Transcript

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES, Petitioner v. ROY LEE JOHNSON

No. 98-1696

December 8, 1999

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m.

APPEARANCES:

BARBARA B. McDOWELL, ESQ., Assistant to the Solicitor General, Department of Justice, on behalf of the Petitioner.

KEVIN M. SCHAD, ESQ., Cincinnati, Ohio; on behalf of the Respondent.

PROCEEDINGS

(10:02 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 98-1696, The United States v. Roy Lee Johnson.

Ms. McDowell.

ORAL ARGUMENT OF BARBARA B. McDOWELL

ON BEHALF OF THE PETITIONER

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

This case concerns when a Federal criminal defendant's term of supervised release begins. The unambiguous text of 18 U.S.C. 3624(e) provides the answer. That section states that a defendant's term of supervised release commences on the day he is released from imprisonment.

It further states that a term of supervised release does not run during any period in which the defendant is imprisoned, except for a period of less than 30 days. Until a defendant is actually released from prison, his supervised release does not begin. The statute provides --

QUESTION: Suppose that you don't have the situation which existed here, where he was wrongfully convicted and serving a term on a wrongful conviction, but suppose that just in violation of his rights the prison keeps him in for 3 years after the -- his term of proper conviction had actually expired. Do you think we'd be obliged to have him serve his term of 3 years' supervised release after those 3 years of wrongful imprisonment had already occurred?

MS. McDOWELL: Yes, Your Honor. He would have no remedy that's based on his supervised release term that would be automatic.

QUESTION: Well --

MS. McDOWELL: He could, however, move under section 3583 for reduction in his term of supervised release.

QUESTION: Which would be discretionary, with approval?

MS. McDOWELL: That would be discretionary, yes.

QUESTION: Well, I -- it doesn't seem to me this ought to be discretionary.

MS. McDOWELL: That would --

QUESTION: Why can't we interpret the words, does not run during any period in which the person is imprisoned in connection with a conviction, why can't we interpret that to mean reasonably, properly imprisoned in connection with a conviction?

MS. McDOWELL: Well, that would still be inconsistent with the earlier sentence in that same provision that says the term of supervised release commences on the day the person is released from imprisonment. That seems to contemplate actual release, not could have been, should have been, or would have been released.

QUESTION: What is -- is there a statute that governs the service of consecutive sentences?

MS. McDOWELL: Yes, there is. There's a statute that provides that for administrative purposes all sentences will be aggregated. That's section 3584, I believe.

QUESTION: And all sentences shall be aggregated, what does that mean?

MS. McDOWELL: That has the effect of, if one sentence happens to be vacated defendant will automatically receive credit against a subsequent consecutive sentence.

QUESTION: Suppose the statute didn't read that, and suppose that a person is serving consecutive sentences under a provision either in the statute or in the judicial sentence which says his time for the second conviction shall not begin to run until the service of his time for the first conviction has expired, all right, and then it turns out that the first conviction was improper. He served 5 years in prison wrongfully. You'd still put him in for the next 5?

MS. McDOWELL: We would still require him to serve a term of supervised release if there was still a term of --

QUESTION: I'm not talking about supervised release. I'm talking about a second conviction. He's serving consecutive terms.

MS. McDOWELL: The courts --

QUESTION: The first term is invalidated. They're both 5 years --

MS. McDOWELL: Uh-huh.

QUESTION: 5-year terms. The first term is wrong. He shouldn't have been there on that first term. He served 5 years.

MS. McDOWELL: Uh-huh.

QUESTION: And then you say, well, sorry for that mistake, but here's the second term of 5 years. We want you to serve that now.

MS. McDOWELL: There could conceivably be a due process problem with that. The courts haven't addressed that particular issue, perhaps because the United States Government has this aggregation provision and States have similar provisions as a result of statute, or court decision.

The due process question has come up typically in the context of whether a vacated State sentence has to be credited against a Federal sentence still to be served, or vice versa, and the courts have held there's no due process problem in those circumstances because of the dual sovereignty.

QUESTION: Right. Right.

MS. McDOWELL: This could conceivably be a different situation.

QUESTION: But if it were the same sovereign there might be a due process problem?

MS. McDOWELL: There could conceivably be.

QUESTION: Why might there not be a due process problem where the second sentence is a sentence to supervised release?

MS. McDOWELL: Because supervised release serves different purposes than a term of imprisonment. It's supposed to assist the defendant's transition into society and to protect the community.

QUESTION: But you're not -- I mean, it may serve different purposes, but you're not entitled to force someone to undergo it except as punishment for a crime, right?

MS. McDOWELL: That's true, but in this case, in the case I conceive we're talking about, the defendant still has a valid term of supervised release attached to a valid conviction. We wouldn't, of course, insist that a defendant --

QUESTION: Oh, but --

MS. McDOWELL: -- serve a term of supervised release otherwise.

