effectively added more than two years to the time he spent serving his sentence.
The facts of appellant Mark Childs's case are similar. Childs was sentenced in 1993 to 16 to 48 months for attempted distribution of cocaine, and he was paroled (apparently for a second time) in June 1997. The Parole Board revoked Childs’s parole after a hearing in April 1998 based on his failure to meet with his parole officer. The Department of Corree-
Appellant Maurice Delane Davis was sentenced in 1991 to 30 to 90 months for attempted distribution of cocaine. In April 1997, the Parole Board revoked Davis's parole for reasons not disclosed in the record before us and ordered that he be released on his mandatory release date in December 1998. Subsequently, in compliance with Noble, the Department of Corrections voided Davis's 110 days of street time credit and added the time to his mandatory release date. Davis was denied re-parole because of his "extensive record of repetitive criminal behavior, including robbery, other assaultive conduct, and multiple escapes;" a history of parole violations including criminal conduct; and the ultimate evaluation that he was "too serious a risk to merit a further release on parole.”
. To be precise, the Department of Corrections credited appellants and other parole violators with street time accrued up until the issuance of their parole violation warrants, but not for time on parole between the issuance of the warrants and the ultimate revocation of parole.
. U.S. Const., Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. The Ex Post Facto clauses are directed at legislative enactments, not judicial decisions. See Frank v. Mangum,
. Accord, Metheny v. Hammonds,
. As the Supreme Court has explained:
The essence of judicial decisionmaking— applying general rules to particular situations — necessarily involves some peril to individual expectations because it is often difficult to predict the precise application of a general rule until it has been distilled in the crucible of litigation. See L. Fuller, Morality of Law 56 (1964) ("No system of law— whether it be judge-made or legislatively enacted — can be so perfectly drafted as to leave no room for dispute”).
Rivers v. Roadway Express, Inc.,
The recent decision of the Supreme Court in Johnson v. United States illustrated the proposition that unexpected — but not indefensible or unforeseeable — -rulings will be applied retroactively even where the effect is to sanction increased criminal punishment. In that case the Court construed the Sentencing Reform Act of 1984 to authorize a district court to impose a second term of supervised release (a form of supervision analogous to parole) after revocation of the first term. The Court upheld the imposition of a second term of supervised release in the case before it even though the Court agreed that "the power to impose another term of supervised release following imprisonment [is] a power not readily apparent from the text” of the statute; the Court conceded that its construction of the statutory language was "unconventional;" and the Court acknowledged that courts of appeals in nine federal circuits had ruled, contrarily, that the statute did not permit imposition of post-revocation supervised release. See Johnson, 529 U.S. at 698 n. 2, and 706,
. Cf. Bozza v. United States,
The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner. In this case the court only set aside what it had no authority to do, and substituted directions required by the law to be done upon the conviction of the offender.
Id. at 166-67,
. In Johnson v. Williford, supra, the Ninth Circuit held that equitable estoppel and due process precluded the government from revoking the parole of a felon who was convicted under a statute requiring a minimum ten year prison term without the possibility of parole, but who was released on parole for fifteen months before the error was discovered. But see Hawkins v. Freeman,
.We have no hard data, but we suspect that there were not many cases in which the retroactive application of Noble actually did thwart the Board’s intentions. In many cases, the Board would doubtless have revoked parole anyway, even if it had understood that street time might be lost, because the violations of parole were serious ones. If there were cases in which the Board would not have revoked parole had it understood that street time might be lost, those cases were presumably decided during the ten-year period before the issuance in April 1997 of the panel decision in Noble; for even though that decision was challenged, it alerted the Board to the potential consequence of revocation. But many if not most of the prisoners in those cases should have been able to complete their sentences without loss of street time credit; especially since the Department of Corrections did not begin to forfeit street time until a year later, after this court issued its en banc order in April 1998 adopting the original majority opinion in Noble.
. See D.C.Code § 24-1231 (2000 Supp.), enacted as part of the Revitalization Act, Pub.L. No. 105-33, § 11231, 111 Stat. 712, 745 (1997).
