UNITED STATES v. WILSON
Legal provision: 18 U.S.C. 3585
Argument of Amy L. Wax
Chief Justice Rehnquist: We'll hear argument next in No. 90-1745, United States v. Richard Wilson.
You may proceed, Ms. Wax.
Mr. Wax: Thank you, Mr. Chief Justice, and may it please the Court:
Under the sentencing credit statute codified at 18 U.S.C. 3585, which Congress enacted as part of the Sentencing Reform Act, a defendant is entitled to credit against a Federal sentence for certain periods he has spent in official detention before he begins to serve his sentence.
The question in this case is whether the task of determining the amount of credit that is due against a defendant's sentence, that is the technical calculation of the precise number of days the defendant has left to serve on his sentence, is to be performed by the district court at sentencing or by the Attorney General through the Bureau of Prisons once the sentence begins.
Here the district court refused to award respondent credit against his 8-year Federal sentence for approximately 14 months that he spent in State custody before his sentencing.
The Sixth Circuit reversed that decision, holding that the award of sentencing credit under the 1984 statute is the exclusive province of the sentencing court, which is to assign the credit at sentencing.
Although respondent received credit for virtually the same period against a subsequent State sentence after he was sentenced in Federal court, the court of appeals nonetheless directed the district court to give him credit for that period against his Federal sentence as well.
In effect, the court ruled that not only must the sentencing court decide what sentence to give the offender, but it must also take on what is essentially an administrative ministerial function.
That is the arithmetical task of figuring out the exact date an offender will finish serving his sentence.
In the Government's view, the Sixth Circuit was wrong to conclude that the statute makes this task part of sentencing, that is a function to be performed exclusively by the sentencing court.
It is the Bureau of Prisons, and not the sentencing court, that has exclusive authority to calculate sentencing credit, a function that BOP has carried out for 25 years.
There is no reason to believe that Congress decided to change the status quo and to discard the preexisting administrative framework in the Sentencing Reform Act.
Unknown Speaker: It did change... delete the language, saying that the Attorney General would determine the credit, though, didn't they?
Mr. Wax: It did, Your Honor.
And the reason why it did is something of a mystery.
We think the common sense explanation is that the BOP's role in this regard was so well-entrenched, they'd been doing it for so long, that Congress did not advert to the question of who is to perform the function, they just assumed that BOP would.
Unknown Speaker: Well, I think the most logical reading of a change in the statute like that, where it used to say the Attorney General will determine it and now it doesn't say that is that Congress no longer meant for the Attorney General to determine it.
That's not to say it's the only reading, but certainly, that's the first inference one would draw.
Mr. Wax: Your Honor, this Court has stated that a change in language is just some evidence of a change in meaning.
It is not dispositive of an intent to change meaning.
And this Court most recently noted in McElroy v. United States, where it found that a change in language did not betoken a change in meaning.
It said the inference from a change in language to a change in intent is only a workable rule of construction.
It is not an infallible guide to legislative intent, and it cannot overcome more persuasive evidence.
And the Government's point in this case is that there is more persuasive evidence.
There is an abundance of evidence in the language, the history, the purposes of the sentencing credit provision.
In particular, in the Sentence Reform Act as a whole, the Congress did not intend to alter the status quo that it did not transfer authority from BOP to the sentencing court.
And just to begin, there are three specific features of section 3585 itself that support our view.
And just to summarize them, first of all, the statute uses the past tense in a way that indicates that the award of sentencing credit is to take place some time after sentencing.
The second aspect of the statute is--
Unknown Speaker: Let me just pause you right there.
Mr. Wax: --Yes.
Unknown Speaker: Isn't that always going to be the case, even if the judge does it?
He's got to impose a sentence and then he's got to say, well, now we've got to figure out how much credit the man is entitled to?
Mr. Wax: Yes, Your Honor, that's respondent's point.
One second after the sentence the credit can be given, but... yes?
Unknown Speaker: You couldn't do it before.
Mr. Wax: Well, theoretically you could do it before you pronounce sentence, but--
Unknown Speaker: Well, if you did it before, you wouldn't know when the sentence was going to be imposed, so that there would be the same argument about not knowing when he is going to arrive at the jail, or the prison.
Mr. Wax: --Your Honor, we think that our view has support from the history of this statute.
The predecessor provision, section 3568, that's where this language, this phrasing, is borrowed from.
It's lifted right from 3568.
Now under 3568, that statute explicitly said that the Attorney General awards credit.
And therefore, we take the parallel language to essentially have the same significance as it had under the predecessor, which is that there's sentencing, and then when the person begins to serve his sentence, there's an assignment of credit.
We think the parallelism is what's appropriate.
Unknown Speaker: But the difference is you don't identify the person in the present statute.
What's wrong with reading the statute this way?
The statute requires that somebody make this calculation, that at the sentencing time, the judge just says, is there going to be any fight about the credit time.
And if everybody says no, it's all, you've just got so much time in jail, then he could say to the attorney, well, you go ahead and compute it, then, and we'll enter the sentence plus whatever time you... couldn't he delegate that authority in cases when there's no dispute under your opponent's reading of the statute?
And then just say, if there is a dispute, I ought to resolve it.
It shouldn't be resolved... while lawyers are here to write it out, it shouldn't be resolved in the prison setting.
What would be wrong with that reading?
Mr. Wax: The problem with that, Your Honor, and this is really central to our argument, is that there are going to be periods of detention, periods of custody, that come after the imposition of sentence.
Unknown Speaker: I understand that.
Mr. Wax: And there is no... the courts are not--
Unknown Speaker: Well, why couldn't the judge simply say I want you to give credit for what's happened up to now, plus whatever time it takes to get him to prison.
The exact number of days to be set by the Attorney General after everything has taken place.
And so that all the issues are resolved in court.
Mr. Wax: --But all the issues can't be resolved in court.
That's our point.
Let me give an example to illustrate that.
And I'm taking the example... what I'm trying to say is that there are going to be questions about interpreting the rules for giving sentencing credit that are going to need to be resolved after sentencing by someone... an administrator, whoever.
There's going to have to an application of specific facts to rules.
Unknown Speaker: Are they going to be rules on which the Government's interest will be different from the defendant's interest?
Mr. Wax: Yes, Your Honor.
Unknown Speaker: And should they be therefore resolved by a neutral arbitrator or by the Attorney General?