QUESTION: -- you say there may be a due process problem in forcing him to serve the second conviction. Why wouldn't there be a due process problem in forcing him to serve the supervised release that is a punishment for the second conviction? It may serve rehabilitative purposes as well, but it's a punishment.

MS. McDOWELL: It may be --

QUESTION: And if there is a due process problem, why shouldn't we strain to interpret this statute in order to avoid the due process problem?

MS. McDOWELL: Well, the only conceivable due process problem would be in the context of two terms of imprisonment. We conceive that since the purposes of supervised release are so different, and because they are so much less intrusive on a defendant, and because a defendant has an opportunity to get out of the term of supervised release after 1 year, based on his behavior and the interest of justice, that it's not the same situation.

QUESTION: At the discretion of the court.

MS. McDOWELL: At the discretion of the court.

QUESTION: That's very nice.

QUESTION: If a conviction were set aside, it wouldn't just be the prison term that was set aside. It would be the supervised release, too, would it not?

MS. McDOWELL: That's correct, Your Honor, but in this case there are still valid convictions to which the term of supervised release was attached.

QUESTION: Now, here, the supervised release was ordered in connection with the drug offenses which --

MS. McDOWELL: That's correct.

QUESTION: -- were not the offenses, the gun-related offense that was wrongfully imposed?

MS. McDOWELL: That's correct, Your Honor. There were in fact two drug offenses, each of which carried a mandatory term of supervised release of at least 3 years.

QUESTION: And what has happened to this -- to Mr. Johnson since the Sixth Circuit decision? Has he been on supervised release or not?

MS. McDOWELL: No. He had been on supervised release under the district court's decision --

QUESTION: Uh-huh.

MS. McDOWELL: -- and served somewhat in excess of 2 years on supervised release. He was then released immediately --

QUESTION: And off --

MS. McDOWELL: -- upon the court of appeals decision.

QUESTION: -- supervision, and the consequences of a reversal here would be that he would go back on for a period of --

MS. McDOWELL: That's correct. He would still have approximately 9 months more to spend on supervised release. He would, of course, have the opportunity to move under section 3583(e) for a reduction or termination of that term.

QUESTION: Would you oppose that motion?

MS. McDOWELL: Not knowing the particular circumstances of this defendant --

QUESTION: I mean, this is Christmas time, almost.

(Laughter.)

MS. McDOWELL: -- it's difficult to say. The Government has in a number of cases involving similar Bailey defendants not opposed a motion for early termination.

The court of appeals relied on another section of the same statute, section 3624(a), to hold that this statute is ambiguous. We disagree. Section 3624(a) says nothing about supervised release. Much less does it suggest that a defendant is entitled to a remedy of a credit against his term of supervised release if he ends up spending more time in prison than in retrospect he should have spent.

Indeed, section 3624(a), which states simply that the Bureau of Prisons should release -- shall release a prisoner at the expiration of his term of imprisonment, is not even violated in this circumstance, where the Bureau of Prisons releases the defendant on the very day specified under the sentence imposed by the district court.

QUESTION: What of the argument that you have to give credit for even periods of liberty erroneously granted, that that counts against the sentence if they let you out by mistake, and then you get it all back, the time that you were out counts as part of your sentence, and the anomaly that you don't get credit for time wrongfully served in prison?

MS. McDOWELL: It's questionable, Your Honor, whether the doctrine that you're referring to, the common law doctrine, has any continuing validity. As Judge Posner noted in a 1994 opinion, it hasn't been applied to a defendant's benefit in many years.

We would suggest that the clear language of section 3624(e) supersedes the common law in this regard. Also, this doctrine --

QUESTION: You could argue that that rule is thoroughly in accord with the rule that you're arguing for. That gives the Government, that deprives the Government of incarceration time to which it is entitled, just as the position you're arguing for deprives the defendant of freedom time to which he's entitled, so maybe there's a certain equity in that, I guess.

MS. McDOWELL: Well, the doctrine has been applied only in circumstances where the Government is negligent or at greater fault. Certainly in these circumstances, where a defendant has been held under a valid conviction that was correct under Sixth Circuit law until Bailey, it's difficult to find any fault on the part of the Government similar to those in the constructive parole cases.

QUESTION: Do you agree with Justice Scalia's comment that this statute has a punitive -- that supervisory release is a form of punishment?

MS. McDOWELL: There may be punitive aspects to it, Your Honor.

QUESTION: It's not entirely punitive.

MS. McDOWELL: It's principle purpose, as conceived by Congress, was not punitive.

QUESTION: At least there is an element of punishment here.

MS. McDOWELL: There may well be, yes.

QUESTION: And what is that element, simply the fact that he is required to report periodically, or what-not?

MS. McDOWELL: Your Honor, that's part of it. That's not all that supervised release entails, however.

QUESTION: He's deprived of certain liberties that ordinary citizens don't have, isn't that right?

MS. McDOWELL: Well, he's required, for example, to maintain a job, to go to substance abuse counseling --

QUESTION: Right.

MS. McDOWELL: -- not to leave the district without seeking permission from his probation officer or the court --

QUESTION: Cannot carry firearms.

