BARBER v. THOMAS

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ORAL ARGUMENT OF STEPHEN R. SADY ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We will hear argument next in case 09-5201, Barber v. Thomas, the Warden.

Mr. Sady.

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

The phrase "term of imprisonment" appears three times in the first sentence of the Federal good time statute.

The first two times the parties are in agreement.

"Term of imprisonment" means "sentence imposed".

The third use, which sets the rate for good time credit, also means the "sentence imposed" when it's used in the phrase

"up to 54 days of good time credit towards the service of the sentence. "

Justice Antonin Scalia: But it doesn't always mean that.

I think you say somewhere in your brief that it always means that.

It surely does not always mean that.

Because in -- what is it, 3624 -- wait a minute, now.

3624(d) says that,

"Upon the release of a prisoner on the expiration of his term of imprisonment, the Bureau of Prisons shall give him clothes, money and transportation. "

Now there the expiration of his term of imprisonment does not mean the -- the assigned term of imprisonment.

It means the assigned term of imprisonment less all the good time credits he has had.

Mr. Sady: Exactly.

Justice Antonin Scalia: Unless you think they are supposed to give him his clothes, you know, several months after he leaves.

Mr. Sady: Your Honor, that is a perfect use of "term of imprisonment" to mean actual time and any good time credits earned.

Justice Antonin Scalia: Right.

Mr. Sady: And it uses the term "release".

3624(a), which says that you are released when you have your actual time served and any good time.

The flaw in the Bureau of Prisons system is that they do not give credit towards the term of imprisonment as this statute in 3624(b) dictates.

Justice Antonin Scalia: I'm not addressing that.

All I'm -- look, it -- the text says

"upon the release of a prisoner on the expiration of his term of imprisonment. "

My only point is that that -- you have to acknowledge that that is a use of the phrase "term of imprisonment" that does not mean the sentence he was given, but rather means the sentence that he served.

Mr. Sady: I respectfully disagree because it expires.

A term of imprisonment, a ten-year sentence, expires.

When you have 311 days 10 times, that means it has expired, because you also are giving those 54 days of good time credits 10 times.

Justice Antonin Scalia: That's right.

Justice Samuel Alito: But why isn't the term of imprisonment most reasonably understood to mean the term that is imposed viewed at the time when it is imposed?

So that if someone is sentenced to a term of 360 days, 5 years, and begins serving his sentence on January 1st, year 1 of the term imposed ends on December 31st of that year; year 2 of the term imposed begins on January 1st of the following year, and so forth.

Mr. Sady: Justice Alito, that would be the end of the time served for 1 year, but for the term of imprisonment, because if we assume at the end of the 365 days that person has earned maximum good time credit--

Justice Samuel Alito: Right.

Mr. Sady: --That he should receive credit towards the service of the sentence.

That means on the 365th day he should move back on the calendar a adjustment for good time and a reset for the next year.

That way, if you have a ten-year sentence, you have ten opportunities to--

Justice Samuel Alito: Well, hang on.

I understand what you are arguing, but I don't understand why the term of imprisonment changes.

We look at the -- we look at the term of the imprisonment on the day when it is imposed and the day when the defendant begins serving the sentence, and you can say: Year one ends at the end of 2010; year two ends at the end of 2011.

Why do you think that the term -- the phrase "term of imprisonment" has to change as -- the understanding of the "term of imprisonment" has to change as the prisoner progresses in serving the sentence?

I totally fail to understand that.

Mr. Sady: --It doesn't change.

It's still -- the two components of a term of imprisonment are actual time and good time credits.

So the way we are presenting it is the first year of the term of imprisonment is the 311 days of actual service and the 54 days--

Justice Samuel Alito: But you don't know whether that -- you don't know whether that prisoner is going to be eligible for the 54 days until the 365 days are over.

Mr. Sady: --That's fine.

We -- if the Bureau of Prisons determines that the person should receive up to 54 days at day 365, then they receive credit towards the service of their sentence.

That means moving it back 54 days because they didn't have to serve those days.

And then you reset--

Justice Samuel Alito: Well, I'm not sure where you get that -- I'm not sure where you get that out of the statute.

But I still don't think you have answered my question.

I don't want to belabor it too much.

On the day when the prisoner in my hypothetical begins serving his sentence, if you said, When will your first year of imprisonment -- first year of your term of imprisonment end?

You would say December 31st, 2010.

When will the second year of the term of imprisonment end?

December 31st, 2011.

That's what you would have to say at that point, because you don't know whether the prisoner will earn any good time credits.

So why do you think that the meaning of the year of the term of imprisonment changes as the sentence goes on?

Mr. Sady: --I do -- do not think it changes.

I think that it is adjusted for good time, which is exactly what Congress intended.

They said that every day, you get credit beyond time served.

They use the phrase "beyond time served" for credit towards the service--

Justice Sonia Sotomayor: Counsel, I'm -- perhaps I can, if you will permit me, rephrase Justice Alito's question in sort of the more simplistic way I looked at it.

Why is it that we have to do the calculation that you're talking about, which is start at 311 days and take back days, which makes no sense to me, or their very complicated ten-page number?

Why can't they just take 54 days at the end of every year that there is actual service, and that the time served, plus whatever number of days have been earned, you subtract it from the term of imprisonment?

So if he was imprisoned for 10 years, he got 540 days for whatever it is.

At the end of the 9th year, he made up whatever -- you added up 9 times 54, and you took it away from 10.

He serves 9 and that.

That would make sense of "beyond the time served" language that's in this provision.

Mr. Sady: --Justice Sotomayor, we are not asking -- 311 doesn't have to be the magic day of when they determine whether they should receive it.

We are saying, go ahead, assume exactly what they are doing now.

Go up to 365 days.

But they do make a determination.

At that point of making the determination, that's when they go back to 54 days and have to reset.

That way on a 10-year sentence you have 10 blocks that Congress intended to give prisoners to be able to earn 54 days in each of those blocks.

Now, the way that we were hearing it posited from Justice Alito, if we have the 54 days on top of time served without any adjustment, then we end up with a 419-year first day -- first year, and you can only fit 8 opportunities to earn the 54 days.

Justice Samuel Alito: No, not at all.

No.

At the end of -- at the end of 2010, in my hypothetical, you would take the 54 days off the end, just as Justice Sotomayor suggested.

Mr. Sady: And the--

Justice Samuel Alito: And -- but it doesn't mean that the service doesn't -- your -- your argument is predicated on the idea that service of year two begins on the 311th day.

Mr. Sady: --If there is an adjustment for good time, because "term of imprisonment" is a term of art that doesn't mean time served only.

It can mean--

Justice Samuel Alito: But I don't understand that.

I will not belabor it.

I don't understand why the parties have spent so much time sparring over that issue, which seems to me to be totally unnecessary and irrelevant.