Mr. Wax: Well, the Attorney General resolves them by applying rules that he has formulated and that are open for scrutiny... technical rules.
Unknown Speaker: But if the prisoner disagrees with you, the burden would be with him after he's no longer got a lawyer, he's now in jail, to come in and make an appropriate motion.
Mr. Wax: Well, the Government wouldn't oppose it in the way they would oppose it in front of a court.
BOP would have a certain view of the way in which credit should or should not be given for certain--
Unknown Speaker: Which would prevail unless he got to court.
Mr. Wax: --Right.
But the point is that an individual can challenge the BOP's view through the grievance procedure before the Bureau of Prisons up through three levels of review, and then they can take a 2241 motion to the court.
It's not as if they can't get to court on this.
Unknown Speaker: Well, why isn't it better just to get it resolved right at the time of sentencing?
Most of these issues, certainly, can be... you can tell whether there's going to be a fight about it, can't you?
Mr. Wax: As a numerical matter, yes, most of sentencing... most, but not all.
Unknown Speaker: In fact, isn't the controversy very rare?
Mr. Wax: It's not very rare, Your Honor.
Let me give the example I was going to give.
There's an appeals court case we site in our reply brief, Blumgren v. Belasky.
In that case, an individual was sentenced for a Federal violation.
He was sent out on an appeal bond.
He was arrested some time later by State authorities.
His appeal bond was revoked, a detainer was filed by Federal authorities, but he remained in State custody.
In fact, he remained and wasn't sent out on bail because there was a detainer, for a number of months... I think 4 or 5 months... before the State charges were finally dropped and he was turned over to the Federal authorities, and his sentencing clock began to run.
Now under the statute, he would be entitled, under BOP's interpretation, to credit for the number of months that he spent in State custody.
If he'd been convicted on the State charges, and the State had given him credit for that time, he wouldn't be.
So there are all sorts of eventualities--
Unknown Speaker: In this case, did this all happen before or after the Federal sentencing?
Mr. Wax: --Well, actually this respondent was in State custody for 2 weeks--
Unknown Speaker: No, I'm talking about your hypothetical example, or the one--
Mr. Wax: --My hypothetical... all of this happened after Federal sentencing while the individual was on an appeal.
Unknown Speaker: --I see.
Mr. Wax: And there are other scenarios where individuals can be borrowed from State custody for Federal sentencing on a writ of habeas corpus ad prosequendum, and then they have to be returned to the State, perhaps to stand trial or to serve a State sentence.
Weeks, months, and even years can intervene between the imposition of sentence by Federal court, and the beginning of service of that sentence.
Causey v. Civiletti, another appeals court case in our reply brief, illustrates that where an individual served a State sentence before his Federal sentence.
I mean, there are all kinds of situations.
Unknown Speaker: But again, why wouldn't that case be taken care of by a sentencing order that said he's entitled to X days of credit up to now plus any additional credit that may accrue for the reasons such as you describe as to be computed in the first instance by the Attorney General?
Couldn't the judge delegate to the Attorney General the authority to make calculations in those cases where they depend on subsequent events?
Mr. Wax: Your Honor, we're not saying that Congress couldn't have created that system.
We're only saying they didn't--
Unknown Speaker: But I mean, why wouldn't that be consistent with the statute?
And why... and how would it hurt you?
Mr. Wax: --You're right that if that was the system, then it would be possible to take into account intervening detention, so to speak.
But what we're doing here in this case is we're trying to divine congressional intent.
The question we're trying to answer is what was the system Congress created, not what is the system Congress could have created.
Our argument... what you're talking about here is essentially a system of shared jurisdiction over sentencing, because in effect the court can calculate to a date certain the amount of credit due for anything that goes before sentencing, but it can't do anything like that for a period that comes after sentencing.
In effect, it has to designate the Attorney General to do that for it.
And so essentially you're saying that there's a kind of concurrent or shared jurisdiction.
The question is did Congress create a system of shared jurisdiction knowing that there was a perfectly workable, perfectly adequate, efficient, uncomplicated system that came before?
Essentially what you're saying is they threw that all over.
They completely restructured the system, and they didn't give us one iota of guidance as to how the system was actually going to work.
For example, can BOP revise the determination that the court makes?
What are... how do we resolve some of the jurisdictional issues that come up when you have a shared system?
If you look at some of the State statutes, interestingly enough, and there are a number of States that do allocate responsibility for presentence time to the court, sentencing credit, and postsentence time to the correctional authorities.
A lot... this is spelled out in explicit detail.
I mean this is... it's nothing like this statute which just uses the passive voice, doesn't give us a hint that there are to be two entities instead of one.
And even respondent concedes that Congress did not intend to create this complicated, redundant, inefficient system when it already had a perfectly good and workable one.
Unknown Speaker: Do you take the position, or would you take the position if we hold that the district judge must make the credit determination at the time of the sentence that you can revise an inaccurate determination?
Mr. Wax: Yes, Your Honor, because of--
Unknown Speaker: If that's so, are we really fighting about very much, then?
Mr. Wax: --Well, we're fighting--
Unknown Speaker: Why not just let the district judge do whatever he wants and then you make a recalculation to make sure that it's correct?
Mr. Wax: --Well, we're fighting about what's going to happen in practice when the courts try to put into effect this system.
Are some courts going to rule that the BOP can revise?
Are other courts going to rule that they can't revise?
Essentially, we're going from order to disorder, at least for a little while.
And what we're saying is Congress did not want to go from order and uniformity to disorder.
And that's the inference.
Unknown Speaker: Well, let me put it this way.
Suppose there's an authoritative determination that you can revise.
I mean correct calculation by the district court.
In effect, then, the Bureau of Prisons is doing everything, isn't it?
Mr. Wax: It is.
Unknown Speaker: And what the district court does is simply something that can be overridden?
You run into a problem, United States against Muskrat, where the district courts can't give... can't do purely advisory work if it's to be reviewed by some nonjudicial authority.
Mr. Wax: Exactly, Your Honor.
Then it just becomes an empty gesture on the part of the court and we just don't see the point.
And the legality of it would be in doubt as well.
I mean that system, I don't think, is a workable one.
Unknown Speaker: Well, is your... do you rely chiefly for the practical difficulties on the fact that it's not easy for the district court to know what is going to happen after the sentence is handed down and before the incarceration actually begins?
