Whether the proper calculation of “good time credits” to shorten the sentence of federal prisoners, based on their good behavior, is based on actual time served or the sentence imposed, when considering both the rule of lenity and the deference due to the decisions of the Bureau of Prisons.
Petitioners Michael Barber and Tahir Jihad-Black are serving sentences in federal prison for various gun and drug charges. The Ninth Circuit allowed Petitioners to consolidate their cases with several earlier cases in order to petition the Supreme Court for certiorari. Petitioners are challenging the Bureau of Prisons’ (“BOP”) interpretation of 18 U.S.C. § 3624(b), which allows well-behaved and compliant federal-prisoners to receive up to 54 days off their sentences for “each year of the prisoner’s term of imprisonment.” Petitioners argue that “term of imprisonment” means the total sentence imposed by the court. Respondent contends that it refers to the prisoners’ actual time served. The standard of computation ends up differing because under Petitioners’ method, a prisoner receives good behavior credit for years they do not end up serving. Petitioners argue that the courts do not owe the BOP’s interpretation deference, because the statute is unambiguous and the record does not contain any reason for the BOP’s interpretation. Even if the statute is ambiguous, Petitioners argue that the rule of lenity should apply. The rule of lenity holds that when considering penal statutes, the courts should resolve any ambiguity in the defendant’s favor. Respondent agrees that the statute is unambiguous, but counters that it instead requires computation of good time credit on the basis of time served. Respondent also argues that even if the statute is ambiguous, the rule of lenity does not apply because the statute is civil rather than penal.
Questions as Framed for the Court by the Parties
The federal good time credit (GTC) statute provides for credits ‘‘up to 54 days at the end of each year of the prisoner’s term of imprisonment.” Throughout federal sentencing statutes, and elsewhere in the same sentence, ‘‘term of imprisonment” means the sentence imposed. However, the Bureau of Prisons ("BOP") interprets ‘‘term of imprisonment” as unambiguously meaning time served. For each year of a sentence imposed, the BOP interpretation results in seven fewer days of available credits. The first question presented is:
Does ‘‘term of imprisonment” in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. § 3624(b), unambiguously require the computation of good time credits on the basis of the sentence imposed?
The circuits, using a variety of rationales, have rejected the BOP’s claim that the statute was unambiguous, but deferred to the BOP interpretation under Chevron based on “term of imprisonment” being ambiguous. In this litigation, the BOP has conceded that the regulation implementing the GTC statute, and previously accorded deference, was promulgated in violation of the Administrative Procedure Act. Nevertheless, the Ninth Circuit affirmed the BOP rule under Skidmore. The second question presented is:
If “term of imprisonment” in the federal good time credit statute is ambiguous, does the rule of lenity and the deference appropriate to the United States Sentencing Commission require that good time credits be awarded based on the sentence imposed?
Under federal law, a federal prisoner serving a sentence of more than one year but less than life, “may receive credit toward the service of [his] sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term.” These good time credits (“GTCs”) are subject to a determination by the Bureau of Prisons ("BOP") that “the prisoner has displayed exemplary compliance with institutional disciplinary regulations.” The GTCs can shorten a federal prisoner’s sentence, provided the prisoner acts according to the good-behavior regulations of the prison. Several Ninth Circuit cases have interpreted this statute in a similar fashion; they have been consolidated for this case to decide the same issue.
Petitioners Michael Barber and Tahir Jihad-Black are federal prisoners whose petitions for habeas corpus relief under the good time credit statute, 18 U.S.C. § 3624 (b)(1), were denied by a federal district court. The district court based its decision on Tablada v. Thomas, where, facing conflicting interpretations of 18 U.S.C. § 3624 (b)(1), the court deferred to the Bureau of Prisons’ (“BOP”) interpretation of the statute. . In Tablada, as in this case, the two sides differed over how the “term of imprisonment” provision should be applied when giving out GTCs.
The BOP has said that all GTCs for a year are not earned until a prisoner has served that year. Numerous federal prisoners, including Barber, Jihad-Black, and Ismael Tablada, have argued the GTCs should be apportioned according to the sentence imposed. The Ninth Circuit has favored the BOP’s “time served” interpretation over the prisoners’ interpretation.
