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June 7, 2010

Fascinating sentencing dogs that did not end up barking in Barber

The fact that many folks went to law school in order to avoid math may itself ensure that the Supreme Court's decision today in Barber v. Thomas concerning the calculation of prisoner good-time credits (basics here) does not get all the attention it merits.  More fundamentally, because the Barber ruling affirms the good-time calculation status quo, this Term's biggest sentencing sleeper case will probably go down in history as just another jurisprudential dog that could have, but in the end did not, bark in the face of modern mass incarceration. 

But before sentencing fans move on, I recommend everyone — not just sentencign fans, but everyone — find the time to read and reflect on the opinions and the votes in Barber.  Put simply, there is a lot of "there there" in both opinionsi n Barber, and in this post I can only just start scratching the surface of what should be noticed in the Court's work with this initial post. 

Starting with the opinion of the Court authored by Justice Breyer, it is intriguing and notable how both the legislative purpose and legislative history of the Sentencing Reform Act is deftly operationalized to support the Court's anti-defendant interpretation of the good-time credit statute.  Though I am not a statutory interpretation guru, I sense Justice Breyer worked extra hard to craft language that enabled Justice Scalia and others to be comfortable signing on to his opinion's non-textual elements.  And, for truly hard-core statutory interpretation junkies, there are also some really interesting rule of lenity and Chevon deference moves in the Barber majority worth noticing as well.

Turning to the voting patterns, I suspect that long-time blog readers will not be too surprised to see a pro-government ruling coming from the pen of Justice Breyer.  What is a bit more surprising, and certainly noteworthy, is that this ruling in Barber lost the vote of Justice Kennedy even though it retained the vote of Justice Sotomayor.  I cannot recall another split opinion this term in which Justice Sotomayor went against the defendant while Justice Kennedy when against the government. 

I stress the voting patter in Barber in part because I still recall all the debate over "empathy" in last year's confirmation battles concern then-Judge Sotomayor.  As highlighted by this first paragraph from the dissent in Barber, it would seem that it is Justice Kennedy who really knows how to turn on judicial emphaty:

The Court has interpreted a federal sentencing statutein a manner that disadvantages almost 200,000 federal prisoners.  See Pet. for Cert. 11, and n. 2.  It adopts thisreading despite the existence of an alternative interpreta-tion that is more consistent with the statute’s text. Absent a clear congressional directive, the statute ought not to beread as the Court reads it. For the Court’s interpretation — an interpretation that in my submission is quite incorrect — imposes tens of thousands of years of additional prison time on federal prisoners according to a mathematical formula they will be unable to understand.  And if the only way to call attention to the human implications of this case is to speak in terms of economics, then it should be noted that the Court’s interpretation comes at a cost to the taxpayers of untold millions of dollars. See id., at 11.  The interpretation the Court adopts, moreover, will bedevastating to the prisoners who have behaved the bestand will undermine the purpose of the statute.  These considerations, and those stated below, require this respectful dissent.

Whatever else one makes of the legal debate in Barber, I am eager to give Justice Kennedy props for writing an opening paragraph that manages to pull on both heart-strings and purse-stings at the same time.

June 7, 2010 at 11:21 AM | Permalink


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That Sotomayor voted with the government, turning her back on a dissent she easily could have joined, is the worst news liberals have had this Term.

Of course, the Term's not over yet.

Posted by: Bill Otis | Jun 7, 2010 11:55:27 AM

"That Sotomayor voted with the government, turning her back on a dissent she easily could have joined, is the worst news liberals have had this Term."

Really? That's actually pretty good news considering all the dissents in execution stays she didn't turn her back on and the concurrence in Graham (all of which Breyer did *not* join). On the other hand, you have Roberts casting the decisive vote in Comstock, when he could have held out for a weaker opinion like Kennedy, Alito.

Posted by: . | Jun 7, 2010 12:06:34 PM

And that Kennedy voted with the defendant, turning his back on a majority he easily could have joined, is among the worst news conservs have had this Term.

Posted by: sun7 | Jun 7, 2010 12:36:38 PM

You write:

"I cannot recall another split opinion this term in which Justice Sotomayor went against the defendant while Justice Kennedy when against the government."