Mr. Wax: It's impossible for the district court to know about it at all.
Unknown Speaker: The district court does have adequate knowledge of everything that happens up to the day of sentencing, I suppose, by virtue of the presentence report, and one thing and another.
Mr. Wax: It does, Your Honor.
But the fact is that if the district courts are making a determination for matters that are within its knowledge, we will still see different district courts perhaps giving credit to similarly situated offenders in different ways.
Another of our arguments is that we do not think it's right to attribute to Congress the intent to go from a system of uniform national guidelines where BOP had worked out a set of rules for rather some complicated scenarios that can arise.
To go from that system, which was working perfectly well, to one in which every court would reinvent the wheel on its own and have to decide how to deal with the problems that come up in sentencing credit... and what that would do is it would subvert the purposes of sentencing reform generally, which is to have similarly situated offenders treated alike.
Now why would Congress want to go, as I said, from order to disorder, even if it's only temporary disorder?
Unknown Speaker: Well, if you're correct, and the Bureau of the Prisons would still be calculating the credits, what's the mechanism for judicial review of that action in the event that a defendant says the Bureau of Prisons did it wrong?
Mr. Wax: Initially the individual has to go through the Bureau of Prisons' grievance process, through three levels.
And if he's dissatisfied with the result of that, then he can seek review or take a... I think the commonest mechanism is to take a... to make a motion under section 2241, a habeas motion, challenging the Bureau of Prisons' or the Attorney General's right to keep him in custody longer rather than less time, which is the time that he thinks that he should be in custody.
Unknown Speaker: How about Rule 35?
Would that be available?
Mr. Wax: Rule 35 would only be available for an appeal of a sentence, a sentence as such.
And our... under our theory, if credit is given by Bureau of Prisons, it's not part of the sentence.
And in fact, it isn't part of the sentence, of course, conceptually it's completely different from the sentence.
The sentence is saying how long you're going to be in prison overall.
Unknown Speaker: The sentence, to you, refers to a gross amount, not the net amount, so to speak?
Mr. Wax: Right.
It refers not to how many days you have to tick off in the future given what you've served in the past, but how much time you're going to be in prison overall.
What the length of your prison term is going to be.
That's what a court does.
The court passes sentence.
It metes out punishment.
And this is really a separate--
Unknown Speaker: But doesn't the court also resolve disputes when there are... there are legitimate disputes on occasion as to whether certain kinds of custody would count or not, aren't there?
Mr. Wax: --Oh, yes, there are disputes.
Unknown Speaker: What's... I still don't understand.
If those disputes involve something that's already occurred, why wouldn't it be appropriate to have the judge resolve those disputes right then?
And then just say any additional calculation, like telling the clerk to calculate costs, the judges can do all sorts of things on cost, but this isn't... it seems to me that 99 percent of the time it would be a calculation about as difficult as costs in the normal case.
And you just say costs to be calculated by the clerk, future credit to be calculated by the Attorney General.
I just don't see anything wrong with that kind of a simple order.
Mr. Wax: In the abstract, Your Honor, there's nothing wrong with it.
The question... and as I said, Congress could have made it that way.
The question is did they?
Unknown Speaker: Well, they're vague.
They just said somebody's... the statute is vague as to who does it.
And most things at the end of a trial, the judge says, are there any loose ends?
Do I need to resolve any, you know, tag ends at the end?
Decide it while the lawyers are still there.
The thing that troubles me about your view is there will be cases where there are legitimate arguments on both sides and the defendant no longer has his lawyer right at hand to get it straightened out at the time.
Mr. Wax: That can be said about a lot of disputes.
I mean, our point about this... first of all, our main point, and I'll repeat it, is that what this Court is here to do is to conduct an exercise in divining congressional intent.
And we have to do that from the clues that are at our disposal.
And the clues at our disposal include the language and the structure of the statute and our assessment of how the statute is going to work in practice under various schemes that Congress could have created.
And we have to assess those in light of what Congress is trying to do in the Sentencing Reform Act.
What Congress was trying to do was to bring rationality and uniformity and consistency to sentencing.
And to make sure that similar offenders would get similar sentences and serve the same amount of time.
And that the sentence that the court gives would be the one that was served.
And what we're saying is you can't look at those purposes and then infer that Congress wanted to create this elaborate system that in practice would subvert those purposes.
It's more elaborate--
Unknown Speaker: There's nothing elaborate about the system.
Mr. Wax: --Well, what we're saying is, just to say it perhaps more modestly, is that Congress took a workable, well-oiled system, one that it had never complained about... there's no grumbling in the Sentencing Reform Act legislative history about it.
There's no hint that there was anything wrong with it, even though Congress complained about a lot of other things in sentencing when it enacted the Sentencing Reform Act.
And they changed it.
Now, what purpose would changing it serve?
I can't think of a reason why Congress would want to just change it.
Unknown Speaker: Well, I suggested one to you.
One is that if there are disputes, let the judge resolve them.
That seems to me a perfectly normal and rational answer to this.
Mr. Wax: But the Bureau of Prisons was resolving them and resolving them in a way that afforded administrative... that afforded judicial review that lifted from the courts the burden of essentially doing a bean-counting operation, one that could get complicated perhaps, at times, and which might give rise to disputes, but really is just an administrative matter of applying rules to facts, finding out those facts, and ticking off days.
I mean, what you're saying is Congress took something that was being done perfectly well by an administrative agency and sent it back to the courts.
Unknown Speaker: When did this particular language appear in the Sentencing Reform Act?
Mr. Wax: The Attorney General language, Your Honor, or the absence of the Attorney General language?
Unknown Speaker: The absence of it.
Was it on the initial draft when it was first proposed?
Do you know?
Mr. Wax: Your Honor, I don't know the answer to that.
There's no explanation for... I don't know where it... when it appeared, I must say.
Unknown Speaker: Do you know if the... I would think the Attorney General would have raised a big stink about this somewhere in the process.
Mr. Wax: It appears to have been overlooked, Your Honor, unfortunately.
Unknown Speaker: Especially by the Attorney General.
Mr. Wax: Yes.
Well, it is unfortunate because I'm sorry to say that we don't understand why the language was deleted, but we would just speculate that it was an entrenched feature and nobody thought about it.
Unknown Speaker: Well, the other side of the coin is, of course, that if Congress had intended to change it, it would have said something to that effect.
