Winters v. Ridley

filed, and time brief was jury’s Counsel similarly, that verdict Counsel, Reischel, Deputy Corp. inherent in Charles L. findings of fact on causation brief, D.C., for Washington, the cross- were on should extend to that verdict As appellee. Adrian is held liable. claim so that Dr. A., however, in Part I.

we have discussed Bunnell, Atty., Asst. U.S. Wash- Stevan sepa- jury and the trial court dealt with D.C., intervenor-appellee. ington, for facts, revealing different con- rate sets of and, respective- Ryan Ms. nections between SCHWELB, FERREN and Before Accordingly, Dr. Adrian. ly, Dr. Kane and MACK, Judges, and Senior Associate correctly applied pro tanto the trial court Judge. court found that Dr. reduction because PER CURIAM. finding That

Adrian not liable. was was clearly erroneous. of the trial court is af- judgment firmed. Affirmed.

SCHWELB, Judge, concurring: Associate appeals from an order of the Winters petition denying his for a writ trial court below, and corpus. He contended habeas appeal, to maintain on continues time,” “good declining to credit him with Department of District of Columbia WINTERS, Appellant, Anthony V. (DOC) unlawfully pro- has Corrections v. pursu- longed the term that he must serve RIDLEY, Director, “mandatory minimum” sentence ant to his Walter majority A murder.1 Department District of Columbia I concur and the division votes to affirm. Corrections, Appellee, doing opin- so in this my reasons for state separately. concurs Judge ion. Ferren America, United States of dissents. Mack Intervenor-Appellee. No. 90-18. Appeals.

District of Columbia Court THE LEGISLATION Argued Dec. interplay between This case involves Sept. Decided degree mur- the District of Columbia’s designed to ensure

der which premeditated mur- convicted of that those their adequately punished for der be legisla- crimes, “good time credit” Mikula, Stephen J. Thomas J. with whom prison tion, intended to relieve which was D.C., brief, Poliak, Washington, was on the encourage prisoners to overcrowding, to appellant. themselves, and, implicitly, to rehabilitate mercy in those cases Counsel, justice Wilson, temper Corp. Asst. Mary L. tempering appropriate.2 Reid, Sr., such Corp. which Herbert O. with whom has, purpose is to a laudable appropriate remedy. I think corpus See 1. Habeas is the prison I know that Thornburgh, situation. Chatman-Bey address the have been There 810 n. 5 has been misbehavior. n. 864 F.2d there laws, part but after all it of our violations man or a woman ethic that a the Christian the Council invoked two members of 2. At least can reform. regard. principles In the words in this biblical however, Winter, “deep expressed Rolark, Mrs. Nadine chaired the who of Mrs. Wilhelmina reducing sen- Committee, the minimum about concerns" Judiciary GTCA States, following On or about December tence. See Solomon v. United trial, (D.C.1990). jury Winters was convicted of mur- A.2d The GTCA degree robbery. der in the first and of In by allowing good liberalized the law time conformity “mandatory with the minimum” credit to reduce a defendant’s minimum 22-2404(b), provisions of D.C.Code he § serving sentence. Id. A defendant a sen- imprisonment was sentenced to for a term years may tence of ten or more earn ten twenty years to life on the murder good days time credit for each month of his He concurrent count. received a sentence 24-428(a)(5). sentence. D.C.Code § for years robbery. of five to fifteen He tempers mercy justice, The GTCA pursuant incarcerated his sen- remains explicit exceptions and contains certain tence for murder. from the benefits which it confers. Section The statute under which Winters was 24-434 states that provides persons sentenced convicted [¡Institutional good and educationаl time degree of murder in the first must serve at applied credits shall not be to the mini- twenty years prison parole. least without mum terms of sentenced under It reads as follows: Mandatory-Min- the District of Columbia Penalty 22-2404 for murder first § imum Sentences Initiative of effec- degrees. and second (D.C. tive March Law (a) punishment of murder in the 33-541). 33-501 and §§ degree imprisonment. shall be life In the 1981 initiative to 24-434 which §

(b) Notwithstanding any provision alludes, jurisdiction the voters law, person first-degree convicted of adopted mandatory minimum sentences for upon murder and whom sentence of life crimes, persons convicted of certain armed imprisonment imposed eligible shall be (1989), D.C.Code 22-3202 or of distribu- parole only expiration § for after the of 20 tion of controlled substances and related years from the he date commences to offenses, (1988). D.C.Code 33-541 See serve his sentence. § States, generally Lemon v. United (c) guilty Whoever is of murder in the (D.C.1989). A.2d imprisoned second shall be years. life or not less than 20 imprisoned in Persons the District of Co- Time placed custody District Columbia Good lumbia are (GTCA), Credits Act D.C.Code Department District’s of Corrections seq. 24-428 et became effective оn (DOC), the sentence im- which administers 24-428(a) April provides 1987. Section posed by May the court. one pertinent part month after the effective date of the [ejvery person GTCA, who is convicted of a vio- the Director of the DOC issued a (“Dis- lation of a District of Columbia departmental specifying order trict”) by a in the criminal law court serving twenty- to inmates does Columbia, imprisoned District of in a Dis- sentences year mandatory minimum facility, con- trict correctional and whose pursuant murder conformity applicable duct with all 4340.2, 2404(b). Order No. See DOC institutional rules is entitled institu- later, para. 10 Several months good tional time credits in accordance adopted Director formal rules to the same provisions of this section. D.C.Reg. (February effect. 1988). GTCA, The effect of the order and of the Prior to the enactment of the subsequent rules that defendants con- only against was time credit was allowed sentence, of first murder would contin- prisoner and the victed maximum twenty-year the full minimum required to serve his entire minimum sen- ue to serve was, lady presumably, reference to the notion of tence when “a little old ... has been Her “eye eye” robbed or beaten.” an for an or "tooth for a tooth." See wholeheartedly, part agree it's a of the Chris- Exodus 21:24. But I also use the Old Testament. tian ethics. minimum sentence of notwithstanding the time credits parole, term without degree mur- for first persons convicted enactment of the GTCA. der. 1989, however, Honorable May On (b) U.S. District Court

