No. 94-790 In the Supreme Court of the United States OCTOBER TERM, 1994 JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., PETITIONERS v. ZIYA K. KORAY PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT DREW S. DAYS, III Solicitor General JO ANN HARRIS Assistant Attorney General MICHAEL R. DREEBEN Assistant to the Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General JOSEPH DOUGLAS WILSON Attorney Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Section 3585 of 18 U.S.C. provides that a defendant generally must "be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences." The question presented is whether a federal prisoner must receive credit on his sentence under Section 3585 for time when he was released on bail pursuant to the Bail Reform Act of 1984. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS In addition to the parties named in the caption, the following are petitioners in this Court: United States Bureau of Prisons and Frank Sizer, warden, Allen- wood Federal Prison Camp, Allenwood, Pennsylvania. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . . 1 Statutory provision involved . . . . 2 Statement . . . . 2 Reasons for granting the petition . . . . 5 Conclusion . . . . 18 Appendix A . . . . 1a Appendix B . . . . 25a Appendix C . . . . 29a Appendix D . . . . 31a Appendix E . . . . 32a Appendix F . . . . 33a Appendix G . . . . 45a Appendix H . . . . 51a TABLE OF AUTHORITIES Cases: Bilgrami v. Turner, No. 93-7793 (3d Cir. July 13, 1994) . . . . 17 Brown v. Rison, 895 F.2d 533 (9th Cir. 1990) . . . . 10, 13 Chalamidas v. Quinlan, No. CV-91-859-TSZ (W.D. Wash. Apr. 22, 1992), dismissed in part, reversed in part, 981 F.2d 1257 (9th Cir. 1992) . . . . 16-17 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . 11, 12 Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589 (1992) . . . . 8 Fraley v. Bureau of Prisons, 1 F.3d 924 (9th Cir. 1993) . . . . 16 Gozlon-Peretz v. United States, 498 U.S. 395 (1991) . . . . 9 Grady v. Crabtree, 958 F.2d 874 (9th Cir, 1992) . . . . 16 Lahey v. Floyd, 992 F.2d 234 (9th Cir. 1993) . . . . 16 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Malosh v. Crabtree, 758 F. Supp. 620 (D. Or. 1991) . . . . 16 Martin v. OSHRC, 499 U.S. 144 (1991) . . . . 12-13 Mieles v. United States, 895 F.2d 887 (2d Cir. 1990) . . . . 11 Mills v. Taylor, 967 F.2d 1397 (9th Cir. 1992) . . . . 6, 7 Moreland v. United States: 968 F.2d 655 (8th Cir.), cert. denied, 113 S. Ct. 675 (1992) . . . . 6, 7 113 S. Ct. 675 (1992) . . . . 14 National R.R. Passenger Corp. V. Boston & Maine Corp., 112 S. Ct. 1394 (1992) . . . . 12 Ochoa v. United States, 819 F.2d 366 (2d Cir. 1987) . . . . 9 Ortega v. United States, 510 F.2d 412 (l0th Cir. 1975) . . . . 10 Pinedo v. United States, 955 F.2d 12 (5th Cir. 1992) . . . . 6 Polakoff v. United States, 489 F.2d 727 (5th Cir. 1974) . . . . 10 Ramsey v. Brennan, 878 F.2d 995 (7th Cir. 1989) . . . . 11, 15 Randall v. Whelan, 938 F.2d 522 (4th Cir. 1991) . . . . 11 Reves v. Ernst & Young, 113 S. Ct. 1163 (1993 ) . . . . 8 United States v. Becak, 954 F.2d 386 (6th Cir.), cert. denied, 112 S. Ct. 2286 (1992) . . . . 6, 7 United States v. Browning, 761 F. Supp. 681 (C.D. Cal. 1991.) . . . . 16 United States v. Edwards, 960 F.2d 278 (2d Cir. 1992) . . . . 6 United States v. Freeman, 922 F.2d 1393 (9th Cir. 1991) . . . . 16 United States v. Insley, 927 F.2d 185 (4th Cir. 1991. ) . . . . 6 United States v. Peterson, 507 F.2d 1191 (D.C. Cir. 1974) . . . . 9, 10 United States v. Shimer, 367 U.S. 374 (1961) . . . . 12 United States v. Smith, 869 F.2d 835 (5th Cir. 1989) . . . . 11 United States v. Wilson, 112 S. Ct. 1351 (1992) . . . . 11, 12 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page United States v. Woods, 888 F.2d 653 (l0th Cir, 1989), cert. denied, 494 U.S. 1006 (1990) . . . . 6 United States v. Zackular, 945 F.2d 423 (1st Cir. 1991) . . . . 6 Statutes: Act of Sept. 2, 1960, Pub. L. No. 86-691, 1 (a), 74 Stat. 738 . . . . 9 Bail Reform Act of 1966, Pub. L. No. 89-465, 4, 80 Stat. 217 . . . . 9 Bail Reform Act of 1984, Pub. L. No. 98-473, Tit. II, ch. I, 98 Stat. 1976 . . . . 8 18 U.S.C. 3141 et seq . . . . 7 18 U.S.C. 3142 (c) (1) (B) . . . . 17 18 U.S.C. 3142 (c) (1) (B) (X) . . . . 7 18 U.S.C. 3142(i) (2) . . . . 8 Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Tit. II, 98 Stat. 1976 . . . . 8 Sentencing Reform Act of 1984, Pub. L. No. 98- 473, Tit. II, ch. II, 98 Stat. 1987 . . . . 8 18 U.S.C. 3585 . . . . 2 18 U.S.C. 3585 (a) . . . . 2, 8 18 U.S.C. 3585 (b) . . . . passim 18 U.S.C. 709a (1934) . . . . 9 18 U.S.C. 1956 (a) (1) . . . . 2 18 U.S.C. 3568 (repealed) . . . . 4, 10, 12, 13 28 U.S.C. 2241 . . . . 15 Miscellaneous: Bureau of Prisons, Program Statement No. 5880.24 (Sept. 5, 1979) . . . . 13 S. Rep. No. 750, 89th Cong., 1st Sess. (1965) . . . . 10 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., PETITIONERS v. ZIYA K. KORAY PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT The Solicitor General, on behalf of the Attorney General of the United States and all other petitioners, petitions for a writ of certiorari to review the judg- ment of the United States Court of Appeals for the Third Circuit in this case. OPINION BELOW The opinion of the court of appeals (App., infra, 1a-24a) is reported at 21 F.3d 558. JURISDICTION The judgment of the court of appeals was entered on April 25, 1994. A petition for rehearing was de- nied on June 17, 1994. App., infra, 29a-30a. On September 8, 1994, Justice Souter extended the time within which to file a petition for a writ of certiorari (1) ---------------------------------------- Page Break ---------------------------------------- 2 to and including October 15, 1994. App., infra, 31a. On October 11, 1994, Justice Souter further extended the time within which to file a petition for a writ of certiorari to and including November 1, 1994. App., infra, 32a. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISION INVOLVED Section 3585 of Title 18 provides: Calculation of a term of imprisonment (a) Commencement of sentence A sentence to a term of imprisonment commences on the date the defendant is received in custody await- ing transportation to, or arrives voluntarily to commence service of sentence at, the official de- tention facility at which the sentence is to be served. (b) Credit for prior custody. A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences- (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sen- tence was imposed; that has not been credited against another sen- tence. STATEMENT 1. On April 23, 1991, respondent was arrested for laundering monetary instruments, in violation of 18 U.S.C. 1956(a) ( 1). On June 18, 1991, he entered a ---------------------------------------- Page Break ---------------------------------------- 3 guilty plea to that offense in the United States Dis- trict Court for the District of Maryland. On June 25, 1991, a federal magistrate judge ordered respondent released on bail pending sentencing on condition that respondent reside at a Volunteers of America com- munity treatment center. On October 21, 1991, the district court sentenced respondent to 41 months' im- prisonment. Respondent remained at the Volunteers of America facility until November 25, 1991, the date on which he was ordered to surrender for service of his sentence. Respondent then reported to Allenwood Federal Prison Camp in Pennsylvania. App., infra, 2a. Invoking Bureau of Prisons (BOP or Bureau) ad- ministrative procedures, respondent sought credit against his sentence for the 150 days that he spent at the community treatment center between June 25 and November 25, 1991. Relying on its established policy, BOP declined to grant the requested credit. After exhausting his administrative remedies, re- spondent filed a petition for habeas corpus in the United States District Court for the Middle District of Pennsylvania seeking credit for the time he spent in the community treatment center. The district court denied the petition, finding that respondent's stay at the community treatment center did not con- stitute "official detention" within the meaning of 18 U.S.C. 3585(b), which governs credit for time spent in detention before the commencement of a sentence. App., infra, 25a-28a. 2. The court of appeals reversed. App., infra, 1a-24a, The court acknowledged that, with the excep- tion of the Ninth Circuit, "most [courts' of appeals] have concluded that section 3585 * * * does not re- quire the Bureau to credit presentenced defendants ---------------------------------------- Page Break ---------------------------------------- 4 whose bail conditions allowed them to be confined out- side of Bureau of Prison [s] facilities. " Id. at 7a. The court declined, however, to defer to BOP'S view that the phrase "official detention" in Section 3585(b) does not include restrictive conditions of bail. The court explained that the statutory language need not be read "as if it provided official detention by the Attorney General or the Bureau of Prisons,'" since "there is nothing in the statute which requires or suggests that a defendant must be under the deten- tion of the Bureau" and "[a] court may 'detain' a person as 'official[ly]' as the Attorney General." App., infra, 13a-14a. The court also found that the Bureau's interpreta- tion of the statute was not worthy of deference be- cause it appears in a "Program Statement" rather than in "published regulations subject to the rigors of the Administrative Procedure Act, including public notice and comment." App., infra, 9a. Finally, the court placed considerable weight on its belief that BOP followed a "functional" approach to the credit issue under the predecessor statute, 18 U.S.C. 3568 (repealed). According to the court, that functional analysis focused on the restrictiveness of the bail con- ditions placed on a defendant, and the prior policy might have allowed respondent to obtain credit for his stay at the community treatment center. App., infra, 9a-13a. The court concluded that "'official detention' for purposes of credit under 18 U.S.C. 3585 includes time spent under conditions of jail-type confinement." App., infra, 23a. Although the court did not define that concept with precision, it believed that its ap- proach would not be difficult to administer, because "only a small percentage of federal defendants are ---------------------------------------- Page Break ---------------------------------------- 5 released to a halfway house," and because the Bureau had experience applying the different but related functional approach to Section 3585(b) adopted by the Ninth Circuit. App., infra, 21a-22a. The court remanded the case to the district court to determine whether respondent was in "jail-type" confinement during the time that he was. at the community treat- ment center. Id. at 24a. Subsequently, respondent was released pending further proceedings in the court of appeals and the district court. Id. at 51a. REASONS FOR GRANTING THE PETITION The court of appeals' holding creates a three-way split in the circuits. Seven courts of appeals have sustained the Bureau of Prisons' interpretation of 18 U.S.C. 3585 (b) : a defendant released on bail, even under restrictive conditions, is not in "official deten- tion" and thus is not entitled to credit against his sentence for that period. The Ninth Circuit, however, previously rejected that approach and required the Bureau to give credit to a defendant who was given bail under conditions found to approach those of in- carceration. In this case, the Third Circuit rejected the Bureau's view and adopted what it believed to be a more restrictive variation on the Ninth Circuit's rule, requiring the Bureau to conduct a case-by-case analysis to determine whether a defendant was re- leased on bail into "jail-type" conditions. The disarray on this issue warrants this Court's intervention. Neither the Third nor the Ninth Cir- cuit has adequately justified its rejection of the Bureau's construction of Section 3585(b), and the case-by-case regime mandated for prisoners in those circuits creates considerable practical difficulties. Moreover, the absence of a national rule governing ---------------------------------------- Page Break ---------------------------------------- 6 credit issues creates inequities in the treatment of similarly situated prisoners and compels the Bureau to administer three different approaches in determin- ing the proper length of a defendant's sentence. This Court's review is required to reinstate the Bu- reau's longstanding policy on a nationwide basis. 1. The Third Circuit's ruling in this case exacer- bates an existing conflict on the proper interpretation of Section 3585(b). Before the Third Circuit's deci- sion in this case, every court of appeals that had con- sidered the question, except for the Ninth Circuit, see Mills v. Taylor, 967 F.2d 1397, 1400-1401 (1992), had held that restrictive conditions of release on bail are not "official detention" under Section 3585 (b). See Moreland v. United States, 968 F.2d 655 (8th Cir. ) (en banc) (time spent in halfway house not creditable), cert. denied, 113 S. Ct. 675 (1992); United States v. Edwards, 960 F.2d 278, 282-283 (2d Cir. 1992) (home confinement not creditable); Pinedo v. United States, 955 F.2d 12, 14 (5th Cir. 1992) (per curiam); United States v. Becak, 954 F.2d 386, 387-388 (6th Cir.) ("physical incarcera- tion [required] to receive credit for presentence de- tention"), cert. denied, 112 S. Ct. 2286 (1992); United States v. Zackular, 945 F.2d 423, 425 & n.2 (lst Cir. 1991) (home confinement not creditable); United States v. Insley, 927 F.2d 185, 186 (4th Cir. 1991) (no credit for home confinement, because only "full physical incarceration" satisfies statutory re- quirement); United States v. Woods, 888 F.2d 653, 655-656 (10th Cir. 1989) (halfway house confine- ment not creditable), cert. denied, 494 U.S. 1006 (1990). The Ninth Circuit, in Mills v. Taylor, supra, de- parted from that approach and concluded that "offi- ---------------------------------------- Page Break ---------------------------------------- 7 cial detention" includes conditions that "approach * * * incarceration," even if the defendant is actually released on bail subject to a requirement to dwell in a community treatment facility. 967 F.2d at 1400. And, in this case, the Third Circuit stated that, "[w]hile we do not go as far as does the Ninth Cir- cuit [,] which appears to authorize credit for confine- ment under somewhat less restrictive conditions," the term "official detention" in Section 3585(b) in- cludes release on bail into "jail-type confinement." App., infra, 23a. This Court's review is needed to restore uniformity to this important area of prison administration. 2. The Bureau's interpretation is supported by the text of Section 3585(b), its history, and prin- ciples of administrative deference. The Third Circuit erred in rejecting it. a. Section 3585(b) states that a defendant "shall be given credit toward the service of a term of im- prisonment for any time he has spent in official de- tention" before beginning service of his sentence. The phrase "official detention " in Section 3585(b) should be construed in light of the related statutory provi- sions that authorize pre-trial restraints on a defend- ant's liberty, including detention by the Attorney General. The relationship among those provisions "leads to the conclusion that 'official detention' means incarceration." United States v. Becak, 954 F.2d at 388; accord Moreland v. United States, 968 F.2d at 662 (Loken, J., concurring). The Bail Reform Act of 1984, 18 U.S.C. 3141 et seq., provides a court with only two choices. A defendant who is admitted to bail is considered "released," even when his release is conditioned on his residence in a treatment center. See 18 U.S.C. 3142 (c) (1) (B) (x). A defendant is "detained" only when he is denied bail-a ruling that ---------------------------------------- Page Break ---------------------------------------- 8 results in his being "committed to the custody of the Attorney General - for confinement in a corrections facility" pending trial and sentence. 18 U.S.C. 3142 (i) (2). Thus, the only "detention" that a defendant may suffer "official[ly]" by virtue of a court order is detention of the type contemplated by the Bail Reform Act of 1984. 1. The appropriateness of construing Section 3585(b) in light of the statutory provisions governing bail is confirmed by the common origins of these provisions. Congress enacted both the bail provisions and Section 3585 (b) as part of the same statute, the Comprehen- sive Crime Control Act of 1984, Pub. L. No. 98-473, Tit. II, 98 Stat. 1976. 2. That legislation worked a ___________________(footnotes) 1 That view is also confirmed by Congress's use of the phrase "official detention " in Section 3585 (a), because basic canons of construction suggest that the phrase should bear the same meaning in each of the two subsections. See Estate of Cowart V. Nicklos Drilling Co., 112 S. Ct. 2589, 2596 (1992); see also Reves V. Ernst & Young, 113 S. Ct. 1163, 1169 (1993). Section 3585 (a) provides that a sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting trans- portation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served. The phrase "official detention facility" in that provision re- fers to a place designed for the incarceration of offenders and under the control of corrections officers, not the type of treatment facility where respondent was "confined." 2 The provisions of the Comprehensive Crime Control Act of 1984 relating to bail are known as the Bail Reform Act of 1984. Pub. L. No. 98-473, Tit, II, ch. I, 98 Stat. 1976. The provisions of the Act relating to sentencing, including the credit provision at issue here, are known as the Sentenc- ing Reform Act of 1984. Pub. L. No. 98-473, Tit. II, ch. 11, 98 Stat. 1987. ---------------------------------------- Page Break ---------------------------------------- 9 broad and far-reaching reform of- bail and sentencing practices. As this Court recognized in resolving another controversy that resulted from the same re- forms, Congress must have been aware of the defini- tions it gave to statutory terms in the "related legis- lative enactments" and must have "legislated with reference to [them] ." Gozlon-Peretz v. United States, 498 U.S. 395, 407-408 (1991) . b. The history of the credit provision underscores its close ties to bail determinations. The original credit provision was enacted in 1932 to clarify when a federal sentence began to run, where BOP had transferred the prisoner from one place of confine- ment to another. See 18 U.S.C. 709a (1934) (credit for time spent in jail awaiting transfer). The statute "retained th[at] limited thrust until 1960, when Congress sought to clarify whether, under statutes requiring the imposition of a minimum mandatory sentence, the court was free to give recognition to the time a defendant had spent in jail for want of bail." Ochoa v. United States, 819 F.2d 366, 371 (2d Cir. 1987); see also United States v. Peterson, 507 F.2d 1191, 1193 (D.C. Cir. 1974) (per curiam). Accord- ingly, in 1960 Congress required the Attorney Gen- eral to grant a convicted defendant credit against his sentence "for any days spent in custody prior to the imposition of sentence * * * for want of bail set for the offense under which sentence was imposed." Act of Sept. 2, 1960, Pub. L. No. 86-691, 1(a), 74 Stat. 738 (emphasis added). Congress returned to the credit statute in the Bail Reform Act of 1966, Pub. L. No. 89-465, 4, 80 Stat. 217, when it deleted the statutory reference to "want of bail" and made credit available for offenses that did not call for a mandatory minimum sentence. The ---------------------------------------- Page Break ---------------------------------------- 10 Committee Report that accompanied that legislation indicates that the express reference to bail was de- leted to clarify that credit should be available for of- fenses made "nonbailable" by law, and also in cases when the defendant was "not released for some rea- son other than lack of bail." S. Rep. No. 750, 89th Gong., 1st Sess. 21-22 (1965). In light of that ex- planation, the lower courts interpreted the 1966 Act to require credit only for defendants who were im- prisoned before trial, and rejected claims that onerous conditions of bail could amount to "custody" under the statute, As the D.C. Circuit explained, the purpose of Congress was to benefit those who were not released; there was no intention to ex- tend credit to those who were released. Had Congress, in amending the statute, intended to give credit to those who were released pending trial or appeal we think Congress would have said so in plain language; certainly there would have been some discussion of this novel proposal in the reports on the legislation. United States v. Peterson, 507 F.2d at 1193. The court thus concluded that "'in custody' * * * means detention or imprisonment in a place of confinement and does not refer to the stipulations imposed when a defendant is at large on conditional release." Id. at 1192. See also Ortega v. United States, 510 F.2d 412, 413 (10th Cir. 1975) (per curiam); Polakoff v. United States, 489 F.2d 727, 730 (5th Cir. 1974) (Wisdom, J. ). 3. ___________________(footnotes) 3 With the exception of the Ninth Circuit, see Brown v. Risen, 895 F.2d 533, 536 (1990), all courts of appeals that have since considered the question under the predecessor statute, 18 U.S.C. 3568 (which remains in force with respect to sentences imposed before November 1, 1987), have con- ---------------------------------------- Page Break ---------------------------------------- 11 There is no indication that Congress, in rewording the credit provision as part of the Comprehensive Crime Control Act of 1984, disagreed with the then- unanimous weight of authority that denied any credit to defendants who had secured their release on bail. Rather, as this Court previously stated in construing Section 3585 (b), "[i] t is not lightly to be assumed that Congress intended to depart from a long estab- lished policy" followed under the predecessor provi- sion. United States v. Wilson, 112 S. Ct. 1351, 1355 (1992). While Congress in 1984 did "replace[] the term `custody' with the term `official detention,' " ibid., the most plausible explanation for Congress's use of the "detention" formulation in Section 3585 (b) was to conform the credit provision to the nomenclature used by the Bail Reform Act of 1984. 4. c. The Third Circuit also failed to give proper def- erence to BOP'S reasonable interpretation of the stat- ute it administers. See Chevron U.S.A. Inc. v. Na- tural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984). Under Chevron, the first inquiry is whether the statute reveals an "unambiguously ex- pressed intent of Congress" on "the precise question" addressed by the agency's interpretation. Id. at 843. ___________________(footnotes) cluded that a defendant is not entitled to credit for any time during which he was released on bail, even if the conditions of his release were quite restrictive. See, e.g., Randall v. Whelan, 938 F.2d 522, 524 (4th Cir. 1991); Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir. 1989); Mieles v. United States, 895 F.2d 887, 888 (2d Cir. 1990); United States v. Smith, 869 F.2d 835, 837 (5th Cir. 1989). 