And the legislative history, as I understand it, is almost silent.
Is it not, Ms. Wax?
Mr. Wax: It is, Your Honor.
And whatever weight we give to the substance of legislative history, here we have no substance at all because nothing was said.
But interestingly, the legislative history says a lot about section 3585 and the other changes that were introduced into section 3585.
The change, for example... the expansion of the scope of the custody for which credit was available, for example, that was remarked upon.
The change in the day that the sentence commences, that was also spoken about.
The fact that they added this double credit language which hadn't previously appeared.
Congress commented on that, too.
And in the Sentencing Reform Act legislative history as a whole, Congress goes on and on about the shortcomings of the previous way of doing sentencing and all of the ways in which those shortcomings are to be remedied.
And we have nothing about shortcomings at all here, no indication that there was a problem to be solved.
Now, respondent has several arguments against our position, and all of them are easily answered.
The main thrust of his argument appears to be that in sentencing reform, Congress somehow wanted to place all decisions bearing on the length of the sentence, including the release date, in the hands of the court in order to achieve uniformity and consistency in sentencing.
Now, the problem with this argument is that it confuses control over the total length of the sentence with control over the actual release date of an individual offender.
That argument, it essentially confuses passing sentence with deciding how much of the sentence is left to serve.
It's important to realize that having the sentencing court fix the actual release date in fact subverts rather than serves the goals of uniformity and consistency in sentencing.
Now the reason for that is that if the release date is fixed at sentencing, we necessarily have to ignore any periods of detention for which an individual would be eligible for credit under 3585 that come after sentencing.
Because if we take those periods into account, by definition we're going to be moving the release date.
Now if we don't take them into account, it means that similar offenders will in fact spend different periods of time in jail depending on whether their Federal sentence starts right away or it starts after a period of detention or at some later time.
And it means that the court will not be able to control the amount of time an individual spends behind bars for the very same reason.
Some individuals will spend an intervening period of detention that won't have any effect on their release date and other individuals won't.
So the bottom line is that it's impossible for a court to fix both the duration of the sentence, if we take section 3585 and sentencing credit seriously, and the release date.
Congress certainly, I think, from a reading of the legislative history, didn't care about the release date.
It cared about how long an individual was going to be behind bars for that offense.
And that means that we have to change the release date to account for intervening detention.
Unknown Speaker: I think, Ms. Wax, that if at the time the Attorney General had noticed this thing, he would have objected to it.
Mr. Wax: Your Honor, he's objecting to it now.
Unknown Speaker: I know.
That isn't what I said.
If at the time, he had noticed it, he would have objected to it, I assume.
Did he ever write a letter about this or not?
Mr. Wax: If he did, Your Honor--
Unknown Speaker: Do you know or not?
Mr. Wax: --I do not know, Your Honor.
Unknown Speaker: Well, I would like to know because if he wrote a letter and called this to Congress' attention and objected to his being cut out, and Congress nevertheless left it this way, I think it would be relevant to the decision.
Mr. Wax: It might be.
I'd be glad to try and find it out for you, Your Honor.
Unknown Speaker: And if he didn't write one, I suppose we should assume that... I mean if we have no evidence that he wrote one, then I guess we should assume that he didn't object?
Mr. Wax: No, I think we should assume that he thought that the statute--
Unknown Speaker: Well, you can't have it one way... you can't use it if it's there and not use it if it's not there.
I mean, if this is relevant stuff, we should be guided by it.
Seeing no letter from the Attorney General, we assume that he had no objection to this.
Mr. Wax: --No, I think he thought that as it stood the statute continued to give him authority to make this determination.
And that's our position now.
I'd like to reserve--
Unknown Speaker: Well, he didn't notice the language.
Mr. Wax: --Your Honor, we don't know that.
But I think if he did he would take the position he's taking now.
If there are no further questions, I'd like to reserve the rest of my time.
Unknown Speaker: Thank you, Ms. Wax.
Mr. Martin, we'll hear from you.
Argument of Henry A. Martin
Mr. Martin: Mr. Chief Justice, and may it please the Court:
We do agree in this case as to what the issue is, and that is this Court should determine what Congress intended for the determination of entitlement of jail credits under the new act.
I will, before I begin my prepared remarks, try to answer Justice White's question.
We reviewed the legislative history, at least, for all the prior versions of this particular statute once Congress began to consider sentencing reform.
I can't say that I've reviewed each version of the statute, but each version of the legislative history for that statute is the same as the legislative history for the current statute.
It would appear from that that probably prior versions of this section of the Sentencing Reform Act were the same as the current section of the Sentencing Reform Act, which is now law.
Unknown Speaker: Who... as originally introduced, was the bill... did the bill contain this language?
Mr. Martin: I don't know that.
The legislative history was the same for the original version, so I suspect that it was.
I had not reviewed the prior versions except for the legislative history of the prior versions.
And there's no mention in the legislative history on those prior versions of the Attorney General, so I'm assuming the prior versions of the statute were the same.
Unknown Speaker: I guess we'll have to read the law.
Mr. Martin: I'm sure Ms. Wax and I both will be more than happy to provide supplemental briefs.
The... our position, the position of the court of appeals was that Congress in reforming sentencing in Federal courts intended for the district courts to make a determination on jail credit for a sentenced individual.
It's our position that that approach is not only more logical and workable than the approach presented by the Attorney General, but it is more consistent with congressional intent as expressed in the legislative history and in the enactment of the Sentencing Reform Act.
I think in order to understand how it's more logical and sensical, it might be helpful if I can relay to the Court how I would envision this operating under our proposal and then how I would envision this operating under the Government's proposal.
The process would start out the same in either event.
An individual would commit an offense, there would be an arrest by somebody, either Federal or State.
There would be a determination as to detention or release pretrial.
At some point there would come a determination appeal to... either by a guilty plea or by condition by at trial.
And at that point the two systems would begin to diverge.
Under the proposal that we have, the next thing that would occur would be a presentence investigation and report prepared by a probation officer under the direction of the court with the assistance and involvement of both parties, both the defendant and the United States Attorney.
That presentence report would include the prior record of the individual, including any pending charges, any pending sentences.
It would include a report to the court as to any prior incarceration or confinement of the defendant, whether or not he was in custody for any or all the portion of the time of the charge until disposition of the case.
