GOZLON-PERETZ v. UNITED STATES

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Argument of Peter Goldberger

Chief Justice Rehnquist: We'll hear argument now in No. 89-7370, Moshe Gozlon-Peretz v. United States.

Mr. Goldberger, you may proceed whenever you are... there will be silence in the Court, except from the advocate.

Mr. Goldberger: Thank you, Mr. Chief Justice, and may it please the Court:

This case involves the interplay between two lines of Federal criminal statutes enacted over the past 6 years.

One line involves sentencing reform; the other group of laws reflects the desire of Congress to toughen drug penalties.

The judgment below required imposition of a term of supervised release for an offense committed before November 1987.

Only by reversing that judgment can all of the statutes involved here, which were certainly meant to work together, be reconciled.

In 1984, after lengthy and thorough deliberation, Congress enacted an scheme of Federal sentencing reform, a comprehensive scheme that included the abolition of parole, and also to be abolished was that special form of extended parole applicable only to certain controlled substances cases called special parole, which was... in 1984, the Sentencing Reform Act instead created a new kind of post-incarceration supervision, to be called supervised release, which was carefully defined and circumscribed in detailed provisions of that 1984 statute.

Congress realized at that time that to prepare the Federal criminal justice system to make the change to this entirely new sentencing system would take time, and that 1984 statute thus initially set a start-up period of 2 years, in fact over 2 years, for the new system before it would become effective.

Congress soon realized that it would... that 2 years would not be long enough and extended that period for another year, with the resulting effective date for supervised release and all other new aspects of the sentencing system of November 1, 1987.

Meanwhile, on October 27th, 1986, the President signed into law the Anti-Drug Abuse Act of 1986, which made a number of changes in Federal drug sentencing, especially in the higher-volume offenses.

This 1986 statute used the term, supervised release, without giving any definition for that term.

In some of its provisions, including section 1002 of that statute which is the statute involved in this case under which my client was sentenced.

Petitioner here was convicted for some of these higher-volume heroin offenses involving conduct with occurred in February 1987, which was of course after enactment of that '86 drug act on October 27th of '86 but before the effective date of the Sentencing Reform Act on November 1, '87.

Under the law... one more piece of background that's needed... under the law as existed from 1984 until the effective date of supervised release under the '86 Anti-Drug Act, persons convicted of the same offenses as the petitioner here would have been subject to ordinary parole but no other supplemental post-confinement supervision or monitoring.

For example, in this case, the petitioner has an aggregate sentence of 20 years, of which he is likely to serve about 10 in prison and then to serve the remaining 10 years on parole, ordinary pre-sentencing reform act parole.

If supervised release applies, this would be in addition to the petitioner's ordinary parole.

Unknown Speaker: And, of course, since he serves 10 years minimum, at the time that he is released all of the supervised-release provisions that Congress enacted in '84 and in '86 will be in effect.

Mr. Goldberger: In one sense--

Unknown Speaker: At the time that it is necessary to implement this scheme, the statute will be fully effective by its own terms.

Mr. Goldberger: --In one sense, Justice Kennedy, that's true, but in another it's not.

And that's because Congress provided in the effective date provisions of the '84 act which govern and control and include the supervised-release implementation and definitional provisions that not only would it have an effective date of November 1, 1987, but also that it should not apply to any offense committed before that date.

I think the language of the statute is shall only apply to offenses committed after the taking effect of the statute, so that section 35.83, which is the supervised release provision of the Sentencing Reform Act by its... by the terms of its own effective date provision, can never apply to my client's case or to the other people who committed offenses between October '86 and November 1, '87.

That was Congress' specific declaration on that subject.

So the suggestion that the case is not significant because, after all, by the time he finishes serving the 10 year imprisonment portion of his sentence we'll have a system in place.

It's true there will be a... system in place, but it won't be a system that applies to him by law.

Unknown Speaker: Well, it, it goes to the point of what Congress probably intended, and if you're saying that we can't know what supervised release means because it's an empty term without implementing provisions, there are couple answers.

One is that the implementing provisions are on the books.

They're not enforced yet.

The other is that the implementing provisions won't be needed so far as effecting the supervised release until they are fully effective.

Mr. Goldberger: Well, not only are they not applicable, and of course when we look for congressional intent, the first thing to look at is the language that specifically addresses the question.

The language which addresses that question is language which says that those implementing provisions do not apply to an offense committed at the time my client committed his offenses.

But there's another--

Unknown Speaker: Wasn't this just a mistake, as indicated by a later amendment that sought to plug the hole?

Mr. Goldberger: --Well, there have been contentions in this case that several aspects of what are involved here have been mistakes.

I... but--

Unknown Speaker: And it--

Mr. Goldberger: --it imposes intriguing problems of how--

Unknown Speaker: --You think it was all deliberate?

You don't think that there was some--

Mr. Goldberger: --Oh, in the subjective sense, do I think that Congress intended to put me in this position?

Unknown Speaker: --Right.

Mr. Goldberger: I... no.

Unknown Speaker: And us, too.

Mr. Goldberger: And especially you.

