Moreland: road map to good time victory
As previously reported here, the good time issue has been gaining traction. Two district courts (White & Williams) have held that the good time statute unambiguously requires a maximum of 54 days for each year of the sentence imposed, not the 47 days provided by the Bureau of Prisons. And the Supreme Court’s Leocal opinion has undermined the courts that found the good time statute ambiguous, then deferred to the BOP under Chevron, rather than applying the rule of lenity. Now, Magistrate Judge Stephen William Smith provides the most thorough judicial analysis of the good time question to date in his findings and recommendation in Moreland v. Federal Bureau of Prisons. AFPD Brent Newton represents Ms. Moreland who, if she ultimately prevails, could be released four months earlier than her current release date.
The Moreland opinion (available here) begins with the basics: "term of imprisonment" should not be construed to mean different things in the same sentence. Judge Smith rejects the BOP’s insistence that the third use of "term of imprisonment" means "time served" while the first two uses in that sentence mean "sentence imposed": "Sloppy draftsmanship," he writes, "is not difficult to find in the U.S. Code, but the BOP’s interpretation plumbs new depths of linguistic confusion."
Judge Smith then adds depth to previous analyses of the statute, explaining why "at" does not mean "after" in the key phrase "up to 54 days at the end of each year of the prisoner’s term of imprisonment." The BOP has maintained that the phrase supports its interpretation that good time may not be credited for time not yet served. Explaining the "inclusive year" approach, the court concluded that 311 days of actual time served, plus 54 days of good time credit, equals one year of the sentence imposed. "[T]he BOP’s position can fairly be dubbed the ‘Christmas-in-January’ approach to GCT." Describing the BOP’s approach as "linguistically unsound," Judge Smith presents a collection of simple analogies to illustrate why "at" the end of the year cannot mean "after" the end of the year. "King Lear," he reminds us, "dies at the end of the play, not after the play. The fat lady sings at the end of the opera not after it. The two-minute warning occurs at the end of the game..."
Judge Smith carefully reviews the legislative history to reinforce his finding that Congress anticipated good time credit would be applied to the sentence imposed. Repeated references to 15% good time credit, the long history of awarding good time credit against the sentence imposed, and the purpose of simplicity all militate in favor of the prisoner receiving seven more days per year than the BOP gives.
Then on to my favorite part – the use of the rule of lenity to trump Chevron. Judge Smith reviews the "venerable" rule of lenity and its application to sentencing, including citation to Leocal. Although noting the limits to the rule’s application, the court found that this "substantive rule of statutory interpretation" foreclosed use of the BOP’s possible but implausible construction of the statute. "To the extent there remains any ambiguity in the statute after considering its most natural linguistic meaning and legislative history, the rule of lenity eliminates all doubt: good conduct time must be based on the sentence imposed, rather than time served."
Judge Smith then directly confronts the BOP arguments that Chevron deference applied and that other court’s opinions should be followed. He points to Supreme Court and circuit court authority finding that, as a matter of separation of powers, the Executive Branch’s interpretation of a criminal statute is due no deference. He cites Justice Scalia’s concurrence in Crandon for the simple proposition that "‘we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference.’" Judge Smith then sets out the two-step Chevron test and finds that Chevron only applies where the statute is still ambiguous after application of traditional tools of statutory construction – such as the rule of lenity. Because the rule of lenity eliminated any potential ambiguity, deference to the BOP’s construction of the statute is unwarranted.
Judge Smith then thoroughly reviews the good-time case law, rejecting the faulty reasoning underlying the opinions. The First Circuit and a couple of district courts found that the good time credit statute is not a criminal statute to which the rule of lenity applies. The BOP made an important admission in its pleadings: "Here, the BOP has candidly conceded that the statue is indeed a penal statute, and as noted above, this concession is fully justified."
The Ninth Circuit and other courts have ruled based in part on what they characterize as the "windfall" the prisoner would receive based on the full 54 days per year of the sentence imposed. Judge Smith explains that "this is really a matter of bookkeeping" and not windfall. "The evaluation date (or ‘good time action date’ in BOP parlance) must be adjusted each year to take into account the GCT already earned and vested." When the good time date is adjusted annually, "no windfall is occurring in the last year of imprisonment." No windfall occurs if a prisoner simply receives the credit Congress intended. Summarizing the factors that leave almost nothing to recommend the BOP’s approach, Judge Smith concludes that "faithful misinterpretation of a statute over time does not alter its original meaning." He recommends that the writ be granted.
As outlined in my previous good time blog, defenders need to be assisting prisoners in every district to litigate this issue: Leocal has undermined the reasoning of all the negative precedent on this issue. Judge Smith has provides an excellent road map for this litigation. We still have a way to go; the Seventh Circuit reversed White, and the district judge has not yet adopted Judge Smith's findings and recommendation. It's worth the effort because the ultimate effect of victory on this issue affects almost every one of our clients: 27,000 years of freedom.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
The Moreland opinion (available here) begins with the basics: "term of imprisonment" should not be construed to mean different things in the same sentence. Judge Smith rejects the BOP’s insistence that the third use of "term of imprisonment" means "time served" while the first two uses in that sentence mean "sentence imposed": "Sloppy draftsmanship," he writes, "is not difficult to find in the U.S. Code, but the BOP’s interpretation plumbs new depths of linguistic confusion."