4 As the court below recognized, App., infra, 13a, every court of appeals to consider the question has held that the phrase "official detention" in Section 3585 (b) means the same thing as the phrase "in custody" in the predecessor statute. ---------------------------------------- Page Break ---------------------------------------- 12 If it does, that ends the inquiry. Id. at 842-843. If, however, "the agency interpretation is not in conflict with the plain language of the statute, deference is due." National R.R. Passenger Corp. v. Boston & Maine Corp., 112 S. Ct. 1394, 1401 (1992). Defer- ence is especially appropriate when "a full understand- ing of the force of the statutory policy in the given situation * * * depend[s] upon more than ordinary knowledge respecting the matters subjected to agency regulations. " United States v. Shimer, 367 U.S. 374, 382 (1961). The Third Circuit did not dispute that BOP is the agency charged with the administration of Section 3585 (b). See United States v. Wilson, supra (BOP, as designee of the Attorney General, computes credit after defendant begins his sentence). And that court did not find that Congress had a clear and unambig- uous intention on "the precise question" at issue here -i.e., whether credit must be awarded to defendants who have been ordered to comply with restrictive conditions of release. The court concluded, however, that deference is not due to the Bureau's interpreta- tion of Section 3585(b), because that interpretation was not formally embodied in a regulation, and be- cause the court believed that the Bureau's interpreta- tion of the phrase "official detention" in Section 3585 (b) is inconsistent with the Bureau's interpreta- tion of the phrase "in custody" in former Section 3568. Neither objection has merit. While an agency's informal interpretations of a statute it administers are "not entitled to the same deference as norms that derive from the exercise of * * * delegated lawmaking powers," those informal interpretations are "still entitled to some weight on judicial review." Martin v. OSHRC, 499 U.S. 144, ---------------------------------------- Page Break ---------------------------------------- 13 157 (1991 ). Here, BOP has embodied its views in a Program Statement that governs the day-to-day de- cisions of prison administrators nationwide. App., infra, 45a-50a; see also id. at 33a-44a. BOP'S judg- ment reflects the type of expertise in explicating am- biguous statutory language that warrants judicial deference. The court also erred in stating (App., infra, 9a- 10a) that the Bureau of Prisons has taken inconsist- ent positions in administering the provisions govern- ing credit issues. The Bureau has consistently denied credit to federal prisoners for time spent at a half- way house or other similar institutions as a condition of pre-trial release. In Program Statement No. 5880.24 (Sept. 5, 1979), which interpreted former Section 3568, the Bureau provided that "[j]ail time credit will be given for time spent in the custody of the Attorney General," that "[t]ime spent in resi- dence in a residential community center * * * as a condition of bail or bond * * * is not creditable as jail time," and that "a `highly restrictive' condition of bail or bond * * * is not considered as time in custody." App., infra, 36a, 37a-38a (emphasis omitted). That interpretation has been a consistent feature of the Bureau's administration of Section 3568. The Bureau's approach to Section 3585(b) thus accords with its practice under the predecessor provision. 5. ___________________(footnotes) 5 The court of appeals relied on a sentence in the Program Statement that indicated that "time spent in a jail-type facil- ity * * * as a condition of bail or bond is creditable as jail time because of the greater degree of restraint." APP., infra, 38a. Except when required by court order (see, e.g., Brown v. Risen, supra), however, the Bureau never applied that statement to give credit to a defendant released to any type ---------------------------------------- Page Break ---------------------------------------- 14 3. The Third Circuit's error warrants correction by this Court. As we have noted, the Third Circuit's decision deepens an existing circuit conflict on the credit issue. Because of the importance of that issue to federal prison administration, we acquiesced two Terms ago in the petition filed in Moreland v. United States, 113 S. Ct. 675 (1992) (No. 92-458). Al- though the Court did not grant review in that case, the Third Circuit's decision to join the Ninth Circuit in rejecting the Bureau's construction of the credit statute has made clear that the circuit conflict will not be resolved through the en bane process in the circuit that created the division of authority. At the same time, the Third Circuit's claim that the ap- proach it adopted does "not go as far as does the Ninth Circuit" in "authoriz[ing] credit for confine- ment under somewhat less restrictive conditions" (App., infra, 23a) indicates that the Bureau must henceforth administer three different interpretations of the credit statute. The practical impact of the ad hoc approach fol- lowed by the Ninth and Third Circuits is not con- fined to those two circuits. The Bureau administers a national prison system and routinely transfers in- mates between correctional facilities located in differ- ent judicial circuits to maintain security and popula- tion balance. 6. A large number of transferred inmates ___________________(footnotes) of community treatment facility, and that language was never otherwise invoked by the Bureau as the basis for any "func- tional approach" to the credit issue. That point is demon- strated by the numerous reported cases decided under the predecessor statute (see, e.g., the cases cited in note 3, supra), which were litigated precisely because the Bureau granted no credit to the inmates involved. 6 We are informed by BOP that during a four-year period ending in July 1994, 133,937 new inmates were admitted to ---------------------------------------- Page Break ---------------------------------------- 15 are likely to be incarcerated at sonic point in a cor- rectional facility located in the Third or Ninth Cir- cuit, because facilities in those two circuits together account for 30 percent of the Bureau's inmate popu- lation. 7. Because the means for obtaining judicial re- view of an administrative denial of sentence credit is an application for habeas corpus filed in the district of the inmate's confinement (see 28 U.S.C. 2241), any inmate transferred to a Bureau facility in one of those two circuits, even temporarily, can require a federal district court to determine whether the condi- tions of his release on bail were sufficiently onerous to warrant an award of credit under the law followed in that circuit. The ruling below also requires BOP, in the first instance, to make factual determinations for which it rarely will have available pertinent and reliable information. For that reason, unlike the straightfor- ward approach applied by the Bureau for decades, it is doubtful that the rule adopted by the Third Circuit can be implemented in a consistent fashion. And the rule is certain to generate cumbersome litigation about "matter[s] of judgment, or policy, or discre- tion" that are "not * * * susceptible of rational deter- mination, at least by tools of inquiry available to judges." Ramsey v. Brennan, 878 F.2d at 996. Under the Bureau's interpretation of Section 3585 (b), the Bureau can make credit determinations ___________________(footnotes) Bureau facilities. A total of 213,512 inmate transfers among Bureau facilities occurred during the same period. 7 There are a total of 22 correctional facilities in the Ninth and Third Circuits. As of September 15, 1994, the 12 federal institutions in the Ninth Circuit housed 12,749 inmates. The 10 institutions in the Third Circuit housed 13,135 inmates. The total inmate population at Bureau facilities on that date was 85,474. ---------------------------------------- Page Break ---------------------------------------- 16 on the basis of the documentary evidence that ordi- narily accompanies the inmate after he is sentenced- the inmate's judgment of conviction and bail form. Those documents will ordinarily disclose whether the defendant was released on bail during the pendency of the proceedings, and on what conditions. Typically, however, those documents will not contain any de- scription of precisely how "jail-like" those conditions were. The rule adopted by the Bureau therefore per- mits the Bureau to make credit determinations quickly and efficiently on the basis of information readily available from reliable law enforcement sources. By contrast, the Third Circuit's case-by-case ap- proach requires BOP to investigate and analyze the conditions applicable to federal prisoners who have spent time in any of the dozens of community treat- ment centers scattered around the United States. 8. ___________________(footnotes) 8 The practical problem is not limited to treatment centers or halfway houses. As the experience of the Ninth Circuit demonstrates, prisoners who suffered other forms of pre- sentencing constraint will seek to expand the panel's holding to their individual circumstances. See, e.g., Fraley v. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (per curiam) (prisoners required to stay at home pending trial); Lahey v. Floyd, 992 F.2d 234, 235-236 (9th Cir. 1993) (same); United States V. Browning, 761 F. Supp. 681, 682 (C.D. Cal. 1991 ) (same); see also Grady v. Crabtree, 958 F.2d 874, 875 (9th Cir. 1992) (prisoner confined at halfway house as a condition of post-trial probation); United States v. Freeman, 922 F.2d 1393, 1396-1397 (9th Cir. 1991) (prisoner claiming credit for time on pre-trial "probation"); Malosh v. Crab-tree, 758 F. Supp. 620, 621 (D. Or. 1991) (prisoner required to reside on a military base as a condition of pre-trial release); Chalamidas v. Quinlan, No. CV-91-859-TSZ (W.D. Wash. Apr. 22, 1992) (special parolee seeking credit for time spent in a community treatment center as a condition of special ---------------------------------------- Page Break ---------------------------------------- 17 Those centers usually are owned and operated by pri- vate entities, such as the Volunteers of America facil- ity at issue in this case, and impose a variety of different regimens on their residents. The records of those centers are not available to BOP as a matter of course. Moreover, BOP would be compelled to rely on the accuracy and reliability of representations of private centers that BOP does not control. Even when there is no reason to doubt the reliabil- ity of the information furnished, that information may not significantly aid the Bureau in performing the task required by the decision below. The restric- tiveness of bail conditions can vary even with respect to inmates who are required by the terms of their bail bonds to reside at the same treatment center. As the Third Circuit appeared to recognize (App., infra, 23a-24a), two residents of the same community center could be treated differently under that court's ap- proach to the credit statute depending on whether one of them was permitted to leave for work during part of the day. Yet the number of possible permuta- tions of restrictive conditions of bail is virtually limit- less, because the Bail Reform Act of 1984 encourages judicial officers to innovate in fashioning conditions of release that will obviate the need for pre-trial in- carceration, see 18 U.S.C. 3142(c) (1) (B). ___________________(footnotes) parole), dismissed in part, reversed in part, 981 F.2d 1257 (9th Cir. 1992) (No. 91-36314) (Table). A similar trend has already begun in the Third Circuit. Following its decision in this case, the Third Circuit ordered a hearing in the case of a defendant who, as a condition of bail, had been ordered to rent, and reside at, a condominium located in an exclusive Tampa, Florida, development, and to pay for private guards who would ensure that he appeared for trial. Bilgrami v. Turner, No. 93-7793 (July 13, 1994). ---------------------------------------- Page Break ---------------------------------------- 18 The Third Circuit speculated that its rule would be easy to administer because "few situations * * * will arise" (App., infra, 23a) in which an inmate will suffer restrictions that are sufficiently severe to warrant credit. That view is contradicted by the volume of litigation over the issue, as well as by the practical fact that a large number of inmates will have an enormous incentive to litigate about BOP'S application of a "functional approach" in the context of their particular bail bonds. A rule that overturns the agency's longstanding policy, deviates from the law of other circuits, and invites so much unwar- ranted litigation calls for this Court's review. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. DREW S. DAYS, III Solicitor General JO ANN HARRIS Assistant Attorney General MICHAEL R. DREEBEN Assistant to the Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General JOSEPH DOUGLAS WILSON Attorney NOVEMBER 1994 ---------------------------------------- Page Break ---------------------------------------- APPENDIX A Filed April 25, 1994 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 93-7357 ZIYA K. KORAY, APPELLANT v. FRANK SIZER; UNITED STATES BUREAU OF PRISONS; ATTORNEY GENERAL OF THE UNITED STATES On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 92-01458) Submitted Pursuant to Third Circuit LAR 34.1 March 4, 1994 Before: SLOVITER, Chief Judge COWEN and LEWIS, Circuit Judges (Filed: April 25, 1994) OPINION OF THE COURT (1a) ---------------------------------------- Page Break ---------------------------------------- 2a SLOVITER, Chief Judge. I. On April 23, 1991, Ziya Koray was arrested for laundering monetary instruments in violation of 18 U.S.C. 1956(a) (1). On June 18, 1991, Koray en- tered a guilty plea. On June 25, 1991, a federal Mag- istrate Judge released Koray pursuant to 18 U.S.C. 3142(c) & (h) (1988 & Supp. III 1991) into the custody of the Pretrial Services Agency and ordered him to be "confined to the premises of [the Volun- teers of America `halfway house type facility'] and shall not be authorized to leave for any reason unless accompanied by Special Agent Dennis Bass." App. at 17. On October 21, 1991, the district court sen- tenced Koray to 41 months imprisonment with two years of supervised release. Koray remained at the Volunteers of America halfway house until Novem- ber 25, 1991, when he reported to the Allenwood Federal Prison Camp in Montgomery, Pennsylvania. Koray received a credit of 64 days for the time spent in jail between April 23 and June 25 pursuant to 18 U.S.C. 3585 (1988). However, the Bureau of Prisons declined to credit him for the approxi- mately 150 days he was confined to the Volunteers of America facility. After exhausting his adminis- trative remedies, Koray sought a writ of habeas corpus from the district court for the Middle District of Pennsylvania on October 15, 1992, arguing that the Bureau misapplied the statute in not crediting him for the time spent while "released" with restric- tive conditions. The district court found that restric- tive release conditions can never amount to "official detention" under section 3585 (b) and denied the pe- tition for a writ of habeas corpus. Koray filed this ---------------------------------------- Page Break ---------------------------------------- 3a timely appeal. The district court had jurisdiction under 28 U.S.C. 2241 (1988). We have appellate jurisdiction under 28 U.S.C. 1291 (1988) and re- view this question of statutory interpretation de novo. 1. See Barden v. Keohane, 921 F.2d 476, 479 (3d Cir. 1990). II. Credit for prior custody is determined by 18 U.S.C. 3585(b), which provides: Credit for prior custody.-A defendant shall be given credit toward the service of a term of im- prisonment for any time he has spent in official detention prior to the date the sentence com- mences- (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sen- tence was imposed; that has not been credited against another sentence. (emphasis added). The relevant question is whether "official detention" includes a court order of confine- ment in a facility such as a halfway house as a con- dition of bail. A. Prior to 1960, sentencing courts gave credit to- ward the sentence imposed for time spent in pre- ___________________(footnotes) 1 In the district court, Koray also argued that the statute violated equal protection by treating pre-trial defendants dif - ferently than post-sentenced defendants. The district court rejected this argument. Koray does not raise his equal pro- tection argument on appeal, and we do not address it. ---------------------------------------- Page Break ---------------------------------------- 4a sentence custody. See Soyka v. Alldredge, 481 F.2d 303, 305 & n.6 (3d Cir. 1973). However, courts lacked authority to give such credit to a defendant sentenced to a statutory mandatory minimum, see Stapf v. United States, 367 F.2d 326, 328 (D.C. Cir. 1966), and the number of such statutes markedly in- creased. To avoid the disparity between those sen- tenced under a mandatory minimum and those who were not, and also between those granted bail and those who were not, Congress amended the statute in 1960 to grant credit for pre-sentence confinement. Codified at 18 U.S.C. 3568, the provision required that "the Attorney General shall give any [person convicted] credit toward service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a mini- mum mandatory sentence." Pub. L. No. 86-691, 1 (a), 74 Stat. 738,738 (1960). This provision was amended in 1966 to expand the credit provisions, removing the requirement that credit only be granted in cases of mandatory mini- mums, increasing the offenses which could be counted for credit, and removing any mention of bail. It re- quired that the "Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed." Pub. L. No. 89-465, 4, 80 Stat. 214, 217 (1966) (codified at 18 U.S.C. 3658 (1982)). In the Sentencing Reform Act of 1984, Congress rewrote section 3568 and recodified it as section 3585 (b). See Pub. L. No. 98-473, 98 Stat. 1998, 2001 (1984). "Congress entirely rewrote 3568 when it ---------------------------------------- Page Break ---------------------------------------- 5a changed it to its present form in 3585(b). It re- arranged its clauses, rephrased its central idea in the passive voice, and more than doubled its length." United States v. Wilson, 112 S. Ct. 1351, 1355 (1992). "Congress altered 3568 in at least three ways when it enacted 3585(b). First, Congress re- placed the term `custody' with the term `official de- tention.' Second, Congress made clear that a defend- ant could not receive a double credit for his detention time. Third, Congress enlarged the class of defend- ants eligible to receive credit." Id. at 1355-56. B. We have had few opportunities to consider the scope of either section 3585 or its predecessor. This court recently declined to decide the question presently be- fore us because the defendant had not exhausted his administrative remedies. See United States v. Brann, 990 F.2d 98, 103-04 (3d Cir. 1993). The only prior decision in which this court spoke to the issue of credit for time outside of prison was United States v. Golden, 795 F.2d 19 (3d Cir. 1986), which concerned time spent in the Federal Witness Protection Program rather than in a halfway house. In Golden, the defendant entered into an agreement to plead guilty to two lesser counts and to assist the government in its investigation and prosecution of drug-related crimes. The government agreed to place him in the Federal Witness Protection Program. The district court sentenced the defendant to eight years and ordered "that the defendant is permitted to self- report at such time and place when notified by the United States Marshal's Office." Id. at 20 (quotation omitted). The defendant then remained at large in ---------------------------------------- Page Break ---------------------------------------- 6a the Witness Protection Program until the Marshal ordered him to report to prison twenty-one months later. Defendant appealed, claiming that the sentence was illegal because the district court failed to specify when it would begin. We agreed, and remanded for resentencing. We rejected the defendant's claim that he was en- titled as a matter of law to credit for the time he spent in the Witness Protection Program, stating "[g]enerally, a defendant is not entitled to credit for time spent released on his own recognizance prior to entering prison. " Id. at 21. Therefore, we rejected the defendant's contention that failure to credit his sentence for time spent in the Witness Protection Pro- gram was a breach of the plea agreement, stating: The plea agreement specifically provided that he would be given credit for periods of incarcera- tion prior to sentencing. By statute, credit for time prior to commencement of the sentence is given for time spent in custody. However, cus- tody has been defined as actual incarceration. See United States v. Ortega, 510 F.2d 412 (lOth Cir. 1975), While restrictions were placed on [the defendant], the district court was not re- quired to equate his life in the Witness Protec- tion Program with incarceration. Id. On the other hand, we suggested that the issue of credit was one for the discretion of the district court, stating that on resentencing the district court "may determine that [defendant] is entitled to a credit for some portion of the twenty-one months between the time [he] was sentenced and the time he was actually ordered to report to prison." Id. Thus, we ---------------------------------------- Page Break ---------------------------------------- 7a may have been suggesting that some of the time the defendant was in the Witness Protection Program was more restrictive than mere recognizance and therefore could be entitled to credit. Finally, although not directly on point, we consid- ered the issue of comparability between prison and a halfway house in United States v. Parker, 902 F.2d 221 ( 3d Cir. 1990). Defendant appealed from his sentence of six months of confinement in a community facility on the ground that it did not represent a departure as recommended by the government be- cause six months in the community center was equiva- lent to the minimum sentence under the guidelines. We disagreed, stating, "[w] e think it clear that a period of confinement as a condition of probation, subject to a defendant's being released to go to work, cannot possibly be equated with an equivalent period of imprisonment. " Id. at 222. Parker presents less assistance than Golden, and Golden is itself not di- rectly relevant because of the marked fact difference. C. The other Courts of Appeals to have considered this issue are divided. Although most have concluded that section 3585, like its predecessor section 3568, does not require the Bureau to credit presentenced defendants whose bail conditions allowed them to be confined outside of Bureau of Prison facilities, that conclusion was not reached without dissent. See, e.g., Moreland v. United States, 968 F.2d 655, 659-60 (8th Cir.) (en banc) (plurality) (with one judge concurring in judgment and five judges dissenting), cert. denied, 113 S. Ct. 675 (1992); United States v. Becak, 954 F.2d 386, 387-88 (6th Cir. ), cert. de- ---------------------------------------- Page Break ---------------------------------------- 8a nied, 112 S. Ct. 2286 (1992) ; Spinola v. United States, 941 F.2d 1528, 1529 (llth Cir. 1991); Ran- dall v. Whelan, 938 F.2d 522, 525 (4th Cir. 1991) (with Butzner, J., dissenting) ; United States v. Insley, 927 F.2d 185, 186 (4th Cir. 1991); United States v. Woods, 888 F.2d 653, 655-56 (10th Cir. 1989), cert. denied, 494 U.S. 1006 (1990) ; Ramsey W. Brenman, 878 F.2d 995, 996 (7th Cir. 1989) ; United States v. Smith, 869 F.2d 835, 837 (5th Cir. 1989) ; United States v. Figueroa, 828 F.2d 70, 71 (1st Cir. 1987) (per curiam) ; see also United States v. Westmoreland, 974 F.2d 736, 740-45 (6th Cir. 1992) ( Engel, J., dissenting), cert. denied, 113 S. Ct. 1818 (1993). In addition, the Ninth Circuit has re- jected the conclusion reached b-y the other circuits, holding instead that when conditions of release ap- proach those of incarceration, a detainee is in "of- ficial detention" for purposes of section 3585. See Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925-26 (9th Cir. 1993); Lahey v. Floyd, 992 F.2d 234, 235-36 (9th Cir. 1993); Mills v. Taylor, 967 F.2d 1397, 1400-01 (9th Cir. 1992) (per curiam); Brown v. Rison, 895 F.2d 533, 536 (9th Cir. 1990). In reaching the decision that no credit should be awarded, some of the courts have deferred to the interpretation of the statute used by the Bureau of Prisons. See Moreland, 968 F.2d at 658; Randall, 938 F.2d at 525 & n.3; Ramsey, 878 F.2d at 996 (Bureau's interpretation "is a reasonable opinion by officials having greater knowledge of federal penal policy than we judges have, so we are inclined to de- fer to it"). ---------------------------------------- Page Break ---------------------------------------- 9a It is far