No, I don't think it was deliberate in that sense, but there are rules.

I don't think there was a member of Congress that knew at the moment that the vote was taken on the conference committee report that contained the language "supervised release"... I'd be surprised if there was a member of Congress that had fully thought through all of this.

But that's not where we look to... for the meaning of a statute.

We have rules to apply for this sort of situation, and the rule is we look to the language and if the language doesn't answer it, then to any number of other provisions.

Unknown Speaker: Well, I thought one rule was that statutes normally take effect on the date of their enactment, and section 1002 doesn't contain the language you point to.

Why didn't that become effective immediately?

Mr. Goldberger: If that... the require... the... excuse me, the axiom of construction that a statute is deemed to become effective immediately if it doesn't provide otherwise is not a rule.

Justice O'Connor, it's an axiom of construction like any other.

If it were a rule, then none of the other matters discussed in the briefs--

Unknown Speaker: Well, why don't we apply the axiom of construction then and say 1002 became effective immediately on enactment?

Mr. Goldberger: --Because there is such a wealth of other reasons not to.

And it takes something to overcome that axiom, but I would suggest that we prevent... presented those kinds of points, and they fall into basically into three categories.

First, that to put 1002 and especially its supervised-release provisions into effect immediately, is to create a set of some half-dozen inconsistencies, contradictions, and complete nullifications of related provisions of the statute that are not there if you... treat the statute as effective on November 1, '87.

The second areas of analysis that overcomes the, the presumptive axiom is the in pari materia approach, which says that we have to view the supervised-release phrase, otherwise underfined in 1002, in relation to all the other provisions dealing with supervised release, and all of them go into effect November 1, 1987.

And, third, finally, the rule of lenity.

If this is a question worth talking about, if it's a question intelligent people could answer in two ways and we can't come up with a clear, settled right answer, it's a criminal case.

So that whatever power that axiom has in civil cases perhaps to act as a trump doesn't exist in criminal cases because of the rule of lenity.

Unknown Speaker: Mr. Goldberger, are you suggesting in response to Justice O'Connor's question that there are some things we call rules of statutory construction, other things we call axioms of statutory construction... that the two are different?

Mr. Goldberger: No, I don't think so.

Well, perhaps the... to read the language and attempt to apply it as written, that's a rule.

But there's... I don't think it's fair... other than that and things of that category, I think it's fair to say that the rest of these doctrines, in pari materia and what to do with silence, what to--

Unknown Speaker: Rules... the rule of--

Mr. Goldberger: --rules that tell us what to do with silence and ambiguity.

Unknown Speaker: --And the rule of lenity.

Mr. Goldberger: And the rule of lenity are axioms, yes.

And we call them rules only using that word loosely.

That's right.

The ambiguities and contradictions which would exist here, some of them are irreconcilable and I think the Government concedes this, that if we do not adopt the November 1, 1987 effective date, which may have been gotten to originally inadvertently but which we now... is the resolution of the problem that works.

The resolution that works eliminates the problem of having several other statutory provisions, drug sentencing provisions, make cross references that don't exist.

It eliminate the problem of having... of Congress in November of '86 enacting a statute clarifying and correcting language in the drug-sentencing law which under the theory of the court below and advocated by the Government here would have been repealed some weeks earlier so that we would then have a nullity in the November '86 technical amendments act.

There are some half-dozen of those and they're all treated in the briefs and as... I don't think there, they fit well in an oral presentation but I think--

Unknown Speaker: Mr. Goldberger--

Mr. Goldberger: --Yes?

Unknown Speaker: --Judge Becker's opinion for the court of appeals mentioned problems that that court saw with going your way in the future, and Judge Becker has devoted a great deal of time of course to probation and parole.

Do you have any response to his criticisms of your approach as to the future?

What would... inconsistencies that would happen further down the line?

Mr. Goldberger: No.

Perhaps I'm remembering a different part of the opinion but I think what he was saying there, Mr. Chief Justice, is that the failure to have a uniform answer to this problem in all the circuits would create inconsistencies and problems down the line.

But I don't think he suggested that having one clear answer either way would create problems and inconsistencies.

And I would suggest that more problems and inconsistencies down the line are created by perpetuating parole and special parole for an additional year.

And indeed in the case of... as the Government seems to argue in its brief at one point and as some of the circuits have... have held to reintroduce it where it had not existed for 2 years earlier, would create far more problems down the line by having a parole system which there was no agency to administer.

I understand that just this weekend as Congress was wrapping up its business in the Judicial Improvements Act it may have extended the life of the parole commission by another 5 years.

Even to have extended it, if, if what I hear is right that if, if it has been extended from 1992 to 1997, that still doesn't cover many of these cases that have 10-year mandatory minimums or longer and then under the Government's view wind up with people... could wind up with people on parole rather than simply waiting a year until the system can be implemented in a coherent way where supervised release applies, that we have a system to understand it and a system to administer it.

In fact, there was a... an additional part of the answer I wanted to give to Justice Kennedy's question, if I could, and that was... that is that the Sentencing Reform Act provides, in that section which describes supervised release, that important judgments about supervised release are to be made by the sentencing judge at the time of sentencing.