It would also include a calculation of the appropriate guideline sentence, a recommendation of what the guideline sentence should be, a recommendation as to whether or not there are any grounds for departure above or below the applicable guideline range.
And under our proposal, the recommendation also as to what amount of jail credit the person is entitled to, and if there are other sentences pending or imposed unserved, a recommendation as to whether or not the current sentence should be concurrent or consecutive to any prior sentences.
At that point, then, this presentence report would be distributed to the parties.
If there was any objection about any of those matters in the presentence report, both the attorney for the defendant and the attorney for the Government would have an opportunity to notify the court and each other of those objection.
Any that remained contested at the time of the sentencing hearing would be subjected before the court to factfinding to the presentation of witnesses or documents, if necessary, by argument of counsel, and ultimately by determination by the court.
The court would then determine what the applicable guideline range is.
Based upon that guideline range, whether or not a sentence of probation or incarceration was appropriate, whether or not there were any circumstances indicated a departure above or below the guidelines was appropriate.
It would then determine if there's going to be incarceration--
Unknown Speaker: Well, Mr. Martin, the problem doesn't lie with all that.
The problem lies with what happens after the sentence is handed down.
Mr. Martin: --Yes, ma'am.
Unknown Speaker: Are you going to talk about that?
Mr. Martin: Yes, ma'am.
The next thing the court would do would then turn the sentence and make a decision, under our proposal, whether or not the defendant had any prior jail credit that should come off of that sentence and also decide whether it is concurrent or consecutive.
That issue then, addressed by both parties, would be part of the case that could go up on appeal.
So there would be a final determination at that time as to any contested issues, entitlement to jail credit.
Once that matter was resolved once and for all, the person would go off and serve his sentence.
Under the Attorney General's proposal what would happen is the district court at the time of sentencing would determine all of these issues except for jail credit.
There may be 5 days of jail credit at stake, or may, as in this case, be 429 days of jail credit at stake.
The district court under the Bureau of Prisons' approach, and the Government's approach would not make any determination officially as to what impact that jail credit would have.
It would decide only what the length of the sentence would be.
The person would then go off to the Bureau of Prisons if it's an incarceration sentence for a determination at some point in time later by the Bureau of Prisons as to the entitlement to jail credit.
And there are two or three things about the way that would happen that I think make it clear that Congress would not have wanted this to happen.
It's going to occur at the first place, let's say, in some remote facility from the district of conviction.
In Mr. Wilson's case, he's incarcerated at Marianna Prison in Florida, which is a different district and different circuit from the district and circuit of conviction.
It would also occur at a time... at a place and in a point remote in time from the sentencing process.
He would have gone... when he arrived at Federal custody, he would have initially been held by the marshals for some period of time, awaiting transportation, would have then been in transit from anywhere from weeks to months before he arrived at the institution designated by the Bureau of Prisons.
At some point in time after his arrival there, he would have a meeting with a staff member of the prison who would make an initial informal decision.
If he was unsatisfied with that, it would then go to... he would then submit a written complaint, which would then be responded to by the warden of the prison.
If he were unsatisfied with that determination, he would then go to the regional director of the Bureau of Prisons, in writing.
He would get a response to that.
If he were dissatisfied with that response, he would then go to the general counsel of the Bureau of Prisons, in writing, for a response.
If he were dissatisfied at that point... and by now we're probably months, if not a year from his arrival in Federal custody.
At that point, he would then initiate litigation.
And I agree with Ms. Wax that the most likely form of that litigation would be an action under 2241, a habeas corpus action challenging the execution of his sentence.
Unknown Speaker: Mr. Martin, I mean, it's interesting how that might work and whatnot, but can we look at the text of the statute since we don't have any legislative history.
It seems to me the Government uses the word was, and as Justice Stevens has pointed out, was would apply even if the judge is doing the job.
It isn't the word was that impresses me, it's the fact that it reads, that the defendant shall be given credit for any time he has spent in official detention prior to the date the sentence commences.
Mr. Martin: Yes, sir.
Unknown Speaker: For any time he has spent.
That indicates to me that the credit is going to be given at the time the sentence commences.
I don't see how a judge right now can give you credit for all the time you have spent prior to the time the sentence commences.
It's only the Attorney General who could possibly do that.
Mr. Martin: Justice Scalia, the reason that I think--
Unknown Speaker: Why wouldn't it say for any time he will have spent?
If they envisioned that most of this, 90 percent of it, would be done by the trial judge, it seems to me it would have read, shall be given credit for any time he shall have spent in official detention prior to the date the sentence commences.
It doesn't say that.
It says any time he has spent.
Mr. Martin: --Yes, sir.
The answer, I think, to that is that for one thing, in the vast, vast majority of cases before the district court, commencement and imposition are the same date.
Commencement of the sentence will begin for the vast majority people of sentenced in the Federal court at the time the judge bangs the gavel down because at that point he'll order the person into the custody of the Attorney General.
And at that point, under the statute, in subsection A of the statute, the sentence commences.
Unknown Speaker: But obviously, but they use the date the sentence commences because that will sometimes differ from the date of judgment.
Otherwise they could just say, you know, from the time of the sentence.
Mr. Martin: Yes, sir.
Unknown Speaker: So we have to focus on that area where there is a difference.
Mr. Martin: Yes, sir.
Unknown Speaker: And where there is a difference, if they had meant the judge to impose the sentence, it seems to me they would have said, for any time you shall have spent.
Mr. Martin: Yes, sir.
I think that I would agree on that point with Ms. Wax, that Congress may have been an little inelegant.
In the legislative history for that rather than referring to commencement, they referred to imposition of sentence, where any time accrued prior to imposition of sentence.
Now I think Congress at that point was making no distinction between imposition of sentence and commencement of sentence because, in fact, as I said before, the vast majority of cases, those are the same date.
For the few rare cases where those are not the same date, I think there are two reasons that our proposal is still the more workable.
One is in those cases where the difference, the gap in those dates works to the potential detriment of a defendant who might accrue some additional entitlement to jail credit after imposition of sentence, 2255 is still available, or 2241, whichever is the appropriate remedy, to restore that credit to the individual.
Unknown Speaker: Well, I would think that if you are right that the sentence... you say sentence begins when the judge--
Mr. Martin: Yes, sir, in most cases.
Unknown Speaker: --Is that general rule?
Mr. Martin: Yes, sir.