You are forgetting Wood v. Allen, where Sotomayor actually wrote the Court's opinion.

Posted by: anon | Jun 7, 2010 1:08:30 PM

Thanks, anon, for reminding me there was a capital case in which this happened.

Posted by: Doug B. | Jun 7, 2010 1:32:25 PM

All I take from this is that most “liberal” and most “conservative” justices aren’t the cookie-cutter voters that laymen make them out to be. Over the course of a long career, I think it’s pretty clear that Justice Kennedy is to the right of all the so-called “liberals,” but there’s the occasional isolated case where he is not.

Posted by: Marc Shepherd | Jun 7, 2010 2:15:26 PM

Its too bad that the wording isn't the clearest. I believe that 85% is what Congress inteded, instead its 87.2%..Not that much, but considering Federal sentences are already painfully long, its a loss...Could saved $100 Million a year for just 7 days off each inmate per year..

Posted by: Abe | Jun 7, 2010 2:38:45 PM

Not plausible that Congesss intended to peg good time to successive approximation. Silly.

Posted by: RW | Jun 7, 2010 3:24:05 PM

Congress speaks in integers, is where I'm going with this.

Posted by: RW | Jun 7, 2010 3:24:49 PM

sun7 --

The difference is that conservatives have become used to losing Kennedy, but liberals have not become used to losing Sotomayor.

Posted by: Bill Otis | Jun 7, 2010 4:18:10 PM

"The difference is that conservatives have become used to losing Kennedy, but liberals have not become used to losing Sotomayor."

Oh geez. So you're *weren't* being sarcastic and still think Sotomayor will ironically be the left's version of Souter. I think it's obvious now that SS is at least as liberal as Breyer and a good case can be made that she's more liberal than Souter.

Posted by: . | Jun 7, 2010 5:03:52 PM

There are a few striking aspects to this decision. First, Justice Kennedy, who IIRC did not join ANY of the majority opinions in Booker, crafted a (ridiculous) Booker remeidal type decision in dissent. Neither party argued for the absurd result Justice Kennedy urged, which calls for one good time rate for the first year, and then a quite different good time rate for succeeding years. The difference between petitioner and respondent (on a hypotheical 10 year sentence) was 540 days vs. 470 days, but Kennedy came up with a cockamamie method (considering a year to be 311 days) of awarding 533 days on such a sentence. Secondly, say what you will about whether the rule of lenity should apply to good time, but what business is it of the court's how much it costs to execute a federal sentence? If sentences are too long, and thereby too expensive. that is Congress' problem to fix, not the Court's. Given Sotomayor's prior Circuit court opnion against applying the rule of lenity (in Zenk, I believe) her vote was not a surprise. Justice Stevens' vote was cast even before the case was argued - he decided against the government in U.S. v. Wilson in the early 90's, Reno v. Koray in the mid-90's, and Lopez v. Davis in 2001. Finally, I fail to see how Justice Kennedy's proposed fuzzy math is any more explicable to a person facing a prison sentence who wants to know when they will be released. The Court properly gleaned the most natural (if not the only reasonable) reading of the statute, and ruled accordingly. Don't like it? change the da*n statute!

Posted by: anon | Jun 7, 2010 6:21:29 PM

Mr. Dot --

"Oh geez. So you're *weren't* being sarcastic and still think Sotomayor will ironically be the left's version of Souter."

If I ever come to think that, I'll be sure to let you know. Until then, don't put words in my mouth.

"...a good case can be made that she's more liberal than Souter."

Then make it.

Posted by: Bill Otis | Jun 7, 2010 6:56:51 PM

There's a good case that Sotomayor is dumber than Souter.

Posted by: . | Jun 7, 2010 7:25:16 PM

All of them are wrong because they all misread the statute to require that the credit must be awarded at the end of each year. That's just not what it says.

Posted by: Bob | Jun 7, 2010 7:33:46 PM

Left and right break down in this area. I'd hazard that Scalia and Thomas are more reliable votes in run-of-the-mill-outside-the-culture-war criminal cases than either Breyer or Sotomayor.