Joyce Cunningham May held in Hens Green On (D.D.C.1989), a deci- Williams, F.Supp. Judge Joyce Hens Green rendered Eugene Nos. 89-5203 Cun- app. pending in the case of Jerome sion (U.S.App.D.C.), prisoner that a who had v. Hallem H. Williams ningham [711 88-3732) degree (Civil first murder was been convicted of Action No. F.Supp. 644] of the to receive the benefits entitled that the District she decided which District’s contention Rejecting GTCA. Time Credits Act of Good Columbia phrase “notwithstanding any 6-218; other (D.C.Law April effective 22-2404(b), provision Act”), of law” when (“the D.C.Code, seq.) § sec. 24-428 et repeals policy disfavoring coupled persons convicted of applied must be con- by implication, supported the DOC’s 801 of degree murder under section first Act, Judge Green wrote struction of for the An Act To establish code law Columbia, approved March District of phrase 1321; D.C.Code, not- (31 the natural sec. Stat. withstanding any provision Code”). other of law 2404(b)) (“Criminal 22-2404(b) existing at the time law § (c) persons application of the Act to passed. Time Act was The Good Credits degree murder would convicted of 22-2404(b). passed subsequent to § persons minimum term for reduce the position urged by inter- Accepting the the effective date of the convicted after mean could venor would Council one third'and re- by approximately Act modify former law. The Court never duce the minimum sentence patently unten- refuses to endorse such a date of the convicted before the effective Furthermore, position. as stated able years. period act to a of less than above, spoke in un- Council no D.C.. (d) The of the District of Colum- Council certain terms enacted the Good when it the Act never intended bia Time Act. Had it desired to ex- Credits degree for first mur- persons convicted 22-2404(b) reach, clude from Act’s der. clearly it how to do so and it could knew (e) The of the District of Colum- Council so, it did not do so. The have done “notwithstanding bia believed language Act’s is clear. language of provision of law” F.Supp. (emphasis original). at 646 the Criminal Code section 801 reaction to Green’s Council’s 22-2404(b)) (D.C.Code, exсlude sec. would emphatic. May decision was swift and On coverage of the murder from days Cunning- fifteen after the applies to minimum sentences. Act as it issued, unani- opinion was the Council ham (f) proposed emer- The enactment of the mously passed the District of Columbia clarify the Coun- gency legislation will Emergency Time Amendment Good Credits regard to first cil’s intent pro- Act of D.C. Act specifically excluding that murder per- application of the GTCA to scribed coverage the Act as it crime from of first murder. The sons convicted minimum sentences. applies to cumbersomely passed also Council styled “Good Time Credits Amendment of the District of Sec. 3. The Council Emergency Resolution of 1989 Declaration determines that the circum- Columbia 1989,”3 operative sections of which 2 consti- enumerated section stances follows: making read as it emergency circumstances tute (a) necessary that the District Columbia exists an immediate Sec. 2. There Emergency Amend- Time Credits regarding application Good crisis used, alia, tempo- special may Council of a "to ex- rections of the 3. Resolutions inter (1987). determinations, decisions, rary 1-229 press simple or di- character." D.C.Code in 1986. prior Council enacted adopted after a tion of 1989 be ment Act guideposts, Utilizing these clues as all of single reading. grail of holy for the on the search embark shall take effect This resolution Sec. 4. legislative intent. immediately. D.C.Reg. 4283-4284 Statutory Language. A. The that there would be In order to assure occasion to recently had As this court expiration of the Emer- “gap” between the Bank v. Dis- Riggs National observe permanent gency Act and the enactment Columbia, 581 A.2d trict of Alston, legislation, see United States (D.C.1990), (D.C.1990),the Council also 580 A.2d mind we are interpreting a “[i]n containing legislation temporary enacted we must look ful of the maxim that Emer- language as the essentially the same clear language; if the words are to its excluding persons convicted gency Act and unambiguous, give must effect we degree murder from the benefits of first meaning.” & Son v. plain J Parreco D.C.Reg. 4740 On 36 the GTCA. Hous. Rental District Columbia perma- passed July the Council (D.C.1989)(ci Comm’n, A.2d 45 567 36 same effect.4 nent to the omitted). used “The words tations [in (1989). Following re- D.C.Reg. 5761 sense, in literal statute], even their review, the Congressional quired period of most ordinarily the primаry, are the January on became effective amendment reliable, interpreting the mean source of 30, 1990. (quoting writing.” Id. at 46 ing any must, concedes, as it The District Markham, 148 F.2d 739 Cabell v. by the governed GTCA Winters’ case Hand, J.), (2d Cir.) aff'd, (per Learned in It prior read to its amendment it L.Ed. 165 66 90 S.Ct. amendment that the 1989 is not contended surest (1945)). Although “it is one of the retroactively. applied to Winters may be developed juris indexes of a mature maintains, however, The District a fortress out prudence not to make persuasive provide in 1989 actions Council’s Parreco, supra, 567 dictionary,” in and that its intent evidence of Cabell, 148 (quoting supra, A.2d at 46 degree murder convicted of first persons 739), to have one it is useful F.2d at from the intended to benefit were never around. Although question is not free GTCA. GTCA, language” of the when “plain agree. constrained to difficulty, from am isolation, support significant lends read As Green position.

to Winters’ II supra, “the Cunningham, pointed out D.C. reading of the ordinary and natural DISCUSSION petitioner is Act is that Good Time Credits good time credits.” statutes which some- to institutional interpreting two entitled 24-428(a) pro- nudging F.Supp. it at 645. Section appear to be paradoxically what person who is convicted directions, “every must look the court vides opposite law” of District of Columbia If of a violation language. the words all to their first of of the Act. to the is entitled benefits we should examine dispositive, then are not emphasized that the Council Judge Green history and the administra- legislative exceptions to specified certain In the had the Act. tive construction not included statute but had case, reach of the have before us we also present degree murder of first convicted which was by the Council declaration exceptions so enumerated. Id. among the legisla- in 1989 as to office Mandatory-Minimum Sentences perti- of Columbia legislation provides in permanent 4(b) of an part of 1981 ... or section Initiative nent 650; (47 July approved Stat. good time ... educational [^Institutional 22-3204(b)). applied minimum sec. D.C.Code shall not be ‍​​​‌‌​​‌​‌​​​‌‌​‌‌​​‌‌​​‌‌‌‌​​​​​‌‌‌‌‌​​‌‌‌​‌​‌‌‍credits under the District persons sentenced terms of concluded that the Coun- National Guard v. Federal Labor at 645-46. She nois specific exceptions, Authority, Relations cil’s enumeration of others, (quot- F.2d coupled with its omission of ing Feder- Jersey New National Guard v. pro- evinces a clear intent that the Act’s F.2d Authority, al Labor Relations applies to vision for time credits (3d Cir.1982)), every prisoner convicted and sentenced statutory language, [ljooking first to the under a D.C. statute other than those immediately preface we confront specifically listed in D.C.Code 24-434. Act, 709(e) section of the Technician Accord, (Emphasis original.)5 Andrus explicitly provides that its terms Co., v. Glover Construction pro- “Notwithstanding any other 1905, 1910-11, 64 L.Ed.2d S.Ct. [emphasis A vision law ...” added]. (1980)(“where Congress explicitly enu imagine; clearer statement difficult exceptions general merates certain to a 709(e) must section be read override prohibition, exceptions additional are not to any conflicting provision of in exist- law implied contrary in the absence of a ence at the time that the Technician Act intent”). Application was enacted. of this state- here, however, dealing We are with two certain, however, ment is less with re- enactments, one, rather than and must with spect to a statute such as the Labor- language also the consider of the first de- Act, Management adopted the after gree 22-2404(b) murder statute. Section Act. The drafters of section Technician provides person that a convicted of first 709(e) hardly can said to had be have the degree murder must receive a life sentence Labor-Management specifically twenty and years serve at least without so, contemplation. within their Even parole, notwithstanding any provi- other preemptive language powerful is evi- strong Judge sion law. This is stuff. Congress any that did not intend dence of thought phrase Green that the italicized other, general, legislation, more when- applies only to a law which was in effect at enacted, qualify authority ever of 22-2404(b) enacted, the time was § adjutants general the state as set out in any that other imply construction would language Act. The does Technician modify past Council could never subsequent change preclude not Cunningham, supra, F.Supp. actions. 711 part Congress, but it does heart on the Although at legislature 646. cannot suggest any qualification that of the however, any unrepealable, make 709(e) statute I accepted terms section would be language think the at issue here should be by Congress only after some considera- restrictively construed less than Cunning- requiring рermit- tion of the factors suggests. ting change. ham As the court in stated Illi- such a Judge analysis lenity especially appropriate support Green’s resolve finds further in rule of is lenity. concerning the rule of ambiguities "In case of doubt kind. See Du- this penalty prescribed by States, 1000, construction pree 1004 n. v. United 583 A.2d 5 penalty will favor a milder over a harsher one.” (D.C.1990), concurring opinion, id. at and the Riggs, supra, (quoting 581 A.2d at 1262 3 N. (D.C.1990); see also United States v. 1004-05 Statutory 59.- § Singer, Sutherland, Construction, Stokes, 615, (D.C.1976) (applying 619 365 A.2d 03, (4th 1986) (hereinafter at 11 ed. Suther- lenity holding youthful defen- rule of States, see also v. 447 U.S. United Bifulco land)); may be dant convicted of first murder 381, 387, 2247, 2252, 65 L.Ed.2d 205 Correc- sentenced under former Federal Youth Lemon, (1980); supra, at “This 564 A.2d sure, Act). lenity is a tions To be the rule of against policy embodies the instinctive distaste construction, secondary to be canon of and is languishing prison men unless the lawmaker only statutory language, invoked where the clearly has said should." United States v. structure, purpose history leave the intent Bass, 30 Lemon, genuine legislature in doubt. of the (1971) (quoting L.Ed.2d 488 H. Mr. Friendly, significance of the supra, at 1381. The case, 564 A.2d Reading Statutes, Justice Frankfurter and the however, is that it tends to doctrine in this (1967)). Mandatory mini- 209 Benchmаrks language ordinary of the confirm the judge's mum statutes restrict a tencing traditional sen- statutes under consideration. of one of the discretion, application and the 574 sentence). of an suspend will held effects