In most cases, because in the vast majority of cases coming before district court, the person is either going to be not in custody--
Unknown Speaker: Is there some statutory provision that says the sentence begins when the judge's gavel comes down?
Mr. Martin: --No, sir, that was my colloquial approach.
Unknown Speaker: I know.
Is it the sentence begins the moment that he is sentenced?
Mr. Martin: No, sir.
3585, the same statute we're dealing with here, subsection A, says the commencement is either the arrival at the institution or the arrival... or in custody of United States Marshals for transportation to the institution.
Unknown Speaker: Either one.
Mr. Martin: Yes, sir, either one.
In most cases, it's going to be the one where he's in custody of the marshal at the conclusion of the sentencing hearing when the judge says, Mr. Marshal, take this person into custody.
For most people, that's going to be when their sentence commences.
They're either already in Federal custody if they were detained prior to trial, as an increasing number of defendants are, or they are out of custody.
Unknown Speaker: When would it never... why would it ever be the case that it would begin only when he arrives at the penitentiary?
Mr. Martin: If the person is not in custody and is allowed to self-report to the designated institution, which happens less and less often, then the sentence would commence at the time of the arrival at the institution.
Unknown Speaker: Of course, if he's out, if he's out, why he... there wouldn't be any problem.
Mr. Martin: Yes, sir.
Unknown Speaker: Then the judge would know how much time, if any, he had ever spent before he sentenced.
Mr. Martin: Yes, sir.
Unknown Speaker: And he would also... it would also commence later if he's released on a State detainer, wouldn't it?
Mr. Martin: If he's in State custody and a Federal detainer?
I'm sorry, I don't--
Unknown Speaker: No, if he's in Federal custody, he's sentenced, there's a State detainer against him.
They turn him over to the State for the State trial before his sentence begins.
Isn't that sometimes done?
Mr. Martin: --That could happen, and what would probably happen under those circumstances, if he's in Federal custody, if he was released at some point to the State on a writ, it would be only for the purpose of judicial proceeding and he would be returned back to Federal custody to continue serving his sentence.
And this would have happened after he had commenced his sentence in any event.
This would not really deal with the custody.
Unknown Speaker: But there could be cases in which immediately following the imposition of sentence, instead of being turned over to the marshals for transportation to a Federal prison, he's turned over to State officials for transportation to some State courthouse for a trial.
And in that case the sentence would not begin until the State trial was over and he either arrived at the Federal prison or was then turned over to the marshals.
Isn't that right?
Mr. Martin: That would more likely occur when he's already in State custody to begin with and he's been borrowed under writ for the Federal court.
I think it's less likely that the Federal court, having custody of him, would release custody for anything other than just a temporary... I'm not saying that it can't happen.
Unknown Speaker: You're just saying it's unlikely.
It could happen, but it's unlikely.
Mr. Martin: It's extremely unlikely.
What is a little more likely is what happened here, and that's where a person is in State custody, either serving a sentence or pending disposition of another case is borrowed by the Federal Government under a writ.
There's some disposition, and then is returned to State custody.
In those cases there's potential either way, either for the potential loss of otherwise entitled credit, or for what the Government refers to as double credit.
I think that there are a number of things that keep those really from being a concern that Congress would have had felt to justify, keeping this in the Bureau of Prisons as opposed to placing in the district court.
One thing, in both situations, where the person is in State custody where there are parallel prosecutions.
If he's arrested by the State first, prosecuted there, not yet to disposition, also prosecuted in Federal court... which we're seeing also in growing numbers in drug cases and sometimes in gun cases... what happens in those situations most of the time is that the State parallel prosecution is dismissed.
The person is turned over for Federal prosecution and usually for Federal custody after... usually before disposition of the Federal case, and so at that point, the State case either has, or is about to be dismissed.
So there's not going to be a question of credit attributed to another State sentence and the district court will be in a position, then to measure and evaluate any prior jail credit and award it or not award it.
There also are going to be cases where the person already adjudicated and serving a State sentence is borrowed under a writ by the Federal Government for the purpose of the prosecution of the Federal case.
In those cases, under the statute he's not entitled to that credit because it's already been attributed to the State sentence that he's now serving.
The much less frequent possibility is... is actually what happened here.
I mean, this is the only case that I can find in the cases since 3585 where this has actually occurred.
And that is where the person is released by the State to the Federal Government... both charges still pending... is adjudicated first in Federal court, sentenced, then is sentenced by the State court after that.
So at the point when Federal sentence is imposed, State sentence has not been imposed.
There's no credit yet for the time in custody.
But at some point in time after that there is adjudication in State court and credit is either awarded or denied.
So there's a potential under that scenario, under this scenario, for a double credit, which Congress did intend to avoid.
However, there are adequate protections for that not to happen unless the State wants it to happen, which the State has a right for it to happen, that congressional intent will not be subverted by the district court making this determination for all the reasons that we think the district court should be making the determination anyway.
The State court at the time... in this case, at the time Mr. Wilson came into the State court for adjudication and for sentencing, the State court knew what the Federal sentence was.
These were parallel and related prosecutions, joint investigations, mutual cooperation between the law enforcement authorities.
The State court knew what the disposition of Mr. Wilson's sentence was.
At that time what they knew was that the district court had denied credit.
They awarded credit, they sentenced him to a sentence that would run concurrent with the Federal sentence, and that under State law would be consumed by the Federal sentence.
So their intent as reflected in the sentence that was imposed on him in State court, was that he get double credit, not just for time in custody prior to trial, but for all purposes.
In other words, by giving him a concurrent sentence--
Unknown Speaker: Why doesn't their intent frustrate the Federal intent?
The Federal intent only intends to credit something that has not been credited against another sentence.
Mr. Martin: --Yes, sir.
There are two responses--
Unknown Speaker: Are you saying the States have the power to frustrate the Federal intent?
Mr. Martin: --I wouldn't characterize it as frustration of Federal intent if it's a matter that's in the control of the State courts and is left within the control of the State courts by the Federal courts.
Unknown Speaker: Well, it's only left within the control of the State courts if you interpret the statute the way you want to interpret it.
Don't you think it's more reasonable to interpret the statute in such a fashion that you will be able to achieve what the statute says, and that is not to allow a credit that has been credited against another sentence.
Mr. Martin: Yes, sir.