The story of the recent appointments for criminal defendants is likely to be the break-up of the apprendi coalition (we'll see if its members continue to pursue solo projects). This alliance of textualist/originalist with liberal(ish) civil libertarians has been the core of more watersheds than just Apprendi (see Gant, which involved the exact same five justices as Apprendi, Blakely, and the first Booker majority). I find it hard to believe that both Sotomayor and Kagen are going to be as reliable for this bloc as Souter and Stevens. In this respect, the court is very likely to move "rightward."

Posted by: RW | Jun 7, 2010 7:43:46 PM

Jeez Bob, it must be difficult going through life being so much smarter (with better reading comprehension) than all 9 Supreme Court justices (or at least 6 of them) and all of the judges on the 10 different circuits who read the statute the same way. I really feel for ya.

Posted by: anon | Jun 7, 2010 8:50:53 PM

Bill --

Any liberals who anticipated consistent pro-defendant rulings from Sotomayor were kidding themselves. That would have been a silly thing to expect from a former prosecutor, and most savvy liberals correctly predicted she would not be an automatic pro-defendant vote.

Unfortunately (in my view),Obama's centrist leanings have assured that those of us who hoped for more balance on the Court are not likely to get it.

Posted by: sun7 | Jun 8, 2010 11:13:45 AM

Kennedy has long been concerned about long federal sentences, which likely explains his dissent. And I have long felt/known that Sotomayor is not a reliable pro-defendant vote. The voting line up in this case shows that Alito is still the only Justice whose vote is consistently outcome-oriented: With few unremarkable exceptions (i.e. the unanimous statutory interpretation case of O'Brien, his narrow concurrence in Padilla), he’s the most consistent pro-government vote in criminal cases.

Posted by: DEJ | Jun 8, 2010 2:49:17 PM

54 days, as the statute reads, means 54 days -- not 47 days. This case is nothing more complicated than that. And for this issue, even an appendix explaining the BOP's fuzzy math? No wonder so few cases are decided each year.

Posted by: Dennis Terez | Jun 8, 2010 6:41:14 PM

Kennedy has over the years has sometimes supported defendants more so than the majority (Chavez v. Martinez is a highlight) even some of the "liberals." He is after all deemed a "swing" vote for a reason. Why someone should be surprised that Sotomayor goes the route of Breyer is unclear.

Sotomayor has been a bit more liberal than expected actually, including in the cross display case (joining Stevens, not Breyer). She will also join various pro-prosecution cases. Souter did as well. She really isn't much of a "disappointment" in that respect. Kagan very well will be a bigger concern in that department given who she is replacing.

Posted by: Joe | Jun 9, 2010 3:36:35 PM

Hi. I am the discoverer of the good time issue. This is a very sad commentary on our nation, where the court admittedly says "sentences are awfully long..." (what the hell is going on in the first place if Breyer is saying this!?) and then refuses such an easy way to help our nation in the midst of a depression, by giving prisoners the benefit of the doubt (lenity), most of whom are non-violent drug offenders, while saving taxpayers billions.

First of all the whole question addressed is a fraud [red herring]. Read on.

As to the dissent's approach being wrong, you are wrong. Actually, it really is the best reading of the statute.

However, the truth is the BOP started out following old law 4161 "reduce" sentences by good time, whereby the term of imprisonment component of a sentence was actually reduced by good time credit. This is also de facto what Breyer did. When I pointed out the BOP was erroneously continuing to reduce sentences resulting in 47 days max in 1996, they changed language in their SCM to hide "reduction" language, and then came up with the "term of imprisonment" red herring lawyers chased for the next 13... failing because you cannot catch a red herring, that is the whole point. duh.

The BOP started out in 1987 reducing USSG sentences by good time just like the old days under 4161, so prisoners ended up with a "reduced sentence" (with fewer years to get 54 days on). When called on the error by my exhausting administrative remedies (BPs) in 1996, they came up with the "term of imprisonment" argument that happened to have the same complex math. (Try reducing a sentence each year by 54 days, and see how it EXACTLY matches the BOP math... coincidence, hardly. And my argument came first and in the BOP's response to my BPs in 1996 there was no mention of the "term of imprisonment" argument.

3624 states unequivocally the OPPOSITE of 4161 [like, "you want me to reduce your bank account" or "credit towards" it?], [credit how?] "credit toward" [toward what?] "the service of the prisoner's sentence" [credit how, more specifically?] beyond the time served, [how much credit?] of up to 54 days [when?] at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term..."

