Leocal & Martinez: an end to BOP misinterpretation of the good time statute?

Inmates in federal prisons around the country have been objecting to the BOP’s claim that the federal good time statute only provides 47 days, not 54 days, of credit against every year of the sentence. Despite statutory language providing up to 54 days of good time credit "beyond time served" at the end of each year of the "term of imprisonment," the BOP only provides maximum good time of 47 credits per year of the sentence. Two district courts have found that the statue unambiguously requires 54 days, but several Circuits – including the Ninth – have found the statute ambiguous, then deferred to the agency’s interpretation that good time only counts against time actually served, not the sentence imposed. This Term’s Supreme Court opinions in Leocal and Martinez demonstrate that the rule of lenity, not Chevron deference, controls the interpretation of this penal statute.

For several years, the National Association of Criminal Defense Lawyers, the Families Against Mandatory Minimums, and the National Association of Federal Defenders have been struggling to provide prisoners the full measure of good time provided by Congress in 18 U.S.C. § 3624(b) (as reflected in the Champion article here). Two terrific district court opinions (White and Williams) follow the simple rules of statutory construction to find that "term of imprisonment" means the sentence imposed, thereby requiring 54 days of good time credit per year. Several Circuits, on the other hand, have generally followed the Ninth Circuit’s lead in Pacheco-Camacho by finding "term of imprisonment" to be ambiguous, then according the BOP Chevron deference (including the Seventh Circuit in reversing White).

Now those Circuit cases need a second look. Recent Supreme Court cases establish that the canons of statutory construction -- like the rule of lenity -- apply before Chevron deference. Because these recent Supreme Court cases undermine the "mode of analysis" of earlier precedent, Pacheco-Camacho and the cases following it must be re-examined under the governing Supreme Court methodology (Miller).

This is how the rules of construction are supposed to operate. In I.N.S. v. St. Cyr, the Court rejected the retroactive construction of a removal statute, because, citing Chevron’s first prong, deference is only appropriate to statutes that, "applying the normal ‘tools of statutory construction,’ are ambiguous." The brain teaser in footnote 45 is the key: "Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, . . . there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve." The rule of lenity is also a "tool of statutory construction," rendering penal statutes unambiguous for Chevron purposes.

This Term, the Court followed the St.Cyr reasoning in Leocal v. Ashcroft and Martinez v. Clark. In Leocal, the immigration agency found an alien removable for having committed an aggravated felony because it interpreted drunk driving to be a "crime of violence." In rejecting the agency interpretation, the Court explicitly addressed the rule of lenity. In footnote 8, the Court, citing Thompson/Center, found that any ambiguity would have to be construed in the alien’s favor under the rule of lenity, because the statute had only one meaning in criminal and noncriminal contexts.

In Martinez, the Court again rejected the immigration agency’s construction of a statute, this time the post-removal detention statute, again referring to Thompson/Center. The Court emphasized that the doctrine of constitutional avoidance is a canon of statutory construction. Since the doctrine only applies to ambiguous language, this is another example of how "tools of statutory construction" -- including the rule of lenity -- are applied before the first prong of Chevron’s determination of ambiguity. By applying lenity first in construing the good time statute, the Court avoids the separation of powers issues surrounding the Executive’s usurpation of the Legislative function of setting punishment.

These Supreme Court cases demonstrate that, contrary to the Circuits that have been deferring to the agency based on the good time statute’s supposed ambiguity, the rule of lenity trumps Chevron deference. As Justice Scalia wrote in the concurring opinion in Crandon, the Executive’s construction of a penal statute "is not even deserving of persuasive effect" because it "would turn the normal construction of criminal statutes upside down, replacing the doctrine of lenity with the doctrine of severity." Pacheco-Camacho’s reliance on Sweet Home, a case that did not involve an ambiguous penal statute, is undone: the footnote 18 reference in Sweet Home to Thompson/Center has been adopted by Leocal and Martinez.

These cases mean district courts around the country should be free to decide prisoner petitions unencumbered by the cases that, as the Williams judge stated, give only a "cursory nod" to statutory construction. Lawyers litigating these issues have support from the Oregon FPD and FAMM, through its counsel, Mary Price. The NACDL Website has model pleadings and briefs including the pending Ninth Circuit case of Mujahid (opening and reply briefs), AFPD David Lewis’s development of the Chevron/lenity analysis in the Second Circuit, and AFPD Sarah Gannett’s amicus brief defending the Williams decision in the Fourth Circuit.

Sarah updates what is at stake: for the present prison population, seven days per year would save 27,000 years of incarceration and $620 million of incarceration costs never authorized by Congress. If you are litigating this issue, or want to provide prisoner representation, please contact Lynn Deffebach at the Oregon FPD (lynn_deffebach@fd.gov) or Mary Price at FAMM (mprice@famm.org).