In fact, these are one of the most... this is one of the critical ways in which supervised release is fundamentally different from parole is that it's to be decided on its length, its conditions, by the sentencing judge at the time of sentencing.

And that's not something that's going to occur 10 years in the future.

That's something that had to occur... might have had to occur as early as the early winter of 1986 and--

Unknown Speaker: Mr. Goldberger--

--Conditions were imposed at the time of sentence?

Mr. Goldberger: --Yes, sir, under 3583, subsection d.

Unknown Speaker: I thought that the period of supervised release for the category of offenders we're dealing with in this case was fixed by the statute.

Mr. Goldberger: No, Justice Stevens, that's not correct.

There is a minimum period fixed by the statute--

Unknown Speaker: Oh, I see.

Mr. Goldberger: --but the length above the minimum or... and the decision whether it's to be above the minimum is in the discretion of the judge and must be decided at the time of sentencing.

Unknown Speaker: I see.

Mr. Goldberger: I don't mean to mislead.

The are provisions both in terms of your question, Justice Kennedy, and yours, Justice Stevens, to amend and modify both the conditions and the length later.

But the initial decision is clearly imposed on the judge and by the judge at the time of sentencing.

Unknown Speaker: And there is a variety of conditions that can be imposed in supervising?

Mr. Goldberger: Yes, there are a few that are mandatory and the rest are in the judge's discretion.

In addition to these anomalies and mismatches that the theory of the lower court and of the Government just can't explain away, and in fact the Government's position is we'll worry about them in some other case.

And I hope that's not the answer.

I think that we have an opportunity here to answer the question in a way that doesn't require five more cases to resolve.

The pari materia argument tells us that when a term is used in a statute that... where no definition is given and that definition clearly refers to another statute where that term was invented, the Sentencing Reform Act invented the concept of supervised release.

It's not a term that criminal lawyers had a knowledge of before... that you have to look to that other statute and bring it in.

And then when that other statute--

Unknown Speaker: Indeed, you couldn't look to the other statute until the other statute is effective.

Mr. Goldberger: --That's correct.

Unknown Speaker: Probably improper to look to it xx it's effective.

Mr. Goldberger: That... I think that's right, Justice Scalia.

And not only that, you couldn't look to it in a case in which Congress had explicitly declared that it shall not apply.

The pari materia principle I think also goes to the internal interpretation of the '86 act, so that not only do we have to cross reference the... the special... the supervised release provisions of the Sentencing Reform Act but also the '86, November '86 technical act, but the other provisions internally of the '86 Anti-Drug Abuse Act, and that's where the pari materia argument runs into the contradiction argument.

You wind up just with so many provisions that don't work or wind up being utterly meaningless that it... you just can't have that way and have a statute that make sense.

And if the intent of Congress... if we have a presumption that the intent of Congress is to make sense and not to be absurd, you have to lead in that direction.

The legislative history doesn't help us on the intent of Congress in the sense of discussing the purpose of the change in language that occurred at that last moment of the amendment process from special parole to supervised release.

But it... and what it does tell us is Congress was in its usual end-of-October situation.

It wanted to pass a drug bill this year and get it finished, and that there's no indication that there was a considered decision to change the concept of special parole, which had been provided in the bill before that, to supervised release, but also no indication that it was doing so for this reason as opposed to that reason.

So we're in a pure analysis of the statutory language and structure which sends us to the solution that I'm suggesting.

Unknown Speaker: Is the definition of supervised release, plus all of the conditions upon it... is that in a section of the statute that does not take effect until after this?

Mr. Goldberger: That's exactly right, Justice Scalia.

That's section 3583--

Unknown Speaker: So you wouldn't even know... you wouldn't even know how to handle supervised release without consulting a portion of the statute that's not yet in effect?

Mr. Goldberger: --That's right.

The Government's position is that courts could and no doubt did look to the statute, which as I mentioned at the outset had been enacted in 1984 and was there waiting to go into effect.

But my response to that is that the statute not only by its terms wasn't effective but was inapplicable.

Unknown Speaker: Are there any cases where in the interpretation of statute we use the doctrine of incorporation of reference that we do in wills, say?

Mr. Goldberger: I think--

Unknown Speaker: Is this... there was a body of extant statutory provisions that you could look to.

They weren't in effect yet.

Mr. Goldberger: --I--

Unknown Speaker: You say these were just incorporated by reference?

Mr. Goldberger: --I suppose that's pari materia of a sort.

I'm not familiar with any other... any other concept different from that, that when Congress uses a term that has a meaning, has a definition and a meaning, it's... it's... must be understood to be incorporating that definition and meaning.

But in this case... and I don't mean that we have to blind ourselves to the existence on the books of this as yet ineffective statute.

What I mean is we do look to 3583 and we look to it and we find that Congress has told us not to use it.

And therefore, what we find is that we can't have the law, the '86 supervised-release provisions, at least going into effect before that other statute is available for the purpose of making reference to it.