Mr. Sady: --Justice Alito, if I could refer you to 3621(a), 3624(a), and 3624(b), each of those refers -- when they are talking about a term of imprisonment, each refers to it as "less good time".

And -- and unless you do that, the reason--

Justice Sonia Sotomayor: Well, do you do it if you take (a), and (a) says: A prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment -- 10 years, we are assuming, an imprisonment -- less any time credited towards the service of the prisoner's sentence, as provided in subsection (b).

Mr. Sady: --Exactly.

Justice Sonia Sotomayor: So each year that he served, you add up the number of days he has served, the good time credit, and you subtract them from the 120 months that you have given him, and you figure out when he's going to get out.

You work backwards, not forward, the way everyone seems to be doing.

Mr. Sady: If you do that, you only end up with eight opportunities to -- to have 54 days.

That's why it's the difference between -- I think anybody reading--

Justice Sonia Sotomayor: But that's the way the language is written.

So I mean you may want the greater opportunity, but it says by its explicit phrase: Terms: At the date of the prisoner's -- expiration of the prisoner's term of imprisonment, take that day and subtract from it time credited towards the service of the prisoner's sentence.

Mr. Sady: --We are going to -- the rate phrase is: Up to 54 days at the end of each year of the term of imprisonment.

If there is a 10-year term of imprisonment, that means there's 10 opportunities to earn 54 days.

The Bureau of Prisons' math ends up with 470 days, 70 days less.

And the reason for that is that they do not interpret "term of imprisonment" to encompass the possibility of good time.

That is the only -- because you should have 10 blocks of 365 days.

Each of those blocks, you may be able to get 54 days.

Then it's 311.

But maybe you didn't earn any time.

Then it would be a 365-block.

But the -- actually, the very good idea that Congress had was that you had an incentive at every stage of your term of imprisonment for good behavior.

Even if you were misbehaving early in your prison term, at the end you still have the opportunity to earn 54 days against that last 365 days.

It counts for every word in the statute.

It gives every statute meaning.

And it doesn't put us in the position of giving two -- two phrases the exact same meaning in the same sentence.

This Court has never found that phrases -- two phrases, uses of "term of imprisonment" in the same sentence, mean different things.

Justice Anthony Kennedy: What do you do with -- if -- it's a very short sentence?

A year and a day, in your view, is a year and a day less 54.

Mr. Sady: Yes.

Justice Anthony Kennedy: But 360 days, what do you do with that?

Mr. Sady: With 360--

Justice Anthony Kennedy: Yes.

If -- suppose it's for -- just -- the whole sentence is 360 days.

Mr. Sady: --If it says 366 days, so that the year--

Justice Anthony Kennedy: No, 360.

In other words, short of a year.

Mr. Sady: --Then it -- a 360-day sentence would not be eligible, because we -- the parties are agreed that "term of imprisonment" means a sentence of more than a year.

So it has to be more than 365 days.

Justice Anthony Kennedy: So the person that gets a year and a day serves less than the person that gets less than a year?

Mr. Sady: That is correct.

And district courts frequently address that problem.

When you have a relatively short sentence, you say: Judge, could you give us -- instead of an 11-month sentence, could you give us a year and a day sentence, so that you could earn the good time on that?

Justice Antonin Scalia: How can you earn the good time?

I mean you only earn the good time if -- if you are a good prisoner for a year.

Mr. Sady: That gets us to the--

Justice Antonin Scalia: So you are going to let him out 54 days before the year, even though he hasn't earned the good time in the year?

Mr. Sady: --He has.

Justice Antonin Scalia: What did he do?

How has he?

Mr. Sady: He has because of the last sentence in 3624(b) that says that for the last year or portion of the year, that you go ahead and establish the two-step process.

First, you figure out the projected release date, which is a release date with maximum good time.

Then you make the decision about whether the prisoner should receive that within six weeks of that -- of that projected release date.

Justice John Paul Stevens: Yes, but that still couldn't give him the full 54 days, because there's only 42 days in six weeks.

Mr. Sady: That's only a measure when you make the determination.

They -- they were recognizing that for the last period of time, or for a year and a day sentence, that you are not going to be able to do the time all the time, but you will, so that's why there is a special mechanism at the end.

Justice John Paul Stevens: But I'm saying the special mechanism can't give the full 54 days.

Justice Antonin Scalia: Exactly.

Justice John Paul Stevens: Because they don't make it until 42 days before the end of the sentence.

Mr. Sady: They make it until 311 days at the end of the sentence, because what they do is they make the -- they figure out what the maximum good time would be, which would be 312 days on a 300 and -- on a year and a day sentence, and they make that determination earlier.

They say, okay, you have been good for that period of time.

We recognize that this is going to be a problem, the same problem you would have on a sentence of 10 years and 6 months, where you have to prorate the credit, 27 days instead of 54, half, and then figure out the projected release date with 180 days, subtract the 27 days, and then make the determination sometime within the 6 weeks up to that last point.

So that there is a mechanism for understanding that it is -- that in the last year there is going -- going to be an assumption that if you are behaving all the way up to -- in the full sentence -- day 311, you should get the full 54 days.

Chief Justice John G. Roberts: I'm sure there is something wrong with this predicate to this question, but the -- the statute allows the Bureau to make a determination of good time credit within 15 days after the end of each year of the sentence.

Mr. Sady: Yes.

Chief Justice John G. Roberts: They cannot make that determination within 15 days of the 311 days.

And so 365 days.

Mr. Sady: Our position is that the Bureau of Prisons can make its determination as it pleases.

We -- we are asking the Court to do -- to construe a statute, not write a policy statement.

So we understand that there are going to be some mechanics of it.

But the mechanics in this work very easily with the assurance that they are receiving good time credit against the period of the sentence imposed by the judge.

Chief Justice John G. Roberts: You treat each year of the sentence as the 311 days if there has been good behavior, no?

Mr. Sady: Not necessarily.

We are -- I'm -- if the Bureau of Prisons wants to make that determination at day 365, that's fine, as long as they adjust by doing exactly what the statute says: Credit towards the service of the sentence, move it back 40 -- 54 days, and then reset.

If you do that, you have 10 blocks of 365 days.

Justice Stephen G. Breyer: Well, why do you do have to do that?

I mean you read it.

It so complicated.

Just reading this, I -- I think the language should say this: 10 years, he's got a 10-year sentence.

At the end of the first year you write the number 54 on a piece of paper if he has done well.

Suppose he comes in on January 1, okay?

So January 2, after the first year, you write the word 50 -- the number 54.

And you do that each year.

And by the time you get to the year 8, what you have done is you have got 432 days.

So then you subtract the 430 days from 10 years, and what you get is you are 67 days short of 9 years.