from clear that the Bureau of Prisons' determination that section 3585 does not require credit be granted when a court "releases" a pre- sentenced defendant to a halfway house should be granted the substantial deference that Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), requires to be given to an agency's own interpretation of the statute it administers. The Bureau's interpretation is recorded in its "Program Statements," which are merely internal agency guide- lines and may be altered by the Bureau at will. See Bureau of Prisons, Program Statement 1221.02 .1.2.1 (Apr. 12, 1993) (describing how Program State- ments are promulgated and modified ). As such, it is entitled to a lesser level of deference from the courts than are published regulations subject to the rigors of the Administrative Procedures Act, including pub- lic notice and comment. See FLRA v. United States Dep't of Navy, 966 F.2d 747, 762 & n.14 (3d Cir. 1992) (in bane); Marshall v. Rosemont, Inc., 584 F.2d 319,321 (9th Cir. 1978). Even when we accord the Bureau's interpretation some level of deference, we must examine whether the Bureau engaged in the necessary "reasoned analysis" of this issue. See Motor Vehicles Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 42 (1983) (revision of regulations requires "rea- soned analysis" ). In that connection, it is difficult to ignore the fact that the rationale given by the Bureau for its refusal to accord credit for time spent by a pretrial detainee in a halfway house is different under section 3568 than it is under the currently applicable section 3585, When interpreting section 3568, the Bureau rationalized its decision not to ac- ---------------------------------------- Page Break ---------------------------------------- 10a cord credit on the basis of the degree of restraint. Thus it distinguished between " [t]ime spent in resi- dence in a residential community center" where "the degree of restraint . . . is not sufficient restraint to constitute custody" and "time spent in a jail-type facility . . . as a condition of bail or bond" which was "creditable as jail time because of the greater degree of restraint." Bureau of Prisons, Program State- ment No. 5880.24 (5) (b) (5) (Sept. 5, 1979), quoted in Johnson v. Smith, 696 F.2d 1334, 1336 (11th Cir. 1983). Although the Bureau still retains this functional analysis for defendants governed by section 3568, see Bureau of Prisons, Program Statement 5880.30 (7) (b) (5) (July 16, 1993), it uses a different approach for section 3585. Now it focuses on whether the de- fendant has been "released" to pretrial services or "detained" by the Attorney General. See 18 U.S.C. 3141(a) (1988) ("A judicial officer authorized to order the arrest of a person under section 3041 of this title before whom an arrested person is brought shall order that such person be released or detained, pending judicial proceedings, under this chapter."). The Program's current position is that "[t]ime spent in residence in a community corrections center as a result of the Pretrial Services Act of 1982 (18 U.S.C. 3152-3154), or as a result of a condition of bail or bond (18 U.S.C. 3141-3143), is not credit- able as presentence time." Bureau of Prisons, Pro- gram Statement 5880.28 (c) (Feb. 21, 1992). It has determined that "[a] condition of bail or bond which is `highly restrictive,' and that includes `house arrest', `electronic monitoring' or `home confinement'; or such as requiring the defendant to report daily to ---------------------------------------- Page Break ---------------------------------------- 11a the U.S. Marshal, U.S. Probation Service, or other person; is not considered as time in official deten- tion." Id. The rationale given by the Bureau is that "[s]uch a defendant is not subject to the discretion of the U.S. Attorney General, the Bureau of Prisons, or the U.S. Marshals Service, regarding participation, placement., or subsequent return to a more secure environment, and therefore is not in a status which would indicate an award of credit is appropriate." Id. The Bureau also believes that "the government may not prosecute for escape in the case of an un- authorized absence in such cases, as the person has been lawfully released from `official detention.' " Id. The distinction in approaches is highly significant for Koray. Under the earlier rationale he might be able to convince the Bureau or a court that his condi- tions of confinement in the Volunteers of America facility were similar to those in a "jail-type facility" and that credit was appropriate notwithstanding the Bureau's generally applicable rule denying credit for time spent in a halfway house. Under the current rationale, Koray would not have that opportunity because he is clearly in the custody of pretrial serv- ices rather than the Attorney General. In order to determine whether the Bureau's in- terpretation withstands "reasoned analysis" we must examine whether the intervening statutory change from "custody" to "official detention" can carry the weight of this new interpretation. The legislative history of the change is both lengthy and unenlight- ening. While we describe it in the margin, we note that Congress has used the terms "custody," "official custody, " "confinement" and "official detention" in- terchangeably in describing this provision, as would ---------------------------------------- Page Break ---------------------------------------- 12a a normal English speaker. 2. Indeed, the title of the subsection remains "Credit for Prior Custody." (em- phasis added ). See INS v. National Ctr. for Immi- ___________________(footnotes) 2 The "official detention" language now codified at 3585 was originally introduced in the 93rd Congress in S. 1, which was a comprehensive effort to revise Title 18 of the United States Code. See S. 1, 93d Cong., 1st Sess. (1973). That language remained when the version of the bill was reported out of the Judiciary Committee in the 94th Congress. See S. 1, 94th Cong., 1st Sess. (1975). In the only discussion of this section, the Judiciary Committee's Report described the then present federal law, which was 3568, as providing "that the offender will receive credit for any time spent in custody" and described the proposed language as providing "credit towards the sentence of imprisonment for any time the defendant has spent in official custody prior to the date the sentence was imposed." S. Rep. No. 00, 94th Cong., 2d Sess. 926-27 (1976) (emphasis added). The same language of the bill continued throughout revisions in the 95th, 96th and 97th Congress as S. 1437, S. 1722, and S. 1630 respec- tively. See S. 1437, 95th Cong., 1st Sess. (1977); S. 1437, 95th Cong., 2nd Sess. (1978); S. 1722, 96th Cong., 1st Sess. (1979); S. 1630, 97th Cong., 1st Sess. (1981). More- over, the Judiciary Committee's Report used the same de- scriptive language concerning this provision each time. See S. Rep. No. 605, 95th Cong., 1st Sess. 935-36 (1977); S. Rep. No. 553, 96th Cong., 2d Sess. 996 (1980); S. Rep. No. 307, 97th Cong., 1st Sess. 1049 (1981). Finally, in the 98th Con- gress, the provision was included in two bills. S. 668 and S. 1762. The Senate Judiciary Committee reported out both these bills with the exact same description of the provision. S. Rep. No. 223, 98th Cong., 1st Sess. 125-26 (1983); S. Rep. No. 225, 98th Cong., 1st, Sess. 128-29 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3311-1.2. The Senate passed S. 1762. Meanwhile, the House Judiciary Committee which reported out H.R. 6915 tracking the language of the previous Senate bills described the provision as providing "a defendant be given credit toward the service of a term of imprisonment ---------------------------------------- Page Break ---------------------------------------- 13a grants' Rights, Inc., 112 S. Ct. 551, 556 (1991) (may use title to construe statute). From this we conclude, as have all the circuits which have considered the issue, that the use of the word "official detention" rather than the word "cus- tody" was not intended to alter the meaning of the statute. See Moreland, 968 F.2d at 657-58 n.6 (plu- rality) ; id. at 664 (Heaney, J., dissenting) ; Mills, 967 F.2d at 1400; United States v. Edwards, 960 F.2d 278, 283 (2d Cir. 1992) ; Pinedo v. United States, 955 F.2d 12, 14 (5th Cir. 1992); Becak, 954 F.2d at 387-88; Insley, 927 F.2d at 186; Woods, 888' F.2d at 655. It follows that before we accord any substantial deference to the Bureau, we must look to whether the Bureau has articulated any sustainable rationale for reading "official detention" as if it provided "offi- cial detention by the Attorney General or the Bureau of Prisons." The plain meaning of the words "offi- ___________________(footnotes) for any time spent in confinement before the commencement of the sentence of imprisonment if that time has not been credited against another sentence." H.R. Rep. No. 1396, 96th Cong., 2d Sess. 474 (1980) (emphasis added). In the 98th Congress, the House Judiciary Committee, while rejecting much of what was in S. 1762, proposed its own crime bill which incorporated a provision similar to the Senate's credit provision except that it provided that a "defendant shall be given credit toward the service of a term of imprisonment for any time spent in custody before the date on which the term commences." H.R. 6012, 98th Cong., 2d Sess. (1984) (emphasis added). The Judiciary Committee reported that this provision required credit be given for "any time spent in confinement before the commencement of the sentence of imprisonment." H.R. Rep. No. 1017, 98th Cong., 2nd Sess. 54 (1984) (emphasis added). The House passed the Senate's version without any changes to the credit provision. ---------------------------------------- Page Break ---------------------------------------- 14a cial detention" does not require this result; there is nothing in the statute which requires or suggests that a defendant must be under the detention of the Bureau. But see Randall, 938 F.2d at 525 ("There exists a strong presumption that `custody' refers to the legal authority of the custodian rather than to actual housing conditions." ). A court may "detain" a person as "official[ly]" as the Attorney General. Cf. United States v. Camarata, 828 F.2d 974, 981 (3d Cir. 1987) (Becker, J., concurring) (defendant on bail "was under the custody of the court, not the Attorney General" ), cert. denied, 484 U.S. 1069 (1988). It is therefore difficult to view Koray's detention as other than "official" since he was put in the "cus- tody" of pretrial services, 18 U.S.C. 3142 (c) (I) (B) (i), and was confined to the halfway house by court order. Although the Bureau notes that only an escape from one of its facilities permits prosecu- tion as an escape from confinement under 18 U.S.C. 751 (a), see United States v. Baxley, 982 F.2d 1265, 1269-70 (9th Cir. 1992) ; United States v. Miranda, 749 F. Supp. 1062, 1063-64 (D. Colo. 1990); but cf. Ramsey, 878 F.2d at 996 (dicta), this does not mean that escape from the Volunteers of America facility would have gone unpunished. In fact, Koray's fail- ure to comply with the conditions of his release would be a felony and would have subjected him to what the Bureau concedes is "a more severe punishment." Appellee's Br. at 15 n.5; see 18 U.S.C. 3146 (b), 3148 (a) (1988) ; United States v. George, 625 F.2d 1081, 1084-85 ( 3d Cir. 1980) (failing to report to U.S. Marshal as required by condition of bail is a felony under the Bail Reform Act). Moreover, the Bureau itself does not always limit "official detention" to that served under the custody ---------------------------------------- Page Break ---------------------------------------- 15a of the Attorney General. In this connection we note that the Bureau has characterized other custody as "constructive federal custody" and has been willing to give presentenced defendants credit under section 3585 and its predecessor section 3568 for certain time spent in state facilities, even though the defend- ant was not in the Attorney General's custody. See, e.g., Bureau of Prison, Program Statement 5880.28 (c) (1) (a) (2), 3. 5880.28(c) (1) (b) 4. (Feb. 21, 1992); ___________________(footnotes) 3 Under the Program Statement cited in the text, credit will not be given for any portion of time spent serving another sentence regardless of whether the sentence is federal, state, or foreign, except as follows: a. Time spent serving another foreign or state sen- tence that is vacated may be creditable as prior custody time credit provided the sentence was not vacated merely for resentencing. Any such time which is credited must be time spent after the commission of the federal offense. If a vacated state or foreign sentence results in a retrial and subsequent resentencing, any credit applied to that resentencing must be removed from the federal sentence computation, provided the inmate has not yet been re- leased from that sentence. b. Time spent serving another federal, foreign or state sentence that is vacated merely for resentencing shall not have any effect on the [Sentencing Reform Act (SRA) ] sentence computation until such time as the inmate is resentenced. If the resentencing results in a term which is less than the time the inmate has already served on the vacated sentence, the excess time not now credited to any other sentence shall be credited to the SRA term provided it was time spent after the commis- sion of the federal offense. 4 Under another section, credit related to 18 U.S.C. 3585 (b) (2) will be given as follows: 1. Prior Custody Credit will be given for time spent in official detention as the result of any federal, state or ---------------------------------------- Page Break ---------------------------------------- 16a ___________________(footnotes) foreign arrest which is not related to, yet occurred on or after the date of commission of the federal offense for which the SRA sentence was imposed; provided it has not been credited to another sentence. The lan- guage in this Section eliminates any need for a federal detainer to be on file or for bail to be set on the state or foreign charges as a prerequisite for applying such presentence time credit toward the federal sentence. Relevant prerequisites are: a. The non-related official detention must have occurred on or after the date of the federal offense for which the SRA sentence was imposed. b. The non-related official detention must not have been granted on another sentence. If it was applied on a state or foreign sentence, then credit is not ap- plicable to the SRA sentence. 2. Failure by the state to grant official detention credit on a state sentence can be determined if: a. The state charges are dismissed. b. State probation is granted. c. The federal term is concurrent with the state term and the Full Term Date of the state term is absorbed within the Full Term Date of the federal sentence (prior to applying any presentence credits and regardless of any award of prior custody credits by the state). Prior custody credits would be given up to the date that the first sentence begins to run, federal or state. Credit may not be applied for any time spent prior to the date of the SRA offense. Further, if the release from the non-federal sentence occurs prior to the imposition of the federal sen- tence, then any non-federal prior custody time awarded on the state sentence may not be applied to the federal sentence. d. The state sentence is vacated with further prosecution deferred, thereby effectively vacating the state's credit . . . . e. Ordinarily, if a state sentence is served, the in- mate will have received credit for the presentence ---------------------------------------- Page Break ---------------------------------------- 17a id. at 5880.30(7) (c) (1) (July 16, 1993) ; 5. see also Moreland, 968 F.2d at 660 n.10. ___________________(footnotes) official detention. However, if it can be demonstrated that the state did not credit the time, the credit will be awarded for time in state custody consistent with the instructions set forth in this section. (table omitted). 5 This section, entitled "constructive federal custody," ap- plies to defendants still governed by section 3568 as follows: (1) For time in non-federal custody when the non- federal custody is based on charges that later resulted in a federal sentence. (a) Credit shall be given for all time spent in mm-federal or foreign custody when the underlying basis for custody in fact is a federal warrant. For example, if a federal warrant is issued and the de- fendant is arrested by county police or foreign offi- cials on the basis of the federal warrant, credit shall be given from the date of arrest to the date of sen- tence for all days in custody. Inquiries or requests for foreign presentence time credit, along with copies of the judgment and commitment and copies of any documentation in the institution or in the possession of the prisoner, must be sent to the Chief of Inmate Systems Management for verification. (b) If the federal defendant has been in pre- sentence state or foreign custody on essentially the same charges, credit shall also be given even though a federal detainer may not have been on file during that time. Credit shall also be given for time spent in non-federal presentence custody when the non- federal and federal charges are similar enough to be considered the same criminal act or offense. This non-federal presentence custody is applicable when the factors of time, location, and the criminal acts are identical in both charges. Credit shall also be given for all time spent serving a state sentence (on ---------------------------------------- Page Break ---------------------------------------- 18a It follows from the anomalous result proffered by the Bureau and the absence of any support therefor in the statute or legislative history that the deference which we must accord it is minimal. See Mills, 967 F.2d at 1400 ( "BOP'S interpretation of section 3585 is unreasonable") ; Brown, 895 F.2d at 536 ("we cannot accept as reasonable a definition of 'custody' that excludes enforced residence under conditions ap- proaching those of incarceration; to do so would be contrary to the considerations of fairness that must have underlain Congress's provision of credit for time served"). After all, it is the statutory language we must con- strue. "To a normal English speaker, even to a legal English speaker, being forced to live in a halfway house is to be held `in custody' . . . "Ramsey, 878 F.2d at 996; see also Brown, 895 F.2d at 536. The "ordinary and obvious meaning of [a] phrase is not to be lightly discounted." INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). Such an understanding of "custody" has also been articulated by organiza- tions involved in defining the standards in the field. See 3 American Bar Association, Standards for Crim- inal Justice 18-319 (2d ed. 1980) (should grant credit for time spent in "custody," including any bail program which "imposes substantial restrictions on the offender's freedom of activity") ; National Advis- ory Commission on Criminal Justice Standards and Goals, Corrections 5.8 comment. (1973) ("In some eases . . . conditions for pre-trial release are substan- tial and involve serious restrictions on liberty. Where ___________________(footnotes) the same charges as defined in this paragraph), which has its. conviction vacated with no further prosecution to follow, in addition to any other non- federal presentence time. ---------------------------------------- Page Break ---------------------------------------- 19a supervision is substantial, courts should be authorized to grant a measure of credit for such time against the sentence imposed."). Notwithstanding the latter, we are not prepared to open the floodgates of credit by viewing "official detention" as encompassing the vast array of alterna- tive sentencing mechanisms which are currently used in the federal system to confine and rehabilitate ac- cused and convicted defendants. Instead, we find our- selves persuaded by the comments of Judge Heaney, for the five dissenters in Moreland: "Under the stat- ute, the degree of confinement is what is at issue . . . . Moreover, . . . the restrictions on [the defend- ant's] liberty were among the most severe that could have been imposed as a condition of pretrial release. The government placed [the defendant] into a half- way house not only to ensure his appearance at trial but also to protect the community, a goal that is per- haps the central purpose of incarceration today." Moreland, 968 F.2d at 666-67. Although the Bureau of Prisons maintains its posi- tion that "conditions at community treatment cen- ters generally are neither penal in nature nor nearly as restrictive as those in a full custodial environ- ment," Appellee's Br. at 9 (emphasis added), it does not argue that the release conditions imposed on Koray are not equal to the restrictions imposed on some defendants in the custody of the Bureau who do receive credit against their sentence. While the district court did not make factual findings regard- ing the conditions of confinement at the Volunteers of America facility, according to the allegations in Koray's motion in the district court (unchallenged by the Bureau), he was subjected to substantial re- strictions on his liberty: he was permitted to leave ---------------------------------------- Page Break ---------------------------------------- 20a the facility only once in 150 days (for a medical exam), he had to account for his presence five times a day, he was subject to random breath and urine tests, his access to visitors was limited in both time and manner, and there was a paucity of vocational, educational, and recreational services compared to a prison facility. In its brief, the Bureau admits that "the Volunteers of America maintains a halfway house similar to the manner in which the Bureau of Prisons may also operate such facilities." Appellee's Br. at 14. The Bureau would preclude any factual determina- tion of whether a prisoner was held under jail-type conditions, arguing that a bright-line rule is neces- sary in light of the fact-specific nature any alterna- tive would require. Some courts have agreed. See Randall v. Whelan, 938 F.2d 522, 525 (4th Cir. 1991) (broader definition of custody "would mire the ju- diciary in a swamp of factual and circumstantial de- tails that would likely produce inconsistent and stand- ardless decisions") ; Moreland, 968 F.2d at 663 (Loken, J., concurring in judgment). It is signifi- cant, however, that the facts in many of the cases which appear to support a broad rule giving credit for time in a halfway house were markedly different than these here, and those defendants would not have been entitled to credit under the criterion of "jail- type detention." For example, defendants in Becak, 954 F.2d at 387; Insley, 927 F.2d at 186; and Spin- ola, 941 F.2d at 1529, all were residing with one or more parent; the defendant in Woods was in a half- way house with work release, 888 F.2d at 654; and the custodial conditions in some of the other cases are unclear but appeared to permit daytime release. ---------------------------------------- Page Break ---------------------------------------- 21a Similarly, the cases relied upon by the Bureau from other courts which have refused to grant credit be- cause the conditions imposed were not substantial enough to be equivalent to imprisonment are inap- posite to this case. See, e.g., United States v. Zacku- lar, 945 F.2d 423, 425 (1st Cir. 1991) ("confinement to the comfort of one's own home is not the functional equivalent of incarceration in either a practical or a psychological sense") ; United States v. Edwards, 960 F.2d 278, 282-85 (2d Cir. 1992) (confinement to uncle's apartment except for religious services, choir practice, court appearances and to meet with attorney with intermittent electronic monitoring is insufficient to constitue "official detention") ; Marrera v. Ed- wards, 812 F.2d 1517, 1517 (6th Cir. 1987) (pre- trial confinement for medical treatment not "cus- tody") ; United States v. Robles, 563 F.2d 1308, 1309 (9th Cir. 1977) (defendant released on recognizance with minimal restrictions not in "custody" ), cert. denied, 435 U.S. 925 (1978) ; United States v. Peter- son, 507 