The BOP’s interpretation, however, leads to a “complicated” enforcement scheme: A prisoner serving a 10-year sentence is not entitled to a maximum of 540 days off of his sentence; rather, he accrues 54 days for each year of the sentence he completes, and in his final year receives a pro-rated value of .148 of a day off his sentence for each day served. Under this calculus, instead of a 540-day maximum, a prisoner serving a 10-year sentence could only get 470 days trimmed from his sentence.
Despite its complexities, this enforcement scheme was endorsed in Tablada; the Ninth Circuit pointed to precedent in upholding the BOP’s interpretation of the statute. The case law had affirmed the BOP’s interpretation because it “comports with the statutory language . . . and does not subvert the statutory design.” The Ninth Circuit followed with another opinion holding that the BOP’s interpretation is “reasonable and subject to deference.”
With this precedent in mind, on an appeal by the petitioners, the Ninth Circuit granted a summary affirmance of the district court’s denial of habeas relief but did not necessarily indicate an endorsement of the BOP's interpretation as reasonable. The circuit court then consolidated Petitioners’ claims with Tablada, allowing one petition for certiorari to be filed. The U.S. Supreme Court granted certiorari for review of the consolidated petition on November 30, 2009 to determine which interpretation of the statute is correct.
Petitioners Michael Barber and Tahir Jihad-Black dispute the Bureau of Prisons’ (“BOP”) interpretation of 18 U.S.C. § 3624(b). The statute provides that “a prisoner . . . may receive credit toward the service of [their] sentence . . . of up to 54 days at the end of each year of the prisoner’s term of imprisonment.” Petitioners contend that the phrase “term of imprisonment” means the length of the sentence imposed rather than the BOP’s interpretation that it refers to the time the prisoner actually serves. Therefore, Petitioners argue that this good time credit (“GTC”) should be computed based on the time-span of the imposed sentence. According to Respondent Warden, J.E. Thomas, the methods return different results because under a “sentence imposed” basis the inmate receives GTC for years they never end up serving. Respondent argues that the language of the statute unambiguously requires the BOP’s interpretation, but even if the provision is ambiguous, the court should defer to the BOP’s interpretation under the Chevron doctrine. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court held that an agency’s interpretation of a statute Congress charges it with administering should be given deference if (1) the statute is ambiguous and (2) the agency’s interpretation is reasonable.
The Meaning of the Statute
Petitioners argue that the court should not defer to the BOP’s interpretation of the statute because the Chevron doctrine only applies when a statute’s language is ambiguous. According to Petitioners, the phrase “term of imprisonment,” as used in 18 U.S.C. § 3624(b) unambiguously means the ‘length of the sentence.’ To support this argument, Petitioners contend that the phrase “term of imprisonment” is a legal term of art—meaning the sentence imposed by a judge. They argue that the Congressional definition of this phrase can be deciphered by looking at other statutes that describe the judicial power to impose a “term of imprisonment.”
Respondent agrees that § 3624(b) is unambiguous, but contrary to Petitioners’ interpretation, he argues that it clearly requires the calculation of good conduct credit on the basis of time actually served by inmates. He contends that this interpretation is necessary, because the statutory language authorizes good time credits only after the first year of service, and then provides for the BOP awarding it at the end of each year thereafter. According to Respondent, the concept of awarding credit at the end of the year is incongruent with basing credit on the sentence imposed. He argues that the language only makes sense when applied to the time already served. To illustrate this point, Respondent argues that it does not make sense to award time off for the years already taken off the sentence based on good behavior. He points out that it is unclear when or how the BOP would go about determining whether a prisoner earned the credit through good behavior, if the prisoner is no longer incarcerated; practically speaking, the credit would have to be awarded prospectively, not at the end of the year, as the statute dictates.
Petitioners counter this by pointing to other instances where the phrase is used in the statute, and argue that the “rule of intra-statutory consistency” dictates that their interpretation is correct: the phrase “term of imprisonment” is used repeatedly to mean the sentence imposed. According to Petitioners, at least two of those instances can only mean the sentence imposed, not time actually served, in order to make sense. They argue that the rule of intra-statutory consistency dictates that “term of imprisonment” be interpreted as “sentence imposed.” The rule states that “the same word or phrase should have the same meaning throughout the statute,” Furthermore, he argues that the phrase is used frequently and uniformly throughout Title 18 of the U.S. Code to mean an imposed prison sentence. Petitioners also point to historical usage to support this interpretation; they assert that good time credit was historically based on the sentence imposed rather than the time actually served, including in the predecessor statute.