MS. McDOWELL: That's correct.

QUESTION: What's the -- what is the rehabilitative aspect of it? I mean, part of the Government's argument is that this is for his benefit to ease his transition back into society. Is there anything beyond what you have just described that helps him ease his way?

MS. McDOWELL: Yes. For example, one of the standard conditions of supervised release, and one of those imposed in this case, is the defendant work regularly at gainful employment. The probation officer, working with the defendant, will put him in touch with potential employers, or with job placement agencies, and will monitor his performance on the job. This provides a certain amount of assistance and discipline to assist in his rehabilitation.

Similarly, a condition --

QUESTION: It's a lot like parole, then?

MS. McDOWELL: It's quite similar, in this aspect, to parole. Parole was different in that it was not a separate term of a defendant's sentence. It was simply served at the end of a term of imprisonment. That's why this issue didn't come up during the parole era.

QUESTION: If this defendant were to violate his terms of supervised release, what would be the maximum liability that he would have for that violation?

MS. McDOWELL: Conceivably, at least 4 years. The period of -- to which a defendant can be sentenced to imprisonment for a violation of supervised release is set forth in the statute. It's been held by several courts of appeals that terms of imprisonment upon revocation of supervised release can run consecutively, even if the terms of supervised release themselves run concurrently.

So in this case, since there was supervised release imposed on the two drug counts, conceivably Mr. Johnson could be subject to 4 years.

The Bureau of Prisons has, in fact, construed the crediting statute, 3585, to give a defendant whose supervised release has been revoked credit against his subsequent sentence for any time that he erroneously spent in prison previously.

If there are no further questions, I'll reserve the remainder of my time.

QUESTION: Very well, Ms. McDowell.

Mr. Schad, we'll hear from you.

ORAL ARGUMENT OF KEVIN M. SCHAD

ON BEHALF OF THE RESPONDENT

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

The respondent does not argue that it should -- that the respondent should have -- that the Government is entitled to its pound of flesh in this case. The problem with this case has always been that the Government has always sought 3 pounds of flesh where it's only entitled to 1.

If you look at the procedural history of this case, the Government argued for two consecutive 924(c) charges which were later overturned by the Sixth Circuit en banc court.

The original sentence in this case was 171 months' imprisonment with the 3-year supervised release. Upon the Bailey case we filed the 2255 motion and were able to overturn the other conviction, the 924(c) conviction in this case, but the Government has always consistently sought in this particular case to obtain more than which they are entitled to.

If I can address Justice O'Connor's question to the United States with regards to the relief that the United States is seeking in this case, the request for relief in this case is somewhat vague in that the United States doesn't address how it is entitled to a particular kind of relief in this case.

If you take the United States' position that supervised release began to run in May of 1996, then in May of 1999 of this year, supervised release will have ended whether or not he was actually on supervised release or not.

There is no statute which says that the period of supervised release is tolled for the time in which the court of appeals case and the --

QUESTION: What is the date May 1996? I want to be sure I follow you.

MR. SCHAD: In May of 1996 there was a bond hearing and Judge Gilmore of the United States District Court of the Eastern District of Michigan at that point overturned the 924(c) conviction. He was released on that date, May 2, 1996.

QUESTION: I see.

MR. SCHAD: And the Government's position, United States' position has been that supervised release began to run on that day, so if you take that starting date and play that out for the entire 3 years, then even now the United States is not entitled to any relief in this case.

QUESTION: Well, why does the United States say that he is not on supervised release now? How do we know that he's not on supervised release?

MR. SCHAD: Well, in -- Justice Scalia, in fact the Sixth Circuit did overturn the portion of his supervised release in its decision of August of 1998, and the decision of the Sixth Circuit was transmitted up to the probation officer and in fact he has not been --

QUESTION: I see.

MR. SCHAD: The probation officer has not been supervising him since August of 1998.

QUESTION: And there's nothing in the statute that requires that suspension to be tolled, that requires the supervised release time to be tolled by reason of that suspension?

MR. SCHAD: That's correct, Justice Scalia, and the Government, the United States did not seek to stay the Sixth Circuit's decision pending this Court's decision, so in fact, even if this Court were to decide that in cases under 3624(e) the term of supervised release only begins to run on the day they're actually released from prison, we would argue that it wouldn't make a difference in this particular defendant's case.

QUESTION: But it would until -- you said it ran out in May 1999?

MR. SCHAD: That's correct. That's correct, Justice Ginsburg.

QUESTION: So that under -- why do you -- I mean, what are we arguing about? Isn't -- under 3583 the unusual defendant who finds himself in your client's situation has a remedy. He goes back to the district court and he says, judge, I would like you to end the supervised release so it's only a year long, and during that year I would like there to be no conditions at all. So -- and the judge has adequate power to do that, doesn't he, so what's the problem?

QUESTION: And all judges are thoroughly reasonable and will come to the right decision --

(Laughter.)

QUESTION: -- tendered towards the defendant, right?