F.2d 1191, 1192 (D.C. Cir. 1974) (defend- ant "at large on conditional release" not in "cus- tody") ; cf. United States v. Parker, 902 F.2d 221, 222 ( 3d Cir. 1990) ("a period of confinement as a condition of probation, subject to a defendant's being released to go to work, cannot possibly be equated with an equivalent period of imprisonment" (empha- sis added)). We therefore do not believe it will be administra- tively difficult to give credit for time served by de- fendants under jail-type detention. The overwhelm- ing majority of defendants will not be affected since only a small percentage of federal defendants are re- leased to a halfway house. We also note that the Bu- reau was able to incorporate the Ninth Circuit's de- ---------------------------------------- Page Break ---------------------------------------- 22a cision into its Program Statement, 6. and there is no allegation, much less evidence, that this overwhelmed the Bureau's administrative process. ___________________(footnotes) 6 The Program Statement accommodates the Ninth Circuit's decision in Brown by providing as to defendants governed by section 3568 that: An exception to the rule, contained in paragraph 7.b. (5) above, pertains to any person sentenced in the Ninth Circuit, regardless of where that person is pres- ently located or may transfer, who was ordered to spend time in a halfway house as a condition of bond, if that condition required that the person spend the night in the half way house. (If the person worked nights and was ordered to spend off duty hours in the halfway house, then such off duty hours would be considered "nights" for crediting purposes. ) For this particular group of de- fendants, credit must be given for each presentence day spent in the halfway house. (See Brown v. Rison, 895 F.2d 533 (9th Cir. 1990). Regardless of whether a person is presently confined, or is received in the future, records need not be reviewed until the person requests Brown credit. Exhaustion of administrative remedy is not required. Credit may be requested on a request to staff member form. Credit will only be given when the person can provide evidence, e.g., name or pretrial services officer, name and location of the halfway house, and dates of "custody" in the half- way house, to support the claim that such credit exists. I Based on the information provided by the prisoner, staff are responsible for obtaining necessary documenta- tion to substantiate the claim before Brown credit may , be given. If information is received from some source other than the prisoner that Brown credit may apply, of if it is obvious that such credit may apply, then staff shall initiate an inquiry by interviewing the prisoner involved. Bureau of Prisons, Program Statement 5880.30(7) (b) (6) (July 16, 1993) . ---------------------------------------- Page Break ---------------------------------------- 23a Moreover, we note the inherent unfairness in de- clining to grant credit to a defendant who sought bail but was confined under jail-like conditions without giving the defendant notice that this would be the result. Some defendants, such as Koray, might choose not to request bail under these circumstances, par- ticularly if the alternative is "official detention" in a minimum-security type institution with facilities su- perior to those in the halfway house in question. Fur- ther, we cannot ignore that the government derives the full benefits of incarceration, protecting the public and ensuring the defendant's presence at trial at a lower cost while freeing scarce jail space for truly dangerous offenders. See Garry A. Berger, Pre-Sen- tence Halfway House Residents: Are They Entitled to Credit Toward Subsequent Prison Sentences?, 27 Colum. J.L. & Sot. Probs. 191, 194 n.11 (1993). After careful consideration of the decisions of all the other courts to have ruled on the issue and the position of the Bureau of Prisons, we conclude that "official detention" for purposes of credit under 18 U.S.C. 3585 includes time spent under conditions of jail-type confinement. While we do not go as far as does the Ninth Circuit which appears to authorize credit for confinement under somewhat less restric- tive conditions, we believe the standard we establish is consistent with the language of the statute, Con- gress's intent, and the Burau's initial rationale under the statute. We are confident that the district courts will have no difficulty in applying this test in the few situations we anticipate will arise. To assist the dis- trict courts, we explain this does not include confine- ment in drug rehabilitation facilities, where the de-" fendant is receiving the benefit of the confinement, nor of course any halfway house where defendant ---------------------------------------- Page Break ---------------------------------------- 24a leaves to work during part of the day. Because there has been no finding that Koray was in fact held un- der such conditions, we will remand for the necessary fact finding. III. We will reverse the order of the district court and remand for further proceedings consistent with this opinion. The district court should conduct those pro- ceedings with expedition, because the time that Koray must serve in prison will have expired if he is en- titled to credit for the time he was confined in the Volunteers of America facility. 7. The mandate shall issue forthwith. A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit ___________________(footnotes) 7 We leave it to the discretion of the district court whether, under the circumstances, Koray should be released pending such a hearing. ---------------------------------------- Page Break ---------------------------------------- 25a APPENDIX B [Filed Apr. 30, 1993] UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Civil No. 3: CV-92-1458 (Judge Kosik) ZIYA K. KORAY, PETITIONER v. FRANK SIZER, ET AL., RESPONDENTS ORDER This is a petition for a writ of habeas corpus filed under 28 U.S.C. 2241 by Ziya Koray, an inmate at the Allenwood Federal Prison Camp, Montgomery Pennsylvania ("Allenwood"). Koray seeks an order directing the Bureau of Prisons to recompute his fed- eral sentence to include sentence credit for time spent confined in a halfway house as a condition of bail. For the following reasons, the petition will be denied. The facts are essentially undisputed. On April 23, 1991, Koray was arrested for laundering monetary instruments in violation of 18 U.S.C. 1956(a)(1). He was released on bail with conditions under the Bail Reform Act on June 25, 1991. See 18 U.S.C. 3142(c). Conditions of Koray's bail included the ---------------------------------------- Page Break ---------------------------------------- 26a requirement that he remain at a halfway house 24 hours per day unless accompanied by a special agent or authorized to leave by court order. Koray was con- victed and sentenced on October 22, 1991, but per- mitted to remain under conditional release until No- vember 25, 1991. On that date, Koray reported to Allenwood for service of his federal sentence. By way of this petition, Koray seeks sentence credit for the time he spent confined in the halfway house between June 26, 1991 and November 24, 1991, al- leging that the restrictive conditions of bail amounted to "official detention" under 18 U.S.C. 3585. 1. Koray also argues that it violates equal protection to deny him sentence credit but to grant such credit for pris- oners serving their federal sentences at halfway houses. Though the Court of Appeals of the Third Circuit has yet to confront either argument, the monumental weight of authority counsels against granting the pe- tition. See United States v. Zackular, 945 F.2d 423 (1st Cir. 1991) (official detention requirement of sec- tion 3585 can not be fulfilled by home confinement); United States v. Edwards, 960 F.2d 278 (2d Cir. ___________________(footnotes) 1 Section 3585 provides that A defendant shall be given credit towards the sen- tence of a term of imprisonment for any time spent in official detention prior to the date the sentence com- mences (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the de- fendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence. 18 U.S.C. 3585 (b). ---------------------------------------- Page Break ---------------------------------------- 27a 1992) (defendant released on bail subject to house arrest and electronic monitoring not entitled to sen- tencing credit for time spent on bail; no equal pro- tection violation) ; Tinsley v. Attorney General, 806 F. Supp. 31 ( S.D.N.Y. 1992 ) (time spent released on bond pending trial or sentence not time spent in "of- ficial detention" under 3585(b)); Randall v. Whelan, 938 F.2d 522 (4th Cir. 1991) (defendant on bail in drug rehabilitation center at all times except for court appearances and meetings with counsel not entitled to sentence credit) ; United States v. Insley, 927 F.2d 185 (4th Cir. 1991) (restrictive conditions of bail including curfew and electronic monitoring do not constitute official detention under 3585) ; Starchild v. Federal Bureau of Prisons, 973 F.2d 610 (8th Cir. 1992 ) (petitioner on bond under house arrest, not allowed to leave house except to go to probation office or court, and responsible custodians required to be with petitioner 24 hours per day prior to sentencing -sentence credit denied ) ; Moreland v. United States, 968 F.2d 655 (8th Cir. 1992) (only time spent in jail-type facility creditable as jail time and halfway house is not a jail-type facility; no violation of equal protection) ; United States v. Wickman, 955 F.2d 592 (8th Cir. 1992) (house arrest is not official deten- tion within the meaning of 3585) ; United States v. Woods, 888 F.2d 653, 655 (10th Cir. 1989) (time spent on bond in residential treatment center prior to commencement of sentence not creditable; no equal protection violation). We fall in line with the many courts that have held restrictive bail conditions do not amount to official detention under $3585. See United States v. Parker, 902 F.2d 221, 222 (3d Cir. 1990 ) (confinement at community corrections center subject to work release as condition of probation ---------------------------------------- Page Break ---------------------------------------- 28a "cannot possibly be equated with an equivalent period of imprisonment"). We also accept the argument that there is no violation of equal protection under the circumstances because the two revelant classes (pre- sentence detainees and duly sentenced prisoners ) are not similarly situated. NOW, THEREFORE, THIS 30th DAY OF APRIL, 1993, IT IS HEREBY ORDERED THAT: 1. The petition for a writ of habeas corpus is denied. 2. The Clerk of Court is directed to close this file. 3. Any appeal from this decision will be deemed frivolous, not taken in good faith, and lacking probable cause. /s/ Edwin M. Kosik EDWIN M. KOSIK United States District Judge ---------------------------------------- Page Break ---------------------------------------- 29a APPENDIX C UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 93-7357 ZIYA K. KORAY, APPELLANT v. FRANK SIZER; UNITED STATES BUREAU OF PRISONS; ATTORNEY GENERAL OF THE UNITED STATES SUR PETITION FOR REHEARING Present: SLOVITER, Chief Judge, BECKER, STA- PLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NY- GAARD, ALITO, ROTH and LEWIS, Cir- cuit Judges The petition for rehearing filed by Appellees, FRANK SIZER; UNITED STATES BUREAU OF PRISONS ; ATTORNEY GENERAL OF THE UNITED STATES in the above-entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having ---------------------------------------- Page Break ---------------------------------------- 30a asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not hav- ing voted for rehearing by the court in bane, the pe- tition for rehearing is denied. By the Court, /s/ D. K. Sloviter Chief Judge Dated: Jun. 17, 1994 ---------------------------------------- Page Break ---------------------------------------- 31a APPENDIX D SUPREME COURT OF THE UNITED STATES No. A-166 FRANK SIZER, Warden, PETITIONER v. ZIYA KORAY ORDER UPON CONSIDERATION of the application of counsel for the petitioner, IT IS ORDERED that the time for filing a petition for a writ of certiorari in the above-entitled case, be and the same is hereby, extended to and including October 15th, 1994. /s/ David H. Souter Associate Justice of the Supreme Court of the United States Dated this 8th day of September, 1994. ---------------------------------------- Page Break ---------------------------------------- 32a APPENDIX E SUPREME COURT OF THE UNITED STATES No. A-166 FRANK SIZER, Warden, PETITIONER v. ZIYA KORAY ORDER UPON CONSIDERATION of the application of counsel for the petitioner, IT IS ORDERED that the time for filing a petition for a writ of certiorari in the above-entitled ease, be and the same is hereby, extended further to and including November 1st, 1994. /s/ David H. Souter Associate Justice of the Supreme Court of the United States Dated this 11th day of October, 1994. ---------------------------------------- Page Break ---------------------------------------- 33a APPENDIX F U.S. Department of Justice Federal Prison System Washington, D.C. 20534 OPI : MISB Number : 5880.24 Date : September 5,1979 Subject : Sentence Computation, Jail Time Credit Under 18 USC 3568 Program Statement 1. PURPOSE. To establish the procedures to be fol- lowed for making jail-time credit determinations. 2. DIRECTIVES AFFECTED. PS 5880.19, Credit for Time in Custody Under 18 USC 3568, (5-27-75), is superseded. 3. BACKGROUND. Prior to October 2, 1960, credit for time in custody before sentencing was left to the discretion of the sentencing court. The presumption was that the sentencing judge would take the amount of time spent in custody prior to sentencing into con- sideration at the time sentence was imposed. This first crediting statute (P. L. 86-691, an amendment to 18 USC 3568) granted credit on minimum-manda- tory sentences. These were primarily the sentences imposed under the Harrison Narcotic Act of 1956. Judicial decisions later extended jail credit for those sentenced to the maximum sentence for violation of any statute, on the presumption that the sentencing ---------------------------------------- Page Break ---------------------------------------- 34a court did not take the amount of jail time into con- sideration at the time of sentencing. As policy, this applied only to those sentenced after the effective date (October 2, 1960) of P. L. 86-691. The passage of the Bail Reform Act of 1966 (P. L. 89-465) further expanded the credit to be given un- der 18 USC 3568 to all persons sentenced on and after the effective date of the Act (September 20, 1966). The language of the Act required credit for all time in custody in connection with the federal offense. Case law confirmed the application of the Act to YCA, FJDA, and NARA sentences. Courts also ex- panded federal jail credit to include periods of cus- tody wherein the primary custody was with a non- federal agency. Credit was held to be applicable on any subsequent federal term of confinement because of the effect the federal charges (through a warrant or detainer) had on the non-federal custody. 4. STATUTORY AUTHORITY. Jail time credit is controlled by 18 USC 3568, which states "The At- torney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or act for which sentence was imposed." 5. POLICY. "In custody" is defined, for purposes of this program statement, as physical incarceration in a jail-type institution or facility. It does not in- clude all time that may be considered custody for habeas corpus jurisdiction purposes, for example in the case of Hensley v. Municipal Court, 411 U. S. 345 (1973) (See Cochran v. U. S., 489 F.2d 691 (C.A. 5, 1974)). ---------------------------------------- Page Break ---------------------------------------- 35a Any part of a day spent in custody equals one day for credit purposes. Credit will be applied in the fol- lowing manner for the following situations: a. Sentences imposed prior to September 20, 1966. Jail time credit will be applied 1.) to those sen- tences in which the maximum penalty was im- posed, 2.) if the penalty of imprisonment added to the number of days in presentencing custody exceeds the maximum for the offense, or 3.) if the violation required the imposition of a minimum-mandatory penalty, and if the cri- teria in paragraph 5.b. are met. (1) To determine if the maximum sentence was imposed, refer to the penalty provi- sions of the sections violated in the appro- priate Title of the U. S. Code. If the sen- tence imposed represents the aggregation of terms on more than one count, jail time credit will be applied to the applicable count, prior to aggregating the terms. (2) If a sentence is less than the maximum, but adding the sentence to the number of jail days exceeds the maximum for the of- fense, then jail time credit will be applic- able for the number of days that caused the maximum for the offense to be exceeded. (3) On a sentence imposed for an offense re- quiring the imposition of a minimum- mandatory penalty, the sentence imposed does not have to be the minimum-manda- tory term. Any sentence imposed under the section requiring the minimum-mandatory penalty will be entitled to jail credit. ---------------------------------------- Page Break ---------------------------------------- 36a b. Sentences imposed on and after September 20, 1966. (1) Jail time credit will be given for time spent in the custody of the Attorney Gen- eral (whether actual or constructive) as a direct result of the acts or offenses which resulted in the federal sentence. (see Paragraph 5.c. for the criteria for con- structive federal custody. ) (2) Jail time credit will not be given for any portion of time spent serving another sen- tence, either federal or non-federal, except that time spent serving a sentence that is vacated will be creditable toward another sentence if the later sentence is based on the same charges that led to the prior, va- cated sentence. When failure to make bail due to indigency is a moot point, e.g., when another sentence is operative for the period of time in question, and any bail would not result in a change in custody status, then applying jail time would be giving double credit, i.e., credit on two separate and dis- tinct sentences for the same period of time contrary to the intent of 18 USC 3568 to apply credit to sentences. (3) Time spent under a writ of habeas corpus from non-federal custody will not, in itself, be considered for the purpose of crediting jail time. The primary reason for custody in this case is not the federal charge. In this situation, it is considered that the fed- eral court "borrowed" the prisoner under the provisions of the writ for purposes of ---------------------------------------- Page Break ---------------------------------------- 37a court appearance. This is secondary cus- tody. Credit may infrequently be given un- der provisions of another paragraph. (4) Time spent in residence in a residential community center (or a community based program located in a Metropolitan Correc- tional Center or jail) under P.L. 91-492 as a condition of parole (18 USC 4209) or probation (18 USC 3651 ) is not creditable as jail time since the degree of restraint provided by residence in a community cen- ter is not sufficient restraint to constitute custody within the meaning or intent of 18 USC 3568. However, time spent in a jail- type facility (not including a community based program located in a Metropolitan Correctional Center or jail) as a condition of probation is creditable as jail time be- cause of the greater degree of restraint. (5) Time spent in residence in a residential community center (or a community based program located in a Metropolitan Correc- tional Center or jail) under the provisions of 18 USC 3146 as a condition of bail or bond, including the "Pretrial Services" program (18 USC 3152-3154), is not creditable as jail time since the degree of restraint provided by residence in a com- munity center is not sufficient restraint to constitute custody within the meaning or intent of 18 USC 3568. Also, a "highly re- strictive" condition of bail or bond, such as requiring the defendant to report daily to the U. S. Marshal, is not considered as time ---------------------------------------- Page Break ---------------------------------------- 38a in custody, However, time spent in a jail- type facility (not including a community based program located in a Metropolitan Correctional Center or jail) as a condition of bail or bond is creditable as jail time be- cause of the greater degree of restraint. c. Constructive Federal Custody. (1) For time in non-federal custody when the non-federal custody is bases [sic] on charges that later resulted in a federal sentence: (a) Credit will be given for all time spent in non-federal or foreign custody when the underlying basis for custody in fact is a federal warrant. For example, if a federal warrant is issued and the pris- oner is arrested by county police or foreign officials on the basis of the fed- eral warrant, credit will be given from the date of arrest to the date of sen- tence for all days in custody. Inquiries or requests for foreign jail time credit, along with copies of the judgment and commitment and BP-5, and copies of any documentation in the institution or in the possession of the inmate, must be sent to the central office Chief of Administrative Systems for verifica- tion and monitoring purposes. (b) If the federal inmate has been in pre- sentence state custody on essentially the same charges, credit will also be given even though a federal detainer ---------------------------------------- Page Break ---------------------------------------- 39a may not have been on file during that time. Credit will be given for time spent in non-federal pre-sentence cus- tody when the non-federal and federal charges are similar enough to be con- sidered the same criminal act or of- fense. This is applicable when the factors of time, location, and the crim- inal acts are identical in both charges. Credit will also be given for all time spent serving a state sentence (on the same charges as defined in this para- graph) which is later vacated, set aside, or dismissed, in addition to any other non-federal presentence time. Following are some situation examples: 1 If a prisoner is arrested by county police on a state charge of armed robbery, and the prisoner is later convicted by the federal government of bank robbery, which bank rob- bery occurred during the same, iden- tical act of armed robbery, credit will be given for all time spent in cus- tody from the date of arrest to the date of the imposition of the first sentence (whether federal or non- federal). 2 If a prisoner is arrested by state po- lice on a state charge of auto theft, and the prisoner is later convicted of a Dyer Act violation, involving theft of the same automobile in both state and federal charges, credit will be ---------------------------------------- Page Break ---------------------------------------- 40a given for all time spent in custody from the date of arrest to the date of imposition of the first sentence (whether federal or non-federal). Credit is applicable because the state auto theft was the same criminal act, at the same time and place as the Dyer Act violation. 3 If a prisoner is arrested by city po- lice on a state charge of uttering a forged check and the prisoner is later convicted by the federal govern- ment for mail theft, the prisoner having obtained the check in ques- tion from the mails, credit will not be given. It is not the identical criminal act. Uttering requires a separate criminal act from theft of the check. 4 If a prisoner is arrested by county police on a state charge of armed robbery and the prisoner is later convicted by the federal government for possession of an unregistered firearm, which is the same firearm used in the robbery, credit will be given. 