Federal Good Time Calculations in Need of Recalculation

Steve Sady of the Ninth Circuit Blog has some interesting thoughts on issues in need of US Supreme Court Attention.  I am most interested in the following sentencing issue.  Given that federal sentences are typically quite lengthy the extra 7 days per year of sentence adds up.

The Good Time Statute Requires Calculation Based On The Sentence Imposed, Not Time Served.

Last year, a federal district judge in Texas joined two other district judges who had found that the BOP has misinterpreted the federal good time credit statute, thereby requiring prisoners to serve seven extra days for every year of their terms of imprisonment. After reversal in the Fifth Circuit, the case came before the Supreme Court on a petition for certiorari. In a Statement Respecting the Denial of Certiorari, Justice Stevens complimented the "thoughtful opinion" in the Texas district court and indicated the merit of the prisoners’ postition:

"[B]oth the text and the history of the statute strongly suggest that [the good time credit statute] was not intended to alter the pre-existing approach of calculating good-time credit based on the sentence imposed. . . .[T]he question has sufficient importance to merit further study, not only by judges but by other Government officials as well."

Although the "pre-existing approach" resulted in a maximum of 15% good time credits against the sentence imposed, instead of the BOP's maximum of 12.8%, Justice Stevens found the lack of a Circuit split determinative.

This issue is of exceptional importance and should be addressed regardless of a Circuit split. Resolution of the issues will affect the actual time served of over 95% of federal prisoners, involving thousands of years and hundreds of millions of dollars in prison expenses. Given the calibration of the Sentencing Table to the 15% rule, federal prison sentences are 2.2% higher than called for by the Sentencing Commission (as blogged here). In an unprecedented step, the Federal Public and Community Defenders for every District signed on to an amicus curiae brief asking the Court to resolve this question of unprecedented importance.

And there are the continuing costs of litigation (not to mention the $346 million in over-incarceration costs and additional $66 million with each new year). We have accepted the Justice Stevens challenge and are preparing the third wave of litigation (the first established that the good time statute is ambiguous, culminating in Pacheco-Camacho; the second sought to develop a split on the statute from the three district court opinions). This should not be necessary given that litigation over violations of the Administrative Procedure Act (as set out in the filing linked here) would be mooted by simply following the plain language of the statute or, at worst, applying the rule of lenity to an ambiguous penal statute (as outlined in the Mujahid petition here, which also traces the inconsistencies in the Circuit approaches).

The most recent purely statutory challenge is coming to the Court from the Tenth Circuit in Wright. The Court should take this opportunity to settle the good time statute's construction once and for all.

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