As a final aid to statutory construction in the case, I do rely on the rule of lenity and I... this is not where we start.

It's not something that we use to avoid the rest of the problems and the issues, but it's a place that a defendant in a criminal case discussing a sentencing provision that is ambiguous... it's ambiguous by virtue of silence and by virtue of contradiction... is entitled to look.

The Court should not rely in making its decision in any way on an assumption that Congress intended to add new punishment, and that's what it would be in my client's case, new punishment of extended supervision, without a clear indication that intended to do so when there's another plausible interpretation.

Unknown Speaker: Mr. Goldberger--

--Do our cases extend the rule of lenity to the extent of punishment as well as to the denomination of the substantive offense?

Mr. Goldberger: Oh, yes, quite clearly so, Bifulco being the most important case and in many ways the most similar to this one.

There's a case in which the court was dealing with the antecedent of supervised release, that is special parole.

An ambiguity by virtue of silence was found, and the court, after careful analysis of the statutory language, cross references, and purpose, finally turned also to the rule of lenity and--

Unknown Speaker: But didn't the statutes presume to set a date and say that this shall take effect on October the 27th?

Mr. Goldberger: --No, there is no provision of that kind in the '86 act.

There is only... there are other... perhaps what you're thinking of is that there are other effective dates stated later than October '86 for certain specified provisions of the '86 act and silence with respect to this provision and that then... many but a minority of the lower courts upheld invokes that, that rule of presumption that Justice O'Connor referred to early on in the argument.

Unknown Speaker: Well, that does more than invoke that rule of presumption.

It calls... it calls into play another one of the, the maxims or rules, that is, inclusio unius est exclusio alterius.

Mr. Goldberger: Yes, that's right.

Unknown Speaker: By specifically specifying a date in some instances, you assume that where they don't specify it, the ordinary rule of today applies.

That... that's probably the hardest indication against your position, isn't it?

Mr. Goldberger: Well, I... it's... it's an important argument that the other side has and it would be surprising to me though if there were a difficult problem of statutory construction like this one in which you couldn't invoke some maxim in Latin on each side.

My favorite one in this case is in pari materia.

Theirs is--

[Laughter]

--expressio unius.

Unknown Speaker: Mr. Goldberger--

Mr. Goldberger: But there's more to say about it than that, which is that if the bill which provided for special parole had remained in that form and had been enacted saying special parole rather than supervised release, I think expessio unius would have won the day if someone had tried to make, in that situation, the argument that I'm making.

It was by virtue of the substitution of terminology to supervised release to a term which... which necessarily makes reference to another statute and which is meaningless without that other statute, which would in effect be telling a judge, you may impose a sentence... you shall impose a sentence of something called supervise release but... of which we will not tell you the meaning.

You can impose a sentence of your own design in this case I think that's very problematic.

Unknown Speaker: --Let me just... may I ask you one question to make sure I've got this sorted out?

Mr. Goldberger: Of course.

Unknown Speaker: I mean I don't begin to have it sorted out, but the thrust in your argument is always focusing on supervised release.

But if you are correct, are you also arguing that section 1002 and section 1003 simply did not go into effect at all until November 1st?

Mr. Goldberger: There are arguments to be made and which we have made in our brief, and I'm not retreating from them but they're not the arguments that I've make so far this morning.

Unknown Speaker: I understand, but it seems to me that, that if you carry the day on the supervised release you must be saying that section 1002 is not... was not effective until November 1, 1987?

Mr. Goldberger: No, not necessarily.

There are... not all of the arguments I make are applicable to the rest of the section.

There is not that pari... the pari materia argument of incorporating the Sentencing Reform Act does not come into play for the argument against the mandatory minimums and against the non-parolability.

They are similar to and do evoke the new Sentencing Reform Act, but they are not utterly dependent on the Sentencing Reform Act in [inaudible].

Unknown Speaker: I understand, but earlier you made a... one of your arguments was that if we decide in your favor in this case, we'll avoid a whole bunch of other cases.

It seems to me if we accept your view under... on supervised release, we're next have... going to have to decide what the rest of 1002 means and what 1003 means, whether that went into effect in November 1st or not.

I don't know what the answer to that--

Mr. Goldberger: Well, if you accept my argument you won't have to decide that, because you will decide, as argued in point a(2) of our brief that, that the whole of 1002 didn't go into effect November 1, '87.

But if you go--

Unknown Speaker: --That would also apply to 1003 I suppose, wouldn't it, insofar as to rely on 1004 as setting forth the date and the whole scheme fits together and so forth?

Mr. Goldberger: --And 1032 and 1866, there are a number of sections of the statute that follow the same pattern, but that's... it's not--

Unknown Speaker: We save those for another case.

Mr. Goldberger: --There's no split in the circuits on that... on that point.

I, of course, stand by the arguments we've made in the brief on that.

But they... the whole argument does not stand or fall on that provision.

I would like to reserve the rest of my time if I may.

Unknown Speaker: Thank you, Mr. Goldberger.

Ms. Wax.

Argument of Amy L. Wax

Mr. Wax: Mr. Chief Justice, and may it please the Court:

Let me try to summarize this case in four basic points.

