Opinion
04 CV 4613 (JG).
February 14, 2005
MEMORANDUM AND ORDER
David Elliot Tash and Steven Bromley bring this putative class action petition under 28 U.S.C. § 2241 contending that the Bureau of Prisons has erroneously interpreted the federal "good-time credit" ("GTC") statute. The BOP calculates credits based upon the actual time served by an inmate. For every year served, a model inmate will earn 54 days of credit and accordingly have the term of his imprisonment reduced by 54 days. Petitioners argue that the model prisoner should be awarded 54 days of credit for each year of the sentence imposed. Because I find that the Bureau's interpretation is a permissible one (and one that comports with common sense), the petition is denied.
BACKGROUND
Tash pled guilty to one count of conspiracy to distribute and to possess with intent to distribute marijuana. He received a 45-month sentence, which is set to expire on September 22, 2005. The Bureau of Prisons (the "BOP") has calculated, pursuant to the "good-time credit" statute, 18 U.S.C. § 3624(b), that Tash can earn 176 days of GTC, based upon the time he will actually serve. Thus, Tash's projected release date is currently March 30, 2005. Tash believes that the GTC calculation should be based on the 45-month sentence imposed, which would entitle him to 26 more days of credit and a release date of March 4, 2005.
Bromley was released on January 19, 2005. He was sentenced to a 15-month term of imprisonment, which was set to expire on March 18, 2005. Bromley was given 58 days of good-time credit based upon his actual time served. Bromley argued that he deserved nine more days of GTC, and should have been released on January 10, 2005. Because Bromley has been released, his claim is dismissed as moot.
DISCUSSION
A. The Statute
The good time credit statute provides an incentive for federal prisoners to comply with their institutions' regulations: a prisoner's sentence can be shortened by up to 54 days per year. The statute provides, in pertinent part:
(a) Date of release. — A prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment, less any time credited toward the service of the prisoner's sentence as provided in subsection (b). . . .
(b) Credit toward service of sentence for satisfactory behavior. —
(1) . . . [A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. . . . [I]f the Bureau determines that, during the year, the prisoner has not satisfactorily complied with such institutional regulations, the prisoner shall receive no such credit toward service of the prisoner's sentence or shall receive such lesser credit as the Bureau determines is appropriate. In awarding credit under this section, the Bureau shall consider whether the prisoner during the relevant period, has earned, or is making satisfactory progress toward earning, a high school diploma or an equivalent degree. Credit that has not been earned may not later be granted. . . . [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.18 U.S.C. § 3624 (emphasis added; footnote omitted).
1. The BOP's Interpretation
Under the BOP's interpretation of § 3624(b), good-time credits are calculated after each full year of incarceration a prisoner serves. When an inmate has less than a year left on his term, the BOP's uses a pro-rata formula. See 28 C.F.R. § 523.20 ("the inmate earns 54 days [good-time credit] for each year served. This amount is prorated when the time served by the inmate for the sentence during the year is less than a full year"); § 1364(b) ("credit for the last . . . portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence."). Thus, under this actual-time-served formulation, the model prisoner will receive 54 days of credit for every year served, and 0.148 days of credit for every day served during the final, partial year. See Pacheco-Camacho v. Hood, 272 F.3d 1266, 1267-68 (9th Cir. 2001); BOP Policy Statement 5880.28, at 1-44-45.
The BOP has set forth its interpretation of the statute in 28 C.F.R. § 523.20.
The number 0.148 is derived by dividing 54 by 365 = 0.148.
BOP Policy Statement 5880.28 is the BOP's Sentence Computation Manual, and is available at www.bop.gov.
To use Tash as an example, his full term of imprisonment is three years and nine months, and will expire on September 22, 2005. For the first three years served, however, Tash received the full 54 days of GTC, which will shorten the duration of his term by 162 days. For the remaining time of his sentence, assuming good conduct, Tash will receive 0.148 days for each day served. After 97 days, he will have earned 14 days of GTC, (97 x 0.148 = 14), which will allow him to be released on March 30, 2005, 176 days earlier than if he had served out the full sentence imposed. The 176-day GTC will amount to 14.8% of the actual time served by Tash.