Unknown Speaker: And that can be achieved by letting the Attorney General do it.
Mr. Martin: Not necessarily.
In fact, it's probably more likely it will... that there will be situations where it will not be achieved under the Bureau of Prisons' approach, then under the approach with the district court makes that determination.
One such scenario would be a person who is arrested by State authorities after the commission of a Federal offense, spend some period of time, say 60 days in custody, then makes bond in State court, is released.
And some period of time after that is sentenced in Federal court, receives a 6-month sentence, goes off to serve that sentence, State case still pending, unadjudicated.
At the end of 4 months, he then says to the prison, look, I've already... I've done 60 days of custody that's not been credited to another offense, to another conviction.
I'm entitled to be released.
The Bureau of Prisons would have no option at that point but to release the person.
The next day they may be adjudicated in State court, given credit for that 60 days.
And so even under that scenario... neither--
Unknown Speaker: That's a result that flows from the text of the Federal statute.
It says that has not been credited.
I mean, if he's finished his Federal sentence before the crediting by the State occurs, that's the way the statute reads.
Mr. Martin: --Yes, sir.
Unknown Speaker: But the way you want to do it, there will be... even though before his Federal sentence is completed it is credited in the State, the crediting will count.
And that's contrary to the text of the statute.
When you say it happens because of our Federal system that... I mean my point is it doesn't have to happen.
You can give force to what the Congress--
Mr. Martin: I will concede that there can be scenarios under which the district court making the determination could result in the award of double credit.
I think that those situations are so infrequent to... unlikely to occur, so few in number, that Congress would not have intended to design a system just to account for those.
That what Congress was trying to do was design a system that was consistent with the rest of the Sentencing Reform Act that would efficiently and effectively and fairly handle the vast majority of cases where this statute would apply.
Unknown Speaker: --Is one of your concerns in this case that the district judge should have before it the credit and make the calculation of the credit so that the judge can take that into account in determining the base sentence?
Mr. Martin: Yes, sir.
The Government says that--
Unknown Speaker: But then, defendants are being treated differently because if there is a credit that arises by reason of detentions that are after the imposition of the sentence but before it commences, the judge can't do that, so then you are imposing on us a regime where defendants are treated differently, which is precisely what the Congress did not want.
Mr. Martin: --I think, Justice Kennedy, that if you assume that Congress intended for this decision to be made at some point in time, at some precise point in time, either imposition of sentence or commencement of sentence, if those are different dates, that if the decision is made at a precise point in time, there are going to be people who for arbitrary reasons fall on one side or the other of that line.
And as a result only of that arbitrariness receive or don't receive credit.
For instance, if the line is to be drawn--
Unknown Speaker: Well, it's not arbitrary if the Bureau of Prisons does it, because it's all after the fact, and under the Government's position, the judge would be encouraged to set the base decision without reference to the credit time, which it seems to me quite a logical design of the statute in any event.
And under your system, that would not happen.
Mr. Martin: --There are two possible... and these are not articulated in the Government's brief... there are two possible alternatives the Bureau of Prisons make in this determination.
One would be that they make it as of the facts existing at the time of the commencement of the sentence with no change after that.
The other scenario would be the Bureau of Prisons making the decision and reevaluating or changing the decision at any time during the service of the prison sentence.
That scenario is the one that they articulate in their brief, and that's the only scenario that I think would avoid any possibility of an aberration of what Congress intended under 3585, because otherwise if you say it can't happen after commencement of sentence, then the person who is sentenced in State court after that or before that, you have this disparity only because of that date.
If this Court were to find that the Bureau of Prisons should make this determination and that the determination is subject to revision throughout the course of the person's incarceration, then that's a result, I think, that just goes directly in the face of everything Congress was saying about certainty of sentencing and certainty of release date.
I think that all of the language talking about parole, about good-time credits, where Congress says that these result in a prisoner not knowing until the date that he or she is released what that release date is going to be is contrary to the purposes of sentencing as we see them.
That it's important for the prisoner and for everyone to know at the date of sentencing what that release date's going to be subject only to reduction by good time.
So that the only absolute way to insure that there's no aberrational application of this statute is one that would allow its revision up through the very release of the prisoner from the institution.
That, however, I find is so contrary to what Congress was trying to do, that I don't think Congress could have planned to do that.
Sentencing credit, jail credit for an individual is not just some technical manipulation of a sentence, as the Government would have this Court believe.
In this case and in most cases where there is prior credit, it's going to have a significant impact on when that prisoner's released from the institution.
And while the Government may say there's a distinction between determining duration of sentence and determining release date, the number one thing on the mind of the individual in the institution is when do I get out of here.
Unknown Speaker: You don't suggest, do you, Mr. Martin, that there's discretion confided to whoever determines sentencing credit?
Mr. Martin: No, sir.
Congress, in addition to deleting the Attorney General from this process, narrowed substantially the discretion.
What it left basically was there are about two or three factors to be resolved, and based on what those factors are, you either get the credit or you don't get the credit.
Unknown Speaker: So while it's obviously important to the defendant, it does not depend on any peculiar merit of his.
Mr. Martin: Oh, no, sir.
It depends on the facts in his case and the nature of his confinement, if any, prior to trial and the nature, if any, of the prosecution.
Unknown Speaker: I'm still not entirely clear, because I think sometimes you didn't quite complete your answers before, but how do you handle the case in which after the trial judge imposes the sentence, there's an appeal and the defendant is out on bond.
And say a year or so goes by.
And during that year, the question arises to whether some jail time should be credited or not.
How do you handle that case?
Mr. Martin: There are two ways.
For one thing, if it's on appeal and it comes back for resentencing, then it can be accounted for at the resentencing, if whatever is going to happen has happened during that period.
Unknown Speaker: Well, let's say it doesn't.
There's no order to resentence, they just affirm.
Mr. Martin: A couple of different ways.
If it turns out that during that period of time the person accrues additional time of official detention, which is what the statute now says, that's not attributed to another conviction, that can be remedied under 2255.
And I think at that point it would be 2255 rather than 2241 because under my theory this determination is part of the imposition of sentence.
And so we come back to the district of sentencing under 2255.
Unknown Speaker: All right.
That takes care of the case where he gets additional credit.
Mr. Martin: Yes, sir.
Unknown Speaker: What if the event that transpires in the interval is one that makes it clear that he is not entitled to a credit that he might have been entitled to?