So now you look at the last sentence, and what you do is you take 67 days, subtract that from 365, and you've got 298, and you simply prorate for those 298.

And you subtract that, too, so he gets another 10 days or so, or 15 days credit, and that's it.

And that's following the statute, it seems to me, absolutely literally.

And it also seems to me to make sense, because you don't want to give him credit for time he never serves.

Mr. Sady: Justice Breyer, I think it doesn't make sense, because what it does is it creates an 87.2 minimum sentence that is served, and we note that the sentencing table upon which every Federal sentence is predicated is based on 85 percent.

That being--

Justice Stephen G. Breyer: No, that isn't what the -- if you want to know what the sentencing commission did, I think the best evidence of that is you read the introduction to the guidelines.

And what the introduction to the guidelines says is that, roughly speaking, many of the sentences approximate the time actually served before.

Now, what to me that suggests is that the sentencing commission never considered this question.

And if there's something more specific than that, that shows they did, I would like to know what it is, because I don't trust memory.

Mr. Sady: --Your Honor, we are relying very heavily on the supplemental report at -- at page 140 of the joint appendix that says we -- we divide it by.85 in order to calibrate the sentencing table to include good time.

That means that every sentence has been calibrated based on assuming 10 opportunities to earn 54 days, which--

Justice Antonin Scalia: Of course, the government contends it's none of the sentencing commission's business.

It's up to the Bureau of Prisons.

Isn't that the government's position?

Mr. Sady: --That is their position.

And our position is that it's -- administering the statute is the Bureau of Prisons's business, but deciding what the minimum sentence that can -- minimum time that can be served to satisfy a term of imprisonment is a policy decision, and that the policy is properly placed--

Justice Stephen G. Breyer: But there is nothing in there -- that's not a policy statement; that's not a guideline.

That's a staff conclusion.

And the staff conclusion, I think, is conflicting with what it says in the -- in the introduction to the guidelines, which is that all of this was very approximate.

I don't see how -- how -- a court would be bound by that.

Mr. Sady: --I think that the court could be advised by it in terms of knowing that we are looking at a harsher sentence.

Everybody is serving more time than -- the sentence that the judge imposed was -- whether it was advisory guidelines or mandatory guidelines, the sentencing table provided the initial baseline.

And that initial baseline was boosted by 2.2 percent, which is not an insignificant amount, and there is a very simple way for the court to construe the statute consistently throughout to conform the two, so that people are not serving 2.2 percent more time in custody than the sentencing table that every judge uses in imposing their sentence.

We are institutionalizing a harsher system in a way that doesn't meet the statutory language, because the statutory language says "term of imprisonment".

And if it's term of imprisonment, 10 years of a term of imprisonment, I think a reasonable plain meaning is that you have 10 opportunities to earn 54 days.

Justice Ruth Bader Ginsburg: Mr. Sady, you -- you said something about 15 percent or 85 percent is a more workable system than -- was it 12.9 percent?

Do we have any information on, (A), the number of Federal prisoners who get good time and in that universe, the ones who get good time, how many get the full credit and how many get something less than the full 54 days?

Mr. Sady: Justice Ginsburg, there are approximately 200,000 prisoners, and of those about 195,000 of them are eligible for good time credits.

My anecdotal experience is that most prisoners get most of the -- the good time credits, so it's not at all unusual for prisoners to achieve most of that.

There is some that have minor amounts, and there is a relatively smaller number, at least in my experience, who do not get a lot of it.

Justice Stephen G. Breyer: Is this right?

I'm -- I'm sorry to ask you this question, but I get lost in the math of this sometimes.

Do you remember my example I just gave, you know, with the 9 years you go and put it on a piece of paper?

Mr. Sady: Yes, the 419--

Justice Stephen G. Breyer: I take it what you want is you, in -- in essence, want him to get credit for 54 days for that tenth year?

Mr. Sady: --Yes.

Justice Stephen G. Breyer: Yes.

And the argument against that, reading the language and so forth, is, well, look this is an imaginary 10th year.

He is not actually in prison for 10 years.

He is going to be released sometime late in year 8.

And so why should we add 54 days?

I mean maybe it would be a nice thing because sentences are awfully long, but -- but why would anybody want to add 54 days in respect to a year that's never going to be served?

Mr. Sady: Each year is served in the -- if you take away the 54 days, if you credit it towards the service of the sentence and do the adjustment and reset that we are asking the Court to do so that you have 10 opportunities, then in the last year, you are -- when you are in -- you go to the last sentence that acknowledges that you are going to have to make some arbitrary time that you are going to, say, okay, we are going to decide that you have done well enough that you are going to be able to get the full credit for the last year.

But the flaw in the Bureau of Prisons is by having the 54 days and actual time and that that's what happens at the first year, that's a 419-day first year.

You can only squeeze 8 of those in.

The prisoners look at it and they see, plain statute, what was your term of imprisonment, how many ends of each year of a term of imprisonment should you have in a 10-year sentence.

Ten years.

Justice Samuel Alito: Well, the statute says that it is -- the credit, it can be received, quote, at the end of each year of the prisoner's term of imprisonment beginning at the end of the first year of the term.

Mr. Sady: Yes.

Justice Samuel Alito: Now, when does -- when is that point, in your opinion?

Mr. Sady: The Bureau of Prisons probably has discretion in administering.

I'm accepting as a proposition on the day 365 they make that determination.

Justice Samuel Alito: Okay.

So the -- day 365 is the end of the first year of -- of the term of imprisonment?

Mr. Sady: That's -- that's when they are making the determination.

If they make a determination that he is -- should receive credit, then the end of the first year becomes day 311, because he has received--

Justice Sonia Sotomayor: And then what do--

Mr. Sady: --311.

Justice Samuel Alito: The statute says that they -- that the prisoner may receive credit at the end of each year of the prisoner's term of imprisonment beginning at the end of the first year of the term.

Mr. Sady: No.

Justice Samuel Alito: And what I'm asking is, when is the end of the first year of the term within the meaning of that language?

Mr. Sady: The meaning of that language is day 3--

Justice Samuel Alito: Is it day 3--

Mr. Sady: --Excuse me.

Justice Samuel Alito: --Is it day 365, or is it day 311?

Mr. Sady: It depends.

And the reason it depends is because the language of the statute says

"credit toward the service of the prisoner's sentence beyond time served. "

so if you do it beyond time served and you give him credit towards that sentence -- the Bureau of Prisons is making a determination.

Once we -- they make their determination, and we respect that determination, we then have to go -- from the 365th day, back, because for 54 of those days he doesn't have to be there.

He has earned that time and you can--

Justice Sonia Sotomayor: --So the next year--

Mr. Sady: --adjust and reset at the next 365.

Justice Sonia Sotomayor: --you start it at 311?

Mr. Sady: No.

Justice Sonia Sotomayor: And he now serves another year and you back him up again at the end of that year?