Respondent disputesthat the rule of intra-statutory consistency applies, because Congress did not use the phrase consistently throughout the section. According to Respondent, this is evidenced by several places where the phrase can only mean time served, in contrast to other places where it can only mean the sentence imposed. In addition, he contends that use of the phrase “term of imprisonment” found in Title 18 and other provisions does not indicate what meaning should apply in § 3624(b), because they deal with different contexts. According to Respondent, in the provisions cited by Petitioners the phrase is about the act of sentencing itself, whereas in § 3624(b) the phrase is dealing with the subject of prison administration.
The Rule of Lenity v. The Chevron Doctrine
If the Court finds the meaning of § 3624(b) to be ambiguous, even after considering its language, history, and context, Petitioners contend the Court should still uphold their interpretation because the rule of lenity applies. The rule of lenity says that where a penal statute is ambiguous the ambiguity should be resolved in favor of the defendant, according to Petitioners. Petitioners contend that that § 3624(b) is a penal statute because it affects the amount of punishment to which a prisoner is subjected. Petitioners claim that applying the rule of lenity removes any ambiguity, therefore eliminating the necessary condition for applying Chevron deference. Furthermore, Petitioners argue that even if the Court were to find that ambiguity exists and proceed to step two of the Chevron analysis, the rule of lenity trumps the Chevron deference in step two. Accordingly, Petitioners assert that the courts owe the BOP no deference.
Respondent counters that the rule of lenity does not apply, because § 3624(b) is a civil, not a penal, statute. He argues that the section is neither a substantive criminal prohibition, nor does it impose a criminal penalty. According to Respondent, the provision is an administrative statute written to reward compliance with prison rules, which gives an inmate reduced prison time. He contends it is significant that no interpretation of § 3624(b) can increase the length of a sentence a prisoner must serve; it can only lower the sentence, meaning that it is therefore not criminal in nature. Respondent points out that every court of appeals to consider the issue has ruled unanimously that the statute is civil, not criminal, in nature, and therefore does not apply the rule of lenity. Furthermore, he contends that even if the statute could be construed as criminal in some sense, the rule of lenity would still not apply here, given that the rule is designed to ensure that criminals have “fair warning” about what criminal conduct is illegal. Respondent argues that laws governing administrative rewards, though ambiguous, do not implicate this concern. Moreover, he rejects Petitioner’s contention that the rule of lenity trumps Chevron deference, citing precedent that upheld Chevron deference despite the rule of lenity where a longstanding regulation provided “‘adequate notice of potential liability’ because it had ‘existed for two decades’ and gave ‘fair warning of its consequences.’”
Bureau of Prisons’ Compliance with Chevron Requirements
Regardless of whether or not the rule of lenity applies, Petitioners contend that the Court does not owe the BOP’s interpretation any deference because the BOP has no express authority to administer § 3624(b). Instead, they claim that Congress delegated that authority to the Sentencing Commission. Therefore, they argue the BOP should defer to the Sentencing Commission’s interpretation, which matches their interpretation. Furthermore, they argue that the BOP’s interpretation does not deserve Chevron deference because, as the BOP conceded, the agency violated § 706 of the Administrative Procedures Act by not considering any alternative interpretations of § 3624(b). According to Petitioners, this is evidenced by the BOP’s failure to include a rationale for its decision in the administrative record. Given this lack of justification on the record, they assert that no administrative expertise was used to make the decision; thus, the rationale behind giving an agency deference is defeated here, and so Chevron deference should not be applied.
Respondent counters that Congress delegated administration of federal prison sentences to the Attorney General, who in turn delegated that responsibility to the BOP. He argues that Congress authorized the Sentencing Commission to create sentencing guidelines, a task that is distinct from administering prisoner’s sentences. Respondent also asserts that the regulation that established the BOP’s good time rule, 28 C.F.R. 523.20, was reasonable, contrary to the Ninth Circuit’s decision otherwise. He argues that the administrative record did not include its reasoning because it was merely meant to update a rule that had already been in place for over a decade unchallenged. Furthermore, he claims that the regulation was passed with a notice and comment period, and did not receive any critical comments necessitating an explanation of the rationale. Lastly, Respondent argues that because the regulation is reasonable it deserves Chevron deference. However, even if the Court were to strike down the regulation as arbitrary and capricious, Respondent argues that it should uphold the Ninth Circuit’s decision giving the BOP’s internal guidelines, Program Statement 5880.28, deference instead.