. Appellants postulate other ways in which reliance on the pr e-Noble understanding might have caused actual prejudice. Appellants suggest that some defendants might not have pled guilty, and that some parolees might not have violated their parole or might have defended more vigorously and successfully against revocation, if they had known that the consequences of revocation would include loss of street time. For purposes of due process analysis we discount these examples. In the first place, they are purely hypothetical and, in our view, highly improbable.
Appellants also suggest that it is possible that some Superior Court judges might have imposed lighter sentences had they known that parole revocation would entail loss of street time credit. However, we have been provided no reason to think either that Superior Court judges were unaware of this contingency or, if they were, that it made a difference given the inability to predict at sentencing whether a particular defendant will ever face revocation of parole.
. Harper v. Virginia Dep’t of Taxation,
. In Linkletter the Supreme Court developed a balancing test for determining whether new rules of criminal law — in that case, the exclusionary rule of Mapp v. Ohio,
As we discuss below, Linkletter, Stovall and Chevron have now all been overruled. The Supreme Court has renounced the flexible balancing test of those cases in favor of a return to the traditional rule that judicial decisions are retroactive.
. The four specific criteria identified in Mendes tilt the inquiry in favor of non-retro-activity. The overall balancing test must, however, take into account other pertinent considerations, including the benefits of retrospective application of the new rule. See Mendes,
. The issue in French concerned the effect of a zoning regulation which provided that no order of the Board of Zoning Adjustment authorizing the erection or alteration of a structure would be valid for longer than six months unless a building permit was applied for within that period. The property owner in French did not apply for a permit because she relied on an advisory opinion of the Corporation Counsel which concluded that the running of the six-month period was tolled by the filing and pendency of a petition for review of the BZA order. We held that the advisory opinion was invalid because it was contrary to a statute which specifically provided that filing of a petition for review did not stay enforcement of the order. We refrained from applying that holding to the parties before us, however, in view of their reliance on the Corporation Counsel’s opinion. See French,
. Of the four factors listed in Mendes, we think that only the reliance factor weighs in favor of non-retroactivity here. The second and third factors — avoidance of altering property or contract rights, and rewards to plaintiffs who seek to change the law — are not relevant to this case. The fourth factor — the burdensome impact of retroactive changes in the law on the administration of justice — is relevant; however, we cannot conclude that it cuts against retroactivity in this case. The District does not complain that retroactive application of Noble has been administratively burdensome, and the record does not demonstrate that it has been. In point of fact, it could well be argued that equalizing the treatment of D.C.Code offenders wherever they are incarcerated and requiring them to serve the sentences which Congress intended them to serve are beneficial to the administration of justice.
. As Justice Harlan was later to observe, the Linkletter "doctrine was the product of the Court’s disquietude with the impacts of its fast-moving pace of constitutional innovation in the criminal field.” Mackey v. United States,
. "By 'final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith,
. See also Harper,
.We are bound to follow Griffith and Harper in any case involving a new rule of federal law. See Harper,
. Such “selective application of new rules [also] violates the principle of treating similarly situated [parties] the same.” Griffith,
. In the context of collateral attacks on criminal convictions, this statement needs to be qualified. See Teague v. Lane,
. In her separate opinion, our colleague Judge Ruiz expresses the “fear” that a firm rule of retroactivity may "stunt the growth” of the common law in this jurisdiction. Post at 238. With respect, we are confident that this fear is unwarranted. For centuries, courts (including this court and its predecessors) "developed” the common law successfully, exactly as our colleague hopes we will continue to do, while adhering to the principle of retroactivity that we reinstate in this case. Moreover, in the decades following Mendes, this court did not once find it necessary to invoke that decision to hold that a new
. Appellants argue that our adoption of the retroactivity principles of Griffith and Harper should not be applied in this case, but should be prospective-only. We perceive no basis for granting appellants' request.
. Perhaps a case where retroactive application of a new rule would involve grave disruption to the administration of justice would present a compelling argument for pure pros-pectivity. Cf. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,
Concurrence Opinion
concurring in part and dissenting in part.