(Emphasis be added next-to-last oppose. they favor or earlier law that (Ferren, J. concur- post also at 581-584 See ring). approach, and con- agree with this 1165 Speyer, supra, 588 at See also A.2d “not- clude that the insertion of words approval). (quoting Hansen with any provision of withstanding law” Moreover, punish- deals GTCA means, least, claim a sub- at generally, for crimes while ment designed to sequent reduce enactment 2404(b) and more addresses the narrower penalty mandatory minimum for first specific subject penalty first de- analyzed must degree murder be some gree murder. “The force doctrine [the modify repeals by implication caution an intent to a well- are not before favored] greater that a may legitimately urged in- still when it policy entrenched superseded by a specific statute has been ferred. general Na- later more one.” Illinois but Repeals by implication are not favored. Guard, supra, U.S.App.D.C. tional Mancari, 549, 94 Morton v. F.2d at 1405. (1974); L.Ed.2d 5.Ct. exempted certain Although the Council 1164-66 Speyer Barry, v. A.2d from the mandatory minimum offenses Simon, (D.C.1991); App.D.C. v. Simon GTCA, did include reach of the 158, 159-60, F.2d As 531-32 murder convicted of (now Justice) wrote for the Scalia exempted category, expressly it did not Hansen, court United States mini- repeal mandatory twenty-year F.2d 22-2404(b). had If the mum Council (1985), language explicitly addressed give principle will do to [i]t expressly murder statute lip statutory interpretation mere service mandatory minimum there stated that the vacillating practical application. A and effect, longer then was no established steady important, pri- to adherence it is giving ought to hesitation in we have no marily judg- not the task of to facilitate not to such a declaration. It does effect It ing legislating. of is one but the task however, appear, the Council wrestled rules ground of the under fundamental and, although particular question with this it, de- which laws are framed. Without unques- meaning the of the GTCA is literal upon a bill the termining the effect of Winters, not as tionably helpful it is to body be inordi- preexisting law would specific a allusion would have conclusive as difficult, nately legislаtive pro- and the if opinion the been. I am therefore of by a side,6 cess would become distorted sort the by the statutes are read side two gamesmanship, in which Members is to sufficiently blind intent not clear Council’s against particu- inquiry for a Congress vote need into obviate the for dis- varying their such intent can be according lar to sources from which measure implications cerned.7 of whether estimations dissenting opinion, Judge defendants convicted refers not have intended that In Mack her language" my disparate "plain GTCA. in seriousness receive the of the In so to view, offenses however, statutes, language imprisonment. the two comparable periods the together, plain. is not at all read might well counters that the Council Winters mandatory min- been reluctant to override have argument, at and The United States contended sentencing overwhelmingly provisions imum maintains, also that it unreason- the District initiative, by but ratified the voters in the the able to to the 1986 Council intention ascribe punishment first to the for less hesitant reduce degree good for murderers to allow time first murder, by legisla- fixed which was the pursuant not sentenced for armed offendеrs ture, by cor- Winters also electorate. mandatory initiative. Since rectly Council that several members of the Code, to be of the District of Columbia supports his construction of the GTCA. mini- serving required released the before “good that Ms. Monaco recommended simply by adhering the rules of the mum sentences, minimum time” credited to be argued specifically institution.” He that per- in the District a and noted that while exempt from degree first murder “was not degree first murder must son convicted of good provisions.” time bill’s time, good twenty years serve without Virginia in person of that offense opposi “the fears and of the convicted But doubts usually imprisonment, life guide to the con receives tion are no authoritative may years, and which Co. v. to fifteen Shell Oil legislation.” of amounts struction slightly more Revenue, 19, 29, by “good time” to Dept. reduced Iowa maintains that (1988) years. Winters 102 L.Ed.2d 186 than ten 109 S.Ct. legislation against Defending the conten- argument clearly refutes that of Neither side’s danger- adversary. suggest sense does that release of its Common it would result in the tion that might criminals, intended what Win- the Council not have stated that Mrs. Shackleton ous intended, statutory text it but the ters claims mandatory to the Parole Board. is [t]his measure, opposite points, in some in an at least mandatory sentences. not affect It also does "to court has been reluctant direction. This RayMr. concurred: doctrine, readily the ‘absurd result’ invoke too out, pointed this law does Shackleton As Mrs. justify are said to or related notions which disregard mandatory sen- minimum statutory language,” for a due re- way. tencing. impacts upon that in no It principle separation powers spect for the judicial will for us not to substitute the counsels body’s legislature expressed in that that of the Parreco, supra, A.2d at 46. words. presented Report charged the responsibility since the Monaco with women] Council, much since of it was setting machinery making in its motion and must have adopted, the Council intended to parts efficiently smoothly work Virginia that of law to in re- conform Id., yet while are untried and new.” gard to murder. (quoting Norwegian Nitrogen v. Unit- Co. States, ed agree unable to argu- am Winters’ Cardozo, J.)). (per 77 L.Ed. 796 ment, however, Virginia’s because statu- tory fundamentally law different from argues The District that is es deference District’s in respects. Virginia critical pecially appropriate says It this case. category capi- has a of homicide known as that failure to repeal the Council’s or revise murder, penalty tal which the is death in the face of GTCA its administrative imprisonment life. 18.2- Va.Code §§ persuasive construction constitutes evi 31, 18.2-10(a) murder, (1990). First dence the one construction was homicide, second most severe form of See, e.g., which the Councilintended. Zem penalty imprisonment carries a for life Rusk, el v. U.S. period twenty or for a no less than (1965). re L.Ed.2d Winters 18.2-32, years. 18.2-10(b). Id. One §§ sponds that there is no evidence fairly analogy cannot draw an between the Council was aware DOC’s construc most serious homicides the District and “Legislative tion of the Act. silence cannot in Virginia. the second serious ones most unless, minimum, mean ratification as a Virginia of premedi- defendants convicted practice existence of the administrative tated murder and sentenced to death obvi- brought legislature.” Thomp home to good ously cannot credit for time.9 receive Clifford, son Nevertheless, F.2d C. Administrative Construction. meaningful striking arguably there is urges construing The District silence for contrast between Council’s GTCA, give the сourt should substantial years more than two face of the adminis weight to its administrative construction alacrity trative construction and the Department of Corrections. Almost body reacted vehemence with which that immediately after the enactment of the when con confronted Green's noted, as I have Director of the trary interpretation of the Cunn GTCA interpreted having no application DOC it as ingham.10 The force of ex the Council’s first degree convicted of mur- pression displeasure with the view Department der. The issued subsequently murderers are entitled to rules effect. formal to the same suggests even if time the members great weight to any Courts accord rea the Council did not know of DOC’s inter interpretation given sonable to a statute pretation, pleased they would have been agency charged an administration they it if had known. or enforcement. Winchester Van Buren rule, however, only DOC’s order and can Tenants District Ass’n v. Columbia of in this The issue Comm’n, 51, take us so far case. Hous. 550 55 Rental A.2d construction, (D.C.1988). where, statutory particularly before us is one This is true here, analysis by the “contemporaneous and record contains wе have a con statutory Department of Corrections of the struction a statute men [and (1990), parties nug- argues The several Winters that the issue before us 9. have extracted gets legislative history from the at- "pure” question and have construction and tempted advantage. to their own turn them to interpretation DOC’s is not that deference to the nuggets golden to We find none of the be either holdings in warranted. This overstates the or conclusive. propo- these Both stand the familiar cases. authority judiciary sition is the final on Fonseca, 421, Citing INS 480 U.S. v. Cardoza statutory interpretation courts issues of and that 1221, 446, 1207, 94 L.Ed.2d 434 reject must an administrative construction Skinner, Amalgamated v. and U.S.App.D.C. Transit Union contrary legislative which to the clear intent. 1362, 894 F.2d 22-2404(b) language in of law” provision there other indication language, nor is degree murder “would exclude reasoning. interplay The agency’s from applies to mini- the Act as it coverage enacted different statutes two between mum sentences.” the kind many years apart may present not exper- problem in administrative which the 1986 members of Ten of the thirteen Moreover, there especially helpful. tise is co-intro- Council, including the three who helped is no claim here that DOC officials original GTCA—Chairman duced GTCA, and the prepare or write Rolark Councilmembers Clarke and agency’s construc- weight accorded to an of the 1989 Coun- members Mason—were zenith “when the administra- tion is at its legislation and resolution cil. The directly drafting participated tors In unanimously. the absence passed legislature] made known their views to [the of the Council that the members evidence Allen, hearings.” in committee Zuber v. worse, mistaken, about what were 314, 396 U.S. emphasize initially intended—and (1969). Finally, Winters has L.Ed.2d 345 legisla- evidence—the 1989 there is no such argu- reasonably persuasive textual made a revealing as surely resolution are tion and GTCA, respect to the ment with to ac- Council intended to what the 1986 an ad- court has not hesitated override complish.11 apparent- interpretation ministrative in order. Retroac A note of caution is See, statutory language. ly runs afoul of their interpretation by legislators of tive Parreco, A.2d at 48-49 and e.g., supra, 567 approached with past enactments should be all, cited. All in we think authorities there “The circumspection. views a measure of construction tilts that the administrative Congress[12]form a haz subsequent of a favor, very much. the District’s an inferring the intent of ardous basis for Washington, one.” McIntosh v.