To 300--

Mr. Sady: Yes, that is -- that is certainly one way of mechanically doing it so that you have 10 blocks of 365 days each as a term of imprisonment.

Because term of--

Justice Sonia Sotomayor: --And you -- and you think that their system is easier?

Mr. Sady: --Yes.

[Laughter]

Justice Sonia Sotomayor: That their system is--

Mr. Sady: No, absolutely not.

Their -- their system makes -- nobody can understand the math.

Justice Stephen G. Breyer: Another way to think, and I think probably you'll -- if you look through the records of the commission, they even thought about this problem, and the -- the -- you will see a lot of talks given by various people who were there, which say that for this reason you are bringing up, that it might have been thought there was no credit for the first year.

In other words, you don't cut the sentence in the first year.

You don't begin cut until the second year has been served, so he has to serve 365 days.

Now when you point that out, that is not the Bureau of Prisons's interpretation, that's nobody's interpretation.

They're all going to let him out if it's a year and a day.

They are going to let him out several weeks before the end of the first year, aren't they?

Mr. Sady: Yes.

There was a technical amendment.

Justice Stephen G. Breyer: Everybody's going to do that.

Oh -- there was a technical amendment.

Mr. Sady: To address that first year, to make sure that they did that.

Justice Stephen G. Breyer: That's what happened.

In other words, the statute made before--

Mr. Sady: Exactly.

Justice Stephen G. Breyer: --Ah, I better get that--

Mr. Sady: --when it was at 36 days.

And it's interesting, so page 56 of the -- of the Senate report on this, they used the term "adjust for good time".

Now that -- then it was 36 days.

But Congress was using exact same thought as the language here that says that the time is -- that you give credit towards the service of a sentence.

And with the Court's permission I will reserve the remaining time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Wall.

ORAL ARGUMENT OF JEFFREY B. WALL ON BEHALF OF THE RESPONDENT

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

Justice Breyer, I think you stole my thunder.

I wanted to explain how the bureau does it, and you laid it out exactly right.

If you have -- and I think just looking at the language of the statute, it tracks perfectly.

If you have a prisoner serving a 10-year sentence and he comes in on January 1st, the end of his first year of imprisonment is December 31st, and on that date he gets 54 days taken off the back end of the sentence.

That cycle repeats itself for the next 8 years.

And--

Justice Stephen G. Breyer: But the trouble with that, and I'm glad to know about that technical amendment, because then--

Mr. Wall: --Right.

Justice Stephen G. Breyer: --we never considered it when I was on the -- nobody thought about it at that time because the language was different.

But now that you had have got this language now, it's hard to reconcile with that first year.

He is sentenced for a year and a day, you see.

So literally, it says calculated on January 2 of the next year.

But he's already been in for longer than he should be by that point.

So you really have to calculate it before the year ends; you have to calculate it at least by October.

And -- and -- and once you start calculating it before, the statute literally says, we are into a more complicated thing than I thought.

Mr. Wall: Well, and that's why they have the sentence at the end, as you pointed out about the proration.

So when the -- when the statute says, what it says -- starts by saying is, if you are serving a sentence of longer than a year you are eligible for good time credit.

So you are earning credit as you go through that first year.

Congress knew then if you had have a year and a day sentence, you wouldn't be actually serving a full year because of the credits bringing you below the year mark.

So what it does in the last sentence, it says if you are in your last year and that's a partial year, we prorate.

So on your 319th day you have earned 47 days of good time credit.

Those combined equal a sentence of a year and a day, and you are out after your 319th day.

On the hypothetical--

Justice Sonia Sotomayor: There is a premise flaw there.

And that premise flaw is that you have told us that you don't earn the credit until the end of the year.

Mr. Wall: --Well--

Justice Sonia Sotomayor: So your answer about this probation is not an answer, because it's -- your premise is not the same.

Mr. Wall: --That's why for each full year served, so for a 10-year sentence, you are right that you are making a determination at the end of the year for the first 8 years, but when you get to that ninth year, as Justice Breyer pointed out--

Justice Sonia Sotomayor: I'm not worried about sentences that are more than 2 years.

I'm worried about the prisoner who is sentenced to a year and a day.

How does that proration help that individual, since they are not going to get the good time credit until they've served a year?

Mr. Wall: --So, the way this works is that for the prisoner sentenced to a year and a day or 13 months or 14 months, because they are receiving credit through that first year, their good time credit brings them below a year.

They'll never serve a full year.

Justice Sonia Sotomayor: Counsel, I--

Mr. Wall: And what the law--

Justice Sonia Sotomayor: --That's what I'm saying to you.

The whole brief says to us, they measure the entitlement to good time credit at the end of the first year.

Mr. Wall: --Except for the last year or partial year.

And what the final sentence of B1 says is, credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last 6 weeks.

So for the prisoner who has a year and a day sentence, his sentence is literally all proration.

He is just serving a partial year.

Justice Sonia Sotomayor: He is not going to get 54 days?

He's going to get--

Mr. Wall: That's right.

On the 319th day he has come through about nine tenths of the year, he has accrued 47 days.

Justice Sonia Sotomayor: --I just want to make absolutely sure because I hadn't done the math forward; I did the math backwards.

Mr. Wall: Right.

Justice Sonia Sotomayor: Which was the one that Justice Breyer and Justice Alito set forth--

Mr. Wall: Right.

Justice Sonia Sotomayor: --Which is 54 days are earned back for each year, and you take it off the full term of imprisonment.

The -- you are representing to me that the math that is in your program statement is accomplishing that result?

Mr. Wall: Absolutely.

Which is to say when the prisoner gets to his last year, if that's a partial year, he is not going to get the 54 days, he's going to get some portion of the 54 days, based on what part of a year he served.

And that is prorated and credited within the last 6 weeks.

Now, it's normally done on the release date.

So in that 9th year for the 10-year prisoner--

Justice John Paul Stevens: May I just interrupt with one question?

If he got a total of 540 or whatever it is, he should never enter the 9th year because he would finish the 10-year sentence in less than 8 years.

Mr. Wall: --Well--

Justice John Paul Stevens: Or less than 9 years, rather.

Mr. Wall: --That's -- that's right.

540 wouldn't be quite 2 years, but setting that to the side--

Justice John Paul Stevens: So how does he -- how does he get his 10th block of good time?

How does he ever get it under your--

Mr. Wall: --Well, under the government's view he can only earn good time credit when he is actually incarcerated.

And what Petitioners are coming in and saying--

Justice John Paul Stevens: --Right.

I understand.

But explain to me how -- how he can get more than a year of good time credit before the 10th year begins?

Mr. Wall: --Well, so, if you take a 10-year prisoner -- a prisoner with a 10-year sentence, the way it currently works, at the end of the 8th year he has accrued 432 days of good time credit.