It is virtually an unimpeachable principle of legislation and one on which Congress relies every time it enacts a statute that a statute goes into effect upon enactment unless it states otherwise.

Unknown Speaker: xxx axiom as suggested by your opposition?

Mr. Wax: Well, I don't want to get into a semantical battle, but what we mean by this perhaps is best explicated by what Chief Justice Rehnquist said in Albernez v. United States about the Blockberger Rule.

Silence on the Blockberger question and on the question of an effective date does not give rise to the kind of ambiguity that would license a broad-ranging foray into the statute looking for hints and clues that something else was intended, and it doesn't give rise to an occasion for application of the rule of lenity.

Unknown Speaker: Have we applied the rule of lenity to an effective date issue?

Mr. Wax: Never, Your Honor.

There has never been a case in this Court in which the Court has held that, with silence on an effective date, a delayed effective date was intended and in our... to our knowledge there's never been a court... a case in the court of appeals, and that should tell us something.

Congress relies on this rule.

When it enacts a statute it knows that putting in an express provision that the effective date is immediate is superfluous and therefore it doesn't have to do that.

And to question this axiom would invite statutory chaos because it would mean that every time Congress didn't stipulate an effective date we'd be free to go into a statute and look for little anomalies, little problems from which we might infer a contrary intent.

Unknown Speaker: This isn't a little anomaly.

It's the fact that you don't know what this term of art means.

It's a brand-new word that is utterly meaningless to anybody unless you consult another statute that isn't in effect yet.

Mr. Wax: That is correct.

The statute that describes what supervised release is, it gives it content, that gives content to the word is not in effect during the pertinent period because under the '84 sentencing act it was given in effective date.

But it's our view that this is not an obstacle to applying the plain terms of the revised penalty provisions, section 841, which clearly state that supervised release is the appropriate penalty.

Because the fact is that 3583 which describes what supervised release means does exist.

It's out there.

It's on the books, albeit it doesn't have the force of law and perhaps a judge couldn't be held to the letter of it.

But it does give content to the notion of supervised release.

And these supervised release penalties for this period from '86 to '87 are being applied daily in the Ninth Circuit, the Third Circuit, now the Sixth Circuit in the wake of a case that came down a couple of months ago, in the D.C. circuit in the wake of the United States v. Brundage.

Judges are not going off on, on crazy tangents when they, when they pass sentence on individuals who get supervised release.

They're pretty much being guided by 3583, and the system is working.

Unknown Speaker: Ms. Wax, if we go along with the Government's suggestion here, it does result in some anomalies and some problems in relation to other statues, does it not?

Mr. Wax: It does.

There are some inconsistencies in the statute as a result of the provision for supervised release beginning in October of 1986.

Unknown Speaker: And would those problems be avoided by the construction by the later effective date suggested by the petitioner?

Mr. Wax: Your Honor, that... it would avoid some of them, but it would create other problems and inconsistencies in its wake.

For every problem... it would avoid some of the little statutory inconsistencies but it would pervert what Congress did when they passed this statute.

First of all, the thesis that the whole of section 1002 was delayed for a year is a non-starter, because in the penalty provisions in 1986 Congress stipulated that there would be no parole under these penalty provisions.

They were mandatory prison terms, and there simply would be no reason for Congress to state that there's no parole if the effective was November 1st, 1987, because as of November 1st, 1987, parole was abolished.

So that in itself definitively refutes the thesis that there was a delayed effective date for the whole of 1002.

Unknown Speaker: Well, that's--

Mr. Wax: And if there is--

Unknown Speaker: --that's just saying one statute was totally superfluous.

That's not inconsistency.

Am I right?

And as they abolish... they abolished parole effective November 1, '87 in two different ways but totally consistent with one another.

Mr. Wax: --Right.

Unknown Speaker: Isn't that right?

Mr. Wax: It would be... because they abolish parole in '84 and the abolition of parole was going kick in in November of--

Unknown Speaker: Right.

They didn't need to do it again.

Mr. Wax: --They did need to do it again.

Unknown Speaker: But they didn't do anything inconsistent.

Mr. Wax: Well, we're only saying that it would be a surplusage.

Unknown Speaker: Right.

Mr. Wax: And we think that's an anomaly as much as the anomalies to which--

Unknown Speaker: Yeah, but it doesn't create any administrative anomalies or anything like that.

It just says they unnecessarily did something... they unnecessarily abolished parole in two different statutes at the precisely the same consequence.

Mr. Wax: --Well, as a sign--

Unknown Speaker: Which might be wise legislation in some circumstances to make a hundred percent sure their meaning is clear.

Mr. Wax: --But if we're... if we're looking at these anomalies as a sign of what Congress intended to do, okay... I mean, basically petitioner's argument is that by leaving these anomalies... by creating these anomalies, by allowing supervised release to kick in, Congress was sending us a message that it wanted to delay supervised release.

And we're saying, well, there's contrary evidence that Congress was sending the message that it wanted the whole of 1002 to go into effect immediately.