earlier and Resolution. Legislation D. The 1989 (D.C.1978)(quoting Unit 395 A.2d Price, ed States v. heavily The District relies on the Coun- (I960)). 326, 332, 4 L.Ed.2d 334 See S.Ct. re- explicit cil’s declaration 1989 with States, 565 A.2d v. also Holt United was in- spect to what the GTCA of 1986 (en banc). interpreta (D.C.1989) The present case is some- tended mean. is, analysis, final in the tion of statutes unusual, in what 1989 Council courts, subsequent not of responsibility of only apparently amended the Pierce v. Un ly elected bodies. clarification, purposes passed but also derwood, S.Ct. explaining exactly the 1986 resolution what L.Ed.2d 490 2(d) of had on its mind. In Section Council instance, Council ex- present In ‍​​​‌‌​​‌​‌​​​‌‌​‌‌​​‌‌​​‌‌‌‌​​​​​‌‌‌‌‌​​‌‌‌​‌​‌‌‍Emergency Resolution of Declaration terms its view pressed in no uncertain declared that the 1986 the Council pending case decision the trial court’s “never intended the Act to Council leg- {Cunningham) had misconstrued degree mur- persons convicted decision Cunningham 2(e), islative intent. the 1989 Council der." Section be, appeal- been, or was about had be- either had explained that thе 1986 Council pending as fact, appeal remains ed. In “notwithstanding any other lieved that the Stokes, hand and Stokes present case on the one dis- Winters relies on United States was other is that there page supra, Howard on the n. in which this cussed at court, 572 decision, deci- authority reaction to the earlier aroused sions, in a 2:1 sustained Cunningham precipitated an instant while judge to sentence a defendant con- of the trial Moreover, and Howard Stokes firestorm. pursuant murder victed of first only youthful Act, exempted have would U.S.C. Federal Youth Corrections 18 former mandatory sen- minimum (1970), murderers from exempting thus him from § 5010 tence, Stokes, for which Winters the result whereas mandatory penalty. this minimum those who were to all of contends would States the lead of the United court followed Howard, prior to the 1989 amendment. sentenced Appeals in United States v. Court of 10, (1971), also 146 449 F.2d 1086 12. Or Council. The decisive distinction between a 2:1 decision. 578 writing. interpretation That the 1989 Council’s