Justice John Paul Stevens: Which is more than a year.

Mr. Wall: Right.

So he knocked off his full 10th year and he's knocked off a part of his 9th year.

Now we are at that final 9th year, which is a prorated year.

He has got 298 days left and by the 260th day he earned 38 days of credit.

So he is released after the 260th day of his 9th year.

And as Justice Breyer pointed out, that precisely tracks the language of the statute.

You do it at the end of each full year until you get to the last partial year, and then you prorate and you do it in the last 6 weeks.

Justice Anthony Kennedy: And each of those 4 years included 54 days of credit?

Mr. Wall: That's right.

So the -- the Petitioners here, Petitioner Barber, for instance, has been incarcerated for over 17 years.

At the end of each of his 17 years in prison, he has gotten 54 days of credit.

What Petitioner Barber is here saying is, I am going to get 3 whole years knocked off the end of my sentence; I want the 54 days for those years, too.

I want 54 days for every year of my sentence as imposed by the court, not as served by me behind bars, and that's what doesn't track the language of the statute.

Because the only way you can do that, as Justice Alito pointed out, is to read 311 days, and it is no answer to say, as Petitioners do, well, you can do the determination whenever.

What they are saying is at the end of a 311-day period, you should determine whether the prisoner gets the credit.

But what the statute says is the determination itself has to occur at the end of the year.

So you can't fold the 54 days into the year because you haven't made the determination yet.

Justice Samuel Alito: Well, I didn't understand them to be saying that.

I understood them to be saying that the determination could be made at the end of 365 days, but if it's determined that the prisoner is entitled to 54 days of credit, then year 1 should be regarded as having begun on the 312th day, rather than the 366th day.

Mr. Wall: I think that's right, which first it is inconsistent with the language of the statute, which says at the end of each year, so that reads 311-day cycle.

But it also sets up a very odd system.

What happens if the prisoner misbehaves during days 312 and day 365?

On Petitioner's approach, it seems to me, the new year has started on day 312.

Now, but take the example, he says, well, you can do it on the 365th day.

Well, if the prisoner's misbehaved on day 340, is that coming out of the first year or out of the second year.

Justice Samuel Alito: Well, I think that they would say you won't know when the second year has begun until the full calendar year has been completed.

Mr. Wall: And I guess the -- the difficulty with that approach is that it seems to me that once the 311-day cycle is finished, you have to start a new 311-day cycle on day 312.

Justice Anthony Kennedy: Well, they are just not vested until the year has -- the full year has passed.

Mr. Wall: Well, so vesting is a little bit unique, Justice Kennedy, under the statute, because none of the time vests under (b)(2) until they are actually released.

But--

Justice Anthony Kennedy: Well, I -- I use it just in the calculating sense.

Mr. Wall: --I see -- I see what you're saying.

They could do the bookkeeping determination on day 365.

But I don't think that's what's important.

What is important is that on Petitioner's view, the second year, for credit purposes, has to start on day 312.

You have to have 10 blocks of 311 days and you have to be measuring after every 311th day.

Justice Antonin Scalia: No, no, you don't measure -- I don't think that -- you -- you begin measuring on 311, but you measure 365 days from -- from 311.

And if he has behaved well during all -- all of those 365 days, then you knock off another 51 days or whatever it is.

And you begin the third year from then, but you give him another 365 days to determine whether he has behaved well.

Mr. Wall: Justice Scalia, if you are measuring 365 days from day 311--

Justice Antonin Scalia: Right.

Mr. Wall: --then you should equally be measuring 365 days from day 1.

Which is to say, if you're doing--

Justice Antonin Scalia: He did.

He did.

You didn't give him the credit until he served the whole 365 days.

At that point, he gets the credit and you count the second year as though it begins on day 311.

Mr. Wall: --Well, the -- I was half with you there.

The bureau does do it by looking at what they do during the full year, from January 1 to December 31, and then it determines whether you get 54 days knocked off the end of your sentence.

What happens between day 311 and day 365 is not different than what happens during the rest of the year.

Justice Antonin Scalia: Exactly.

Mr. Wall: What the -- what the statute asks the bureau to determine is, at the end of each year, has, during that year, the prisoner demonstrated exemplary compliance with institutional regulations?

So the prisoner has got to go a full year, a full 365 days, and be well-behaved.

Then he gets 54 days taken off the back end of the sentence.

And if that's the way that you're saying it should work, that is precisely how the bureau interprets the statute.

Justice Antonin Scalia: Except that they're not taking it off from the back end.

They are taking it off from the next year.

So that in the second year, if he -- if he behaves well for 365 days from 311 -- okay?

He behaves well for the next 365 days.

The next year will begin at 622.

But then he has to serve another 365 days before he gets good time credit.

And then the next year will begin three times 311: 933.

And so forth.

Mr. Wall: Justice Scalia, I think that sets up an odd system.

Justice Antonin Scalia: Isn't that right?

See, he agrees with me.

[Laughter]

No, I'm not saying that's right.

I'm just saying that that's -- that is what he is proposing.

Mr. Wall: No, I -- I agree.

That is the difference.

Petitioners think that you measure credit over these 311-day cycles, and if you -- you know, you get to the 311th day, you take the 54 days of credit, and together, they equal a year of the sentence imposed.

But what the statute says is you make the determination at the end of the year.

And we don't read 311-day period.

We read it to be a 365-day period.

Justice John Paul Stevens: Yes, but as Justice Scalia says, you know, you do make the determination on the 365th day, but what you determine is that the -- having been a good prisoner, his first year expired 54 days earlier, and then you start over.

Mr. Wall: But what -- that's right.

But what the statute -- the statute doesn't just say, Justice Stevens, you make the determination at the end of the first year of the term.

The determination is that during that year, the prisoner has displayed compliance.

So he has got to display compliance through day 1 through day 365.

Justice John Paul Stevens: Let me interrupt and get one thing off my mind that I just -- supposing he misbehaves in year 3.

Does that just affect his good time credits in year 3, or does it mean he is canceled for years 1 and 2?

Mr. Wall: No.

He can lose credit that he has accrued up to that point, but he can't lose credit that he has -- that he is eligible for in future years.

So let's say that we are coming up on the end of the 3rd year.

He's earned his full 108 days for his first two years, and he has earned some prorated portion.

He can lose any of that, but he is still eligible going forward to keep getting 54 days at the end of each year.

Justice John Paul Stevens: But he can lose his 108 days?

Mr. Wall: Yes.

Chief Justice John G. Roberts: How can he do that?

I'm looking at page 14A of your appendix.

It says: Such credit toward service of sentence vests at the time that it is received.

Credit that is vested may not later be withdrawn.

Mr. Wall: I'm sorry, Mr. Chief Justice.

I should have been more clear.