That is exactly what the dissent states. It was also an alternate method I submitted in an affidavit I mailed to the S.Ct. with the Barber caption prior to oral argument. And in spite of my informing Barber's attorneys of this, and providing the solution found in the dissent, notice how the industry hides this fact to save the industry from embarrassment, or appearing human perhaps and admitting someone, a layman oh my god, might know something they do not.

What the majority wrote is exactly what the BOP's mistake was in the first place, de facto reducing sentences rather than crediting toward them.

Very sad how powerful the "oppressing/locking people up industry" has become, politicians, lawyers, police, prisons, judges, all feeding a very Nazi-like beast with all being scared to stop the feast rather than expand and gorge on it. And for the professionals involved, double shame for misusing superior positions/intellect to suck the life out of nice people within a society who do not want to be stuck with alcohol or tobacco or doctors for their pursuit of happiness. And no, I am not speaking about the good ones, of which there are many, or defending true crimes against others.

I would love for someone in a position to help to contact me about the truth and how to bring it to light, helping this country in the process.

Posted by: Scott Holland | Jun 10, 2010 1:57:02 PM

Scott, you are, quite simply, wrong, wrong, and wrong. First, it is not the Court's role to decide, as a policy matter, that sentnces are too long (not unless it's a constitutional violation) and thereby MISconstrue a statute to remedy that. Second, the BOP was aware as of 1987 (and actually before, as they created the policies that would become effective 11/1/87) of the differences vetween the old law and new law methods of computation. It APPEARS that you're arguing that BOP applied the new law in the SAME manner as old law, until you "discovered" the problem in 1996, and THEN they implemented the more restrictive interpretation? What exactly, then, are you taking credit for? And finally, as someone who's worked on these issues since 1990, I can assure you MANY people were fully aware of the issue well before you raised/"discovered" it in 1996. There is no "truth" to bring to light - the Court has ruled, and the issue is closed.

Posted by: anon | Jun 13, 2010 5:02:16 PM

Just for historical records: This is a letter I wrote and hope to send to all politicians in DC... see who has the guts/integrity to respond. Anon... well, the Anon part of hiding your identity speaks volumes for starters... and you ask Peter Goldberger who brought this issue to light, resulting in a whole separate portion of the NACDL devoted to the Good Time issue... me.

Did not say the BOP suddenly implemented harsher measures in 1996, BOP has been doing it wrong since day one in 1987.

If you would like to actually discuss this, please feel free to e-mail me at [email protected] ... you simply do not understand it and are still probably stuck staring at the 22 pages of complex math (the red herring! How can you possibly write off Congress' intent of having good time "easy" to calculate and the BOP comes up with 22 pages of gooble-de-gook, and think something is not fishy???), no offense.

Scott W. Holland

March 20, 2011

Re: Bureau of Prisons Fraud Costing Taxpayers Billions to Date and is Ongoing – YOU CAN EASILY STOP IT – THIS IS HOW

Dear Public Servants:

In October 1987 with the introduction of the U.S. Sentencing Guidelines and the associated new “good [conduct] time” law, parole was abolished as to offenses committed post October 1987.

Parole era “good time” law called for the exact opposite of what the “USSG” era “good time law calls for. At issue are the key words from parole era law “reduce/reduction” [repealed 18§3585] versus “credit towards” [18§3624(b)]in USSG law.

I think we can agree they have opposite meanings as the following helps illustrate:

Would you like me to “reduce” your bank account balance with new credits?
“Credit” those new credits “towards” your bank account balance?”

So what created the problem leading to the fraud?

The BOP under parole era law was mandated to “reduce” sentences by the good time awarded, resulting in an “actually” shorter sentence than the one imposed by a court on a Judgment & Commitment Order. You have a ten year sentence, you get 6 years of good time (pre-1987 you would physically serve between 1/3 & 2/3 of a sentence), your sentence is actually reduced to 4 years and you are let go after “physically serving” 4 years, or, every day of your “new reduced sentence.”