of the time of this The Council’s legis- in the GTCA of 1986 was contained consequence of intervention could have the resolution does not invalidate it. lative in altering the result a case which was still рas- in Mayor plays no role Since in litigation in the federal courts. The resolution, sage a resolution cannot of a problems presented are therefore sensitive supra, 1A Sutherland, amend a statute. implicate They sepa- the doctrine of ones. 22.14, legislation may, 216. Prior powers, they and are not at all ration however, interpreted or construed easy. Moreover, resolution. Id. the resolution “[subsequent legislation declaring But altogether in this case is consistent with the intent of an earlier entitled to statute is leg- emergency, temporary permanent great weight construction.” Council, by the islation which was enacted FCC, Broadcasting signed by permitted by Red Mon Co. v. Mayor, 1794, 1801-02, Congress go The into force. views U.S. are the 1989 Council on the issue before us (1969). principle L.Ed.2d 371 This is a not in doubt. one.” at 381 n. “venerable Id. S.Ct. century

at 1801-02 n. 8. Almost a and a case, weight present In the considerable ago, Supreme half Court declared given the 1989 should be gathered subsequent elapsed “if it can be from a Relatively resolution. little time materia, the enactment of the GTCA and pari meaning statute what between in 1989. Most of the the Council’s actiоns legislature attached to the words of a for legislators were members of the Council at statute, they legisla mer will amount to a respond- both relevant times. The Council meaning, tive declaration of its and will swiftly, unambiguously and unanimous- ed govern the construction of the first stat ly Cunningham.13 to the decision Freeman, 44 ute.” United States v. U.S. provided specific and rele- Councilmembers How.) (3 (1845). 11 L.Ed. 724 intent in 1986 and of vant details of their where, here, especially This is true existing legislation they what understood evidently enactment was intended to “[t]his reliance on the to mean. Council’s previously existing remove doubt as to provi- phrase “notwithstanding any other of the statute and declare its law,” not, sion of whether correct was meaning.” Bailey true construction and v. certainly not unreasonable. See Illinois Clark, 88 U.S. 22 L.Ed. 651 Guard, supra, the discus- National subsequent legisla The views of a pp. question to 574. The wheth- sion at ture are not conclusive as to the intent of er convicted of first murder one, they carry an earlier “considerable good time credits was not were entitled to Turner, weight.” retrospective Heckler v. judge a one-sided one. The trial U.S. S.Ct. judges case and аt least two United (1985); L.Ed.2d 138 see also Seatrain States District Court reached a result con- Co., Corp. Shipbuilding v. Shell Oil trary Cunningham. to that See Davis 572, 597, 100 800, 814, 63 L.Ed.2d U.S. S.Ct. Williams, (D.D.C. No. 88-2896 June (1980); Housing Administra Federal 1990) (Lamberth, J.); Barry, Caldwell v. Inc., Darlington, tion v. The 1989) (Rever- (D.D.C. May No. 88-1394 141, 145-46, 3 L.Ed.2d comb, J.). circumstances, I Under these (1958); 2A N. Singer, upon think it incumbent us to treat Sutherland Statu tory Construction, 49.11, (Sands at 414 pre- declarations in the 1989 resolution as ed.1984). credible; sumptively accurate and we 4th sim- Ferren, judge’s interpretation respect I do terms that the With due certain emphatic nega- original conformity GTCA not in see how the Council’s swift and Cunningham when enacted the statute. tive reaction to the decision could their Surely Judge intent possibly my "undermine" conclusion that the Ferren does not think a hesi- misinterpreted long-delayed had the 1986 tant and declaration would be court in that case it, original they probative As soon as learned of all ten more of the Council’s intent statute. prompt remaining Councilmembers said in no un- than a forceful and one.

579 emphasis perceive I the determinative to the mem- to be ply no reason disbelieve have 2(d) of the Council’s they places he on section expressly when bers of the Council Emergency Resolution of 1989 in- Declaration describe their initial unambiguously “never intend- stating that 1986 Council the tent. Act to the Time ed [Good Credits] of first murder.” convicted Ill Ante