For prisoners sentenced subject to the SRA, which was in effect from 1987 to 1994, you are right.

And that is the SRA according to your brief.

Their credit vests.

That vesting requirement was eliminated in the PLRA, which governs prisoner's sentences since 1996.

So for the vast bulk of prisoners in the Federal system who are subject to the PLRA, their credit does not vest until they are released.

Justice Ruth Bader Ginsburg: Mr. Wall, the -- if we consider both methods plausible, the number comes out at 15 percent -- 85 percent, 15 percent.

It's a more workable number, and there are some groups in the legislative history that Congress thought 85 percent, not 87.2 or whatever it is.

So in choosing between those two methods, why not take the easier number to work with?

Mr. Wall: Well, two reasons.

I think to the extent that you are suggesting the statute is ambiguous, the Bureau of Prisons is charged by Congress with administering the statute in both Reno v. Koray and Lopez v. Davis.

This Court deferred to the bureau's interpretation of other prisoner credit statutes.

We think the bureau is equally entitled to the same discretion here to interpret this statute.

Justice Anthony Kennedy: We -- if we disagree with that, if we disagree that the BOP has authority in this area, then -- as Justice Ginsburg's question, I think, suggests -- does not the Rule of Lenity apply?

Mr. Wall: Well, this Court's been clear -- and I -- I can't put it any better than Justice Sotomayor did in her first opinion in Sash -- that this is not a criminal statute.

It neither imposes a criminal prohibition on conduct nor--

Justice Anthony Kennedy: Well, how do you explain the Granderson case?

Mr. Wall: --I'm sorry?

Justice Anthony Kennedy: The Granderson case.

Mr. Wall: I'm not familiar with that case, Justice Kennedy.

Justice Anthony Kennedy: I had thought that in that case, Justice Ginsburg, for this Court, established the proposition that the Rule of Lenity is applicable.

I know it wasn't cited in the Petitioner's brief, either.

That was a parole revocation case.

But in -- in any event, the -- shouldn't the Rule of Lenity apply?

If the Rule of Lenity is thought of as a notice requirement insofar as giving you warning to what conduct is punishable, that's one thing, but doesn't the Rule of Lenity mean more than that?

It's a check against the power of the State, so that you simply mitigate the -- the power of the State in favor of the individual.

In a case like this, apply the Rule of Lenity.

Mr. Wall: I think it's a check against the power of the State when it's penalizing conduct or when it's putting forth a penalty for a criminal prohibition.

But in both Koray and Lopez, this Court was considering what prisoner credit statutes meant, other prisoner credit statutes.

18 U.S.C. 3585 and 3621.

And in both of those, it deferred to the bureau's interpretation.

And in both, it specifically rejected application of the Rule of Lenity.

And I think the notion there is that this statute is not a criminal statute.

It's about an administrative reward for compliance with institutional regulations.

And that's different from setting forth a prohibition on conduct where the penalty that someone is sentenced to by a court once they have been convicted of a criminal offense--

Justice Anthony Kennedy: Well, the Granderson case is cited in the brief for the National Association Of Criminal Defense Lawyers, and as I read it, it applies to this area and it seems to me that it ought to.

I mean, you tell us this is not a criminal statute.

I -- I certainly think it has -- it has all the impact and force of the State detaining a person for a criminal act.

Mr. Wall: --Well, it is a statute that determines in some sense how long you will be in prison, so I take your point.

But it does so not by extending the penalty applicable to the conduct, but by offering an administrative reward; sort of relieving you of part of the burden of that -- that penalty.

And I am not aware of any case -- and I am obviously not familiar with Granderson, but I am not aware of any case from this Court, or indeed any lower court, finding that section 3624 is a criminal statute, as this Court's cases uses the term.

Justice John Paul Stevens: No, but isn't there another consideration?

It's not the Rule of Lenity, but it's something else we should take into account.

In the -- in their reply brief, they say it costs about 25 or $26,000 to house a particular prisoner, and the number of prisoners involved is -- something like $100 million in taxpayers' money is at issue in this case.

It -- is -- you don't disagree with that general figure, do you?

Mr. Wall: I'm -- I think the basis for that is just math that the Petitioners have done.

I don't have any independent basis for confirming or denying it.

Justice John Paul Stevens: But in any event, it's clear it's a lot of money.

And -- and is that not a factor that we should be aware of in this case, because, all other things being equal -- assume the statute is totally ambiguous, and if you -- if one -- one -- one version will save the -- the government $100 million a year and the other version will cost it, is that -- isn't that a factor we -- we should take into consideration?

Mr. Wall: I think it's a factor that the bureau could, should and has taken into consideration in the developing its interpretation as the agency in charge of administering the statute.

But what the bureau has found is that it's method allows you to earn good time for all the time you are incarcerated, so you always have incentive to follow prison regulations.

And what Petitioners haven't responded to and the government's point in our brief that if you start measuring by 311-day cycles, you are assuming that they getting the full 54 days of credit.

And to the extent that they don't, no matter how they calculate it, Justice Scalia, no matter what their matter of bookkeeping is, if they don't get the 54 days of credit for each cycle, there will be some corresponding period at the end of the sentence when they are serving time and they have already had their ten -- you know, their reviews and they are no longer eligible for the--

Justice Stephen G. Breyer: That's true.

But the strongest argument -- I -- I don't want to put words in his mouth because this is complicated.

But I see it as this.

Let's call that time you are talking about, that tenth year, phantom time.

Mr. Wall: --Okay.

Justice Stephen G. Breyer: Now, you are saying don't put in any phantom time.

And he's saying let's put some in.

Now, the strong -- a strong argument, I think, for his is the following -- think about that first year.

That first year we are going to calculate 54 days, subtract it, everybody seems to agree we get to the number 311, right?

But if you were to apply the last sentence to that first year, the prorating sentence, you wouldn't get 54.

You would get like 45 days, or 47 or something like that.

But everybody agrees under the Bureau of Prisons system that it is 54.

And, therefore, in respect to the first year, they are calculating phantom time, i.e., not the first year, but a person who had a sentence to a year and a day.

If you had a sentence to a year and a day, you agree it's 54 days, and everybody agrees with that, and that includes phantom time.

So he said, well, if you include it for the first year, since the statute says nothing about the first year, why not include it for the other years, too?

How can you possibly justify phantom time being included in the first year but not in the other years?

Mr. Wall: Justice Breyer, I disagree with your premise.

Someone sentenced to a year and a day is eligible for credit, but because that person is accruing credit as he serves, he will never actually get 54 days.

By the time he gets to the 319th day, he has accrued 47 days of credit, those combine to equal his 366-day sentence.

Justice Stephen G. Breyer: So, in other words, they don't let him out under 311?