We're really making an argument about what Congress wanted... what Congress meant to have happen when it passed this statute.

Unknown Speaker: Well, they're not saying they wanted to delay it.

They're saying that they had previously delayed supervisory release in the earlier statute and all they've done is said that this statute shall take effect at the same time as other supervised-release provisions take... I don't see the inconsistency in it.

Surely they could have drafted it better, but--

Mr. Wax: Well, the other reason why we think that the way to solve whatever anomalies there are is not to delay supervised release is that Congress clearly passed a provision that had mandatory monitoring in it, and we have to go a little bit into the history of this enactment in order to understand why that's important.

Every... the petitioner and we both agree that up until the penultimate moment when the 1986 act was passed, the statute provided for mandatory monitoring in the form of special parole for all of the drug categories that apply to petitioner's offense.

So it was crystal clear that Congress wanted these individuals to get a mandatory term of monitoring.

The statute also provided that on November 1st, 1987 there was going to be a word substitution.

Every place that special parole appeared in the statute, supervised released would now appear and so people committing offenses after November 1st, 1987, would get supervised release.

But it... but in no way did that draft statute, the penultimate statute, create a gap whereby there would be a period that individuals committing these drug offenses would get nothing.

On the eve of enactment for reasons that we will never know, a substitution was made, a single-word substitution.

Every place that the term special parole appeared in the act, the word supervised released... it was crossed out and the word supervised release replaced it.

The effect of that word substitution was simply to roll back 1 year the seamless transition from one kind of monitoring to another.

The effect... it is... it's simply perverse to say that what Congress was doing when it substituted those words was opening up a year gap and sending the message that it wanted to delay the effective date of this statute either in whole or in part.

This is especially true as Justice Scalia pointed out because Congress knew how to delay the effective date of parts of this statute.

It did it in section 1004, 1006, 1007, and 1009 and for Congress to choose this coy, roundabout, ambiguous method to accomplish the same thing, it's just not a plausible account of what happened when Congress passed this statute.

What happened is this.

Someone decided that there was no reason to perpetuate what was soon to be an outmoded form of monitoring.

They might as well initiate supervised release a year early.

But Congress forgot to make the little... the collateral changes that would have created a completely harmonious statute.

But the fact that Congress forgot to do a few little things over here doesn't mean that what they did in the core penalty provisions, what they did at the center, wasn't intentional.

And--

Unknown Speaker: --It still... it still isn't a badly drafted statute, isn't it?

Not the first one we had.

Mr. Wax: --Well, there are a few oversights which result in some inconsistencies.

That... we concede that.

But we don't think it follows from that either that Congress intended to delay the effective date or that this Court should square the circle by delaying the effective date of the statute.

Now, we point out in our brief that if the penultimate change had never been made and the statute was passed saying special parole instead of supervised release in all the places where the replacement was made, this would be a completely internally consistent and coherent statute.

So the question arises, you know, why not just rewrite the statute and put special parole back where supervised release is, which by the way is very different from saying that the effective date of the whole or part of the statute is delayed, which has very different consequences in particular that petitioner won't get any monitoring.

That would be the consequence of delaying it.

But why not just substitute terms?

Well, we think that the reason not to do that is that the statute says supervised release and not special parole.

And--

Unknown Speaker: Why couldn't I say that term has no meaning until the other statute takes effect, and since it doesn't have any meaning I'll assume it seems... it means the same thing as parole, special parole?

Mr. Wax: --Well, Your Honor, once again while it's true that the definitional provision that gives meaning to supervised release or tells us what Congress meant by supervised released isn't in force, it still does exist.

I mean, it is there for guidance.

And it's... it's a little bit like the situation that would obtain if Congress had never enacted 3583 of the definitional provision but simply had explained in a House report or something what it meant by that.

I mean, it's... there is information out there.

It's not as if we have nothing and judges have not acted as if we have nothing.

That's the other point.

Unknown Speaker: It seems to me you... you're presenting the case, as you ought to I suppose, you know, on the assumption it's our function to figure out what Congress intended.

I don't think there were more than 20 people who adverted to this refinement, this scrivener's change from special parole to the new terminology.

It seems to me our job is to make sense out of... as best we can out of a statute that it's... it's a, you know, Chinese puzzle.

We're trying to fit it together.

And a very sensible way to fit it all together that doesn't produce any inconsistencies anyway is to, as we've sometimes done, not deem the effective to be immediate.

It's a sensible solution of... for someone whose job is to try to make sense out of the law.

It does make sense out of it, doesn't it?

Mr. Wax: Your Honor, we think not, because of what Congress did when it passed the statute.

It passed a statute that in all its incarnations, in all its versions provided for a mandatory term of post-confinement monitoring of some form.

There was never a version of this statute that didn't provide for mandatory monitoring.

The statute was designed to up the penalties that had existed, to plug gaps that were perceived in the previous law, to compensate for the inadequacies of previous law.

And it just... it just doesn't make sense to say that having gone to all of this trouble they really meant to let whole... all or part of this statute lie fallow for a year.