MR. SCHAD: Yes. To answer you question, Justice --

QUESTION: It's possible not all judges are thoroughly reasonable, I agree with that. What --

MR. SCHAD: To answer your question, Justice Breyer --

QUESTION: Yes.

MR. SCHAD: -- even if there were no conditions of supervised release for that term of the year that this particular defendant would have to wait until supervised release was then terminated, he still has the problem of if he would commit another crime to the satisfaction of the probation officer he then can be brought up for supervised release revocation and be given the entire 3 years of supervised release at any time during that 1 year, so even --

QUESTION: All right, so he has a special -- that kind of special burden, and then let me ask you this question. Suppose a person is convicted of a crime, A, and he has two punishments, X months in prison and a $50,000 fine.

Now, suppose he's also convicted of crime B, and he serves prison in crime B, and unfortunately that conviction was erroneous, so it's reversed after he receives some time. That's our basic situation. Not A, but B was reversed.

All right. Does the Government now have to give his money back for the fine on crime A?

MR. SCHAD: Well, Justice Breyer, in that situation I don't know if crimes A and B are necessarily related to each other.

QUESTION: No, they're not related at all.

MR. SCHAD: Okay. As a good defense lawyer I would argue that they were entitled to a portion of the fine back. I would --

QUESTION: So if he's fined solely on crime A, which has nothing to do B, and it turns out that B was erroneous, not A, he has to give back the money on crime A?

MR. SCHAD: I do not believe --

QUESTION: The Government has to give it back?

MR. SCHAD: Yes. I do not believe that I could find support for that under the law but certainly I would --

QUESTION: All right. I agree with you. I agree with you.

MR. SCHAD: Certainly I would make that argument.

QUESTION: I agree with you, and I think it would be --

(Laughter.)

QUESTION: All right. That being so, how does supervised release for crime A differ from the fine?

MR. SCHAD: In supervised -- in the time spent --

QUESTION: If you want to say, take the present case, I mean, that's what I'm --

MR. SCHAD: Okay. In taking the present case and applying it to those circumstances, we have a situation where unless this particular defendant gets credit off of his supervised release for the time that he spent in prison, he has no basis to obtain relief for the time that he had spent in prison.

QUESTION: You know, I -- you see, my question is --

MR. SCHAD: I --

QUESTION: -- if it doesn't affect part 2 of the punishment for the first crime, namely crime A, you know, why does it affect part 2, where the only difference is instead of a fine for crime A it's supervised release for crime A?

MR. SCHAD: I do understand your question, Justice Breyer, and I don't know that I have an adequate answer for it.

QUESTION: Mr. Schad, if he's fined incorrectly for crime B, can he get the money back?

MR. SCHAD: Yes. Yes, Justice Scalia.

QUESTION: If he's incarcerated incorrectly for crime B, can he get the time back?

MR. SCHAD: No, Justice Scalia.

QUESTION: So it seems fair to give him the time back by not putting him in for the additional 5 years on crime A. That's a somewhat different situation, isn't it?

MR. SCHAD: That's correct, Justice Scalia.

QUESTION: The only way to give him the 5 years out of his life back is not to have the incarcerated release tolled against him.

MR. SCHAD: Yes, Justice Scalia, and as a matter of fact there is no other way in this particular case, returning to the facts of this particular defendant, there is no other way to provide him with some relief for the time that he has spent in prison. The --

QUESTION: But what of the Government's argument that supervised release, although it may have a punitive aspect, is primarily designed to have the person monitored during his transition back into the community and, indeed, I think the Government says the serious business of the crime is not a factor in the term of supervised release, but rather the characteristics of the defendant.

MR. SCHAD: Well, Justice Ginsburg, in fact, when imposing a term of supervised release under the guidelines, the court is to look at the severity of the offense. There's classes of felonies that are -- there's A, B, C, and D type class felonies, and depending upon the severity of the felony, that in turn makes the minimum supervised release term larger.

So in fact the sentence itself, or the crime itself does have a bearing on supervised release, and although the respondent would admit that there are some rehabilitative aspects of supervised release, that doesn't mean that the converse is not also true, in that incarceration, although it's punitive in nature, does also have aspects of rehabilitation.

In the Bureau of Prisons a defendant can obtain his GED while he's incarcerated, he can obtain a trade, he can work in UNICOR and obtain a trade that way, or he can go to a specialized vocational school, he can take classes such as family parenting and different classes like that, so in fact incarceration is also rehabilitative in and of itself also, so the mere fact that supervised release is not solely punishment does not mean that you cannot give credit one for the other in this case.

QUESTION: But there's certainly a difference in degree at least, isn't there, from the rehabilitative aspects of supervised release as opposed to a prison?

MR. SCHAD: Yes. Yes, Mr. Chief Justice, and in fact in this case I am confident that the defendant would have certainly wanted to take the 2-1/2 years and served it on supervised release rather than be wrongfully incarcerated in this case.