5 If a prisoner is arrested by county police on a state charge of uttering forged checks and the prisoner is later convicted of conspiracy to de- fraud the U.S. Government, the checks in question being U.S. Treas- ---------------------------------------- Page Break ---------------------------------------- 41a ury checks used in the forgery, credit will not be given. (2) For time in non-federal custody when the non-federal custody is based on charges that are unrelated to the federal charges that resulted in a federal sentence: (a) Credit will be given on any subsequent federal term of imprisonment (to in- clude parole and mandatory release violator terms) when the state with- draws, increases, or refuses to set bail, solely due to the fact that a federal detainer is lodged, and the state fails to give jail time credit for that time. [C]redit will be given from the time the federal detainer is lodged up to the time the sentence is executed (either federal or non-federal). The state au- thorities must verify the fact that their bail status is due to the lodging of the federal detainer. Failure to give jail credit (by the state ) may be assumed in any of the following events: (1) the state charges are dismissed, (2) the state sentence is vacated with fur- ther prosecution deferred, thereby ef- fectively vacating the state's award of jail credit, (3) state probation is granted, or (4) the state orders their sentence to run concurrently with the federal sentence, and the state sen- tence will be absorbed prior to grant of good time, resulting in no benefit from the state jail time. Ordinarily, if a sentence results from state ---------------------------------------- Page Break ---------------------------------------- 42a charges, there will be a presumption that the prisoner did receive credit for presentence time, however, this may be rebutted if the prisoner can dem- onstrate that the state did not credit the time. (b) Credit will be given when a federal detainer is lodged, the prisoner does not make state bail based on a pre- sumption of indigency, and the state fails to give jail credit for time. Credit will be given from the date the federal detainer was lodged up to the begin- ning date of either the federal or non- federal sentence, whichever occurs first. State bail must have been set. If the state charge was not bailable, no credit will apply to the federal sen- tence. Failure to give jail credit (by the state) may be assumed in any of the following events: (1) the state charges are dismissed, (2) the state sentence is vacated with further prose- cution deferred, thereby effectively va- cating the state's award of jail credit, (3) state probation is granted, or (4) the state orders their sentence to run concurrently with the federal sentence, and the state sentence will be absorbed prior to grant of good time, resulting in no benefit from the state jail time. Ordinarily, if a sentence results from the state charges, there will be a pre- sumption that the prisoner did receive credit for presentence time, however, ---------------------------------------- Page Break ---------------------------------------- 43a this may be rebutted if the prisoner can demonstrate that the state did not credit the time. (3) For time spent in custody of the Surgeon General as a civil commitment under Title I of NARA, credit will be given for all time in actual institutional confinement, if the later criminal sentence is a result' of the same offense that led to the civil com- mitment. This is a specific provision of NARA, as codified under Title 28, U.S. Code, Section 2903 (d). 6. DOCUMENTATION. Credit will be given only with proper documentation, indicating the prisoner was in custody within the application of paragraph 5. Proper documentation will consist of written doc- umentation for the file from any law enforcement agency (including probation officers). This includes verified phone and teletype messages. When there is cause to believe that credit may be due, arising from a request from the inmate or from other persons speaking in his behalf, or from any inconsistencies in the manner in which the factual situation presents itself, an effort to obtain the docu- mentation necessary to make a determination will be made. Ordinarily this will consist of one communi- cation (with written documentation that contact was made, either in the form of a carbon of the letter or teletype message, or by documenting the phone call ) and one following communication if no response is received. If the follow-up communication still produces no re- sponse, the matter should be referred to the Regional ---------------------------------------- Page Break ---------------------------------------- 44a Office. No further action should be taken locally in that particular case until instruction is received from the Regional Office. Sample letters of suggested types of communications to other agencies are in the attachments to his Pro- gram Statement. /s/ Norman A. Carlson NORMAN A. CARLSON Director ---------------------------------------- Page Break ---------------------------------------- 45a APPENDIX G [Excerpt from Program Statement 5880.28, Sentence Computation Under 18 USC 3585 (July 29, 1994)] * * * * * c. Prior Custody Time Credit. The SRA includes a new statutory provision, 18 U.S.C. 3585(b), that pertains to "credit for prior custody" and is con- trolling for making time credit determinations for sentences imposed under the SRA. Title 18 U.S.C. 3568, as implemented by Program Statement 5880.24, Sentence Computation, Jail Time Credit Un- der 18 U.S.C. 3568, was repealed effective Novem- ber 1, 1987, but remains the controlling statute for all sentences imposed for offenses that occurred on or after September 20, 1966 up to November 1, 1987. Statutory Authority: Prior custody time credit is controlled by 18 U.S.C. 3585(b), and states, "A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences- (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sen- tence was imposed; that has not been credited against another sen- tence." Definitions: * * * * * Official detention. "Official detention" is defined, for purposes of this policy, as time spent under a ---------------------------------------- Page Break ---------------------------------------- 46a federal detention order. This also includes time spent under a detention order when the court has recom- mended placement in a less secure environment or in a community based program as a condition of pre- sentence detention. A person under these circum- stances remains in "official detention", subject to the discretion of the Attorney General and the U.S. Mar- shals Service with respect to the place of detention. Those defendants placed in a program and/or resi- dence as a condition of detention are subject to re- moval and return to a more secure environment at the discretion of the Attorney General and the U.S. Marshals Service, and further, remain subject to prosecution for escape from detention for any unau- thorized absence from the program/residence. Such a person is not similarly situated with persons condi- tionally released from detention with a requirement of program participation and/or residence. A defendant is not eligible for any credits while released from detention, Time spent in residence in a community corrections center as a result of the Pre- trial Services Act of 1982 (18 U.S.C. 3152-3154), or as a result of a condition of bail or bond (18 U.S.C. 3141-3143), is not creditable as presentence time. A condition of bail or bond which is "highly restric- tive," and that includes "house arrest", "electronic monitoring" or "home confinement"; or such as re- quiring the defendant to report daily to the U.S. Mar- shal, U.S. Probation Service, or other person; is not considered as time in official detention. Such a de- fendant is not subject to the discretion of the U.S. Attorney General, the Bureau of Prisons, or the U.S. Marshals Service, regarding participation, placement, or subsequent return to a more secure environment, ---------------------------------------- Page Break ---------------------------------------- 47a and therefore is not in a status which would indicate an award of credit is appropriate (see Randall v. Whelan, 938 F2d 522 (4th Cir. 1991) and U.S. v Insley, 927 F.2d 185 (4th Cir. 1991). Further, the government may not prosecute for escape in the case of an unauthorized absence in such cases, as the per- son has been lawfully released from "official deten- tion". (Exception: As a result of case law in the Ninth Circuit, credit for time spent in a community treatment center as a condition of bond (including appeal bond ) is considered the same as time spent in "official detention" for those sentenced in the Ninth Circuit, if they were required to spend nights in the community corrections center. The credit follows the inmate if transferred into some other circuit but an inmate sentenced in a circuit other than the Ninth Circuit shall not be given the credit if transferred into the Ninth Circuit. This same type of credit also applies to a defendant whose probation or supervised release is revoked in the Ninth Circuit, providing that the time spent in the community treatment center occurred after the conduct that caused the probation or supervised release to be revoked. It is unlikely that this type of credit will ever apply to a supervised re- lease or probation revocation sentence since the con- duct that causes the revocation usually follows the time spent in a community corrections center. ) Official detention does not include time spent in the custody of the U.S. Immigration and Naturalization Service (INS) under the provisions of 18 U.S.C. 1252 pending a final determination of deportability. An inmate being held by INS pending a civil deporta- tion determination is not being held in "official deten- tion" pending criminal charges. (See Ramirez- Osorio v. INS, 745 F.2d 937, rehearing denied 751 ---------------------------------------- Page Break ---------------------------------------- 48a F.2d 383 (5th Cir. 1984); Shoaee v. INS, 704 F.2d 1079 (9th Cir. 1983); and Cabral-Avila v. INS, 589 F.2d 957 (9th Cir. 1978), cert. denied 440 U.S. 920, 99 S. Ct. 1245, 59 L.Ed2d 472 (1979.) A sentence imposed by a court for "Time Served," means that all time spent in official detention (prior custody time ), as a result of the offense for which sentence was imposed, is included in the "Time Served" sentence which the court imposed and can- not be awarded to any other sentence. Time spent serving a civil contempt sentence prior to trial and/or sentencing does not constitute pre- sentence time credit toward the sentence that is even- tually imposed. Time spent serving a civil contempt sentence does not constitute presentence time credit toward any criminal sentence that has been interrupted by, or that is running along concurrently with, or that is to be served consecutively to, the criminal sentence. Official detention does not include any time in a release status even though the defendant is consid- ered "in custody" for purposes of pursuing a habeas corpus petition with the court, as cited by the U.S. Supreme Court in Hensley v. Municipal Court, 411 U.S. 345 (1973) (see also Cochron v. U.S., 489 F.2d 691 (5th Cir. 1974) ; Villaume v. United States, 804 F.2d 498 (8th Cir. 1986) (per curiam), cert. denied, 481 U.S. 1022 (1987) ). * * * * * (2) DOCUMENTATION. Prior custody credit will be given only with proper documentation indi- cating that the prisoner was in official detention within the application of paragraph 5. Proper docu- mentation will consist of written documentation, for ---------------------------------------- Page Break ---------------------------------------- 49a placement in the prisoner's Judgment and Commit- ment File, from any law enforcement agency (in- cluding probation officers ). This includes verified phone, fax, or teletype messages, PSI, Rap Sheet, Booking Sheets, Trial Transcripts, Sentry, USM Form 129, etc. (a) When there is cause to believe that credit may be due, arising from an inmate request or from any other person speaking in his or her behalf, or from any other inconsistencies in the facts developed, an effort to obtain the documentation necessary to make a determination will be made. Ordinarily, this will consist of one communication (with written docu- mentation that contact was made, either in the form of a copy of the letter, fax, or teletype message, or by documenting the phone call) and one following com- munication if no response is received. (b) Should the Judgment and Commitment order make any reference to, or recommendations concern- ing prior custody credits, the term in effect may not be changed in an attempt to meet the language on the Judgment and Commitment. Contact with the court must be made, and the term in effect may only be changed when it is specifically approved by the court. See the ISM Manual regarding the preparation of any correspondence directed to the courts. (c) No credit shall be given based solely on docu- ments or information received from a prisoner, a de- fense attorney, or other person or organization acting on the behalf of the inmate. Information from such sources shall be thoroughly investigated and verified before credit may be given. (d) If the follow-up communication produces no response, the matter should be referred to the appro- priate Regional Inmate Systems Administrator. ---------------------------------------- Page Break ---------------------------------------- 50a (3) QUESTIONABLE SITUATIONS. Questions or problems that arise as to the applicability of any of the provisions of this policy shall be referred to the Regional Inmate Systems Administrator. Any resolu- tion of a question or problem that may require a decision outside of, or contrary to, this policy or that may require a precedent setting decision, shall be re- ferred to the Chief of Inmate Systems in the Central Office for review. ---------------------------------------- Page Break ---------------------------------------- 51a APPENDIX H [Filed May 3, 1994] UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 92-CV-1458 ZIYA K. KORAY v. SIZER, ET AL. ORDER IT IS HEREBY ORDERED THAT ZIYA K. KORAY, Register Number 37880-053, be released from the Federal Prison Camp at Allenwood on May 4, 1994, at 6:00 a.m. Pending further order by this Court, Ziya K. Koray shall comply with the following conditions: -He shall report as directed to the United States Probation Office in this district or as otherwise directed; -He shall notify the Court, the Clerk of Court, his attorney and the United States Attorney of any change in residence address; and -He shall not leave the United States without the approval of the Court. Date: May 3, 1994 /s/ Edwin M. Kosik EDWIN M. KOSIK United States District Judge * U. S. GOVERNMENT PRINTING OFFICE, 1994 387147 20001 ---------------------------------------- Page Break ---------------------------------------- No. 94-790 In the Supreme Court of the United States OCTOBER TERM, 1994 JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., PETITIONERS V. ZIYA K. KORAY ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES DREW S. DAYS, III Solicitor General JO ANN HARRIS Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General JOSEPH DOUGLAS WILSON Attorney Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Section 3585 of 18 U.S.C. provides that a defendant generally must "be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences. " The question presented is whether a federal prisoner must receive credit on his sentence under Section 3585 for time when he was released on bail pursuant to the Bail Reform Act of 1984. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS In addition to the parties named in the caption, the following are petitioners in this Court: United States Bureau of Prisons and Frank Sizer, warden, Allenwood Federal Prison Camp, Allenwood, Pennsyl- vania. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below. . . . 1 Jurisdiction . . . . 1 Statutory provision involved . . . . 2 Statement . . . . 3 Introduction and summary of argument . . . . 5 Argument: Section 3585 does not require the Bureau of Prisons to award a prisoner credit for time when he was released on bail pursuant to the Bail Reform Act of 1984 . . . . 9 A. The text of Section 3585 and the surrounding statutory framework demonstrate that credit may not be granted for time spent in a com- munity treatment center as a condition of bail . . . . 9 B. The history of Section 3585 demonstrates that Congress intended the credit provisions to bene- fit only those defendants held in prison without bail . . . . 17 C. The court of appeals erred in failing to defer to BOP'S reasonable interpretation of Section 3585 . . . . 21 Conclusion . . . . 29 TABLE OF AUTHORITIES Cases: American Hosp. Ass'n v. NLRB, 499 U.S. 606 (1991) . . . . 27 Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332 (1982) . . . . 27 Arizona v. Roberson, 486 U.S. 675 (1988) . . . . 27 Brown v. Risen, 895 F.2d 533 (9th Cir. 1990) . . . . 20, 25 Chevron U.S.A. Inc. V. Natural Resources Defense. Council, Inc., 467 U.S. 837 (1984) . . . . 8, 22 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589 (1992) . . . . 13 Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151 (1993) . . . . 25 Gozlon-Peretz V. United States, 498 U.S. 395 (1991) . . . . 11 Martin v. OSHRC, 499 U.S. 144 (1991) . . . . 26 Mieles v. United States, 895 F.2d 887 (2d Cir. 1990) . . . . 20 Miles v. Apex Marine Corp., 498 U.S. 19 (1990) . . . . 20 Mills v. Taylor, 967 F.2d 1397 (9th Cir. 1992) . . . . 6 Mistretta v. United States, 488 U.S. 361 (1989) . . . . 14 Moreland v. United States, 968 F.2d 655 (8th Cir.), cert. denied, 113 S. Ct. 675 (1992) . . . . 6, 11 National R.R. Passenger Corp. v. Boston & Maine Corp., 112 S. Ct. 1394 (1992) . . . . 22 NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., No. 93-1612 (Jan. 18, 1995) . . . . 22, 26 Ochoa v. United States, 819 F.2d 366 (2d Cir. 1987) . . . . 18 Ortega v. United States, 510 F.2d 412 (lOth Cir. 1975) . . . . 20 Pauley v. BethEnergy Mines, Inc., 501 U.S. 680 (1991) . . . . 27 Pinedo v. United States, 955 F.2d 12 (5th Cir, 1992) . . . . 6 Polukoff v. United States, 489 F.2d 727 (5th Cir. 1974) . . . . 20 Ramsey v. Brennan, 878 F.2d 995 (7th Cir, 1989) . . . . 16 Randall v. Whelan, 938 F.2d 522 (4th Cir. 1991) . . . . 16 Reves v. Ernst & Young, 113 S. Ct. 1163 (1993) . . . . 13 Sullivan v. Everhart, 494 U.S. 83 (1990) . . . . 21-22 Thomas Jefferson University v. Shalala, 114 S. Ct. 2381 (1994) . . . . 25 United States v. Becak, 954 F.2d 386 (6th Cir.), cert. denied, 112 S. Ct. 2286 (1992) . . . . 6, 11 United States v. City of Fulton, 475 U.S. 657 (1986) . . . . 22, 27 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page United States v. Edwards, 960 F.2d 278 (2d Cir. 1992) . . . . 6 United States v. Granderson, 114 S. Ct. 1259 (1994) . . . . 13,14 United States v. Insley, 927 F.2d 185 (4th Cir. 1991) . . . . 6 United States v. Peterson, 507 F.2d 1191 (D.C. Cir. 1974) . . . . 18, 20 United States v. Shimer, 367 U.S. 374 (1961) . . . . 22 United States v. Wilson, 112 S. Ct. 1351 (1992) . . . . 5, 8, 21, 22 United States v. Woods, 888 F.2d 653 (l0th Cir. 1989), cert. denied, 494 U.S. 1006 (1990) . . . . 6 United States v. Zackular, 945 F.2d 423 (1st Cir. 1991) . . . . 6 Waldorf v. United States, No. C-74-339 (W.D. Term. Jan. 10, 1975) . . . . 24 Weinberger v. Salfi, 422 U.S. 749 (1975) . . . . 27 Statutes and Sentencing Guidelines: Act of Sept. 2, 1960, Pub. L. No. 86-691, 1(a), 74 Stat. 738 . . . . 18 Bail Reform Act of 1966, Pub. L. No. 89-465, 4; 80 Stat. 217 . . . . 18 Bail Reform Act of 1984, Pub. L. No. 98-473, Tit. II, ch. I, 98 Stat. 1976 . . . . 7, 10, 11, 21 18 U.S.C. 3141 et. seq . . . . 9 18 U.S.C. 3142 (1988 & Supp. V 1993) . . . . 9 18 U.S.C. 3142 (a) . . . . 9 18 U.S.C. 3142 (c) (1) (B) (X) . . . . 10 18 U.S.C. 3142 (i) (2) . . . . 7, 10 18 U.S.C. 3143 (1988 & Supp. V 1993) . . . . 9 18 U.S.C. 3143 (a) (Supp. V 1993) . . . . 9 Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Tit. II 98 Stat. 1976 . . . . 10, 20, 25 Sentencing Reform Act of 1984, Pub. L. No. 98- 473, Tit. II, ch. II, 98 Stat. 1987 . . . . 10, 14 18 U.S.C. 3553 (a) (6) . . . . 15 18 U.S.C. 3563 (b) (10) . . . . 14 ---------------------------------------- Page Break ---------------------------------------- VI Statutes and Sentencing Guidelines-Continued: Page 18 U.S.C. 3563 (b) (12) . . . . 14 18 U.S.C. 3563 (b) (14) . . . . 14 18 U.S.C. 3563 (b) (20) . . . . 14 18 U.S.C. 3583 (a) . . . . 14 18 U.S.C. 3583 (d) . . . . 14 18 U.S.C. 3585 . . . . 2, 5, 7, 8, 9, 13, 17 18 U.S.C. 3585 (a) . . . . 2, 7, 12, 13, 21 18 U.S.C. 3585 (b) . . . . passim 18 U.S.C. 3586 . . . . 9, 12 18 U.S.C. 3621 et seq . . . . 12 18 U.S.C. 3621 (b) . . . . 7, 12, 13 18 U.S.C. 3622 (b) . . . . 13 18 U.S.C. 3622 (c) . . . . 13 18 U.S.C. 3623 . . . . 7, 13, 21 18 U.S.C. 709a (1934) . . . . 18 18 U.S.C. 1956 (a) (1) . . . . 3 18 U.S.C. 3568 (1982) (repealed) 4, 13, 18, 19, 23, 24 Sentencing Guidelines (Nov. 1, 1994): 5F1.1 . . . . 14 5F1.2 . . . . 14 Miscellaneous: Federal Bureau of Prisons, Program Statement No. 7600.51 (Oct. 30, 1969) . . . . 24 Federal Bureau of Prisons, Program Statement No. 7600.59 (May 27, 1975) . . . . 24 Federal Bureau of Prisons, Program Statement No. 5880.24 (Sept. 5, 1979) . . . . 23 Federal Bureau of Prisons, Sentence Computation Manual CCCA (1992 & Supp. 1994) . . . . 26 S. Rep. No. 750, 89th Cong., 1st Sess. (1965) . . . . 19 S. Rep. No. 225, 98th Cong., 1st Sess. (1983) . . . . 21 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. 94-790 JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., PETITIONERS v. ZIYA K. KORAY ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE UNITED STATES OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-24a) is reported at 21 F.3d 558. JURISDICTION The judgment of the court of appeals was entered on April 25, 1994. A petition for rehearing was denied on June 17, 1994. Pet. App. 29a-30a. On September 8, 1994, Justice Souter extended the time within which to file a petition for a writ of certiorari (1) ---------------------------------------- Page Break ---------------------------------------- 2 to and including October 15, 1994. Id. at 31a. On October 11, 1994, Justice Souter further extended the time within which to file a petition for a writ of certiorari to and including November 1, 1994. Id. at 32a. The petition for a writ of certiorari was filed on November 1, 1994, and was granted on Janu- ary 13, 1995. J.A. 37. The jurisdiction of this Court rests upon 28 U.S.C. 1254(1). STATUTORY PROVISION INVOLVED Section 3585 of Title 18 provides: Calculation of a term of imprisonment (a) Commencement of sentence.