Although I concur with the majority’s conclusion that except in cases where due process or some other constitutional bar applies, our interpretation of statutes, such as the one in the instant appeal, should be given full retroactive effect,
I
The precise question before the court is whether our ruling in Noble
II
When we are called upon to interpret and apply a legislative enactment, we are necessarily constrained by the language of the statute, and, where appropriate, guided by its legislative history. As both preexist the court’s consideration and are the product of a separate branch of government, in such cases the court’s role is to give effect to the legislative will by divining what the legislative enactment means. In view of the nature of our task and respect for separation of powers, a court’s interpretation of a statute should be given full retroactive effect as it is no more than an expression of what the law has been since its enactment.
Different considerations apply, however, when we are called upon to decide cases involving the common law. In those cases, there is no preexisting text that can be said to have announced the law upon its enactment, nor is there involved another branch of government to which we owe due respect for the exercise of authority
The development of the common law is ultimately the responsibility of the highest court of a particular jurisdiction. In the District of Columbia, that is this court. See D.C.Code § 11-102 (1995 Repl.) Adopting a rule of automatic retroactivity might chill our fulfillment of that responsibility because of concern that new rules of common law may unfairly burden particular parties that did not have reason to expect the change. But we should not unduly impede our ability or willingness to develop the common law, for we run the risk of perpetuating outmoded concepts that fail to adjust to changes in legal thought and circumstances in the society within which we operate. There is no impropriety in preserving room for proper judicial action in order to take account of how application of new rules may impact particular parties. That is the essence of case-by-case adjudication and what courts properly do every day.
The majority adopts a rule of automatic retroactivity in all cases based primarily on the Supreme Court’s decisions to do so in Griffith v. Kentucky,
In Griffith, the Court’s holding was based on two “basic norms of constitutional adjudication.”
[w]hen this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.
On their face, these holdings seem unexceptional because they tell courts to adjudicate, not legislate, and to be fair; who could object to the judicial equivalent of apple pie? A closer look is warranted. The reasoning that underlies the full retro-activity doctrine is the view, derived from Blackstone, that “the province and duty of the judicial department is to declare what the law is, not what it shall be.”
In Harper, four justices disagreed with the majority’s analysis,
[w]hen the Court changes its mind, the law changes with it. If the Court decides, in the context of a civil case or controversy, to change the law, it must make [a] determination of whether the new law or the old is to apply to conduct occurring before the law-changing decision. Chevron Oil describes our long-established procedure for making this inquiry.
Harper,
[w]e should not indulge in the fiction that the law now announced has always been the law.... It is much more conducive to law’s self-respect to recognize candidly the considerations that give prospective content to a new pronouncement of the law.
Id. at 116-17,
I agree that not only is it a fiction that new pronouncements of law have always been so, merely undiscovered; but it is a dangerous fiction that threatens to undermine the proper judicial authority it purports to preserve. A corollary to the Blackstonian-grounded view that overruled rules were never “law” is that what the courts who decided such overruled precedents did was not proper adjudication. Thus, under this view, the Supreme Court’s holding in Chevron Oil, overruled in Harper, was an unconstitutional action by the Court as it permitted what the Harper majority now considers to be a violation of “basic norms of constitutional adjudication.” Id. at 97,
This court’s consideration of retroactivity principles proves the folly. In Mendes, this court reviewed the history of Blackstone’s “declaratory theory” of the common law and Austin’s theory that law is a dynamic process of “redefinition and reformation.”
[bjecause it provided an overly simplistic and mechanical solution to a complex problem, adherence to the traditional Blackstonian precept of unlimited retro-activity of overruling decisions has been gradually eroded and no longer prevails. Incorporating the basic philosophy of the Austinian theory, contemporary courts have developed a more sophisticated approach to the retroactivity versus prospectivity problem premised on the recognition that no singular definitive formula can automatically dictate the retrospective or prospective effect to be given an overruling decision in any given context.
Id. at 788.
Today, without so much as mentioning the bases for the two theories, nor its reason for preferring one over the other, the en banc court makes a 180"turn, and, in my view, reverts to “an overly simplistic and mechanical solution to a complex problem.” Id. What is the serious reader supposed to think about the immutable nature of the law?