The BOP under USSG era law had an opposite mandate. “Credit” good time of up to 54 days per year “towards” the service of a sentence, “beyond” the time served. Congress’ express purpose in this law/language was to enable laypersons to know with certainty the minimum amount of time they would spend physically imprisoned for a certain sentence assuming all good time is earned.

Here is the mistake the BOP made, and then covered up with fraud:

The BOP continued to “reduce” sentences by the good time earned for USSG era sentences, resulting in an “ever shorter sentence each year upon which to get good time.” Remember, parole era calculations always started with the full sentence of the court to get the 1/3 to 2/3 potential good time available. To continue the familiar reduction scheme in spite of the opposite mandate of 3624(b) required 22 pages of “complex math” (BOP’s own description). This familiarity with “reducing” for decades is what I believe led to the mistake; i.e., forcing a new round peg to fit into an old square hole, because that is how you had always done it.

So, Congress clearly expressed the USSG era “good time” statute, 18 3624(b), to be simple to calculate time physically imprisoned with all good time, and said good time shall be 54 days maximum per year of the sentence.

Here is the question:

On a ten year sentence, assuming the 54 days maximum good time is earned under 18 3624(b), how many days of good time can a prisoner expect to be credited toward the service of a sentence? (Initial one box only)

10 x 54 = 540 days (approx. 15% of the sentence)

10 x 47 = 470 days (approx. 12.8% of the sentence)

Remember pre USSG, marijuana “kingpins” got 5 years and typically did a 1/3 of that. Is there less marijuana now that we have locked up and labeled forever as ex-felons, an entire generation of nice Americans? No. I think you can add the War On Drugs (Americans who want an alternative to alcohol & pills) to Slavery and Women cannot vote. The latest class of unconstitutionally persecuted Americans, mostly democrats who are now disenfranchised from voting and society with the ex-felon label.

So, USSG era federal prisoners were being mistakenly allowed only 47 days of good time until 1997 when Scott Holland, a federal prisoner at the time at Coleman, FL – Low Security, filed administrative remedies [BPs and a letter to then AG Janet Reno] exposing he was not getting 54 days per year, but only 47. Holland was released before a lawsuit could be filed, but turned the matter over to Peter Goldberger, Esq. & Mary Price, Director, Families Against Mandatory Minimums for use with prisoners who still had freedom to gain.

Obviously if the BOP simply admitted their mistake, they would have had to apologize (at a minimum) to prisoners and taxpayers alike, along with calculating and crediting USSG good time towards a sentence resulting in Congress’ intent of a maximum of 54 days for each year of a sentence of a court; rather than reducing a sentence by good time resulting in a maximum of 47 days good time, and releasing prisoners kept too long.

And, the BOP knows their budget relies in great part upon the number of “prisoner days.” So correcting their mistake would also result in an immediate drop in “prisoner days” and consequently, their budget.

So what is the fraud? – Are you good at math word problems?

Instead of admitting the mistake of continuing to reduce sentences as I pointed out in 1996, by the time litigation started in 1997, the BOP fraudulently came up and presented an alternative that also uses the same 22 pages of complex math.

Now the fact there are only two word problems as to this statute that yield the same 22 pages of complex math should raise a red flag: One of them is the one I claim is what the BOP’s mistake really was; the other what an institution with billions to gain and lots of shame to avoid came up with that really makes no sense (which is why the courts could not solve it; it is a red herring meant to obfuscate).

The BOP’s alternative explanation, denying they were reducing sentences, is they were interpreting 18 3624(b)’s “term of imprisonment” language to mean, for the first time in history, “time physically served.” After going through the entire BOP Sentence Computation Manual I found 5 different words/phrases the BOP used for “time physically served” and none are “term of imprisonment.”

You have to ask yourself “Why the BOP felt compelled to come up with 22 pages of complex math to do what Congress expressly stated should be simple math of 10 x 54 on a ten year sentence?”

Which of course on the scientifically accepted and logical the “simplest answer is usually the right one” basis – leaves only one reason for 22 pages of complex math – the BOP made a mistake in interpreting Congress’ 18 3624(b).

Now, which mistake of the two word problems, each working with the same 22 pages of complex math did the BOP really make (and no, it is not easy to follow either word problem, which you do not have to suffer through if you initialed 10 x 54 above as nothing more is needed than that… the BOP math is a rabbithole… which is why the US S.Ct. sided with the BOP, they really did not get it via the one hour discussion, and simply took the easy path of not releasing prisoners early, figuring the “experts” must be right after doing this for the past 23 years… they could not be more wrong)?