Judge Smith then adds depth to previous analyses of the statute, explaining why "at" does not mean "after" in the key phrase "up to 54 days at the end of each year of the prisoner’s term of imprisonment." The BOP has maintained that the phrase supports its interpretation that good time may not be credited for time not yet served. Explaining the "inclusive year" approach, the court concluded that 311 days of actual time served, plus 54 days of good time credit, equals one year of the sentence imposed. "[T]he BOP’s position can fairly be dubbed the ‘Christmas-in-January’ approach to GCT." Describing the BOP’s approach as "linguistically unsound," Judge Smith presents a collection of simple analogies to illustrate why "at" the end of the year cannot mean "after" the end of the year. "King Lear," he reminds us, "dies at the end of the play, not after the play. The fat lady sings at the end of the opera not after it. The two-minute warning occurs at the end of the game..."
Judge Smith carefully reviews the legislative history to reinforce his finding that Congress anticipated good time credit would be applied to the sentence imposed. Repeated references to 15% good time credit, the long history of awarding good time credit against the sentence imposed, and the purpose of simplicity all militate in favor of the prisoner receiving seven more days per year than the BOP gives.
Then on to my favorite part – the use of the rule of lenity to trump Chevron. Judge Smith reviews the "venerable" rule of lenity and its application to sentencing, including citation to Leocal. Although noting the limits to the rule’s application, the court found that this "substantive rule of statutory interpretation" foreclosed use of the BOP’s possible but implausible construction of the statute. "To the extent there remains any ambiguity in the statute after considering its most natural linguistic meaning and legislative history, the rule of lenity eliminates all doubt: good conduct time must be based on the sentence imposed, rather than time served."
Judge Smith then directly confronts the BOP arguments that Chevron deference applied and that other court’s opinions should be followed. He points to Supreme Court and circuit court authority finding that, as a matter of separation of powers, the Executive Branch’s interpretation of a criminal statute is due no deference. He cites Justice Scalia’s concurrence in Crandon for the simple proposition that "‘we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference.’" Judge Smith then sets out the two-step Chevron test and finds that Chevron only applies where the statute is still ambiguous after application of traditional tools of statutory construction – such as the rule of lenity. Because the rule of lenity eliminated any potential ambiguity, deference to the BOP’s construction of the statute is unwarranted.
Judge Smith then thoroughly reviews the good-time case law, rejecting the faulty reasoning underlying the opinions. The First Circuit and a couple of district courts found that the good time credit statute is not a criminal statute to which the rule of lenity applies. The BOP made an important admission in its pleadings: "Here, the BOP has candidly conceded that the statue is indeed a penal statute, and as noted above, this concession is fully justified."
The Ninth Circuit and other courts have ruled based in part on what they characterize as the "windfall" the prisoner would receive based on the full 54 days per year of the sentence imposed. Judge Smith explains that "this is really a matter of bookkeeping" and not windfall. "The evaluation date (or ‘good time action date’ in BOP parlance) must be adjusted each year to take into account the GCT already earned and vested." When the good time date is adjusted annually, "no windfall is occurring in the last year of imprisonment." No windfall occurs if a prisoner simply receives the credit Congress intended. Summarizing the factors that leave almost nothing to recommend the BOP’s approach, Judge Smith concludes that "faithful misinterpretation of a statute over time does not alter its original meaning." He recommends that the writ be granted.
As outlined in my previous good time blog, defenders need to be assisting prisoners in every district to litigate this issue: Leocal has undermined the reasoning of all the negative precedent on this issue. Judge Smith has provides an excellent road map for this litigation. We still have a way to go; the Seventh Circuit reversed White, and the district judge has not yet adopted Judge Smith's findings and recommendation. It's worth the effort because the ultimate effect of victory on this issue affects almost every one of our clients: 27,000 years of freedom.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 3/18/2005 09:49:00 AM
1 Comments:
The Fifth Circuit has issued an unpublished opinion dismissing a challenge to the BOP's approach to computation and awarding of good time credit. The court held that it lacked subject-matter jurisdiction, as the prisoner's challenge was not ripe (he would not be released until 2012 at the earliest, even under his interpretation of the good-time statute). The court also held that, even if it did have jurisdiction, 1) the plain language of the statute supports the BOP's interpretation, and 2) to the extent that the statute is ambiguous, the court must afford Chevron deference to the BOP's interpretation (citing White and Pacheco-Camacho). The case is: Sample v. Morrison, No. 04-40698 (5th Cir. Mar. 22, 2005) (unpublished).
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