Mr. Wall: That's -- that's exactly--

Justice Stephen G. Breyer: In other words, the Bureau of Prisons for a person whose has a sentence of a year and a day does not let him out 54 days short, rather they let him out 47 days short, because they apply the last sentence in the prorating of that sentence?

Mr. Wall: --And that's exactly our difference with Petitioner's view.

Exactly.

What Petitioner--

Justice Stephen G. Breyer: Is that -- is that what happens?

Mr. Wall: --Yes.

Yes.

He is released after the 319th day.

And I think what Petitioners actually want is phantom time even in the first year.

What they are saying is fine, he may only serve 311 days, 312 days, 319 days, we want the full 54.

So, instead of letting him out at 319, back him up to 312, we want the phantom week in the first year.

And, so, I think the way the bureau interprets it, there is no phantom time in any year.

The way the Petitioners interpret it, there is phantom time in every year, no matter the length of the sentence.

As I said I think it creates a gap in coverage.

It rests on this assumption that prisoners are always getting 54 days.

That is just not the case.

Justice Ruth Bader Ginsburg: Do you disagree with your colleague that that is the case most of the time, that most Federal prisoners get good time credit, and of the ones who get credit, most of them get the full 54 days?

Mr. Wall: There are no statistics on this, but, yes, Justice Ginsburg, I think the majority of prisoners do earn the full credit, certainly these Petitioners have.

But I would say that there are, say, 15 to 20 percent Federal prisoner who tend to be repeat offenders, and they are often being docked to good time credit.

So, I think what you will see is that the ones getting 54 days do it consistently, and the ones not getting 54 days, often do that pretty consistently.

And, you know, the difficulty on Petitioner's method is that no matter when you want to do that calculation, Petitioners at bottom are saying what you should be looking at is a 311-day period, and you take the 311 days served, you take the 54 days of credit, and together they give you a year of the sentence imposed.

And not only does that not serve penological interest, as the bureau has found, but it just doesn't track the language of the statute, which says during each year you have got to comply with the regulations.

The statute cares not just about your conduct from days 1 to 311, but your conduct from day 312 to 365.

All of those days are equal in the statute's eyes.

If you want 54 days of credit knocked off the back end of your sentence, you have got to behave and comply with the rules for a full year each time you want the credit.

Justice Sonia Sotomayor: Counsel, this explanation that has been given in your brief and the one you are giving to us now as to why BOP chose what it did, is there any statement outside of the penned affidavit that explains why this choice was made?

Mr. Wall: Other than the positions -- positions that the bureau has taken before the 11 courts of appeals in which it has prevails, no, the--

Justice Sonia Sotomayor: But in each one of them they have taken the position that the statute was unambiguous.

Assuming that that is not accepted by us, that it's ambiguous, what and where are we giving Chevron or Skidmore deference to what set of facts or to what--

Mr. Wall: --Two points, Justice Sotomayor.

I don't think the bureau has always taken the position that the statute is unambiguous.

It has taken the fallback position, and it has prevailed on this position in a number of courts of appeals.

And it is worth pointing out the bureau has prevailed in the First through the Eleventh Circuits.

It has won in 11 court of appeals.

And it has often prevailed on the ground that it had discretion to interpret the statute to the extended it was ambiguous.

Your second point, what would you defer to--

Justice Sonia Sotomayor: --Well, did they exercise discretion when they took the position that it was unambiguous?

Mr. Wall: --As the pen declaration makes clear, and this is at page 154 of the Joint Appendix, when the bureau promulgated its rule in 1997, it did that based on the statutory language and on making a policy choice to accommodate penological interest, ensuring that credit would always be an incentive to good behavior and providing clear notice to inmates of their projected release dates.

So, I think -- you know, the government has--

Justice Sonia Sotomayor: We have never given deference, have we, to an affidavit submitted in litigation to explain something that on its face is not explained either in an agency's regulation or in its policy statement that -- that -- this is giving deference to an affidavit.

Mr. Wall: --Well, it's giving deference to the rule, because the affidavit informs the court that the rule is an exercise of the bureau's discretion.

So far as I know, the court has never faced that question but the lower courts have.

And a number of courts of appeals faced with rulemaking and informal adjudication have accepted supplementation of the record with affidavits and declarations very much like this one.

Because what we are talking about here is an affidavit from one of the agency's original decisionmakers.

If this was just a post hyperactualization, I grant you it might not be enough.

But this is one of the bureau's lawyers involved in the decisionmaking in the mid-1980's coming in and saying, here is why we adopted the interpretation--

Justice Antonin Scalia: Subsequent legislative history, so to speak, right?

[Laughter]

I mean, we -- we wouldn't allow that -- those of us who use legislative history don't allow a congressman to come in several years after the bill has passed and say, oh, by the way, the reason we voted for that is thus and such.

We would kick that out.

Why is it any different for an agency's subsequent statement?

Mr. Wall: --Justice Scalia, I think it is different because that would be broadside in Overton Park.

And what this Court said is if there is not enough in the agency action itself to enable judicial review, the right answer is not to set it aside, the right answer is to send it back to the agency to let the agency decision makers explain why they did what they did.

And while that might normally be the right course here, the agency has already done that.

It has put forward its explanation, so I think this is one of the rare circumstances where we don't need to remand on Overton Park.

We know why the agency adopted the rule, and it did it both because of the statutory language and because they thought it was the most sensible policy choice.

And I guess I would turn it around a little bit and say you have a rule promulgated by the agency charged with administering the statute, an agency to which this Court has twice deferred in the interpretation of similar statutes.

That rule has been upheld as a substantive matter now in 11 courts of appeals.

The Ninth Circuit set the rule aside on a procedural basis, which has now been corrected by the agency.

It's a republished rule which corrects the infirmities that the court of appeals identified.

And, so, the question is, faced with those facts, what would be the point of asking the government to recalculate 195,000 Federal sentences?

Justice Antonin Scalia: I don't think we sent cases back under Overton Park for an agency's description of history.

I think we sent it back for the agency to give a reason for its rule, whether that's its current reason or its past reason.

It -- it's the current reason that counts.

Mr. Wall: Justice Scalia, even -- even if you thought as the court of appeals did that the rule was procedurally invalid, you would still, as the court of appeals did, defer to the program statement under some level of deference, at least Skidmore.

Justice Antonin Scalia: You don't have to worry about me.

[Laughter]

I'm -- I'm willing to accept the -- the government's assertion here that that's the government's position.

Mr. Wall: And I--

Justice Antonin Scalia: I don't think you are lying.

Mr. Wall: --I -- I--

[Laughter]

My only point, Justice Scalia, was that whether you get there by deferring to the rule or by deferring to the program statement, as the court of appeals did, every court of appeals to consider it has come out in the same place, which is that by hook or by crook, the bureau has exercised its discretion to answer this question.

And I--

Justice John Paul Stevens: You say there are 195,000 sentences affected by this rule.