1. The real mistake the BOP could not defend:

a. The BOP continued reducing USSG era sentences by good time each year resulting in an ever shorter sentence upon which to get good time (I.e. on a ten year sentence, after 5 years according to the BOP you now only have a sentence of 10 years minus 5 x 54 upon which to get good time [i.e., the maximum good time you can get on a ten year sentence after 5 years physical service is 54 days good time x 9 years 95 days], and so on until the end of your sentence with the BOP created partial last year needing most of the 22 pages of complex math; OR,

2. The defensible [yet completely fraudulent – agency interpretation versus admitting continuing to reduce sentences by good time after language was changed to “credit toward”] argument the BOP came up with between the time they were made aware of the mistake 1996 and the time litigation in court started 1997:

a. That Congress intended “term of imprisonment” in 18 3624, for the first time, and without any such use in the BOP’s own Sentence Computation Manual, to mean “time physically served.”

Either way the BOP is not giving 54 x 10 for the Q & A, as all of you reading this no doubt initialed when answering the above question. And this needs to be immediately corrected. Why?

Because which mistake led to the BOP only giving a maximum of 47 days is a separate issue to the BOP (a US Government Agency) falsely and fraudulently imprisoning Americans rather than admitting a mistake, all the while billing taxpayers for their ongoing and since 1996 deliberate - civil rights violations.

What should the BOP have done with Congress’ good time scheme set forth in 3624(b)? Come on… it is so easy. On a ten year sentence, allow up to 54 x 10 days of good time credit “towards the service of a sentence.” Who really cares how, that actually is the BOP’s job, versus rewriting the law down to 47 days with 22 pages of complex math when Congress expressly intended a simple calculation of 54 times the sentence of the court.

The only deficiency as to the language of the statute is year one on a sentence of more than a year. Year one in prison is a good year to incentivize prisoners to establish good behavior, so having the BOP presume 54 days of ongoing good behavior in year one [as the law mandates and BOP sort of does on less than one year sentences, although even on those they pare down the maximum to 47 days] after the initial 311 days of physical imprisonment, will put a prisoner into year two, where the same process can play out. The law already allows for the revocation of any/all good time at any time while under BOP custody.

Again, what the BOP should never have done is cover up their initial error with fraud going all the way to the U.S. S.Ct.

And offense meant, why would our nation waste so much time and energy (Steve Sady, OR Public Defender’s Office has billed on public funds for 11 years on this issue, along with many other CJA lawyers leading up to the S.Ct.) on confusion over a single sentence/phrase in a statute “exclusively” under our government’s control (i.e., this is not some complex civil case with private entities arguing about unique facts and law)?

Congress expressly made a law to be simple to comprehend by a layman instructing the BOP implement it… and when the BOP comes up with not 54 days and the simplicity Congress expressly wanted… but 22 pages of complex math and 47 days, instead of simply going back to Congress for a simple check box vote as above… 9 years of mistake followed by 11 years and counting of fraud, while over-imprisoning Americans while billing taxpayers as the country goes down the toilet?

And then our S. Ct., after 13 years of litigation could not decide anything, finds the statute, even in the face of the rule of lenity, NOT ARBITRARY AND CAPRICIOUS. Is this a joke?

What could possibly be more compelling in showing a law is arbitrary and capricious than (as to a 100% government made & controlled law; NOT as to complex civil litigation with complex facts where splits are often understandable) it’s interpretation flying in the face of Congress’ explicit intent (22 pages of complex math vs. “easy for a layman to know the maximum number of good time days they can get”), and existing as a dispute through 11 years of litigation with scholared lawyers & judges all viewing the same “extremely narrow” set of facts?

And you wonder why most in DC and on the U.S. S. Ct. should commit hari kari?

Sincerely, a citizen trying to help cut $5 billion over the next ten years in government waste & fraud, while stopping the unconstitutional over imprisonment of U.S. citizens.

Scott W. Holland

Posted by: Scott Holland | Mar 24, 2011 1:12:37 PM

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