QUESTION: Mr. Schad, the difficulty I have with your position is this. If I thought we were writing on a totally clean or unwritten slate here, I would say yes, we ought to try to tinker with the mechanism of supervised release in order to give at least as much credit as can be given for what the Government wrongfully exacted from him.

But the slate isn't clean, and when I look at the supervised release scheme in the statute I see that Congress in effect has said, there are two ways you can tinker with it. You can reduce the supervised release term down to a year, and you can, in fact, remove or eliminate some of the customary conditions of supervised release during the period in which it runs.

And that seems to suggest to me that Congress is saying, this is the only kind of tinkering you can do. If you find equitable grounds to do these things, you can do them, but equitable grounds do not give you a basis for doing anything more than this, so it sounds to me as though Congress has in effect circumscribed and intended to circumscribe the court's discretion here.

Is there an answer to that problem that I have?

MR. SCHAD: Justice Souter, in this particular case, and with these particular facts, I would agree that Congress has spoken in those two particular areas, but in fact Congress presupposes -- when it writes as to those issues it presupposes both a valid conviction and a valid term of supervised release.

If you look at 3624(a) and 3624(e), both of those presuppose that there is a valid term of conviction and a valid term of supervised release. I would submit that Congress never considered, and in fact the Sixth Circuit also agreed with this --

QUESTION: But isn't it true that we do have a valid conviction and a valid term of supervised release? He's already served the time on the valid conviction, but we do have a valid conviction.

MR. SCHAD: As to the -- yes, as to the drug offenses he does have a valid conviction, but as to the 924(c) counts, it was not a valid conviction when it was originally imposed by the sentencing court.

QUESTION: But the supervised release term is not dependant entirely on the 924(c) count, is it?

MR. SCHAD: No. No, Justice Stevens.

QUESTION: Suppose he's released improperly. There's an administrative snafu in the prison, and he's released prematurely from the sentence that he's validly serving. Does the supervised release time begin to run? While he's out, do they credit him for supervised release time?

MR. SCHAD: Yes.

QUESTION: They do?

MR. SCHAD: Yes, they would, until the Government would bring him into court and request, I guess, anticredit --

QUESTION: That he be reincarcerated?

MR. SCHAD: Yes.

QUESTION: So if he's walking around free for a year because there's been an administrative mistake, and then they yank him back in to serve the rest of his sentence, he would have had a year knocked off of his later supervised release time?

MR. SCHAD: That's correct, Your Honor, yes.

The bottom line in this case is that the court -- the United States is reading 3624(e) and reading that sentence alone, and states that the Congress was clearly unambiguous when it wrote 3420 -- 3624(e).

If you look at petitioner's appendix 26a, where it puts the entire 3624(e) in, if you look at the last sentence of -- of 3624(e), it states that no prisoner shall be released on supervision unless such petitioner -- prisoner agrees to adhere to an instalment schedule, not to exceed 2 years except in special circumstances, to pay for any fine imposed for the offense committed by such prisoner.

Under a literal reading of that portion of 3624(e), a defendant would not be released by the Bureau of Prisons until it agreed to this -- until it agreed to this fine schedule, regardless of whether their sentence of imprisonment had already run.

And that, if we're going to read 3624(e) literally, all the way through, then under that literal portion we have the same problem that Justice Scalia talked about in a person being wrongfully imprisoned just because the Bureau of Prisons didn't like them or whatever. We have the same exact situation, if you read that literally.

Of course, that's not what Congress intended, and the cases that I've cited indicate that if Congress' intent is contrary to what the plain language of the statute says, then in fact this Court can read it to construe the statute to Congress' intent, and I --

QUESTION: Whereas, what do you think the situation is, if he says, heck, no, I won't sign? What is the prison official supposed to do?

MR. SCHAD: Well --

QUESTION: Turn him loose anyway?

MR. SCHAD: Under a literal reading of 3624(e) it would appear to me that he has to hold them until he agrees to sign, regardless of the prison term.

QUESTION: Hold him until the supervised release period is over?

MR. SCHAD: That's correct. Well --

QUESTION: In other words, if he refuses to sign, you convert his supervised release into an additional term of imprisonment.

MR. SCHAD: And that's the --

QUESTION: Which seems to me fair enough. Why is that an absurd result? I mean, the deal is, we'll give you supervised release if you agree to this. If you don't want to agree to it, fine, we won't give you supervised release. We'll keep you right here. That seems to you very unjust?

MR. SCHAD: Yes. Yes, Justice Scalia, it is unjust because it's not necessarily one of the terms of their supervised release in --

QUESTION: Oh, but it says that. It says that.

MR. SCHAD: Yes.

QUESTION: No prisoners shall be released -- it seems to me what they're telling the prison official is, if he doesn't agree to pay, to pay the fine he owes, convert his supervised release time into additional imprisonment time.

MR. SCHAD: And in effect what you would have under that circumstance is, you would have a Bureau of Prison official making the decision as to, incarcerate the defendant for a longer period of time without any hearing, without any due process. It would just be that this determination was made, therefore we're holding him for the balance of the term.