- A sentence to a term of imprisonment commences on the date the defendant is received in custody await- ing transportation to, or arrives voluntarily to commence service of sentence at, the official de- tention facility at which the sentence is to be served. (b) Credit for prior custody. A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences- (1) as a result of the offense for which the sentence was imposed; or (2) as a result of any other charge for which the defendant was arrested after the commission of the offense for which the sen- tence was imposed; that has not been credited against another sentence. ---------------------------------------- Page Break ---------------------------------------- 3 STATEMENT 1. On April 23, 1991, respondent was arrested for laundering monetary instruments, in violation of 18 U.S.C. 1956(a)(1). On June 18, 1991, he entered a guilty plea to that offense in the United States District Court for the District of Maryland. On June 25, 1991, a federal magistrate judge ordered respondent released on bail pending sentencing on condition that respondent reside at a Volunteers of America community treatment center. On October 21, 1991, the district court sentenced respondent to 41 months' imprisonment. Respondent remained at the Volunteers of America facility until November 25, 1991, the date on which he was ordered to sur- render for service of his sentence. Respondent then reported to Allenwood Federal Prison camp in Penn- sylvania. Pet. App. 2a. Invoking Bureau of Prisons (BOP or Bureau) ad- ministrative procedures, respondent sought credit against his sentence for the 150 days that he spent at the community treatment center between June 25 and November 25, 1991. Relying on its established policy, BOP declined to grant the requested credit. After exhausting his administrative remedies, re- spondent filed a petition for habeas corpus in the United States District Court for the Middle District of Pennsylvania seeking credit for the time he spent in the community treatment center. The district court denied the petition, finding that respondent's stay at the community treatment center did not con- stitute "official detention" within the meaning of 18 U.S.C. 3585(b), which governs credit for time spent in detention before the commencement of a sentence. Pet. App. 25a-28a. ---------------------------------------- Page Break ---------------------------------------- 4 2. The court of appeals reversed. Pet. App. 1a- 24a. The court acknowledged that, with the exception of the Ninth Circuit, "most [courts of appeals] have concluded that section 3585 * * * does not require the Bureau to credit presentenced defendants whose bail conditions allowed them to be confined outside of Bureau of Prison[s] facilities." Id. at 7a. The court declined, however, to defer to BOP's view that the phrase "official detention" in Section 3585(b) does not include restrictive conditions of bail. The court explained that the statutory language need not be read "as if it provided `official detention by the Attorney General or the Bureau of Prisons,'" since "there is nothing in the statute which requires or suggests that a defendant must be under the deten- tion of the Bureau" and "[a] court may `detain' a person as `official[ly]' as the Attorney General." Pet. App. 13a-14a. The court also found that the Bureau's interpre- tation of the statute was not worthy of deference because it appears in a "Program Statement" rather than in "published regulations subject to the rigors of the Administrative Procedure] Act, including public notice and comment." Pet. App. 9a. Finally, the court placed considerable weight on its belief that BOP followed a "functional" approach to the credit issue under the predecessor statute, 18 U.S.C. 3568 (repealed). According to the court, that functional analysis focused on the restrictiveness of the bail con- ditions placed on a defendant, and, if utilized here, might have allowed respondent to obtain credit for his stay at the community treatment center. Pet. App. 9a-13a. The court concluded that " `official detention' for purposes of credit under 18 U.S.C. 3585 includes ---------------------------------------- Page Break ---------------------------------------- 5 time spent under conditions of jail-type confinement." Pet. App. 23a. Although the court did not define that concept with precision, it believed that its approach would not be difficult to administer, because "only a small percentage of federal defendants are released to a halfway house," and because the Bureau had experience with the different but related functional approach to Section 3585(b) adopted by the Ninth Circuit. Pet. App. 21a-22a. The court remanded the case to the district court to determine whether re- spondent was in "jail-type" confinement during the time that he was at the community treatment center. Id. at 24a. Subsequently, respondent was released pending further proceedings in the court of appeals and the district court. Id. at 51a. INTRODUCTION AND SUMMARY OF ARGUMENT Section 3585 of Title 18, entitled "[c]alculation of a term of imprisonment," is the federal statute that governs when a federal sentence of imprisonment is deemed to begin, and whether credit toward the sen- tence must be awarded for any time the prisoner spent in "official detention" before the sentence began. The Bureau of Prisons is the agency charged with ad- ministering that statute. See United States v. Wilson, 112 S. Ct. 1351 (1992). The question in this case is whether Section 3585 of Title 18 requires the Bu- reau of Prisons to grant credit toward a sentence of imprisonment for time during which a defendant was released on bail, but was required to reside at a com- munity treatment center as a condition of bail. Most courts of appeals have agreed with the Bu- reau's view that restrictive conditions of bail do not amount to "official detention" within the meaning of ---------------------------------------- Page Break ---------------------------------------- 6 Section 3585 (b). 1. In Mills v. Taylor, 967 F.2d 1397 (1992), the Ninth Circuit departed from that ap- proach and concluded that "official detention" in- cludes any conditions that "approach * * * incarcera- tion." Id. at 1400. In this case, the Third Circuit, while stating that it will "not go as far as does the Ninth Circuit," concluded that the Bureau is required to grant credit to a defendant whose release on bail was attended by conditions amounting to "jail-type confinement." Pet. App. 23a. In our view, the Third Circuit erred in rejecting the Bureau's interpretation. The Bureau's approach is supported by the text of Section 3585 (b) and related sentencing provisions, the history of Section 3585(b), and principles of ad- ministrative deference. A. Section 3585(b) does not define the phrase "official detention," but related statutory provisions indicate that Congress used that phrase to refer only to incarceration in a penal or correctional facility, where a defendant is under the control of federal or ___________________(footnotes) 1 See Moreland v. United States, 968 F.2d 655 (8th Cir.) (en banc) (time spent in halfway house not creditable), cert. denied, 113 S. Ct. 675 (1992); United States v. Edwards, 960 F.2d 278, 282-283 (2d Cir. 1992) (home confinement not creditable); Pinedo v. United States, 955 F.2d 12, 14 (5th Cir. 1992) (per curiam); United States v. Becak, 954 F.2d 386, 387-388 (6th Cir.) ("physical incarceration [required] to receive credit for presentence detention"), cert. denied, 112 S. Ct. 2286 (1992); United States v. Zackular, 945 F.2d 423, 425 & n.2 (lst Cir. 1991) (home confinement not credit- able); United States v. Insley, 927 F.2d 185, 186 (4th Cir. 1991) (no credit for home confinement, because only "full physical incarceration" satisfies statutory requirement); United States v. Woods, 888 F.2d 653, 655-656 (lOth Cir. 1989) (half way house confinement not creditable), cert. denied, 494 U.S. 1006 (1990). ---------------------------------------- Page Break ---------------------------------------- 7 state correctional authorities. The phrase does not in- clude halfway house "confinement" during which the defendant is not subject to summary removal and re- assignment to a more secure environment at the dis- cretion of correctional authorities. First, the Bail Reform Act of 1984 is the statute that authorizes pre-sentence restraints on liberty, and under that statute "detention" means "confinement in a corrections facility." 18 U.S.C. 3142(i) (2). The bail statute is especially significant because it was enacted in the same statute as the Sentencing Re- form Act of 1984, of which Section 3585 was a part. Second, Congress's use of the phrase "official deten- tion facility" in Section 3585(a) to refer to the place where the defendant will serve his sentence confirms the Bureau's interpretation, because related statutes make clear that a sentence of imprisonment may be served only in a "penal or correctional facility" where the prisoner is subject to the control of federal or state correctional authorities. 18 U.S.C. 3621 (b). Other statutes also make clear that Congress did not consider the limitations on respondent's freedom of movement as a condition of bail to constitute "official detention." When Congress used the term "official detention facility" in federal sentencing stat- utes, such as 18 U.S.C. 3623, it contemplated facilities that are under the supervision of prison authorities. Moreover, the court of appeals' rule undermines one of the principal goals of the Sentencing Reform Act- the reduction of unwarranted sentencing disparities. To calculate credit under the court of appeals' amor- phous standard, hundreds of different district judges across the country will be asked to review the Bu- reau's determinations in light of the restrictiveness of particular bail bonds. That process will inevitably produce conflicting results. ---------------------------------------- Page Break ---------------------------------------- 8 B. The legislative history of Section 3585 also sup- ports the view that prisoners who are "released" on bail are not entitled to pre-sentence credit. The stat- ute that preceded Section 3585 was enacted as part of a significant revision of bail practices, and it was based on congressional concern that prisoners who could not obtain release on bail should at least receive credit for the time spent in the custody of the At- torney General. By the time Congress enacted Sec- tion 3585 in 1984 (when it again revised bail prac- tices), the courts of appeals had uniformly held that prisoners released on bail were not entitled to credit under the predecessor statute. There is no indication that Congress intended to change that rule, and, as this Court previously stated in construing Section 3585 (b), " [i]t is not lightly to be assumed that Con- gress intended to depart from a long established policy" followed under the predecessor provision. United States v. Wilson, 112 S. Ct. at 1355. C. Finally, the court of appeals erred in refusing to defer to the Bureau of Prisons' interpretation of a statute the Bureau is charged with administering. The court of appeals incorrectly believed that the Bureau has followed inconsistent approaches to the credit issue, and that the Bureau's views are too in- formal to warrant deference. Because the Bureau's considered interpretation of Section 3585(b) is rea- sonable, the court of appeals was required to defer to it, even if the language of that statute would bear a different reading. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984). ---------------------------------------- Page Break ---------------------------------------- 9 ARGUMENT SECTION 3585 DOES NOT REQUIRE THE BUREAU OF PRISONS TO AWARD A PRISONER CREDIT FOR TIME WHEN HE WAS RELEASED ON BAIL PUR- SUANT TO THE BAIL REFORM ACT OF 1984 A. The Text Of Section 3585 And The Surrounding Statu- tory Framework Demonstrate That Credit May Not Be Granted For Time Spent In A Community Treat- ment Center As A Condition Of Bail Section 3585 (b) states that a defendant "shall be given credit toward the service of a term of imprison- ment for any time he has spent in official detention" before beginning service of his sentence. Section 3585 (b) does not define the phrase "official detention." That phrase, however, derives a particular meaning from related statutory provisions that authorize pre- sentence restraints on a defendant's liberty. The provisions governing "detention" by the Attorney General, see 18 U.S.C. 3142, 3143 (1988 & Supp. V 1993), and the detailed statutory framework govern- ing "post-sentence administration" found in Chapter .229 of Title 18, see 18 U.S.C. 3586, establish that the "official detention" contemplated by Section 3585(b) is incarceration in a facility under the control of correctional authorities. 1. The Bail Reform Act of 1984, 18 U.S.C. 3141 et seq., is the body of law that authorizes restraints on a defendant's liberty, both before trial, see 18 U.S.C. 3142(a), and while the defendant "is await- ing imposition or execution of sentence." 18 U.S.C. 3143 (a) (Supp. V 1993). That Act therefore pro- vides a natural complement to Section 3585 (b)'s pro- vision of credit for time spent in "official detention" before the sentence commenced. ---------------------------------------- Page Break ---------------------------------------- 10 The Act provides a court with two choices: to re- lease a defendant on bail or to order him detained. A defendant who is admitted to bail is "released," even when his bail includes specific conditions limiting his freedom of movement, such as residence in a com- munity treatment center. See 18 U.S.C. 3142(c)(1) (B) (x). A defendant is "detained" only when he is denied bail-a ruling that results in his being "com- mitted to the custody of the Attorney General for confinement in a corrections facility" pending trial and sentence. 18 U.S.C. 3142(i) (2). Thus, the only "detention" that a defendant may suffer "officially]" by virtue of a federal court order is detention of the type contemplated by the Bail Reform Act of 1984- i.e., "confinement in a corrections facility." The common origin of Section 3585 (b) and of the statutory provisions governing bail provides further evidence that Section 3585 (b) should be construed in light of the bail provisions. Congress enacted both the bail provisions and Section 3585 (b) as part of the same statute, the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Tit. II, 98 Stat. 1976. 2. That legislation worked a broad and far- reaching reform of bail and sentencing practices. As this Court recognized in resolving another controversy that resulted from the same reforms, Congress must have been aware of the definitions it gave to statutory ___________________(footnotes) 2 The provisions of the Comprehensive Crime Control Act of 1984 relating to bail are known as the Bail Reform Act of 1984. Pub. L. No. 98-473, Tit. II, ch. I, 98 Stat. 1976. The provisions of the Act relating to sentencing, including the credit provision at issue here, are known as the Sentencing Reform Act of 1984. Pub. L. No. 98-473, Tit. II, ch. II, 98 Stat. 1987. ---------------------------------------- Page Break ---------------------------------------- 11 terms in the "related legislative enactments" and must have "legislated with reference to [them]." Gozlon-Peretz v. United States, 498 U.S. 395, 407-408 (1991 ). That close relationship among the bail and credit provisions therefore "leads to the conclusion that `official detention' means incarceration." United States v. Becak, 954 F.2d 386, 388 (6th Cir.), cert. denied, 112 S. Ct. 2286 (1992) ; accord Moreland v. United States, 968 F.2d 655, 662 (8th Cir.) (Loken, J., concurring), cert. denied, 113 S. Ct. 675 (1992). Respondent contends (Br. in Opp. 14) that the bail statute's understanding of "detention" should not in- form the interpretation given to Section 3585 (b), because in certain circumstances the Bureau grants credit for time spent in state custody-when the prisoner is not in the custody "of the Attorney Gen- eral" as contemplated by the Bail Reform Act of 1984. That would occur, for example, when a defend- ant is originally arrested and held without bail on state-law charges that ultimately are dismissed, but when the conduct underlying those charges then forms the basis for a federal conviction and sentence of imprisonment. 3. That observation, however, does not undercut our essential point: that the logical infer- ence from the language of the Bail Reform Act of 1984 is that Congress understood the term "deten- tion" to mean penal safekeeping by correctional offi- ___________________(footnotes) 3 Because Section 3585(b) expressly prohibits credit for time "that has * * * been credited against another sentence," an award of credit for time spent in state custody is rare. Thus, for example, if the state proceedings resulted in con- viction and a jail sentence, time spent in state custody would not be creditable toward a federal sentence, unless state authorities did not credit the defendant's pre-trial incarcera- tion toward the state sentence. ---------------------------------------- Page Break ---------------------------------------- 12 cials, not private supervision, however restrictive, of conditions of release. 2. The Bureau of Prisons' view that a defendant may receive credit under Section 3585 (b) only for a period of custody spent under the control of federal or state correctional authorities is also confirmed by other provisions of Title 18 that govern the imple- mentation of federal sentences. 4. Section 3585 (a), which governs when a federal sentence is deemed to "commence," is especially sig- nificant. That Section provides that a federal sentence commences when the defendant is received for trans- portation to or arrives at "the official detention facil- ity at which the sentence is to be served." Section 3621 (b) of Title 18 in turn provides that a federal sentence of imprisonment may be served at "any available penal or correctional facility" that is "des- ignate[d]" by the Bureau of Prisons, "whether main- tained by the Federal Government or otherwise." The phrase "official detention facility" in Section 3585(a) therefore refers to a correctional facility designated by the Bureau for the service of federal sentences, and where the prisoner remains at the discretion of correctional authorities who "may * * * direct [his] transfer * * * from one penal or correctional facility to another." 18 U.S.C. 3621 (b). 5. ___________________(footnotes) 4 Section 3586 of Title 18 provides that "[t]he implementa- tion of a sentence of imprisonment is governed by the provi- sions of subchapter C of chapter 229." Subchapter C governs where a sentence of imprisonment may be served, the circum- stances under which a prisoner serving a sentence may engage in paid employment while continuing in "official detention," the date of the prisoner's release, and other matters. See 18 U.S.C. 3621 et seq. 5 That the phrase "official detention" means incarceration is also confirmed by the history of Section 3585(a). The ---------------------------------------- Page Break ---------------------------------------- 13 That interpretation of Section 3585 (a) is confirmed by other provisions governing the administration of federal sentences. For example, Sections 3622 (b) and 3622 (c) of Title 18 provide that a prisoner serving a federal sentence of imprisonment may participate in training or employment "while continuing in offi- cial detention at the penal or correctional facility." Section 3623 provides that a prisoner serving a fed- eral sentence may be transferred to "an official deten- tion facility" operated by a State when the prisoner faces further charges in that State and the State requests the transfer. Because basic canons of con- struction suggest that the words "official detention" should bear the same meaning in subsections (a) and (b) of Section 3585 and in the related sentencing statutes, see Estate of Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2596 (1992) ; see also Reves v. Ernst & Young, 113 S. Ct. 1163, 1169 (1993), credit for time "spent in official detention" under Section 3585 (b) is available only to a defendant who was de- tained in a "penal or correctional facility," 18 U.S.C. 3621 (b), and was subject to the control of state or federal penal authorities. Moreover, when restrictions on liberty such as those placed on respondent are made part of a federal sentence, they are not considered part of a sentence of imprisonment. Congress has provided that such community confinement may be ordered when the defendant-is sentenced to probation, a type of sentence that differs "fundamentally," United States v. Grand- ___________________(footnotes) phrase "official detention facility" replaced references in a predecessor statute to ''penitentiary, reformatory, or jail'' and to "a jail or other place of detention." See 18 U.S.C. 3568 (1982) (repealed). There is no indication that Congress intended a substantive change when it replaced those two phrases with a single descriptive phrase. ---------------------------------------- Page Break ---------------------------------------- 14 erson, 114 S. Ct. 1259, 1264 (1994), from imprison- ment and is reserved for less grave offenses. See 18 U.S.C. 3563(b) (10), (12), (14) & (20); see also United States v. Granderson, 114 S. Ct. at 1266 (sen- tence of probation "ordinarily reflects the judgment that the offense and offender's criminal history were not so serious as to warrant imprisonment"); Sen- tencing Guidelines 5F1.1 & 5F1.2.6 There is there- fore every indication that Congress did not conceive of the type of restraints on liberty placed on respond- ent as "imprisonment," but that it instead regarded those restraints as equivalent to more lenient proba- tionary sentences. It would be anomalous to interpret a statute designed, as its title indicates, to govern the "[c]alculation of a term of imprisonment" to re- quire credit for restrictions on liberty that are not "imprisonment" as that term is used in federal sen- tencing statutes. 3. The rule adopted by the court of appeals is also inconsistent with the more general goals of the Sen- tencing Reform Act, of which Section 3585(b) is a part. In enacting the Sentencing Reform Act, Con- gress was concerned primarily with the "great vari- ation among sentences imposed by different judges upon similarly situated offenders." Mistretta v. United States, 488 U.S. 361, 366 (1989). Congress ___________________(footnotes) 6 Congress provided that that type of community confine- ment may also be imposed as a condition of "supervised re- lease," see 18 U.S.C. 3583 (d) (incorporating by reference discretionary conditions of probation), which like probation is a form of supervision. Unlike probation, which is an al- ternative to imprisonment, a period of supervised release is an additional penalty that must be served "after imprisonment," See 18 U.S.C. 3583(a). ---------------------------------------- Page Break ---------------------------------------- 15 created the Sentencing Commission to devise a system of uniform sentencing guidelines that would bring greater regularity and uniformity to sentencing by "reducing sentence disparities." Id. at 367; see also 18 U.S.C. 3553(a) (6). The rule adopted by the court of appeals under- mines that goal. That rule requires the Bureau to investigate and analyze the conditions of each de- fendant's bail bond to determine whether he suffered "jail-type" restraints on his liberty. The Bureau would be required to make that judgment on the basis of information kept by centers owned and operated by private entities, such as the Volunteers of America facility at issue in this case. The records of those private entities are not available to BOP as a matter of right, and any information those entities provide to BOP is therefore less verifiable than materials pro- vided by the "law enforcement agenc[ies]," Pet. App. 49a, on which the Bureau ordinarily relies for docu- mentation in dealing with credit issues. Moreover, even when there is no reason to doubt the reliability of the information furnished, that information may not significantly aid the Bureau in performing the task required by the decision below, because the "jail- type restraints" standard adopted by that court is elusive and amorphous. The decision below also requires a federal habeas court to grant a hearing to a prisoner who receives an adverse determination from the Bureau, and who alleges that the conditions of his bail were "jail-like." Pet. App. 23a-24a. There is no reason to believe that federal habeas courts, any more than the Bureau of Prisons, will be able to perform that inquiry with ease. As the Seventh Circuit has noted, whether par- ---------------------------------------- Page Break ---------------------------------------- 16 titular conditions of confinement are "sufficiently like prison to be treated the same * * * is not a question susceptible of rational determination, at least by tools of inquiry available to judges." Ramsey v. Brennan, 878 F.2d 995, 996 (1989). Indeed, there is no single set of objective criteria that describes all facilities where a defendant might serve a federal sentence of imprisonment. The Bureau of Prisons runs a num- ber of correctional facilities that subject inmates to varying degrees of restraint, from maximum security penitentiaries to prison camps. The only factors that unify them are that their inmates are under the direct control of correctional personnel, are subject to summary reassignment to any other facility within the system, and are subject to the Bureau's disci- plinary procedures. See Randall v. Whelan, 938 F.2d 522, 525 (4th Cir. 1991). Moreover, the difficulty of comparing the Bureau's diverse correctional facilities with the restraints as- sociated with community treatment centers is com- pounded by the fact that "[t]he programs and rules of residential treatment centers vary dramatically with each institution," and courts will therefore face "myriad combinations of restrictions." Randall v. Whelan, 938 F.2d at 525-526. Because "[n]o obvious rule informs * * * how to weigh [] a midnight curfew against one beginning at eight in the evening, or a five-day-a-week regime against one lasting seven days," id. at 526, the end result will be to "mire the judiciary in a swamp of factual and circumstantial details that would likely produce inconsistent and standardless decisions," id. at 525. Some of those conflicts could be resolved over time through the appellate process. But a system based on case-by-case habeas adjudication of the comparz- ---------------------------------------- Page Break ---------------------------------------- 17 tive restrictiveness of particular bail bonds is likely to be far more cumbersome, and produce less unifor- mity in the end, than a system of administrative determinations governed by uniform rules that are applied by the agency consistently throughout the country." It is difficult to believe that, as part of leg- islation designed to bring regularity and uniformity to sentencing practices, Congress intended to create a regime that encourages unwarranted disparities in the amount of time that similarly situated prison- ers actually spend in jail. B. The History Of Section 3585 Demonstrates That Con- gress Intended The Credit Provisions To Benefit Only Those Defendants Held In Prison Without Bail The history of the credit provision underscores its close ties to bail determinations. That history con- firms that Congress did not anticipate that credit ___________________(footnotes) 7 The difficulty of achieving uniform results under the type of functional approach suggested by the court of appeals is highlighted by its own decision. In joining the only court to embrace a functional approach (and to reject the Bureau's view), the court of appeals emphasized that its functional approach does "not go as far" as the Ninth Circuit's. Pet. App. 23a. Similar circuit conflicts can be expected to arise if some form of functional approach to the credit issue becomes a national rule, because the contours of the rule will become clear only after considerable litigation. That result would be especially disruptive to prison administration, because the Bureau runs a national prison system in which inmates are routinely transferred among correctional facilities located in different circuits to maintain security and population balance. The Bureau could therefore correctly deny credit under the law governing a prisoner's first place of incarceration only to find itself defending a habeas challenge based on the dif- ferent legal principles of another circuit where that prisoner may later be incarcerated. ---------------------------------------- Page Break ---------------------------------------- 18 would be awarded to a prisoner who was not actually incarcerated in a correctional facility before his sen- tence commenced. 