It's simply perverse to solve the problem by delaying the effective date, especially since, as you suggest, another way to solve the problem which is equally good and avoids the problems I've just talked about is just to scratch out the change and put another word in its place.

But, you know, both are equally intrusive.

Both are equally activist.

And it's our view that the least... the solution that does the least violence to what Congress wrote and what it did is simply to allow judges to turn to the appropriate page in the United States code and read off the penalty and pass sentence using that penalty.

There really is no practical or legal obstacle to doing that.

This is not a case where a judge sits down and is completely stymied by what he sees in front of him.

And once again, judges have been doing it.

They are doing it.

Unknown Speaker: Ms. Wax, will you... I should know this, but what sentence did this man get?

Mr. Wax: Um--

Unknown Speaker: Assume you win, what... how long will he be in prison?

Mr. Wax: --He's going to be in prison for 15 years I believe.

Unknown Speaker: 15 years plus a 10... 4 or 5 years.

Mr. Wax: Well, petitioner's correct that the mandatory good-time provisions under section 4163 and 4164 will apply to him, so he'll have some time deducted from his mandatory term of imprisonment.

Unknown Speaker: If it's good time.

If it's good.

Mr. Wax: If it's... right, if it's good time.

Unknown Speaker: Yes.

Mr. Wax: But he'll be in prison for at least 10 years is my understanding.

Unknown Speaker: I see.

Mr. Wax: Yeah.

So it will be at least 10 years before he'll actually be out and be supervised.

My final... the point... one more point I want to make about this question of delaying the supervised release penalty, which of course would mean that petitioner would get nothing.

It's important to note that the conflict in the courts below has not really been about whether individuals who are... to commit their offenses during this period get nothing or get supervised release.

Almost virtually every court that's wrestled with this problem has ruled that... or the result of every decision has been that these offenders get something, either supervised release or special parole.

But petitioner is asking to be let... to get nothing.

And although the courts below have come out in different ways and they've said different things and some have concluded that the '86 act is delayed and some have concluded that they're not, there's virtually unanimous agreement that it simply would not comport with what Congress did when it passed this act and what Congress intended to open up, to create this opening for individuals committing these offenses.

The second point about delaying supervised release is that it really can't be squared with the text and structure of the 841 penalty revisions.

If you actually look at section 1002 and the changes that it made to section 841 to the penalties, you'll see that the terms of imprisonment, the fines, and the post-confinement monitoring supervised-release requirements are all put together in one paragraph.

They're part of the same... they're part of an organic whole.

They're meant to function together.

What petitioner is saying is that we're going to apply these statutes piecemeal.

We're going to use the mandatory prison sentence from the 1986 act.

We're going to go back I suppose to the 1984 act and use whatever post-confinement monitoring requirement there is in the 1984 act.

We're going to slap together this patchwork which creates its own set of anomalies and contradictions, especially for cocaine offenses.

And in fact if you sit down and look at how it works to use part of the '84 act and part of '86 act you come up with blatant contradictions.

And that's apparent if you look at the cocaine offenses which... the result of slapping together these two acts would be that more serious cocaine offenses would get a less harsh sentence than less serious cocaine offenses, and I won't bore the Court with the details of explaining that.

But that is the result of this patchwork solution.

Unknown Speaker: We haven't found this boring.

It's been exciting stuff.

[Laughter]

Mr. Wax: Well, it's important to us, Justice Scalia.

In sum, we believe that the plain language of this statute should be applied, that this Court should respect the unimpeachable and vital legislative principle that statutes go into effect immediately unless Congress says otherwise and uphold the judgment of the court of appeals in this case.

Unknown Speaker: I can't help but enjoy the difference between an axiom, a rule, and a vital legislative principle.

[Laughter]

Thank you, Ms. Wax.

Mr. Goldberger, do you have rebuttal?

Rebuttal of Peter Goldberger

Mr. Goldberger: Thank you, Mr. Chief Justice.

We're not asking in this case for a delay in the implementation of supervised release.

The Government is asking for an acceleration of the effective date of supervised release by more than an entire year ahead of the date that Congress decided it would take for the system to gear up and be ready to implement this entirely new form of sentencing.

Unknown Speaker: There is an anomaly created by your proposal which is that your client would get nothing, neither, neither special parole nor supervised release.

Mr. Goldberger: He hardly gets a nothing.

He gets nothing in addition to--

Unknown Speaker: To his sentence.

Right.

Mr. Goldberger: --10 years in prison and 10 years of post-incarceration supervision, because and precisely because he's a pre-November 1, '87, offender.

He receives both mandatory release supervision by virtue of the good-time laws which go out of effect for post-November 1, '87, cases and he receives parole on his conspiracy sentence for 10 years which wouldn't exist had it been a post-November '87 sentence.

So the anomaly that the Government offers really doesn't exist.

In fact it cuts in our favor by showing the rationality of... or... let's... the lack of irrationality I think is more fair, yes, of saying that Congress was willing to tolerate a year's delay in the reinstitution of extra supervision for this small category of offenders to avoid upsetting a very complicated transition to a whole new sentencing system.