QUESTION: Perfectly consistent with the process set out in the sentence. He has not complied with something that the Congress has said he has to comply with for supervised release. I don't see any due process question there.

MR. SCHAD: Mr. Chief Justice, when a defendant is accused of violating the terms of his supervised release, once he is out he then has a hearing before the United States district judge and he can defend himself, he has the right to counsel, and only after a finding that he has in fact violated the terms of his supervised release can he then be reincarcerated, and it's up to the judge, the sentencing judge to not only find the term of -- or find the revocation but also find the new term.

QUESTION: Well, very likely, if he felt that he had agreed to the installment schedule and the prison official was just being arbitrary and not releasing him, he would have an action for habeas corpus, the district court to tell him that he's no longer being properly incarcerated, but that doesn't go to whether Congress can exact that sort of a condition.

You're saying if the prison official improperly passes on the facts he should have a chance to challenge. Of course he does, but if the prison officer is right on the facts, the guy should stay.

MR. SCHAD: Mr. Chief Justice, I'm submitting that in fact no -- Congress did not intend for the result that the plain language of the statute intends. They didn't enact part of 3624(e) --

QUESTION: What's the best talisman, or index for deciding what the intent of Congress was? What better than the words they chose?

MR. SCHAD: Yes, Your Honor, you have -- but in order to look at the Congress' intent, you not only have to look at the exact -- or the language that we're speaking of, but you have to look at the overall structure of the statute and the related statutes that are imposed at the same time.

QUESTION: Why is this inconsistent with the other provisions, the provision -- the last sentence, that you say they couldn't possibly have meant literally?

MR. SCHAD: Well, because in any other circumstance the defendant in violation of a supervised release term is entitled to the full due process rights. This would be the only circumstance in all of the United States Code in which a defendant would not be entitled to the due process of going before the judge and having the right to counsel. This would be the only one, if in fact that was the case.

QUESTION: I don't understand what the alternative that you think Congress had in mind is.

MR. SCHAD: Well --

QUESTION: If Congress didn't want them to keep the guy until he signs the agreement, which they say he must sign, what was -- what is -- what are you supposed to do, torture him until he coughs up the agreement? What --

MR. SCHAD: No, Justice Scalia.

QUESTION: What is your alternative? How do you think that sentence ought to be played out?

MR. SCHAD: I would submit that --

QUESTION: The guy says, heck no, I won't sign.

MR. SCHAD: I would submit that any Bureau of Prisons official is, even if they do not sign is going to release them and then probably --

QUESTION: In violation of the law, which says no prisoner shall be released unless he agrees to adhere to, and he hasn't agreed to.

MR. SCHAD: Yes. I believe that any Bureau of Prisons official --

QUESTION: And that's your -- that in your mind gives a more reasonable interpretation of this statute?

MR. SCHAD: Yes. Yes. But --

QUESTION: Are you helped by the second-to-last sentence, in your view, which does conceive of the proposition that there can be concurrent running --

MR. SCHAD: Well --

QUESTION: -- and you would say this is not in connection with a conviction, so that sentence is inapplicable?

MR. SCHAD: Yes, Justice Kennedy. One of the arguments that the United States has made is that no part -- that supervised release and detention are antonyms, and therefore they can never be run concurrently with each other in --

QUESTION: And you say the statute itself acknowledges that possibility in the 30-day context when it is in connection with a conviction, and you would have to say this is not in connection with a conviction.

MR. SCHAD: That's correct.

QUESTION: The excess time.

MR. SCHAD: That's correct, and with regards -- one item that we haven't looked at is the -- how 18 U.S.C. section 3742 plays out, and how in the case where a defendant is -- where we're not looking at a retroactive application of Bailey, but we're looking at a guideline sentence that was imposed erroneously, if a defendant receives a term of, let's say, 3 years imprisonment and a 1-year term of supervised release, then if he -- if that defendant does not get through the appellate process by the time the 3 years imprisonment have occurred, then the case is mooted and the defendant in that case is not entitled to any relief.

QUESTION: Why is that so? Aren't there collateral consequences to a criminal conviction that would still entitle the defendant to appeal?

MR. SCHAD: Well, the question would be whether or not in that case there is enough to obtain jurisdiction. The only collateral consequence that some of the cases that I've cited to talks about, there's two consequences that they say are a result of that.

One of those is the fact that supervised release can be credited against for the wrong term of imprisonment, and then the second part of that is in the situation where, if a future crime is committed, that the length of this sentence could have impact on the length of the future sentence.

But then you're getting, if the only collateral consequence is that particular matter, the length of the sentence affecting the length of a future sentence that may occur somewhere down the road, then you're getting to the point where there might not be a case or controversy sufficient enough for a court of appeals to decide the matter.

So that collateral consequence is the only one that's discussed. If that's the only collateral consequence that we're talking about, I would have a question as to whether or not the court of appeals could even have the case, or whether it would be mooted at that point.