In other words, say that you don't know whether the State was going give him credit for some time in custody, but you find out during this interim.
What do you do about that case?
Mr. Martin: I think that in that case that the concern then is that he not receive double credit.
Unknown Speaker: Correct.
Mr. Martin: Now I think that that concern is going to be resolved basically by the State court.
And that there will not be double credit of the kind that Congress sought to avoid--
Unknown Speaker: Now you don't have a Federal answer to that question under your approach?
Mr. Martin: --No, sir, not effectively.
And I think the circumstances where the State can't prevent double crediting are going to be so unique and so remote... and I'm not even sure that it would occur.
I can't say that they absolutely wouldn't.
In this case in particular, if the State had not wanted Mr. Wilson to have double credit, they could have either made it run consecutive, they could have increased the amount of time that he was going to receive in his State time, they could have not released him on parole, they could have made up that 429 days, even though the Federal court had given him credit for that.
I think in the... in the end analysis for the vast majority of cases that will come before a court, the resolution of this issue by the factfinding and legal determination process of the court at the sentencing hearing is a much more workable process.
Unknown Speaker: Let me ask you one other question.
Under your reading of the statute, would it be error for the judge to say as of today it appears that this is the credit that's warranted.
But there is an issue that can't be resolved until after the appeal process transpires.
I therefore order the Attorney General at the end of the proceeding to make the appropriate disposition at that time.
In other words, could he delegate... could the judge delegate the decisionmaking authority for these small category of cases to the Attorney General to be decided on the basis of the intervening events?
Would that be inconsistent with the statute in any way?
Mr. Martin: It could result in an inconsistent outcome.
If that were to result in that happening in a number of cases, and the Bureau of Prisons handling that question like they handle it now, where it takes months and months and winds up having to come back to court anyway, I don't think Congress would have intended that.
I think Congress would have preferred the decision is made now based on the facts known to the court.
That kind of shared jurisdiction, I think Congress probably actually didn't have in mind.
Just actually counting up days, you know, once the court determines what the timing is, I think the Bureau of Prisons will do that and Congress had anticipated that they would.
One last point I would like to make.
Of the cases that have interpreted 3585 since its enactment, the vast majority of the issues involved in those were questions that were based on facts known at the time of sentencing that were justiciable questions that the court could and should have resolved.
The questions of the nature of the detention, whether or not that equates with official detention and custody, questions of entitlement.
And questions that could and should be resolved by the District court at that time.
And if done so, would be much more consistent with purposes of the Sentencing Reform Act.
Unknown Speaker: Thank you, Mr. Martin.
Ms. Wax, you have 2 minutes remaining.
Rebuttal of Amy L. Wax
Mr. Wax: Just a couple of quick points.
First of all, it's very important to realize that the sentence does not begin in the Federal system at sentencing and a delay between sentencing and the advent of sentence is very, very common.
Individuals are given time to put their affairs in order, or they're put out on appeal bonds.
They're on a State detainer.
They were in State custody before they went over to the Federal side, as this respondent was.
Delays are common and detention can occur.
Unknown Speaker: But most of the time those delays won't result in any additional credit.
Mr. Wax: They sometimes will, Your Honor.
Unknown Speaker: They sometimes would, I understand.
But most the time they wouldn't.
Would that be right?
Rebuttal of Henry A. Martin
Mr. Martin: As a numerical matter, yes, most sentencing credit issues are routine issues involving presentencing credit.
But the number of instances in which there is postsentencing detention for which an individual could get credit, those instances are considerable.
Sometimes individuals are held on the State side, the charges are dropped, the individual's given probation, so his State presentence time doesn't count towards anything.
His State conviction is overturned.
All of these scenarios can happen.
Unknown Speaker: And even in those cases where it doesn't make any difference in the sentencing, it at least explains... it leaves unexplained why the phraseology is for any time he has spent in official detention prior to the date the sentence commences.
Rebuttal of Amy L. Wax
Mr. Wax: Exactly, Your Honor.
Unknown Speaker: It's an unnatural way to put it if this kind of a situation is common.
Mr. Wax: --It certainly doesn't fit with the language and it doesn't fit with the reality, either.
My second point, of course, is that respondent does concede that some double credit awards simply will not be corrected.
There will be windfalls.
Individuals, who through an accident of timing, get a second award of credit by the State after sentencing will get to keep it.
The individuals who get the award against a State sentence before their Federal sentencing will not get to have a second award.
That's a completely arbitrary result.
Congress could not have intended that result, which goes against all of the goals of the Sentencing Reform Act.
And my third point is respondent makes a lot out of the possibility of putting all the information bearing on sentencing credit in the presentence report.
If you read the sections of the Sentencing Reform Act that govern what goes into a presentencing report, Rule 32 section 3552, not a word is said about you need to find these facts and put in this information so that the court can make a credit determination.
Not a word is said.
Chief Justice Rehnquist: Thank you, Ms. Wax.
You time has expired.
The case is submitted.
Argument of Speaker
Mr. Speaker: The opinion of the Court in No. 90-1745, United States against Wilson will be announced by Justice Thomas.
Argument of Justice Thomas
Mr. Thomas: This case comes to us on a writ of certiorari to the United States Court of Appeals for the Sixth Circuit.
The respondent, Richard Wilson committed extortion and other crimes in Tennessee.
State authorities arrested Wilson and held him in jail pending the outcome of simultaneous state and federal prosecutions.
The United States District Court eventually gave Wilson a 96-month sentence.
Wilson appealed to the sentence to the Court of Appeals for the Sixth Circuit arguing that the District Court should have given him credit for the time that he spent in state jail.
The Court of Appeals for the Sixth Circuit agreed with Wilson and reversed the District Court.
In an opinion filed today with the Clerk's office, we now reverse the Court of Appeals.
A federal prisoner has a right to receive credit for certain pre-sentenced jail time under 18 U.S.C. Section 3585(b).
We conclude, however, that a District Court may not award this credit at sentencing.
Section 3585(b) gives a defendant a right to credit for "any time that he has spent in official detention before his sentence begins".
Calculation of this credit cannot occur at sentencing because a defendant's total detention time remains unknown until he actually goes to prison.
In our review, the credit must be determined as an administrative matter once the defendant begins to serve his sentence.
Justice Stevens has filed a dissenting opinion which Justice White has joined.