Prison Law Blog

Sara Mayeux

Should the Rule of Lenity Apply When Construing Statutes Governing Prisons?

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The Supreme Court heard oral argument earlier this week in Barber v. Thomas (09-5201), a case about how to interpret the good-time credit statute that applies to federal prisoners. As noted in this CNN report, the justices enjoyed some chuckles at oral argument, though of course, for the 195,000 prisoners who may spend more or less time behind bars as a result of the court’s ruling, the issues are presumably no laughing matter. Rather than go through all the issues in the case, which have been covered elsewhere, I thought I’d highlight just one interesting point that came up at oral argument: Should the court apply the Rule of Lenity in construing this statute?

The Rule of Lenity is a common-law canon of construction that requires courts, when interpreting an ambiguous criminal statute, to give the benefit of the doubt to the defendant, rather than the state. The question is whether this rule only applies to formally criminal statutes that define crimes and their possible punishments, or whether it should also apply in interpreting statutes and regulations that govern how prisons calculate time served, which effectively define the actual punishment imposed in any particular case. Here’s Justice Kennedy, questioning Jeffrey Wall of the Solicitor General’s office, who’s arguing on behalf of the Bureau of Prisons (where possible I’ve added links to the cases and briefs mentioned):

JUSTICE KENNEDY: [D]oes 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 KENNEDY: Well, how do you explain the Granderson case?

MR. WALL: I’m sorry?

JUSTICE KENNEDY: The Granderson case.

MR. WALL: I’m not familiar with that case, Justice Kennedy.

JUSTICE 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 prohibition on conduct where the penalty that someone is sentenced to by a court once they have been convicted of a criminal offense –

JUSTICE 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.

(Oral argument transcript, PDF pp. 39-41)

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