In the case where a defendant received a term of under a year, then conceivably that part of it wouldn't even make a difference, because it might not make any difference on his future sentence, so you have a situation where you have a defendant who's obtained a wrongful guidelines sentence and has no way to vindicate that wrongful sentence under 3742, which Congress clearly intended to be allowed.

QUESTION: As far as the guidelines are concerned, wasn't there a change made in response to whatever was the court of appeals decision to say that you can't go back any further than time served?

MR. SCHAD: Yes, Justice Ginsburg. That was in response to the United States v. Blake case, which was one of the cases that we cited, and I would submit that that's further evidence that the Sentencing Commission believed that you could provide credit against supervised release, otherwise they wouldn't have made the change in the sentencing guidelines to take care of that particular problem.

QUESTION: Why not? If they have one -- had precedent going the other way they'd want to remove any doubt on this subject.

MR. SCHAD: That would be the case if, in fact, that particular guideline was made retroactive, which it was not under 1B1.10.

QUESTION: Mr. Schad, would the apparent unfairness of this thing -- at least I consider it apparently unfair -- be remedied if we held that it would be an abuse of discretion for a judge not to exercise his option to remit the supervised release time?

MR. SCHAD: Justice Scalia --

QUESTION: I mean, it is within his discretion, but couldn't we say it would be an abuse in these circumstances not to --

MR. SCHAD: Is Justice Scalia referring to the 3583, the credit after the 1-year term of -- the early termination provision?

QUESTION: Right.

MR. SCHAD: Well, the problem with that, Justice Scalia, is that --

QUESTION: You still get 1 year.

MR. SCHAD: -- first you have to serve a year.

QUESTION: You still get 1 year.

MR. SCHAD: Before you can even ask. So you have that problem, and in this particular defendant's case it would make a difference, because he only had 6 months to go at the time that he was released, if he would have gotten the full credit, so he would have had to serve an additional 6 months before he could --

QUESTION: Before he could even ask, right.

MR. SCHAD: And then we still have the problem with the judge's discretion, and even if it's under abuse of discretion standard, by the time a particular defendant could get it up to the court of appeals, then we -- he would more than likely serve a lot of his term anyway.

QUESTION: Well, on the other hand, if the Government -- if the judge wrongfully allows him, the Government would have a long time to get it up to the court of appeals, so that works both ways.

MR. SCHAD: That's correct, Mr. Chief Justice.

If there are no further questions, thank you.

QUESTION: Thank you, Mr. Schad.

Ms. McDowell, you have 17 minutes remaining.

REBUTTAL ARGUMENT OF BARBARA B. McDOWELL

ON BEHALF OF THE RESPONDENT

QUESTION: The only question I have, Ms. McDowell, is how do you interpret in connection with the conviction in the second-to-last sentence? Do you say that this sentence that was being served here was in connection with the conviction, the excess portion?

MS. McDOWELL: Yes, it was.

QUESTION: Ms. McDowell, how do you -- how would the Government construe this situation, which came up in one of the hypotheticals:

An individual is prematurely released. It's a mistake. During the period of release, the individual is on supervised release. Then the mistake is recognized, the prisoner is hauled back and reincarcerated to serve some remainder of time. Under those -- and ultimately, of course, he's released again.

When the prisoner is released, this time properly, is there a credit against the supervised release time for the period of supervised release between the two incarcerations?

MS. McDOWELL: I don't believe that the situation has ever come up. If the defendant was actually serving supervised release under the supervision of the probation office --

QUESTION: Yes. He signed the form and they supervised his job and so on. They did -- everything was done, so he was actually being supervised during the period of the release. Would he get credit for it when he was released the second time?

MS. McDOWELL: He might well, Your Honor, because under the wording of the statute his term of supervised release would have commenced upon his first release from prison. It then would have been tolled when he went back to prison for the period that he was spending there, and then would start up again once he was released --

QUESTION: Well, that serves the --

MS. McDOWELL: -- so I think it's possible it would be construed that way to give him credit.

QUESTION: That serves the literal terms of the statute, which is your argument, but it does sort of undercut the theory that we need to be literal about the terms of the statute, because the prisoner in effect is in need of this supervision for whatever period of time is prescribed, and so it would seem that the literal interpretation and the rationale for being literal seem to be at odds with each other in that situation.

MS. McDOWELL: Well, the district court would still have the opportunity, if it appeared necessary to extend the defendant's term of supervised release, if it appeared necessary to serve the deterrence and rehabilitation purposes beyond the term that was initially imposed, unless it was already --

QUESTION: And hence would --

MS. McDOWELL: -- to a maximum.

QUESTION: Would likewise, then, have discretion I presume, on your theory, not to give any credit at all.

MS. McDOWELL: Effectively not to do that by lengthening a term of supervised release.

However, if it was a case where there was a maximum time of supervised release that the defendant could serve, if he had served, say, 1 year before he went back into prison there might be a limit beyond which the district court couldn't go in extending the period --

QUESTION: Basically I guess your argument is, no system is perfect, but we're going to get closer to what Congress intended if we just be literal about this. That's what it boils down to.