2. Petitioners' Interpretation
Petitioners argue, as other inmates have argued around the country, that the BOP's interpretation is erroneous. The proper way to calculate good-time credits, according to petitioners, is to award the credits (54 days per year, prorated for each day within a partial year) based upon the length of the jail term imposed, and not the actual time the inmate has served. Thus, because Tash's sentence is 45 months (1369 days), Tash should receive good time credit for the full 1369 days, which would amount to a 202-day reduction instead of the 176 that the BOP will award him, allowing him to be released on March 4, 2005.
Virtually all other courts that have considered this issue have upheld the BOP's method of calculating good time credits under 18 U.S.C. § 3624(b). See, e.g., White v. Scibana, 390 F.3d 997 (7th Cir. 2004); Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001); Perez-Olivo v. Chavez, 394 F.3d. 45 (1st Cir. 2005); Sash v. Zenk, 334 F. Supp. 2d 376 (E.D.N.Y. 2004); but see Williams v. Dewalt, ___ F. Supp. 2d ___, 2004 WL 3022300 (D. Md. Dec.29, 2004).
B. The Statutory Analysis
Judicial review of an agency's interpretation of a statute is normally deferential. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984). Under the Chevron two-step analysis, courts first analyze whether Congress has spoken directly to the precise question at issue. Id. at 842. "If the intent of Congress is clear, that is the end of the matter." Id. at 842-43. If the statute is silent or ambiguous on the question, however, a court must then determine "whether the agency's answer is based on a permissible construction of the statute." Id. at 843.
The BOP's interpretation is entitled to full Chevron deference because the regulation embodying its interpretation, 28 C.F.R. § 523.20, was adopted through the notice-and-comment procedure. See Pacheco-Camacho, 272 F.3d at 1268; see also White v. Scibana, 390 F.3d at 1000-01 ("The Bureau's discretion to resolve ambiguities in the good-time statute is implicit in its statutory authority to determine and award good time and release prisoners when their sentences, as adjusted by the Bureau for good-time credit, have expired. 18 U.S.C. §§ 3624(a), (b). The Bureau's interpretation of § 3624(b) is therefore entitled to full Chevron deference.").
Here, the BOP makes a strong argument that the statute is unambiguous. Whether a prisoner will receive good time credits under the statute is predicated upon a determination by the BOP whether, during a particular year, a "prisoner has displayed exemplary compliance with institutional disciplinary regulations." If not, "the prisoner shall receive no such credit toward service of the prisoner's sentence or shall receive such lesser credit as the Bureau determines is appropriate." This language strongly suggests that Congress intended the BOP to review a prisoner's conduct after each year of imprisonment, and award good-time credits only for the portion of time that the prisoner's conduct was exemplary.
On the other hand, the phrase "term of imprisonment," which appears four times in 28 U.S.C. § 3624(b) (and seven times in the statute), is susceptible to two different meanings — sentence imposed, and actual time served. Under the BOP's construction, the phrase's meaning changes depending upon its context. Specifically, it means sentence imposed in § 3624(a) and the first two times it appears in subsection (b); the third time it appears in that subsection, however, the phrase means actual time served. Thus, the BOP's interpretation of § 3624(b) reads: "a prisoner who is serving a term of imprisonment [that is, the sentence imposed] of more than 1 year other than a term of imprisonment [that is, the sentence imposed] for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment [that is, the actual time served] beginning at the end of the first year of the term."
Petitioners also argue that the statute is unambiguous, and that the phrase "term of imprisonment" simply means the sentence imposed every time it appears in § 3624. See Williams v. Dewalt, ___ F.Supp. 2d ___, 2004 WL 3022300, at *3 (D. Md. Dec. 29, 2004) (in § 3624, "the identical words are used not only in the same statute, but in the same subsection and sentence, lending support to construction in favor of harmonizing the plain meaning of the statute."). They further argue that the legislative history, particularly Congress's stated intent that federal inmates be able to reduce their sentences under the statute by fifteen percent, supports their interpretation. See H.R. Conf. Rep. 98-1159 at 415, reprinted in 1984 U.S.C.C.A.N. 3710, 3711 ("Amendment No. 130: Deletes `thirty-six' as proposed by the House, and inserts in lieu thereof `fifty-four' as proposed by the Senate which increases `good time' that accrues from 10 percent to 15 percent."); Williams, 2004 WL 3022300, at *5. Under the BOP's formulation, Tash's sentence, for example, will be reduced by around 13%, instead of 15%.