1. The original credit provision was enacted in 1932 to clarify when a federal sentence began to run, in cases in which BOP had transferred the prisoner from one place of confinement to another. See 18 U.S.C. 709a (1934) (credit for time spent in jail awaiting transfer). The statute "retained th[at] lim- ited thrust until 1960, when Congress sought to clarify whether, under statutes requiring the imposi- tion of a minimum mandatory sentence, the court was free to give recognition to the time a defendant had spent in jail for want of bail." Ochoa v. United States, 819 F.2d 366, 371 (2d Cir. 1987); see also United States v. Peterson, 507 F.2d 1191, 1193 (D.C. Cir. 1974) (per curiam). Accordingly, in 1960 Con- gress required the Attorney General to grant a con- victed defendant credit against his sentence "for any days spent in custody prior to the imposition of sen- tence * * * for want of bail set for the offense under which sentence was imposed." Act of Sept. 2, 1960, Pub. L. No. 86-691, 1(a), 74 Stat. 738 (emphasis added ). 2. Congress returned to the credit statute in the Bail Reform Act of 1966, Pub. L. No. 89-465, 4, 80 Stat. 217 (codified at 18 U.S.C. 3568 (repealed)), when it deleted the statutory reference to "want of bail" and made credit available for offenses that did not call for a mandatory minimum sentence. The Committee Report that accompanied that legislation indicates that the express reference to bail was de- leted to clarify that credit should be available for of- fenses made "nonbailable" by law, and also in cases when the defendant was "not released for some rea- ---------------------------------------- Page Break ---------------------------------------- 19 son other than lack of bail." S. Rep. No, 750, 89th Cong., 1st Sess. 21-22 (1965). 8. In light of that ex- planation, the lower courts interpreted the 1966 Act to require credit only for defendants who were im- prisoned before trial, and rejected claims that onerous conditions of bail could amount to "custody" under the statute. As the D.C. Circuit explained, the purpose of Congress was to benefit those who were not released; there was no intention to extend credit to those who were released. ___________________(footnotes) 8 As amended in 1966, the credit statute provided: 3568. Effective date of sentence; credit for time in custody prior to the imposition of sentence The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, re- formatory, or jail for service of such sentence. The At- torney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term "offense" means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress. If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall com- mence to run from the date on which he is received at such jail or other place of detention. No sentence shall prescribe any other method of com- puting the term. 18 U.S.C. 3568 (1982) (repealed). Section 3568 remains in force with respect to sentences imposed before November 1, 1987. ---------------------------------------- Page Break ---------------------------------------- 20 Had Congress, in amending the statute, intended to give credit to those who were released pending trial or appeal we think Congress would have said so in plain language; certainly there would have been some discussion of this novel proposal in the reports on the legislation. United States v. Peterson, 507 F.2d at 1193. The court thus concluded that " `in custody' * * * means detention or imprisonment in a place of confinement and does not refer to the stipulations imposed when a defendant is at large on conditional release." Id. at 1192. See also Ortega v. United States, 510 F.2d 412, 413 (lOth Cir. 1975) (per curiam) ; Polakoff v. United States, 489 F.2d 727, 730 (5th Cir. 1974) (Wisdom, J,). 3. That was the state of the law when the credit statute took its current form in 1984. Indeed, until a divided panel of the Ninth Circuit reached a con- trary conclusion in Brown v. Risen, 895 F.2d 533 (1990 ) -six years after enactment of the Sentencing Reform Act-"all of the circuits that ha[d] consid- ered the matter ha[d] concluded that `custody' for purposes of section 3568" did not "include time spent while released on bail pending trial * * * or pending appeal. " Mieles v. United States, 895 F.2d 887, 888 (2d Cir. 1990); see also Brown v. Rison, 895 F.2d at 537-538 (Wallace, J., dissenting). There is no indication that Congress, in rewording the credit provision as part of the Comprehensive Crime Con- trol Act of 1984, disagreed with the then-unanimous weight of authority that denied credit to defendants who had secured their release on bail. Cf. Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) ("We assume that Congress is aware of existing law when it passes legislation"). Rather, as this Court previ- ---------------------------------------- Page Break ---------------------------------------- 21 ously stated in construing Section 3585 (b), "[i] t is not lightly to be assumed that Congress intended to depart from a long established policy" followed under the predecessor provision. United States v. Wilson, 112 S. Ct. 1351, 1355 (1992). While Congress in 1984 did "replace[] the term `custody' with the term `official detention,' " ibid., the most plausible explana- tion for Congress's use of the "detention" formula- tion in Section 3585 (b) was to conform the credit provision to the nomenclature used in other sentenc- ing provisions, see, e.g., 18 U.S.C. 3585(a), 3623, and in the Bail Reform Act of 1984. 9. C. The Court Of Appeals Erred In Failing To Defer To BOP's Reasonable Interpretation Of Section 3585 While the most natural reading of the phrase "offi- cial detention" in Section 3585(b) is that it refers to the status of a person who has been denied bail, the most that can be said of the court of appeals' analysis is that the language enacted by Congress could bear the functional interpretation adopted by that court, "not that it cannot bear the interpretation adopted by" the Bureau. Sullivan v. Everhart, 494 ___________________(footnotes) 9 As the court below recognized, Pet. App. 12a-13a, every court of appeals to consider the question has held that the phrase "official detention" in Section 3585(b) has the same meaning as the phrase "in custody" in the predecessor stat- ute. That conclusion is consistent with Congress's use of the term "custody" in the title of Section 3585(b), and with the sparse legislative history of that Section. The Senate Report that accompanied the Comprehensive Crime Control Act de- scribed Section 3585 (b) as "provid[ing] that the defendant will receive credit towards the sentence of imprisonment for any time he has spent in official custody prior to the date the sentence was imposed." S. Rep. No. 225, 98th Cong., 1st Sess. 129 (1983) . ---------------------------------------- Page Break ---------------------------------------- 22 U.S. 83, 91-92 (1990). Because the Bureau's inter- pretation of Section 3585(b) is reasonable, the court of appeals was required to defer to it, even if the language of that statute would bear a broader read- ing. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984). 1. Under Chevron, the first inquiry is whether the statute reveals an "unambiguously expressed intent of Congress" on "the precise question" addressed by the agency's interpretation. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 843. If it does, that ends the inquiry. Id. at 842- 843; NationsBank of North Carolina, N.A. v. Vari- able Annuity Life Ins. Co., No. 93-1612 (Jan. 18, 1995 ), slip op. 5. If, however, "the agency interpre- tation is not in conflict with the plain language of the statute, deference is due." National R.R. Passen- ger Corp. v. Boston & Maine Corp., 112 S. Ct. 1394, 1401 (1992); see also United States v. City of Fulton, 475 U.S. 657, 666 (1986) ("We must uphold [the agency's] interpretation if the statute yields up no definitive contrary legislative command and if [its] approach is a reasonable one"). Deference is espe- cially appropriate when "a full understanding of the force of the statutory policy in the given situation * * * depend[s] upon more than ordinary knowledge respecting the matters subjected to agency regula- tions." United States v. Shimer, 367 U.S. 374, 382 (1961). The court of appeals did not dispute that BOP is the agency charged with the administration of Sec- tion 3585 (b). See United States v. Wilson, supra (BOP, as designee of the Attorney General, computes credit after defendant begins his sentence). And that court did not find that Congress focused on "the precise question" at issue here and "clearly and un- ---------------------------------------- Page Break ---------------------------------------- 23 ambiguously" intended that credit be awarded to de- fendants who have been ordered to comply with restrictive conditions of release. The court concluded, however, that deference is not due to the Bureau's interpretation of Section 3585 (b) for two reasons. First, the court believed that the Bureau's interpreta- tion of Section 3585 (b) is inconsistent with its in- terpretation of the phrase "in custody" in former Section 3568. Pet. App. 9a-10a. Second, the court noted that the Bureau's interpretation of the new credit provision was not formally embodied in a reg- ulation "subject to the rigors of the Administrative Procedure [] Act, including public notice and com- ment." Id. at 9a. Neither objection has merit. 2. The court of appeals erred in stating (Pet. App. 9a-10a) that the Bureau has taken inconsistent posi- tions in administering the credit statutes, because the Bureau has now abandoned a "functional approach" to the custody issue that it purportedly used under the predecessor statute. The Bureau never applied the sort of unguided "functional approach" that the court believed was the hallmark of the agency's inter- pretation of the predecessor statute. The court's con- trary conclusion was based on a misreading of a rarely used exception to the Bureau's policy under the old statute. In Program Statements issued under the prede- cessor statute, the Bureau consistently denied credit to federal prisoners for time spent at a halfway house or other similar institutions as a condition of pre- trial release. For example, in Program Statement No. 5880.24 (Sept. 5, 1979), which interpreted former Section 3568, the Bureau provided that "[j]ail time credit will be given for time spent in the custody of the Attorney General," that "[t]ime spent in resi- ---------------------------------------- Page Break ---------------------------------------- 24 dence in a residential community center * * * as a condition of bail or bond * * * is not creditable as jail time," and that "a `highly restrictive' condition of bail or bond * * * is not considered as time in cus- tody." Pet. App. 36a, 37a-38a (emphasis omitted). Those views were a consistent feature of the Bureau's administration of Section 3568. The general rule applied by the Bureau under the predecessor statute was subject to a narrow exception. That exception permitted credit for "time spent in a jail-type facility * * * as a condition of bail or bond * * * because of the greater degree of restraint." Pet. App. 38a (emphasis omitted). The Bureau first adopted that exception in 1975, in response to Waldorf v. United States, No. C-74-339 (W.D. Term. Jan. 10, 1975) (unpublished), where the court or- dered that credit be given to a prisoner who had been ordered to spend weekends and nights in jail as a condition of "bail." See Program Statement No. 7600.59, 4b(5) and attachment 1, at page 3 (May 27, 1975) ; compare Program Statement No. 7600.51, 4a (Oct. 30, 1969). The exception was applied in the rare cases in which a defendant was required to spend some time in the custody of correctional au- thorities as a condition of bail. The Bureau understood the decision in Waldorf to require a limited functional inquiry in a small class of cases (i.e., those in which the defendant was in the custody of correctional authorities for part of the time when he was formally on "bail"), but its accom- modation of that narrow decision was not an adop- tion of a general functional approach to the credit issue. 10. The focus of the exception was on the type ___________________(footnotes) 10 As we noted at the petition stage (Reply Br. 3), the Bureau occasionally incorporates adverse judicial rulings into ---------------------------------------- Page Break ---------------------------------------- 25 of facility involved (i.e., whether it was under the control of correctional authorities), rather than ( as the court of appeals apparently believed) on the re- strictiveness vel non of the defendant's bail condi- tions. Indeed, except when required by court order (see, e.g., Brown v. Risen, supra), the Bureau did not apply that statement to give credit to a defendant who was released to a private community treatment facility. That point is illustrated by the numerous reported cases decided under the predecessor statute, which were litigated precisely because the Bureau granted no credit to the inmates involved. In any event, even if the Bureau's acquiescence in the result in Waldorf were viewed as an expression of the Bureau's view of the law, the current Program Statement applicable to Section 3585(b) contains no functional exception. The Bureau was not precluded from reverting to the rule it followed before Waldorf, especially in light of the intervening passage of the Comprehensive Crime Control Act of 1984, which underscored that Congress did not believe that re- strictive conditions of bail qualify as "imprisonment." An agency "is not estopped from changing a view [it] believes to have been grounded upon a mistaken legal interpretation." Thomas Jefferson University v. Shalala, 114 S. Ct. 2381, 2389 (1994) (quoting Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151, 2161 (1993 )). And, as this Court recently empha- sized, "any change in the [agency's] position might reduce, but would not eliminate the deference we owe ___________________(footnotes) its policy statements, especially when it is not feasible to obtain further review of those rulings in a prompt fashion. That does not indicate agreement with the merits of the rulings. ---------------------------------------- Page Break ---------------------------------------- 26 [its] reasoned determinations." NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., supra, slip op. 12. 3. The court of appeals was also wrong to depre- cate the agency's interpretation of Section 3585(b) on the ground that it was not the subject of notice- and-comment rulemaking. An agency's informal in- terpretations of a statute it administers are "not entitled to the same deference as norms that derive from the exercise of * * * delegated lawmaking pow- ers," but those informal interpretations are "still entitled to some weight on judicial review." Martin v. OSHRC, 499 U.S. 144, 157 (1991). Here, BOP has embodied its view in a Program Statement that governs the day-to-day decisions of prison adminis- trators nationwide. Pet. App. 45a-50a; see also id. at 33a-44a; Federal Bureau of Prisons, Sentence Computation Manual CCCA (1992 & SUPP. 1994). 11. Those guidelines provide uniform national rules for a range of issues that BOP has confronted repeatedly in the course of its nearly 30-year experience admin- istering the custody credit provisions, such as whether credit should be granted for time spent in community confinement, on a writ of habeas corpus from non- federal custody, or in detention pending federal prosecution while simultaneously serving another sentence. The Bureau's judgment reflects the type of expertise in explicating ambiguous statutory lan- ___________________(footnotes) 11 We have lodged with the Clerk of the Court three copies of the Bureau's Sentence Computation Manual, the Program Statements cited in this brief (that are not printed in the appendix to the petition), and the unpublished decision in Waldorf. We have also provided counsel for respondent with copies of those materials. ---------------------------------------- Page Break ---------------------------------------- 27 guage that warrants judicial deference. See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 696-697 (1991). Moreover, even if the Bureau were required to administer the credit statute based on a functional concept of "official detention, " the Bureau's reliance on the categories prescribed by the Bail Reform Act of 1984 would be permissible. The court did not dis- pute the reasonableness of BOP'S view that "condi- tions at community treatment centers generally are neither penal in nature nor nearly as restrictive as those in a full custodial environment." Pet. App. 19a (emphasis in original). The court believed, however, that the Bureau was required to focus on the specific restrictions imposed on respondent at the Volunteers of America facility. Id. at 19a-20a. That reasoning misconceives the nature of administrative decision- making. So long as its "approach is a reasonable one," United States v. City of Fulton, 475 U.S. at 666, the Bureau is entitled to adopt a general rule to cover credit for community confinement on the basis of empirical assumptions that are generally true, even if those assumptions do not hold true in every case. See American Hosp. Ass'n v. NLRB, 499 U.S. 606, 612, 619 (1991). It is sufficient that the legiti- mate concerns that the rule seeks to promote are gen- erally implicated by cases falling within the class covered by the Bureau's rule. Indeed, one reason often advanced for formulating a general rule is to avoid the need to establish a special justification for a par- ticular action in every case. See, e.g., Arizona v. Roberson, 486 U.S. 675, 681-682 (1988) ; Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332, 351 (1982) ; Weinberger v. Salfi, 422 U.S. 749, 777 (1975). ---------------------------------------- Page Break ---------------------------------------- 28 The court of appeals' analysis also ignores the fact that any imprecision in the Bureau's general rule is significantly outweighed by the ease and certainty of its operation, which promotes the even-handed appli- cation of the credit provision. Under its interpreta- tion of Section 3585(b), the Bureau can make credit determinations on the basis of the documentary evi- dence that ordinarily accompanies the inmate after he is sentenced-the inmate's judgment of conviction and bail form. Those documents will ordinarily dis- close whether the defendant was released on bail dur- ing the pendency of the proceedings, and on what conditions. Typically, however, those documents will not contain any description of precisely how "jail- like" those conditions were. Unlike the rule adopted by the court of appeals, which requires time-consuming litigation on the basis of an amorphous standard (see pp. 15-17, supra), the rule adopted by the Bureau permits the Bureau to make credit determinations quickly and efficiently on the basis of information ob- tainable from reliable law enforcement sources. That approach to the administration of the credit statute is a reasonable one, and the court of appeals erred in rejecting it. ---------------------------------------- Page Break ---------------------------------------- 29 CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General JO ANN HARRIS Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General MIGUEL A. ESTRADA Assistant to the Solicitor General JOSEPH DOUGLAS WILSON Attorney FEBRUARY 1995 *U.S. GOVERNMENT PRINTING OFFICE; 1995 387147 20042 ---------------------------------------- Page Break ---------------------------------------- No. 94-790 In the Supreme Court of the United States OCTOBER TERM, 1994 JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., PETITIONERS v. ZIYA K. KORAY ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT REPLY BRIEF FOR THE PETITIONERS DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Page Batterton v. Francis, 432 U.S. 416 (1977) . . . . 11 Beecham v. United States, 114 S. Ct. 1669 (1994) . . . . 2 Bell v. Wolfish, 441 U.S. 520 (1979) . . . . 2, 5, 15 Block v. Rutherford, 468 U.S. 576 (1984) . . . . 2 Bowen v. Owens, 476 U.S. 340 (1986) . . . . 16 Callanan v. United States, 364 U.S. 587 (1961) . . . . 14 Chapman v. United States, 500 U.S. 453 (1991) . . . . 13, 14, 15 Dawson v. Scott, No. 93-6240 (llth Cir. Apr. 6, 1995) . . . . 17 Deal v. United States, 113 S. Ct. 1993 (1993) . . . . 1 Edwards v. United States, 41 F.3d 154 (3d Cir. 1994), petition for cert. filed, No. 94-8467 (Mar. 1, 1995) . . . . 17, 18-19 Ehlert v. United States, 402 U.S. 99 (1971) . . . . 12 FCC v. Beach Communications, 113 S. Ct. 2096 (1993) . . . . 12 Fogerty v, Fantasy, Inc., 114 S. Ct. 1023 (1994) . . . . 9 Fraley v. Bureau of Prisons, 1 F.3d 924 (9th Cir. 1993) . . . . 18 Gerstein v. Pugh, 420 U.S. 103 (1975) . . . . 2 Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151 (1993) . . . . 13 Grady v. Crabtree, 958 F.2d 874 (9th Cir. 1992) . . . . 18 Gustafson v. Alloyd Co., 115 S. Ct. 1061 (1995) . . . . 1, 4 Heller v. Doe, 113 S. Ct. 2637 (1993) . . . . 15 Johnson v. Smith, 696 F.2d 1334 (11th Cir. 1983) . . . . 16 Jones v. Thomas, 491 U.S. 376 (1989) . . . . 3 Keene Corp. v. United States, 113 S. Ct. 2035 (1993) . . . . 9 Ladner v. United States, 358 U.S. 169 (1958) . . . . 13 Lahey v. Floyd, 992 F.2d 234 (9th Cir. 1993) . . . . 18 Lorillard v. Pens, 434 U.S. 575 (1978) . . . . 