MS. McDOWELL: That's correct, Your Honor.

QUESTION: Of course, your answer really doesn't make everything work out okay. If he is subject to parole on another conviction, maybe even from another sovereign on a State conviction, the statute provides that his Federal supervised release shall run concurrently with that other parole or supervised release, right?

MS. McDOWELL: That's correct.

QUESTION: So suppose he has 2 years parole on a State conviction he has to serve after he's done his Federal sentence, okay. He also has a 2-year Federal supervised release sentence. They let him out early. He serves his 2 years Federal supervised release, which he would normally have been serving concurrently with his State parole for 2 years, right?

MS. McDOWELL: Right.

QUESTION: Okay. You find out the mistake, you bring him back in, he's going to have to serve another 2 years of supervised release, isn't he, or parole? He'll have to serve his State parole even though -- see what I mean?

MS. McDOWELL: That would be a matter of State law.

QUESTION: He will have lost 2 years of freedom, in effect.

MS. McDOWELL: Oh, whether he would still have to spend the term of State parole or not would be a matter --

QUESTION: Up to the State.

MS. McDOWELL: -- of State law for -- the State judge might decide that he would not have to serve in those circumstances --

On the --

QUESTION: May I ask kind of one -- just ask you to comment on one thing? One of the things that's troubling all of us, I think, is the extent to which the supervised release is really the functional equivalent of what -- the time he's already served, or its -- in its punitive aspects, and one of the provisions of the statute that provides what goes into the supervised release is the kind of a catch-all provision that the judge can impose any other condition it considers to be appropriate.

Is there -- is that as unlimited, in your view, as it sounds? I mean, could the judge require him to report every 3 days instead of every 30 days, and so forth?

MS. McDOWELL: Yes, Your Honor, if the judge felt that that was necessary to serve the purposes of supervised release.

In addition to the statute, the Sentencing Guidelines set forth the standard conditions of supervised release that should be imposed in most cases, and that provides a little more clarity to what's in the statute.

QUESTION: Do the standard conditions include a consent to warrantless searches and that sort of thing?

MS. McDOWELL: Essentially it's a consent that the probation officer may visit the defendant's home and seize whatever he happens to find there.

QUESTION: Unannounced visits and that sort of thing.

MS. McDOWELL: That's correct.

On the point that a term of imprisonment may serve some of those same rehabilitative purposes as supervised release, that may be true, but supervised release is, indeed, different, because the defendant is living in the community. It's only then that he can be expected to maintain a regular job, to receive the outpatient drug counseling that he may need, to meet his child support and other family obligations.

It's one thing, for example, for a defendant to remain drug or alcohol-free when he's in prison, where drugs are not available at all, or available only in rare circumstances, and where he is under constant and pervasive supervision. It's quite another matter for the defendant to avoid use of drugs and alcohol when he's back in the community, subject to the same pressures and influences and temptations that got him into trouble in the first place. That's one of the many reasons why supervised release is different, and why it is necessary as a rehabilitative measure.

On the point that Mr. Schad raised about the possible mooting of the case, the court of appeals held that the defendant's term of supervised release had terminated upon the issuance of the court of appeals decision. At that point, he still had approximately 9 months to serve on supervised release. Given the court of appeals opinion, it would be incorrect to assume that the defendant was still continuing in some manner to serve his term of supervised release, albeit without any sort of supervision by the probation office.

In terms of holding defendant if he fails to agree to the payment, to a fine schedule, it's our understanding that the Bureau of Prisons indeed will hold defendants in those circumstances for the period of supervised release if they don't agree to a fine schedule.

QUESTION: Instead of torturing them. I'm glad to hear that.

(Laughter.)

QUESTION: I thought they'd probably do that.

MS. McDOWELL: In terms of Mr. Schad's point on the necessity for a crediting rule in order to preserve appeals, Congress, as we pointed out in our reply brief, as dealt with that problem much more directly in 18 U.S.C. 3143, which provides for a defendant to be -- remain on release status pending his appeal if it appears that otherwise his sentence could expire before his appeal is decided.

That, of course, is available only in particular circumstances where the defendant is not a threat or a risk of flight, and where he has some likelihood of prevailing on his appeal.

Finally, Justice Scalia had inquired whether an abuse of -- it might be held to be an abuse of discretion if a district court refuses to release a defendant in these circumstances after 1 year. The statutory language doesn't seem to allow that sort of rule, because it requires the district court to consider not only the interests of justice but also the conduct of the defendant, and if the defendant's conduct does not warrant the elimination of all supervised release at that time, it would be inappropriate to release him.

The statute requires that the district court take into account a number of factors in deciding a motion under 3583(e)(1). That includes not only the interests of justice, but also the protection of the community and the defendant's continuing rehabilitation needs.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. McDowell. The case is submitted.

(Whereupon, at 10:49 a.m., the case in the above-entitled matter was submitted.)