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November 30, 2009

SCOTUS finally grants cert on important "good time" federal sentence calculation issue

As detailed in this SCOTUSblog post, the Supreme Court this morning granted cert in three new cases, two of which involve criminal justice matters.  Though constitutional law fans may be most interested in Renico v. Lett (09-338), which examines double jeopardy limits after a state judge declared a mistrial on certain grounds, sentencing law and policy fans should be most excited by the grant in a long-running debate concerning the calculation of federal good time credits.  Here is SCOTUSblog's effective summary of this technical, but very important, new sentencing case:

In a second new case, the Court will spell out how the federal prison system is to calculate the credits that inmates receive for good conduct while behind bars.  The issue in Barber, et al., v. Thomas (09-5201) is how to interpret the federal law that provides up to 54 days “at the end of each year of the prisoner’s term of imprisonment.”  Bureau of Prisons officials interpret “term of imprisonment” to mean time served, not the sentence imposed — a policy that results in seven fewer days of available credit for each year of the actual sentence, the petition argued.  Lower courts are split on the question.

I know that some federal defenders and others have been buzzing about this issue for a very long time, in part because this matter impact every federal defendant sentenced to more than one year in prison.  And my first instinct is that a ruling for federal defendants could significantly move up release dates for some long-serving federal prisoners.

November 30, 2009 at 11:22 AM | Permalink


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» Good Time in Federal Prison from Crime and Consequences Blog
The case of Barber v. Thomas, No. 09-5201, taken up by the Supreme Court today, has to do with the computation of good time credits for federal prisoners. The District Court opinion in a companion case, Tablada, is here. The... [Read More]

Tracked on Nov 30, 2009 2:27:08 PM


I haven't read the briefs or opinions, but a more natural reading is the DOJ's. It should be interesting to see the lineup here. Remember, deference to agency determinations seems to be an issue, as is the rule of lenity.

Posted by: federalist | Nov 30, 2009 11:29:02 AM

My good friend and colleague, Steve Sady, in the Portland Office of the Federal Public Defender has been the driving force behind this issue for years. A lawyer's lawyer. Whatever the outcome in Barber v. Thomas, congratulations to him for his creativity, tenacity, and fearless advocacy for the indigent accused.

Posted by: Michael R. Levine | Nov 30, 2009 12:13:24 PM

The issue is important to prisoners. The difference between the two interpretations amounts to roughly 7 days per year of sentence.

For what it's worth, every Court of Appeals to consider the question has upheld the regulation.

Posted by: Alan Viard | Nov 30, 2009 12:17:39 PM

I find the grant of the mistrial case far more interesting although I am all but certain the defendant will lose.

Requiring unanimity for acquittal has long struck me as a requirement that the defendant must in fact prove himself innocent rather than the state prove guilt. If the state fails to convince a jury of guilt unanimously beyond reasonable doubt that should be the end to jeopardy.

Posted by: Soronel Haetir | Nov 30, 2009 12:50:02 PM

During my own incarceration between 2000 and September 2007, I wrote many Petitions and Briefs on this exact issue for inmates in several prisons, all to no avail. It would be interesting if the Supreme Court reverses all of the Circuits, which have unanimously ruled against an interpretation favorable to inmates. Only once in U. S. legal history has the Supreme Court ruled against the previously unanimous position of all Federal Circuits. In "Cotton v. United States", the Supreme Court held that contrary to all prior Circuit Court holdings (by all 12 Circuits that hear criminal appeals), "drug quantity" is an essential element of Federal drug trafficking statutes. Then, to prevent the omission of drug quantity from thousands of drug indictments from becoming a jurisdictional defect (resulting in the release of perhaps 50,000 inmates), the Court overruled a 115 year old precedent that had held that omitting an element of the offense from the indictment is a jurisdictional defect, vitiating any conviction. Such omission simply came to mean that the Government couldn't seek a sentence above the 21 U. S. Code section 841(b)(1)(C) maximum of 20 years (30 years with a prior felony drug convcition).
The interesting side issue in this case is that if the Supreme Court upholds the inmate-friendly interpretation of the statute and regs, then many inmates who have already been released may become entitled to damages for having been held too long! When the Supreme Court interprets a statute, tthat interpretation means what the statute has always meant since the day it became law. The interpretation automatically has retroactive effect. The civil rights of any inmates who have been held beyond their proper term of incarceration would have been violated, because they didn't receive the proper amount of "good conduct time" credits against their sentence. Tens of thousands of former inmates would be able to sue under the civil rights laws from the date of the new Supreme Court decision (if it is in the inmates' favor) until the applicable 1, 2 or 3 year statute of limitations expires. These statutes of limitations vary from state to state (are not uniform) because the Federal civil rights laws "borrow" the personal injury statute of limitations from the law of the state where the Federal Court sits. As a former inmate, however, I am not holding my breath, although I could sure use the money for having been held 63 days too long. Prior precedent indicates that the compensation for each day the inmate was held too long should be $75 to $200.