The practical effects of this decision will implicate the inner workings of the Bureau of Prisons and potentially affect the interplay between courts and agencies, including the appropriate role of the rule of lenity, the proper level of deference due agencies, and may even reach due process principles of notice. The ruling in this case could vary greatly in its scope and its impact.
On the first question presented, regarding the proper reading of the statute, the Court could consider the statute unambiguous. Adopting Petitioners' interpretation of “term of imprisonment” — that it refer to the time of the sentence imposed, rather than being limited to actual time served — would have the effect of reducing the length of federal prison sentences. Amici claim this approach would reduce incarceration costs and ease the burden of overcrowding that federal prisons face. The difference between the BOP’s interpretation and Petitioners’ is roughly 36,000 years of incarceration when applied to all eligible inmates, and amici argue that a ruling for petitioner would serve those prisoners’ liberty interests, along with making a very real dent in the prison population.
A ruling for Petitioners, however, which would overrule the BOP’s interpretation that “term of imprisonment” refers to the actual time the prisoner serves, would also force the BOP to change its longstanding methodology for calculating GTCs. Such a change could “have an extremely disruptive effect” on how the BOP calculates and administers the release of its prisoners. A ruling for petitioners would also go against nationwide precedent; every U.S. Court of Appeals except the D.C. Circuit has taken up the issue and upheld the BOP’s interpretation. This ruling could turn the administration of prisoner sentencing over to the authority of the U.S. Sentencing Commission, instead of the BOP, by expanding the commission's authority to encompass administration of sentences.
Deferring to the BOP’s interpretation would clearly leave much of the circuit-level jurisprudence on this point untouched. But Petitioners argue that it could also give the agency undue deference, especially considering that the agency did not use a standard rulemaking procedure to promulgate its construction of the rule.
If the Supreme Court rules that the statute is unambiguous, the immediate, direct effects of the decision will be confined to the calculation of prison sentences. Yet there are potentially wider implications: if the Supreme Court couches a ruling for either party on the basis that the statute is ambiguous, it will affect the application of the rule of lenity and may greatly increase the scope of its applicability, as the Supreme Court has held that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”
Amicus for petitioner argue that a ruling for the BOP’s interpretation, however, could actually lessen the impact of the rule of lenity in favor of deference to agencies. While the statute here does not specifically deal with the definition of criminal conduct, amicus Pierce O’Donnell, who was accused of campaign-finance-related crimes, argues that lower courts could apply deference to subsequent cases where agencies do define such conduct; a person could conceivably be convicted of violating an agency’s interpretation of a statute, without the protection of the rule of lenity. Amicus contends that this is a major concern for potential defendants, considering the expanding criminalization of regulatory offenses, and it could implicate due process principles of notice.
On the other hand, the respondent argues that petitioners’ due process concerns are overblown; such a ruling, it contends, may not infringe on due process at all and could still serve the statutory intent, “important penological considerations,” and ongoing practice. The Court could also sidestep the issue and hold that the rule of lenity does not apply to the statute in question, the respondent contends. The Court could hold to precedent and rule that since the statute does not define the scope of criminal conduct or the penalty applicable to such conduct, it is not criminal in nature; respondent points out that doing so would leave the broader lenity questions for another day. The Second Circuit, on a related note, has held that the statutory provision is not criminal for those very reasons.
Petitioners Michael Barber and Tahir Jihad-Black are federal prisoners who are challenging the Bureau of Prisons’ (“the BOP”) interpretation of 18 U.S.C. § 3624(b). The statute allows federal prisoners to earn up to 54 days off their sentence for good behavior, for “each year of the prisoner’s term of imprisonment.” Barber argues the phrase “term of imprisonment” clearly means the length of the prison sentence imposed. He also asserts that the record does not contain any reason for the BOP’s interpretation, removing any reason to defer to the agency’s interpretation. In the alternative, Barber contends that any ambiguity in the meaning triggers the rule of lenity, dictating that the Court should resolve the ambiguity in the prisoners’ favor. Respondent J.E. Thomas, (the Warden) argues that the phrase refers to the amount of time a prisoner actually serves. He claims that the statute unambiguously requires computation of good time credit on the basis of time served, but if ambiguity does exist the court should defer to the agency interpretation under the Chevron doctrine. He also argues that the rule of lenity does not apply because the statute is civil rather than penal. This ruling will have widespread ramifications, potentially affecting the length of every federal inmate’s sentence that is greater than one year.