CONCLUSION I. necessary

I do think it to decide not weight the precisely much court would how instances, true, may It in some be if resolution statu- accord to the 1989 declaring “[subsequent in- legislation legislative history and tory language, the of an statute is entitled to tent earlier construction tilted force- administrative great weight statutory construction.” fully opinion I am of towards Winters. FCC, v. Broadcasting Red Lion Co. 395 of not. Without events do 1794, 367, 380-81, 1801, 23 U.S. 89 S.Ct. 1989, very close be a case. this would (1969).14 many, But if not L.Ed.2d 371 events, of light of closeness those most, are canons of construction otherwise, question I vote credit the counter-canons.15 equally offset forceful judgment of 1989 Council and sustain Thus, surprising Supreme it is not the trial court. of a Court often said “the views subse- has Congress quent form a hazardous basis for PERREN, Judge, concurring Associate inferring of an earlier the intent one.” in the result: Price, 304, 313, v. 361 U.S. United States 331-32, (1960), agree 326, I 4 L.Ed.2d 334 most of 80 S.Ct. SCHWELB’S result, Washington, analysis, only quoted I concur in the v. 395 but McIntosh 744, (D.C.1978).16 opinion, Depend- 12 accept his because cannot what A.2d 750 n. 14. See, 184, 211, Turner, might great e.g., Heckler v. 470 the intent of an earlier one U.S. 1152-53, doubt, 1138, (1985) weight assisting Court when in al- 105 84 S.Ct. L.Ed.2d 138 action”). (1984 judicial though clarify to control legislation entitled intended current law prospective interpretation leaves no doubt as to Llewellyn, Theory Remarks on the 15. See but "carries in addition statute considerable Appellate Rules or Construed, Decision and the Canons retrospective weight’’); Shipbuilding Seatrain About How Are to Be 3 Vand. Statutes Co., 572, 596, Corp. 444 U.S. v. Shell Oil 100 395, 401-405 L.Rev. 800, 813-14, (1980) (while S.Ct. 63 L.Ed.2d 36 Congresses subsequent "views over cannot Mansanto, See, e.g., United States v. 491 U.S. enacting ride intent of the unmistakable 600, 610, 2657, 2664, 105 L.Ed.2d 512 one, significant are entitled to such views (1989) ("postenactment views form hazardous weight, particularly precise so when the statute”) inferring the intent’ behind basis obscure”) (ci enacting Congress is intent of the Price); Agen (citing Mackey v. Lanier Collection omitted); Co., Aerospace tations NLRB v. Bell 825, 839, Service, Inc., cy 2182, S.Ct. & 486 U.S. 108 267, 275, 1762, 1757, 416 S.Ct. U.S. 94 40 2190, (1988) (opinion of L.Ed.2d 836 100 (1974) ("subsequent legislation de L.Ed.2d 134 Congress of a law “later as to claring the intent of an earlier statute is entitled years 10 earlier does not control ‍​​​‌‌​​‌​‌​​​‌‌​‌‌​​‌‌​​‌‌‌‌​​​​​‌‌‌‌‌​​‌‌‌​‌​‌‌‍enacted significant weight”); Darlington, F.H.A.v. The issue”); County Pharmaceutical Ass’n Jefferson 90, 145-46, Inc., 84, 141, 150, 27, 3 Laboratories, 358 U.S. 460 U.S. n. v. Abbott 165 (1958) (subsequent 27, 1011, (1983) L.Ed.2d 132 S.Ct. 1021 n. 74 L.Ed.2d 882 103 intent of earlier law is not con (views declares Congress subsequent form “hazardous determining Congress previous one) clusive what inferring an intent of earlier basis" weight McMann, Lines, meant “is entitled to when it comes (citing Price); Air Inc. v. United construction’’); 7, problem Tribe Sioux S.Ct. 449 n. 54 434 U.S. 200 n. States, (1977) ("Legislative Indians v. United observations 10 L.Ed.2d (1942) (state L.Ed. 1501 years passage S.Ct. Act are in no sense after history”); reported Bridge- part Committee which ment "general in 1892 stone/Firestone, Guaranty Act of within Pension Allotment made Inc. v. Benefit years passage, virtually Corporation, 94 n. five of its conclusive Act”); (1990) ("[T]he pronounce significance as to of that United States F.2d 110 n. 5 years Congress, here subsequent S.Ct. ments of a Stafoff, ERISA, notoriously ("statute passage are purporting declare after L.Ed. circumstances, therefore, ing on a re- could to kind of situation as viewing may may sig- perspective, speedy court not—find well. From that a —or postenactment postenactment by legislature reaction a nificance in the views of comprised legislators mostly of members who had vot- purport express who appear ed on the earlier enactment could understanding legislature of an earlier primarily protect legisla- an effort to enacted the statute at issue. polls, tors’ own interests at the rather than Judge justifies SCHWELB reliance on to reflect their earlier intention—or more the Council’s 1989 resolution to reveal the likely appli- their earlier lack of intention— underlying 1986 Council’s intent the Time presented. issue cable to the later “[Relatively Credits Act for three reasons: go say posten- I do not so far as to elapsed little time between the enactment legislative actment views should never be of the GTCA and the Council’s actions weight; clearly per- accorded the caselaw 1989,” legislators of the were mem- “[m]ost supra Compare mits this on occasion. times,” bers of the Council at relevant both supra express note 1 note 8. I con- responded swiftly, Council un- “[t]he legislative only cern here about declara- ambiguously unanimously to the deci- clearly pending tions intended to affect liti- in Cunningham.”17 sion at 578. Ante gation may present temp- situation that —a Although Judge SCHWELB’S two compromise honesty expedi- tation support argument, reasons tend to his ency. Accordingly, rather than make a swift, negative third —the Council’s reac- declaration, postenactment as the such Cunningham substantially tion to under- — resolution, determinative —as mines it. relegate SCHWELB does—I would it to postenactment I believe declaration of derogative corroborative or evidence at intent, legislative clearly intended to affect resolving best after the matter on the basis pending litigation, inherently suspect. statutory language, aided as neces- truly if the Even declaration reflects earlier legislative history applicable sary by intent, (which may may not construction. canons Mayor signing, reflect the intent of the Congress vetoing legisla- and the II. tion), appears it to be intended to affect judicial review. have reason believe In this case we have two statutes to that the motives behind the 1989 Council review. The District of Columbia Good entirely declaration were honorable. It Time Act of D.C.Code Credits §§ difficult, however, imagine is not that a 428(a) (1989), provides: and -434 legislative body some other occasion— on (a) Every person who is convicted of a public outcry against confronted (“Dis- violation of a District of Columbia interprеting ambiguous trial court decision trict”) criminal law a court in the very unpopular to create a Columbia, imprisoned in District of a Dis- right conveniently, and retroac- —could facility, correctional and whose con- trict tively, that had find an intent never been conformity applicable duct is in with all of, declared, thought let alone at the time institutional rules is entitled to institu- enactment, thereby cause erasure of tional time credits in accordance otherwise, reviewing using what the court provisions of this with the section.... tools, appropriate interpretive might have [Emphasis added.] right. newly found to be a established analysis Judge SCHWELB employs here ^{[*] [*] [*] [*] [*] [*]} Congress quent Congress form a for infer- unreliable indicators of the intent of hazardous basis passage, give very weight ”) ). ring (citing and we little the time of one’ the intent of an earlier Price legislative history"); Interna- to such revisionist Brock, Union, U.A.W. v. tional Williams, F.Supp. Cunningham (1987) ("prodigious F.2d (D.D.C.1989). body establishes that 'the views of a subse- of law “[e]very that quickly conclude good time 564—and Institutional and educational to the mini- of a District of Columbia applied credits shall not be convicted person” under persons mum terms оf sentenced to institutional “is entitled criminal law imum Sentences tive March the District §§ 33-501 and Columbia Initiative of (D.C.Law Mandatory-Min- 33-541). effec- mum District of Columbia good time credits “shall terms credits,” provided that not be Mandatory-Minimum applied to sentenced under the the mini- ^[1] such The first many years (b) (1989), provides: degree earlier, murder statute D.C.Code §§ 22-2404(a) adopted law, Sentences “[notwithstanding person convicted Initiative of 1981,” of first and provision of degree mur- ^[2] in the (a) punishment of murder imprisonment to life and sentenced der” imprisonment. life degree first shall be only parole after eligible for “shall be provi- Notwithstanding any other (b) date he years from the expiration of 20 law, of first- sion person convicted his sentence.” to serve commences sen- upon whom a degree murder and statute fashioned very structure imposed imprisonment of life tence at is- together provisions the two tacking only after the eligible parole shall be subject rule to two general reflects a sue the date he expiration years of 20 from exceptions. compatible sentence. to serve his commences [Em- however, were Given, that these statutes рhasis added.] many years apart and enacted statutes, containing each These two construed Cunningham court has limiting early pris- from provision release 22-2404(b) “Notwithstanding” clause § on, as arguably conflict with each other existing at the only to “law applying applied to first murder. Absent 22-2404(b) we have passed,” was time § Act, 24-428(a) 22-2404(b), the 1986 §§ § statutes further into how these inquire -434, good time credits would make relate, absent illumi- deemed to should be “[e]very person” convicted available to ante at See history. nating legislative murder; and, the 1986 absent 575-576. Act, possibly credits could time Cunning- First, for the I find no basis year the 20 minimum sentence reduce the “Notwith- ham court’s conclusion that Accordingly, murder. because 22-2404(b) language of was standing” § re- cause a different either statute would only in effect at apply to laws intended other, must construe sult without we States, It is true that the time of its enactment. Holt v. United See together. them 22-2404(b) clear (D.C.1989) pro- adopted to make (statutory A.2d § subject first-degree mur- having purpose same that someone convicted visions pari materia and should murder, be matter are second-degree der, in contrast with ac- specifically, More tоgether). imprisonment construed term have a life could not Supreme Court: cording to the years by reference to reduced below is, Act, interpretation D.C.Code The correct rule of Sentences Indeterminate same (where relate to the 24-203(a) (1989) if statutes maximum sen- divers ought taken into thing, they all be minimum imprisonment, “a is life tence construing any one of consideration imposed shall not sentence shall be law, rule of them, is an established and it See years imprisonment”). exceed 15 materia are pari all acts Cong., 87th 1st Sess. H.R.Rep. No. one if were law. together, as taken say that Con- (1961). But this is not to 556, (3 Freeman, pro- United States gress had no intention whatsoever (1845) (cita- How.), 564-65, 11 L.Ed. 22- 20-year minimum under tecting the omitted). later, tions 2404(b) generally stated against more affect arguably could legislation that could Freeman— Superficially, we Literally, degree murder. law,” for first id. penalty viewing statutes as “one Cunningham, supra 18. See at 646. note 711 F.Supp. Act, “Notwithstanding” Labor-Management adopted clause of § after