Petitioners quote Senator Biden in support of their interpretation: "I was the co-author of that bill. In the Federal courts, if a judge says you are going to prison for 10 years, you know you are going to go to prison for at least 85% of that time — 8.5 years, which is what the law mandates. You can get up to 1.5 years in good time credits, but that is all. And we abolished parole. So you know you'll be in prison for at least 8.5 years." 141 Cong. Rec. S2348-01 (February 9, 1996).
Finally, petitioners contend that the BOP's interpretation of the statute produces anomalous results. For example, because BOP does not compute credits until after one full year of imprisonment, a prisoner serving 365 days will get no credit at all. District judges, recognizing this, thus often sentence offenders to a year and one day. Under the BOP's formula, an inmate with a 366 day sentence can receive 47 days of good-time credit, and thus be released after serving 319 days of his sentence. See Williams, 2004 WL 3022300, at *2 n. 3; BOP Policy Statement 5880.28, at 1-45-49. Petitioners argue that the plain language of § 3624(b) suggests that the imposition of a one-year sentence should allow a prisoner to receive up to 54 days GTC. As the Williams court stated, "the phrase `beyond the time served' dictates that model prisoners should receive 54 days of credit against their term of imprisonment based on 311 days in custody," and not 47 days for each year of the sentence imposed. Williams *4.
I will show my work: 319 × 0.148 = 47; 47 + 319 = 366.
I conclude that the phrase "term of imprisonment" is susceptible to different meanings and thus the statute is ambiguous. Under step two of the Chevron analysis, I further conclude that the BOP's interpretive regulation is "based on a permissible construction of the statute." 467 U.S. at 843.
First, the purpose of the statute is to reward prisoners for complying with an institutions' disciplinary regulations and for furthering their education. Good time credits, by their nature, must be earned by a prisoner. Cf. § 3624(b) ("Credit that has not been earned may not later be granted.") (emphasis added.) Under petitioners' interpretation, a prisoner will receive good time credits without earning them. In fact, he would receive credit for days in which he is no longer incarcerated. See White, 390 F.3d at 1001 (noting that "[t]he Bureau cannot evaluate a prisoner's behavior and award credit for good conduct if the prisoner is not still in prison.").
Second, despite the canon of construction that identical words in a statute should have the same meaning, a common-sense reading suggests that the meaning of "term of imprisonment" changes with the context. See id. at 1002 ("it is impossible to make sense of 28 U.S.C. § 3624 while giving the phrase `term of imprisonment' one reading throughout."). "Term of imprisonment" must mean sentence imposed when stating, for example, that the eligibility requirement for credits extends to "a prisoner who is serving a term of imprisonment of more than 1 year." In the disputed clause here, however, a common-sense reading of "term of imprisonment" is that it means actual time served. This is because under the mechanism of a statute which awards credits for good behavior, a "term of imprisonment" cannot be a fixed period; the length of the term a model prisoner must actually serve gets shorter every year. After Tash's first year, for example, his term of imprisonment no longer expired on September 22, 2005, but 54 days earlier. After Tash's second year, his release date was again moved forward 54 days, and so on.
Subsection (d) of the statute reinforces this common-sense reading of the statute. § 3624(d) reads, in part, "Upon the release of the prisoner on the expiration of the prisoner's term of imprisonment, the Bureau of Prisons shall furnish the prisoner with — (1) suitable clothing; (2) an amount of money; . . . and (3) transportation. . . ." In this subsection, "term of imprisonment" cannot mean sentence imposed, but must instead mean actual time served. The model prisoner sentenced to 366 days, having earned 47 days of GTC, will see his term of imprisonment expire after serving 319 days.
For the reasons stated above, I find that the Bureau of Prisons interpretation of the statute is reasonable, and the petition is denied.
The government also argues that the petition should be dismissed for failure to exhaust administrative remedies. I need not address this issue given my decision on the merits.
Petitioners' request for bail is denied. Their request for an order preventing BOP personnel from retaliating for the filing of this action is denied as well. Such relief is unnecessary — BOP personnel are already forbidden from engaging in such retaliation. Tash's letter-motion for expedited review is dismissed as moot. Finally, given my decision on the merits, I need not address petitioners' request for class certification.
CONCLUSION
For the foregoing reasons, the petition is denied. The Clerk is ordered to close the case.
So ordered.