Posted by: Jim Gormley | Nov 30, 2009 1:35:54 PM

While Jim Gormley is correct that the Supreme Court's interpretation of a federal statute applies retroactively, it does not follow that the remedy of money damages is available, even if the statute of limitations has not expired.

In a Bivens civil rights suit, federal officers are liable for money damages only if they violated federally protected rights that were "clearly established" at the relevant level of specificity at the time the decision was taken. The inmate-friendly interpretation of this statute is not remotely clearly established (given the uniform precedent going the other way) and will not be clearly established until and unless the Supreme Court adopts it. So, there will be no liability on the part of federal officers. And, there will be no liability on the part of the United States, because no statute waives sovereign immunity in this context.

An inmate-friendly ruling, if it occurs, will allow earlier release for those still incarcerated. And, former prisoners who are still on supervised release will be able to request the discretionary relief of having their supervised-release term shortened to compensate for their excess periods of incarceration. But, money damages will be off the table.

Posted by: Alan Viard | Nov 30, 2009 2:13:10 PM

Alan Viard's interpretation is correct in my view. There is no liability if officers acted in good faith under the prevailing regulations.

Posted by: mjs | Nov 30, 2009 2:30:56 PM

As one who has worked in this area for almost 20 years, I offer the following:
The BOP's interpretation/implementation of the statute need not be the ONLY reasonable interpretation to be upheld, it need only be A reasonable interpretation.
Close examination of the history of the Sentencing Reform Act provisions relating to GCT (especially when compared to the language of the prior Good Time statute) shows that BOP's interpretation is, in fact, THE most reasonable one.
Sentence computation, as addressed through habeas, is civil, not criminal in nature. Accordingly, ALL circuit courts to consider it have held that the rule of lenity does not apply.
The main argument urged in support of the more liberal reading of the statute is that the USSC created the Guidelines with an understanding that GCT would amount to approximately 15% of the sentence imposed. Even if true, the BOP's interpretation/application of the statute (which results in an effective GCT rate of 12.9% of sentence imposed) was never hidden from the public or the Commission. It may be difficult to understand (for those without a decent comprehension of algebra and/or fractions) but it has never been other than a matter of public record.
Further, I say naught.

Posted by: anon | Nov 30, 2009 6:44:26 PM

To Alan Viard and mjs:
It is the Supreme Court's "Bousley" decision which holds that Federal appellate court interpretations of Federal criminal statutes are to be given retroactive effect, since they say what the statut has really meant since the day it became a law.
If the Supreme Court holds in this new case in such a way that inmates should receive 7-8 days more per year of "Good Conduct" time credit towards their sentences, then I believe former inamtes might seek to recover damagesfor being held too long under the Federal Tort Claims Act(which contains an express waiver of sovereign immunity). Of course, this is only an academic discussion at this point in time.

Posted by: Jim Gormley | Dec 1, 2009 5:53:15 PM

As I noted on November 30, the fact that Supreme Court interpretations of a statute apply retroactively is correct and undisputed. The question is whether money damages would be available in this context and the answer is that they would not.

No recovery would be available under the Federal Tort Claims Act. Although that statute waives sovereign immunity for some torts, it expressly preserves sovereign immunity with respect to "any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid," 28 U.S.C. 2680(a).

There can be no doubt that the Bureau of Prisons exercised "due care" in implementing a regulation that has been upheld by every Court of Appeals. Accordingly, there would be no recovery under the FTCA even if the regulation ultimately proves to be invalid.

A Supreme Court decision invalidating the regulation will result in earlier release of prisoners and possible reductions in terms of supervised release, but will not result in awards of money damages.

Posted by: Alan Viard | Dec 2, 2009 10:48:12 AM

In my opinion I just think they need to fix this crap. It's already enough going on within federal sentencing and laws. Gosh already!!!!! They want to sentence a drug dealer/conspiracer to 20,30,40 years while politicians steal money and break laws ALL THE TIME but setence them to 5 and 6 years and child molesters and rapist serve 3 or 4 years. Give them a break. They lock them up and then never want to let them out and when they do after serving over 20 years in jail they have nothing to do or no where to go. They are felons and no one wants to hire them. The system sucks. I say they need to change and fix all theses crappy laws cuz none of them make sense.

Posted by: Mrs. Walls | Mar 5, 2010 7:53:26 PM

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