2404(b)applies subsequent, as well as to the Technician Act. The drafters of sec- existing, although with an uncertain 709(e) hardly tion can be said to hаve had laws— reach. Labor-Management specifically so, contemplation. within their Even the Recently, in Illinois Nat’l v. Fed- Guard preemptive language powerful evi- Auth., U.S.App. eral Labor Relations Congress any dence that did not intend 187, (1988), D.C. 854 F.2d 1396 the United other, general, legislation, more whenev- Appeals States Court of for the District of enacted, qualify authority er of Columbia Circuit a issue. dealt with similar adjutants general the state set out in as The court considered the National whether language the Technician Act. The does (current Guard Technicians Act of 1968 preclude subsequent change 709, (1988)), version at 32 U.S.C. §§ Illinois, part Congress, heart on the it does exempted but the National Guards of suggest any qualification of the Wyoming, and California from the later- 709(e) bargaining requirements accepted enacted of the terms of section would be Employees Federal Flexible and by Congress only Com- after some considera- (cur- pressed Work Schedules Act of 1982 requiring permit- tion of the factors or 6101, 6130(a) rent version at 5 U.S.C. ting change. such a §§ (1988)). provision The Technician Act at (quoting Id. at 854 F.2d at 1403 New issue committed “establishment work Jersey Air Nat’l Guard v. Federal Labor schedules to the unfettered discretion of Auth., (3d Cir.) 677 F.2d Relations Secretary” Army, of the whereas the (emphasis original), denied, cert. required “bargaining later Schedules Act U.S. 74 L.Ed.2d 384 over work schedules.” 272 (1982)).19 at 854 F.2d at 1402. The Technician Accordingly, has inter- the D.C. Circuit Act, however, explicitly provided that its preted “Notwithstanding” clause identi- apply “[Notwithstanding terms were to merely cal to the one at issue here not provision of law.” at Id. protect against repeal a statute automatic Quoting approval 854 F.2d at 1401. by subsequently enacted cover- construing from a Third Circuit case a sim- field, ing the same also to mean that a provision ilar of the Technician Act with law, subsequent preempt in order to arguably preemptive provi- reference to an one, legislative earlier must reflect “consid- Labor-Management sion of the later Rela- permit- requiring eration of the factors or Chapter tions of the Civil Service Reform ting” alleged change. Id. (current Act of 1978 version at 5 U.S.C. (1988)), adopting applying analysis, 7101-7135 the court wrote: §§ the Circuit Court found histo- Looking statutory lan- Congress ry that indicated had intended the guage, immediately pref- we confront the bargaining provisions of the 1982 Sched- 709(e) ace to the Technician section trump “Notwithstanding” ules Act to Act, provides that explicitly its clause of the 1968 Technician Act. The apply “Notwithstanding any terms oth- the earlier Tech- court then concluded that provision [emphasis add- er law ...” because, provision nician had to A clearer statement is difficult to ed]. according applicable statutory canons of 709(e) imagine: must read to section construction, by implication “repeals are any conflicting provision override of law specific not favored” and “a statute con- in existence ‍​​​‌‌​​‌​‌​​​‌‌​‌‌​​‌‌​​‌‌‌‌​​​​​‌‌‌‌‌​​‌‌‌​‌​‌‌‍at the time that the Techni- general regard trols one without Application cian Act over was enacted. certain, however, priority U.S.App. of enactment.” Id. 272 this statement is less respect F.2d at to a statute such as the D.C. at Cunningham "[ajccepting posi- modify cil law.” states that could never former urged by F.Supp. tion intervenor" —that the "Notwith- against at 646. Illinois National Guard makes standing" prevail subse- clause could clear that this statement is incorrect. quent legislation mean that the Coun- —"would Exchange Securities (citations quotation рrovision ue marks internal 1995. The 96 S.Ct. at Act.” Id. omitted). that “re- on Canon Court elaborated It much court is unclear how Illi- favored,” ac- peals implication are not “power- relied on the nois National Guard knowledging there are “preemptive ful lan- evidence” repeals by categories of well-settled “two guage” “Notwithstanding” clause provisions implication (1) where — premised analy- and how much the court conflict, the are in irreconcilable two acts sis, generally, on canons of more conflict extent act to the later language clarifying construction absent repeal implied an earli- constitutes legislative history. See id. at F.2d one; later covers the er if the act My is that court relied at 1403. sense subject the earlier one and is whole primarily interpretive on canons with the substitute, a it clearly intended as will result made easier the force operate similarly repeal as a of the earli- “Notwithstanding” language clause But, case, er in either the intention act. approach is earlier statute. I believe this repeal legislature must be clear on the applicable hеre. Whether we focus manifest_” and Posadas v. National subject credits or more nar- time 503, Bank, 497, U.S. 56 S.Ct. City 296 rowly mandatory mini- subject on the 352, 349, 80 351 L.Ed. [1936]. sentences, mum the later-enacted Good 154, at 96 at 1993. The Id. 426 U.S. S.Ct. general Time Act is more Credits —more noted: Court then first-degree broadly applicable —than provisions issue here statutory at According Supreme murder statute. cannot be said to be “irreconcilable Court: sense that there is a conflict” statutory principle It is a basic con- them positive repugnancy between or dealing that statute with a struction a mutually coexist. is cannot It narrow, specific subject precise, and enough to statutes show the two not submerged by not a later enacted statute applied produce differing results when covering generalized spectrum. a more situation, for the same factual “Where there is no clear intention other- Rather, problem. than more states wise, specific a statute will not be con- capable of co- “when two statutes are one, general trolled or nullified re- existence, duty it court is the ... gardless of priority of enactment.” regard each effective.” Mortоn v. as Mancari, 535, Morton v. U.S. 551, Mancan, at 94 S.Ct. at U.S.] [417 2483, 551, 2474, L.Ed.2d 290 [1974]. 155, Id. at 96 S.Ct. at 1993. Co., Radzanower Touche Ross & legisla- nothing in the Court concluded that U.S. Exchange Act history tive of the Securities omitted); (1976) (footnote L.Ed.2d 540 see Congress in supported “the en- view States, Rodgers v. United gave slightest consideration to acting it (“It S.Ct. 46 L.Ed. 816 pro repeal of 94 the Nation- tanto § [of a canon of construction that a Act], indicate ‘that al let alone to Bank statute, general in its later terms not [prior] Congress consciously abandoned repealing prior special expressly repeal pro policy,’ or that its intent § ’ ” ‘ ordinarily provi- special will affect the and manifest.” Id. at tanto was “clear statute”).20 omitted). such (citations sions of earlier 96 S.Ct. at 1995 Radzanower, applies the Court held that the analysis in Radzanower This drawn, provision “narrowly specific venue National in cases such Illinois fortiori a “Not- prevail one where of the National Bank must over instant Guard easy broader, withstanding” against clause warns generally applicable more ven- here, Rodgers of a counter-canon of statu- am aware Radzanower tory applying would affect our construction that repeal by subsequent, general legislation. inappropriate for us to credit the 1989 earlier, As indicated the mandatory both Council declaration of the 1986 Council’s first-degree mínimums murder stat- intent. We can no more determine the ute, 22-2404(b), D.C.Code and in the § “subjective” legislature intent of an earlier Act, Good Time Credits id. can subsequent legislature. than can a That is mutually exceptions coexist as to the why Judge Green in Cunningham was cor- “Every person” Act, language of the latter starting rect in with the fundamental canon 24-428(a); id. there is no “irreconcilable plain language of the GTC Act of Radzanower, conflict.” 426 U.S. at giving weight 1986 and conclusive to that S.Ct. at 1992-93. There is “no clear inten- language. tion,” express otherwise, that the Good Moreover, because we dealing are here supersede Time Credits Act the first-de- length affects the gree murder statute. Id. 96 S.Ct. at sentences, (con- criminal I believe it is also Thus, 1992-93. duty court has a “to stitutionally speaking) hazardous to “bor- regard each as effective.” Id. at (as Judge done) row” Ferren has from the (citation S.Ct. at quota- and internal “general specific” canons of civil statu- omitted). tion marks tory construction to here mаke the Murder short, Radzanower and Illinois Na- I uniquely paramount.22 statute ques- here; tional Guard dictate the I result see tion is not whether there is a “counter- get into, rely reason even to let alone canon” of statutory construction that on, the 1989 Council declaration of the 1986 prevent application Judge would Fer- Accordingly, Council’s intent. for reasons approach, ren’s approach but whether the Judge that differ from analy- SCHWELB’S can lawfully applied penal be pro- these sis, I, too, would affirm. Through visions. post prohibi- the ex facto