I don't know which way that cuts.

If there are 195,000 people spending more time in -- you know, significantly more time in jail than they should, that's kind of troublesome.

Mr. Wall: --Justice Stevens, I think what I would say is the bureau has been doing it the same way since 1987.

Congress has amended this statute five times in the last 20 years.

It has never moved to alter the bureau's methods.

Justice Anthony Kennedy: But the cumulated--

Justice John Paul Stevens: Probably they didn't understand it because it's an awfully hard statute to understand.

Mr. Wall: Justice Stevens, with all respect, Justice Breyer got it in the first 5 minutes.

So I think the--

[Laughter]

Justice John Paul Stevens: Well, he's a lot smarter than I am.

Justice Antonin Scalia: Even Justice Breyer has got it !

Whoa !

[Laughter]

Justice Anthony Kennedy: --But what -- what we were -- what we were saying, is this is 36,000 years of prisoner time, I mean -- 36,000, that is older than Marbury versus Madison.

Mr. Wall: Justice Kennedy, that's true.

I think the point is that the language of the statute has remained unchanged, and for the last 20 years the bureau has interpreted that in a reasonable way.

The language is unambiguous, but even if it weren't, at least the bureau's interpretation is reasonable, which is why 11 courts of appeals have deferred to it.

And so I take your point that they are serving more time than under Petitioner's interpretation, but I don't think that that policy rationale is properly before this Court.

It is properly before the bureau, which has found that policy consideration outweighed by other penological interests, and I think that's the judgment to which this Court should defer, not its own judgment about how much time these prisoners should -- should be serving.

And I do think it's important in that regard that Congress has returned the statute several times.

And I take your point that it is complicated, Justice Stevens, but--

Chief Justice John G. Roberts: You can finish the--

Mr. Wall: --but Congress has made a number of technical amendments and I don't think there is any evidence it did not understand of how this longstanding system works.

Thank you.

Chief Justice John G. Roberts: --Thank you, Mr. Wall.

Mr. Sady, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF STEPHEN R. SADY ON BEHALF OF THE PETITIONERS

Mr. Sady: Thank you.

The -- the idea that there could be time at the end of the sentences is premised on "term of imprisonment" mean "time served", which it cannot mean in the same sentence where it says "beyond time served".

If you make the adjustment for good time credit that is earned at the end of the year, it is credit towards the service of the sentence; that means that it's blocks of 365 days, that at the last day of Mr. Barber's sentence if it's properly computed, he would be looking at 365 days.

If he behaved well until close to the end, if we go to the last statute that says prorate the remaining period of time, the 30 -- remaining 36 days he could earn, and credit it in the last 6 weeks, because they are doing that simply as an administrative technique.

Justice Sonia Sotomayor: Just so -- in your system they do the measurement at the end of the 365 days.

He misbehaves on the 340th day.

And they say for that reason, I'm only going to give you 10 days of full time -- of good time credit.

Mr. Sady: Yes.

Justice Sonia Sotomayor: So now your year starts at 350?

Mr. Sady: 355.

Yes.

Justice Sonia Sotomayor: No, they said they are only giving you 10 days of good time credit.

Because at the end of -- 355.

Mr. Sady: Right.

And so the 355--

[Laughter]

Justice Sonia Sotomayor: That was pretty bad.

[Laughter]

355.

Now, your year starts again on 355 days--

Mr. Sady: 365, and if he behaves very badly he has to go all the way to the end of that 365 and doesn't get any adjustment, but if he -- next year he starts all over again for 365 days, and if he is very good he gets the 54 days.

If I could address the question that was raised by Justice Ginsburg on the Rule of Lenity.

I would like to point out that in the -- we have relied on both R.L.C. and in -- on Granderson for your articulation of the Rule of Lenity as it would apply in this case.

Which, if after we're looking at all the other -- the statute, the history, the context, and if we cannot -- if we apply the Rule of Lenity, if the government's position cannot be shown to be unambiguously correct, we have at least ambiguity here, and then we go to Chief Justice Marshall's seminal discussion of lenity.

And what he said was that we look at lenity for the proposition -- to back the principle that the power of punishment belongs to the legislative department; and the tenderness of the law for the rights of individuals, both of--

Justice Ruth Bader Ginsburg: But the argument -- one of the arguments is it is not punishment at all.

This is a reward; this is a reward for good behavior.

Mr. Sady: --The Court in -- in Lynce and in Weaver used the term "increase in punishment" when there was no longer available good time credits.

For -- to say that somebody has to serve 87.2 percent of the term of imprisonment imposed by the judge instead of 85 percent, that is imprisonment.

For Mr. Barber that's over 6 months' additional time behind bars in a prison.

That's -- that's penal; that is affecting individual liberty, it's the type of liberty that was intended to be covered by the Rule of Lenity; and especially in the situation where the initial sentence was imposed based on a grid that was calibrated assuming 85 percent, he's ending up serving 2.2 percent more time than the sentencing judge, in imposing the sentence.

So that aspect of punishment.

And in actual raw time behind bars in a prison.

Unless there are further questions, I would reserve my--

Chief Justice John G. Roberts: Thank you, Mr. Sady.

Mr. Sady: --Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts Jr.: Justice Breyer has our opinion this morning in case 09-5201, Barber versus Thomas.

Justice Stephen G. Breyer: A Federal Sentencing Law provides “that a prisoner serving a term of imprisonment of more than one year, may receive credit towards the service of the prisoner's sentence of up to 54 days at the end of each year of the prisoner's term of imprisonment” based on a determination by the Federal Bureau of Prisons that the prisoner has exhibited good behavior “during that year.”

This credit operates as a reward for good behavior while in prison and for that reason it is generally referred to as a good time credit.

Each day of good time credit that a prisoner earns up to 54 a year is one less day that he will spend in prison.

At issue in this case is whether the method used by the Bureau of Prisons to calculate good time credit is lawful?

Under the Bureau of Prisons method, a prisoner would have his good time calculated at the end of each year he served except for the last year, which he does not serve in full.

For that last year the Bureau of Prisons would calculate a proportionate amount of good time.

The petitioners here are two prisoners who challenge the Bureau's method as unlawful.

They propose a simpler method.

A prisoner sentenced up to 10 years, to 10 years for example would receive up to 10 times 54 or 540 days good time credit.

The Bureau's more complex method which depends upon the time the prisoner actually serves in prison would give that prisoner up to 470 days good time credit not 540 days.

Ultimately we conclude that the Bureau's method is right.

Their method follows the statute and we think the prisoner's method does not.

Thus we must reject petitioner's simpler method.

We explained all this in some detail in our opinion which the mathematically inclined may wish to read.[Laughter]

Justice Kennedy has filed the dissenting opinion in which Justice Stevens and Justice Ginsburg have joined.