The less conceptual, and perhaps more deeply-felt, basis for objecting to judicial discretion in deciding whether rulings are
What makes a decision “judicial” and not an exercise in raw power is its discipline: principled decision-making after careful attention to precedent and persuasive argument and close application to fully-developed facts. Part of the discipline is judicial restraint in cases where co-equal branches of government better suited to the task have taken or may take action.
I should not be understood to say that retroactive application is not the norm for judicial decisions. As Justice Holmes has said, “judicial decisions have had retrospective operation for near a thousand years.” Kuhn v. Fairmont Coal Co.,
[t]he felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed orunconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.
Id.
That judges of varied backgrounds and personalities endeavor to apply legal norms to different facts presented to them over changing times, makes it inevitable that the common law will change as well. This is not a process of discovering what was always there, waiting to be found, but a profound effort of mind and spirit by human beings with an important responsibility. The common law is “not solidified but capable of growth at the hands of judges.” Linkins v. Protestant Episcopal Cathedral Found., 87 U.S.App. D.C. 351, 355,
The majority’s response is that my concern is unfounded and the discretion afforded by Mendes is unnecessary because we have not sought to stay retroactive application of recent common law developments.
There has not been a stampede by state courts rushing to adopt the full retroactivity rule of Harper in civil cases.
Consistent with the source and nature of the common law which is uniquely our charge, I would maintain the flexible rule of Mendes for common law cases and reject, as unsuited to that task, the automatic rule of full retroactivity that the majority espouses.
. For the reasons stated in my dissent from the division opinion in this appeal, I would not apply Noble retroactively under a Mendes analysis. See Davis v. Moore,
.We are of course bound to follow the Supreme Court’s retroactivity rule with respect to constitutional and federal law. See Harper v. Virginia Dep’t of Taxation,
. Mendes v. Johnson,
. United States Parole Comm’n v. Noble,
. Chief Justice Rehnquist and Justices White and O'Connor dissented. See id. at 329,
. Justice Thomas’s opinion was joined by Justices Blackmun, Stevens, Scalia and Souter. See id. at 88.
.Implicit in the quoted language is that the Supreme Court has preserved the possibility of not applying a rule of law to the parties before it. This point is then made expressly by the Court: "When this Court does not ‘reserve the question whether its holding should be applied to the parties before it,’ however, an opinion announcing a rule of federal law ‘is properly understood to have followed the normal rule of retroactive application’ and must be 'read to hold ... that its rule should be applied retroactively to the litigants then before the Court.’ ” Harper,
. The majority states that courts declare what the law “was.” See ante at 229.
. Members of this court have expressed varying opinions on the extent to which a court may exercise its prerogative to develop the common law by reference to "public policy." See Carl,
. Chief Justice Rehnquist and Justices White, O'Connor and Kennedy. See id. at 110-111,
. Prospectivity, by itself, is not a meaningful determinant of whether an action is "judicial” or "legislative.” When a court decides not to apply a new rule of law to the parties in a case employing the factors of Chevron or Mendes, it is merely taking note of additional facts that affect the parties to the case, e.g., lack of notice of the new rule or detrimental reliance on the old rule, that make application of the new rule unfair. This is a quintessentially adjudicative act, not legislation. A court's action is not converted into inappropriate legislation merely because, as a result of its announcement of a new rule, those otherwise relevant facts are unlikely to be present in a future case (i.e., the court’s announcement of the rule will preclude future claims of reasonable reliance or lack of notice).
. "Proof that what [Chevron Oil] means is in the eye of the beholder is provided quite nicely by the [two] separate opinions. ... [o]f the four justices who would still apply Chevron Oil,. ... two find [the decision at issue] retroactive, two find it not retroactive.” Harper,
. We have, however, applied the Mendes factors to decide that a new interpretation of a statute should apply prospectively. See French v. Board of Zoning Adjustment,
. In the area of criminal law, a number of states have rejected the Griffith rule of full retroactivity for new non-constitutional rules. See, e.g., People v. Carrera,