It's true that there's never been a case in this Court resolving a controversy about an effective date by finding that it was delayed.

That's because in 200 and more years there's never been a case in this Court resulting in controversy about an effective date, so that doesn't tell us anything.

And it's certainly not true that the courts of appeals have never found a delayed effective date.

The majority of the courts of appeals in the cases underlying the conflict that you're here to resolve now have ruled in our favor by finding that there was a delay.

This is because... the reason the majority of the circuits have gone this way is because that it is not fair to say that there are just a few little problems created by an immediate effective date.

There are massive and irreconcilable problems in interpreting this and other drug sentencing statutes.

The problems are irreconcilable--

Unknown Speaker: Well, does the... does the legislative history show any... give any reason for the substitution of special release for--

Mr. Goldberger: --There is... there's absolutely no legislative history explaining this precise change.

It occurred after a bill can... saying special parole had passed both houses.

The change occurred only in the reconciliation process.

Unknown Speaker: --Well, what if the--

Mr. Goldberger: We don't know by whom or why.

Unknown Speaker: --What if the... what if the statute hadn't been... or the bill hadn't been amended in that way and it retained the special parole provision?

Mr. Goldberger: I don't think there would have been sufficient argument against the presumption axiom--

Unknown Speaker: Of immediate... of immediate effectiveness?

Mr. Goldberger: --That's right.

That's right.

Unknown Speaker: It's just the... it's just... it's just this... this new term being included in the statute which seems to be tied to the statute that becomes effective in '87 that gives you this argument?

Mr. Goldberger: This and all of those other contradictions where certain other provisions in the 845 series of drug statutes incorporate by reference and refer to sections of 841(b), the basic drug-sentencing law, and say, and this person shall receive twice the term of special parole as someone sentenced under 841(b) and here Congress said there is no special parole under 841(b).

It's something else.

So it's both the contradictions and the pari materia use of a term defined else where.

Unknown Speaker: Would all of those be eliminated?

Suppose we just interpreted this to be a scrivener's error and to be special parole instead, would that eliminate all--

Mr. Goldberger: It absolutely would eliminate it, but we agree with the Government that that is the first impermissible answer to the problem.

Unknown Speaker: --Yes, right.

Mr. Goldberger: And that's because it's the only one that's directly contrary to the language deliberately chosen by Congress.

Unknown Speaker: Deliberately chosen by Congress.

Mr. Goldberger: Well, we know that Congress changed the words "special parole term" to the words "term of supervised release".

And we know that that didn't happen by computer error.

We know that it happened by human act.

Now it may have happened by human error, but it happened by human action and it was then voted on in those terms by both houses.

And when Congress has voted for certain words which it knows or ought to know are different from other words, then that is... it would be a deviation from the judicial function to solve the problem by rewriting the statute.

Chief Justice Rehnquist: Thank you, Mr. Goldberger.

The case is submitted.

Print this transcript Transcript: 

Argument of Justice Kennedy

Mr. Kennedy: The second case is Gozlon-Peretz versus the United States No. 89-7370.

Between 1984 and 1987, congress enacted or changed various statutes to increase the severity of criminal sentences for drug offenders and to reform the criminal sentencing process in general.

One of these changes was to move to a new concept for court supervision in monitoring after a sentence has been served.

Under the Sentencing Reform Act of 1984, congress adapted the system called supervised release to replace the earlier system which have been called special parole.

Supervised release required a Sentencing Court rather than the United States Parole Commission to oversee a defendants behavior and adjustment after being released from custody.

Supervised release gave the Sentencing Court greater powers and responsibilities in this post-confinement period.

So the courts and court officials would have time to prepare for the change, the provisions for supervised release in the Sentencing Reform Act of 1984 did not become effective until 1987.

The problem we confront in this case on certiorari to the Court of Appeals for the Third Circuit is this, during the interim period before the Sentencing Reform Act took effect congress enacted another statute, the Anti-drug Abuse Act of 1986.

The Anti-drug Abuse Act requires terms of supervised release for most drug offenders, but it does not provide an exquisite effective date for its relevant provisions.

The petitioner who committed his offense during this interim period argues that because the Sentencing Reform Act, with its basic definition of supervised release, did not become effective until 1987, the ADAA's provision for supervised release likewise were not effective until that time.

So, he argues that he is not subject to special parole or perhaps not subject to post-confinement monitoring at all.

We must interpret the Anti-drug Abuse Act of 1986 to determine whether its provisions for supervised release apply in this interim period.

We hold that they do.

When the ADAA was enacted, it is true that the Sentencing Reform Act was not operational, but it had been adapted by the congress and signed by the President.

It had all of the weight and dignity of a statute and the reasonable assumption is that when congress had passed the ADAA and used the term supervised release, it knew its full definition and meaning and legislative with reference to it.

Courts may refer to enact it, but yet effective legislation to interpret statutory terms if the legislature intends to reference.

In this case, we believe the legislature did have that intention.

Accordingly, we affirm the judgment of the Court of Appeals holding that supervised release is applicable in this case.

The opinion is unanimous.