MACK, Judge, dissenting: Senior Constitution, tion of the “the Framers sought give to assure that Acts I complete am in accord with the reason- warning permit fair of their effect and ing Judge Green in Cunningham v. rely individuals to on their until Williams, (D.D.C.1989), P.Supp. explicitly changed.” Two critical elements plain language purpose and the identify post an ex law: it must the Good Time coupled Credits Act of facto retrospective with the rules and it “lenity” logic, compel disadvantage must every person the conclusion that then con- offender affected it. Id. at 580. The imprisoned victed and in the District of given alteration of credits as a matter of engaged Columbia who in conforming con- grace prison by pris- inmates who abide duct, was entitled to receive benefits of may on rules fall prohibition. within its (with one specifically noted In my persons serving view all sentences Indeed, exception).21 I find much of the the District of April Columbia on analysis employed by my colleague, Judge 1987, pursuant provisions Schwelb, to, support to add further rather 2404(b) “good-time” are entitled to earn from, than to detract the result reached any conforming credits for during conduct Judge Green. year period April the two between my colleagues, Judge Like both of May which could advance Ferren, Judge Schwelb and I recognize eligibility parole. time of their that, discerning legislative intent, isit I respectfully dissent. process rely upon hazardous the views subsequent legislature identify of a agree

intent of an earlier one. Ferren, therefore, the circum- case, judicially

stances of this it would be Mandatory-Min- 21. See the pass post District Columbia 22. "No State shall ... ... ex facto (D.C. I, imum Sentences Initiative of 1981 Law 4- Law.” U.S. Art. cl. 1. See Weav- Const., 22-3202, 33-501, 33-541). Graham, 166 §§ er v. L.Ed.2d 17 notes is ten minimum for a second armed offense gоod eligibility emphasized that time credits time, parole see years with no and early automatically re- result in the Lemon, would not A.2d supra, 564 since murderers; parole lease of days per can subtracted much as ten month GTCA, required grant parole as soon as is not board prisoner’s a under the from sentence eligible. prisoner suggest a becomes sovereigns the Council could two (citations marks quotation internal Legislative History. B. The omitted). Supreme Court has often rely in The District and Winters both in- against danger, when cautioned legislative history some measure on upon the terpreting a of reliance support the 1986 version of GTCA In legislative opponents. of its views respective interpretations. my In their bill, they under- their zeal to defeat however, incon- judgment, history standably its reach. tend overstate clusive. Vegetable Packers & to our at- N.L.R.B. v. Fruit & parties brought have Warehousemen, Local tention discussion the members (1964). precise issue here 12 L.Ed.2d 129 the Council of My put has like- presented. [opponent] own examination “An unsuccessful cannot majority uncovered none. of the members wise Two into the mouths of the words Polly amend а bill.” Mastro supported legislation, Mrs. thus, indirectly, who N.L.R.B., Ray, apparently and Mr. Corp. v. Shackleton John Plastics (1956). not affect mandato- assumed that it would 100 L.Ed. 309 sentences, they did not ry minimum sponsors “It is the that we look to when under imposed between those differentiate is in of the words sentencing the 1981 initiative and those Bros. Schwegmann v. Calvert doubt.” of the murder.8 No member 384, 394-95, Corp., Distillers U.S. challenged interpretation of- Council 745, 750-51, 95 L.Ed. 1035 S.Ct. Ray. fered Mrs. and Mr. Shackleton case, nothing defini- present we have sponsors, and the remarks tive from heavily lengthy on a letter Winters relies tend, Ray any- if and Mr. Mrs. Shackleton Joseph to the Chairman of the Council from thing, support position. the District’s DiGenova, Esq., E. who was then United Attorney States for the District of Colum- report by also contends that Winters ‍​​​‌‌​​‌​‌​​​‌‌​‌‌​​‌‌​​‌‌‌‌​​​​​‌‌‌‌‌​​‌‌‌​‌​‌‌‍bia, strongly opposed to the and who was Monaco, official Kathryn R. a corrections passage of the bill. Mr. DiGenova claimed appointed to from New Mexico who was proposed legislation “would allow Department the District’s of Correc- advise mini- person mandatory sentenced to a comply court tions as to how best to mum, pursuant provisions to several facilities, regarding conditions at its orders

Case Details

Case Name: Winters v. Ridley

Court Name: District of Columbia Court of Appeals

Date Published: Sep 4, 1991

Citation: 596 A.2d 569

Docket Number: 90-18

Court Abbreviation: D.C.