9 Lyng v. Automobile Workers, 485 U.S. 360 (1988) . . . . 15 Maleng v. Cookj 490 U.S. 488 (1989) . . . . 10 Malosh v. Crabtree, 758 F. Supp. 620 (D. Or. 1991) . . . . 18 (I) ---------------------------------------- Page Break ---------------------------------------- II Cases-Continued: Page Martin v. OSHRC, 499 U.S. 144 (1991) . . . . 12 Meachum v. Fano, 427 U.S. 215 (1976) . . . . 6 Moody v. Daggett, 429 U.S. 78 (1976) . . . . 5 Moreland v. United States, 968 F.2d 655 (8th Cir.), cert. denied, 113 S. Ct. 675 ( 1992) . . . . 17 Moskal v. United States, 498 U.S. 103 (1990) . . . . 14 National Organization for Women, Inc. v. Scheidler 114 S. Ct. 798 (1994) . . . . 14 National R.R. Passenger Corp. v. Boston & Maine Corp., 112 S. Ct. 1394 (1992) . . . . 11 NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co, 115 S. Ct. 810 (1995) . . . . 13 New York Transit Authority v. Beazer, 440 U.S. 568 (1979) . . . . 16 Ortega v. United States, 510 F.2d 412 (l0th Cir. 1975) . . . . 9 Polakoff v. United States, 489 F.2d 727 (5th Cir. 1974) . . . . 9 Randall v. Whelan, 938 F.2d 522 (4th Cir. 1991) . . . . 6 Ramsey v. Brennan, 878 F.2d 995 (7th Cir. 1989) . . . . 6-7, 17 Ratzlaf v. United States, 114 S. Ct. 655 (1994) . . . . 4 Schall v. Martin, 467 U.S. 253 (1984) . . . . 15 Shalala v. Guernsey Memorial Hosp., 115 S. Ct. 1232 (1995) . . . . 12 Smith v. United States, 113 S. Ct. 2050 (1993) . . . . 13 Sullivan v. Everhart, 494 U.S. 83 (1990) . . . . 11 United Parcel Service, Inc. v. Mitchell, 451 U.S. 56 (1981) . . . . 15 United States v. Browning, 761 F. Supp. 681 (C.D. Cal. 1991) . . . . 18 United States v. Edwards, 960 F.2d 278 (2d Cir. 1992) . . . . 17, 19 United States v. Freeman, 922 F.2d 1393 (9th Cir. 1991) . . . . 18 United States v. Locke, 471 U.S. 84 (1985) . . . . 15 ---------------------------------------- Page Break ---------------------------------------- III Cases-Continued: Page United States v. Peterson, 507 F.2d 1191 (D.C. Cir. 1974) . . . . 10 United States v. Robles, 563 F.2d 1308 (9th Cir. 1977), cert. denied, 435 U.S. 925 (1978) . . . . 9 United States v. Salerno, 481 U.S. 739 (1987) . . . . 2 United States v. Smith, 869 F.2d 835 (5th Cir. 1989) . . . . 17 United States v. Williams, 112 S. Ct. 1735 (1992) . . . . 13 United States v. Wilson, 112 S. Ct. 1351 (1992) . . . . 10 United States v. Woods, 888 F.2d 653 (l0th Cir. 1989), cert. denied, 494 U.S. 1006 (1990) . . . . 17 United States v. Zackular, 945 F.2d 423 (lst Cir. 1991) . . . . 4 Vance v. Bradley, 440 U.S. 93 (1979) . . . . 15 Williamson v. Lee Optical Co., 348 U.S. 483 (1955) . . . . 16 Constitution, statutes and regulation: U.S. Const.: Amend. V (Due Process Clause) . . . . 14 Bail Reform Act of 1966, Pub. L. No. 89-465, 4, 80 Stat. 217 . . . . 7 18 U.S.C. 3146 (1976) . . . . 3 Bail Reform Act of 1984, Pub. L. No. 98-473, Tit. II, ch. I, 98 Stat. 1976 . . . . 2, 3, 20 18 U.S.C. 3141 et seq . . . . 2 18 U.S.C. 3142(b) . . . . 2 18 U.S.C. 3142(c) . . . . 3 18 U.S.C. 3142(c)(1)(B) . . . . 2 18 U.S.C. 3142(c)(1)(B)(i) . . . . 10 18 U.S.C. 3142(c)(3) . . . . 6 18 U.S.C. 3142(e) . . . . 3 18 U.S.C. 3142(i)(2) . . . . 2 18 U.S.C. 3152 et seq . . . . 19 18 U.S.C 3153(c)(1) . . . . 19 Sentencing Reform Act of 1984, Pub. L. No. 98-473, Tit. II, ch. II, 98 Stat. 1987: 18 U.S.C. 3585 . . . . 9 ---------------------------------------- Page Break ---------------------------------------- Iv Statutes and regulation-Continued: Page 18 U.S.C. 3585(a) . . . . 4 18 U.S.C. 3585(b) . . . . 2, 3, 4, 5, 7, 10, 13, 14 18 U.S.C. 3621 et seq . . . . 5 18 U.S.C. 3621(a) . . . . 4 18 U.S.C. 3621(b) . . . . 4 18 U.S.C. 3622 . . . . 5, 7 18 U.S.C. 3624 . . . . 5 18 U.S.C. 3624(c) . . . . 6 18 U.S.C. 4082 . . . . 6 18 U.S.C. 4082(c) . . . . 6 28 C.F.R. 570.36(d) . . . . 7 Miscellaneous: Administrative Office of the United States Courts, The Presentence Investigation Report for Defendants Sentenced Under the Sentencing Reform Act of 1984 (Publication 107) (rev. Mar. 1992) . . . . 20 Federal Bureau of Prisons: Program Statement No. 5880.24 (Sept. 5, 1979) . . . . 12 Program Statement No. 7310.02 (Oct. 19, 1993) . . . . 5, 6 H.R. Rep. No. 1541, 89th Cong., 2d Sess. (1966) . . . . 7-8 Presentence Investigation Report (Sept. 16, 1991) . . . . 20 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. 94-790 JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., PETITIONERS v. ZIYA K. KORAY ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT REPLY BRIEF FOR THE PETITIONERS 1. Respondent contends that the "plain meaning" of the phrase "official detention" includes restrictive conditions of release on bail, because federal courts act "officially" in setting bail and their bail orders curtail the defendant's liberty. Resp. Br. 26-27; see also Amicus USC Law Center's Post Conviction Justice Project (USC Law Center) Br. 12-13. That contention, however, "overlooks * * * th[e] funda- mental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used." Deal v. United States, 113 S. Ct. 1993, 1996 (1993); see also Gustafson v. Alloyd Co., 115 S. Ct. 1061, 1066 (1995). Here, (1) ---------------------------------------- Page Break ---------------------------------------- 2 "[r]egardless of what the quoted phrase might mean standing alone," Beecham v. United States, 114 S. Ct. 1669, 1671 (1994), the context in which the phrase "official detention" is used makes clear that it cannot have the expansive meaning suggested by respondent. Section 3585(b) refers to the legal rules that govern presentence restraints on liberty, because it con- templates credit only for time the defendant "has spent in official detention prior to the date the sentence commences." No federal court may "offi- cially" order the defendant's "detention" before his sentence begins other than in accordance with the Bail Reform Act of 1984, 18 U.S.C. 3141 et seq. Under that Act, "[t]he judicial officer charged with the responsibility of determining the appropriateness of detention is guided by statutorily enumerated factors, which include the nature and the circum- stances of the charges, the weight of the evidence, the history and characteristics of the putative offender, and the danger to the community." United States v. Salerno, 481 U.S. 739, 751-752 (1987). When the judicial officer finds that those factors warrant "detention," the defendant must be placed in the custody of correctional authorities. See 18 U.S.C. 3142(i)(2). Any other resolution of the bail question results in the defendant's "release" either on his own recognizance or subject to specified statutory con- ditions. See 18 U.S.C. 3142(b) and (c)(1)(B). Indeed, the understanding that pretrial "detention" connotes the denial of bail to a defendant, and his resulting custody by correctional authorities, was reflected in this Court's decisions even before enactment of the Bail Reform Act of 1984. See, e.g., Bell v. Wolfish, 441 U.S. 520, 531-535 (1979); see also Block v. Rutherford, ---------------------------------------- Page Break ---------------------------------------- 3 468 U.S. 576, 583 (1984); Gerstein v. Pugh, 420 U.S. 103,114 (1975). Respondent contends that the detention/release dichotomy of the Bail Reform Act of 1984 does not bear on the proper interpretation of 18 U.S.C. 3585(b), because in his view some of the conditions of "release" under the Bail Reform Act are comparable to conditions faced by "detained" prisoners, Resp. Br. 25-26. The bail statute, however, reflects Congress' view that placing a defendant in the custody of correctional authorities (detention) is so far different from other restraints on liberty that it should be used only as a last resort-i.e., when less restrictive conditions, including residence in a halfway house, appear unlikely to assure the defendant's presence or the safety of the community. See 18 U.S.C. 3142(c) and (e); see also Bell v. Wolfish, 441 U.S. at 546 n.28 ("In the federal system, a detainee is committed to the detention facility only because no other less drastic means can reasonably assure his presence at trial," citing former 18 U.S.C. 3146). That scheme necessarily implies a judgment that conditions of the type imposed by respondent's bail package are less restrictive than detention in the custody of correc- tional authorities. The context in which the phrase "official detention" appears in Section 3585(b) is significant for a second reason. By reducing a defendant's "imprisonment" by the amount of time spent in "official detention" before his sentence, Section 3585(b) posits that periods of presentence "detention" are equivalent to the "imprisonment" itself. Credit- ing time spent on bail against a sentence of "imprisonment," however, would require an apples- and-oranges comparison. Cf. Jones v. Thomas, 491 ---------------------------------------- Page Break ---------------------------------------- 4 U.S. 376, 384 (1989) (noting that it is generally feasible to credit sentences when they are of the same "type," but that it would not be "possible to `credit' a fine against time in prison"). Federal prisoners, unlike persons released on bail, are always subject to the supervision of correctional authorities. And when federal sentences include the type of com- munity confinement at issue here, they do so as part of a sentence of "probation," not "imprisonment." See Gov't Br. 13-14. The fact that the type of halfway house confinement at issue here "is included as a condition of probation * * * persuasively indicates that Congress considered [that] confinement not to be the equivalent" of imprisonment and therefore "not to come within the ambit of `official detention.'" United States v. Zackular, 945 F.2d 423,425 (lst Cir. 1991). Section 3585(a) of Title 18 poses a third contextual barrier to respondent's broad reading of the phrase "official detention." Section 3585(a) uses the phrase "official detention facility" to refer to a place where a federal sentence of imprisonment may be served, and the phrase "official detention" in the related pro- visions of Section 3585(b) must therefore be read to refer to a defendant's imprisonment in such a place. See, e.g., Gustafson v. Alloyd Co., 115 S, Ct. at 1066, 1067; Ratzlaf v. United States, 114 S. Ct. 655, 660 (1994). A sentenced prisoner may serve a federal sentence only while "committed to the custody of the Bureau of Prisons," 18 U.S.C. 3621(a), which by statute must "designate" a penal or correctional facility "that the Bureau determines to be ap- propriate and suitable" for the service of each in- mate's sentence of imprisonment. 18 U.S.C. 3621(b). Thus, a defendant who is not in the custody of ---------------------------------------- Page Break ---------------------------------------- 5 correctional authorities is not subject to "official detention" within the meaning of Section 3585(b). Respondent notes (Resp. Br. 12-16, 36; see also USC Br. 6-8)) that the Bureau of Prisons has statutory authority to permit service of a defendant's sentence in work release or a halfway house, see 18 U.S.C. 3622, 3624, and that the Bureau has issued a Program Statement permitting certain federal prisoners to serve the last part of their sentences of imprisonment in halfway houses. See Program Statement 7310.02 (Oct. 19, 1993). 1. While that is true, it does not help respondent's case. Our position is not that a halfway house can never be a "penal or correctional facility" where a federal sentence of imprisonment may be served, or that residence there can never amount to "official detention." The Bureau of Prisons designates inmates to a wide variety of institutions that subject the inmates to varying degrees of restraint on the basis of the Bureau's assessment of security or other needs for each inmate. See Gov't Br. 15-16. The only factors that unify those institutions are that (1) the inmates are in the legal custody of correctional personnel, who have "full discretion to control th[eir] conditions of confinement," Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); see also Bell v. Wolfish, 441 U.S. at 544-548 (similar discretion with respect to pre-trial detainees who are denied bail), (2) the inmates are subject to summary reassignment to any other facility within ___________________(footnotes) 1 Program Statement 7310.02 is reprinted as an appendix to respondent's brief. The provisions of subchapter C of chapter 229, 18 U.S.C. 3621 et seq., which govern the implementation of a term of imprisonment, are reprinted in an appendix to this brief. ---------------------------------------- Page Break ---------------------------------------- 6 the system, cf. Meachum v. Fano, 427 U.S. 215, 224- 229 (1976), and (3) the inmates are subject to the Bureau's disciplinary procedures. Absent the Bureau's identity as legal custodian, a facility, stand- ing alone, is not properly viewed as a place of "official detention." 2. The identity of the custodian has legal as well as practical significance. Because respondent was not in the custody of the Bureau of Prisons, he could not have been summarily reassigned to a substantially less agreeable setting unless a judicial officer revoked respondent's bail or modified the conditions of his release. See 18 U.S.C. 3142(c)(3); see also Randall v. Whelan, 938 F.2d 522, 525 (4th Cir. 1991). Moreover, the statutory provisions and Program Statement on which respondent relies are subject to other conditions (apart from legal custody by the Bureau of Prisons) that respondent did not meet. For example, Program Statement 7310.02 provides that a halfway house or home confinement may be used as a transitional environment in order to ease an inmate's ___________________(footnotes) 2 Amicus USC Law Center erroneously implies (USC Br. 6- 7) that, by enacting 18 U.S.C. 4082, Congress has adopted a definition of "correctional facility" that categorically includes halfway houses irrespective of whether the defendant is in the legal custody of the Bureau of Prisons. Section 4082, which is reprinted in full in the appendix to this brief, merely provides that when the Attorney General (or the Bureau as her designee) has designated a facility for the confinement of a prisoner under her custody, a willful failure to remain in that facility will be deemed an escape. Not only does the title of Section 4082 make clear that the statute deals with "[c]ommit- ment[s] to Attorney General," but the statute's definition of "facility" to include a "residential community treatment center" is expressly limited by the phrase "[a]s used in this section." 18 U.S.C. 4082(c). ---------------------------------------- Page Break ---------------------------------------- 7 re-entry into society at the end of his sentence of imprisonment. See also 18 U.S.C. 3624(c); Ramsey v. Brennan, 878 F.2d 995, 997 (7th Cir. 1989) (policy of "facilitating] the re-entry of convicts into society by making the last stage of their confinement transitional * * * has no application to a prisoner moving in the opposite direction"). Similarly, under Section 3622 the Bureau may furlough a prisoner in limited circumstances "if there is reasonable cause to believe that [he] will honor the trust to be imposed in him," and when it does so the Bureau may impose on him restrictions similar to the least restrictive bail conditions available under the Bail Reform Act. See 28 C.F.R. 570.36(d) (1994) (listing typical conditions of furlough). Nothing in those provisions supports the inference that residence in a halfway house, home confinement, or a furlough must always count as "imprisonment," even when the conditions that call those special provisions into operation are not satisfied. Respondent also contends that the Bureau's interpretation of Section 3585(b) and its decision to deny him sentence credit conflict with its longstanding policy of granting credit to prisoners who were held in state custody before they were sentenced for a federal crime. Resp. Br. 16-17 & n.6; see also USC Br. 22-23. That is not correct. The Bureau's decision to grant credit to some state prisoners is supported by the legislative history of the Bail Reform Act of 1966, which made clear Congress' understanding that credit would be available for state custody in certain circumstances. 3. ___________________(footnotes) 3 See H.R. Rep. No. 1541, 89th Cong., 2d Sess. 5 (1966) (credit would be available "for time spent in custody while ---------------------------------------- Page Break ---------------------------------------- 8 Moreover, the Bureau does not grant credit for state pre-trial detention unless the state judicial officer who determined the question of bail remanded the defendant to the custody of state correctional authorities i.e., no state prisoner is "detained" in an "official" way unless he is denied bail in accordance with applicable laws governing pre-trial restraints on liberty. That is the same definition of "official detention" that the Bureau applies to defendants who were arrested by federal authorities. By contrast, respondent was not denied bail, and he can point to nothing in the legislative history of the credit statute that suggests that Congress intended that credit be granted to one in his position. Indeed, respondent does not address our submission (Gov't Br. 17-21) that the history of federal statutes granting credit toward a sentence of imprisonment-particularly the fact that Congress has twice revised the credit statute at the same time it undertook to revise the bail laws- shows that Congress conceived of that credit as a corollary of a judge's decision to deny a defendant bail in accordance with applicable law. 2. Respondent does make one historical argument, but it does not assist him. As we demonstrated in our opening brief (Br. 20-21), by the time Congress enacted the current version of the credit provision in 1984, the courts of appeals had uniformly held that the phrase "in custody" in the predecessor statute did not ___________________(footnotes) awaiting trial where a defendant may have been originally arrested and held in custody on a State charge and eventually turned over to the Federal Government for prosecution of a Federal violation"); see also id. at 16 (credit available "for time spent in State custody on a charge which subsequently evolves as a Federal offense"). ---------------------------------------- Page Break ---------------------------------------- 9 include restrictions imposed on a defendant's liberty as a condition of his release on bail. Respondent agrees with us (Resp. Br. 17), and with every court of appeals to consider the question, that the phrase "official detention" in Section 3585 means the same thing as the phrase "in custody" in the predecessor statute. Because respondent concedes that Congress' intent was to reenact the same understanding of "custody" that existed under the predecessor statute, this Court should "apply the presumption that Congress was aware of the[] earlier judicial inter- pretations and, in effect, adopted them" in the new credit provision. Keene Corp. v. United States, 113 S. Ct. 2035, 2043 (1993); Lorillard v. Pons, 434 U.S. 575,580 (1978). Respondent claims that there should be no presumption that Congress reenacted the rule that time spent while released on bail is not creditable, because "the cases decided under the predecessor statute did not deal with defendants in halfway house confinement." Resp. Br. 19. The reenactment doctrine, however, does not impute to Congress knowledge of the specific facts of each case decided under the predecessor statute, but only knowledge of the rule of law or "test" adopted by those cases. Cf. Fogerty v. Fantasy, Inc., 114 S. Ct. 1023, 1032 (1994). Before the credit statute took its current form in 1984, the courts of appeals had adopted a categorical rule that denied credit under the predecessor statute to prisoners who secured bail. 4. As this Court made ___________________(footnotes) 4 See Polakoff v. United States, 489 F.2d 727, 730 (5th Cir. 1974) (Wisdom, J.) (time spent on "highly restricted bond" not creditable as "custody"); see also United States v. Robles, 563 F.2d 1308, 1309 (9th Cir. 1977) ("time spent on bail or on bond ---------------------------------------- Page Break ---------------------------------------- 10 clear in United States v. Wilson, 112 S. Ct. 1351, 1355 (1992) (internal quotation marks omitted), "[i]t is not lightly to be assumed that Congress intended to depart" from the rule followed under the predecessor statute when it enacted the credit provision of Section 3585(b). 5. 3. The language and history of Section 3585(b) establish that Congress intended that a defendant who is released on bail not receive sentence credit under Section 3585(b). If there is any need for further ___________________(footnotes) pending appeal is not time served `in custody' "), cert. denied, 435 U.S. 925 (1978); Ortega v. United States, 510 F.2d 412, 413 (10th Cir. 1975) ("custody" relates "to actual custodial incarceration" not "the time a criminal defendant is free on bond"); United States v. Peterson, 507 F.2d 1191, 1193 (D.C. Cir. 1974). 5 Respondent notes that the Bail Reform Act uses the term "custody" in describing certain conditions of release. See, e.g., 18 U.S.C. 3142(c)(1)(B)(i) (court may release defendant to the custody of responsible person). He contends that our argument that "custody" and "official detention" are synonymous must mean that an order providing for a form of "custody" under the Bail Reform Act amounts to "official detention" under Section 3585(b). Resp. Br. 18. The problem with that argument is that we have never contended that the word "custody" means the same thing in all federal statutes in which it is used. Our position instead is that as used in the predecessor credit statute, the word "custody" was intended by Congress, and was uniformly construed by the courts before 1984, to describe only cases in which a defendant was not released on bail-and that that narrow meaning should therefore inform the Court's construction of the phrase "official detention" in the new statute. It is true that in some other statutory contexts, see e.g., Maleng v. Cook, 490 U.S. 488, 491 (1989) (habeas corpus), the term "custody" has a broader meaning, but even respondent does not contend that the broadest legal definition of the term "custody" should be applied to the credit statute. ---------------------------------------- Page Break ---------------------------------------- 11 definition of the statute, however, deference is owed to the Bureau of Prisons' interpretation, Respondent fails to show that the Bureau's interpretation of "official detention" is not entitled to deference. First, respondent has not demonstrated that Con- gress had a clear and unambiguous intention to award credit to defendants who have been released on bail under restrictive conditions. Respondent and his amicus simply assume that Congress must have intended that credit be granted to one in respondent's position, because some dictionary definitions of the phrase "official detention" are broad enough to encompass respondent's conditions of bail, Resp. Br. 26-27; see also USC Br. 12-13. As this Court has noted, however, "[t]he existence of alternative dictionary definitions of the" relevant statutory terms, "each making some sense under the statute, itself indicates that the statute is open to inter- pretation" by the agency. National R.R. Passenger Corp. v. Boston & Maine Corp., 112 S. Ct. 1394, 1402 (1992); see also Sullivan v. Everhart, 494 U.S. 83,91- 92 (1990). Adopting the reasoning of the court of appeals (Pet. App. 9a), respondent also argues that the Bureau's interpretation is not entitled to deference because it was not embodied in a legislative rule subject to notice-and-comment rulemaking. Resp. Br. 22-23. That is not a requirement for deference, however. Legislative rules, issued after notice and comment pursuant to delegated authority, have the binding force of law and are "entitled to more than mere deference or weight." Batterton v. Francis, 432 U.S. 416, 425-426 & n.9 (1977). The Bureau, however, has never contended that its Program Statements dealing with sentence credit are law, and its failure to engage ---------------------------------------- Page Break ---------------------------------------- 12 in notice-and-comment rulemaking is therefore irrelevant. The Bureau's Program Statements in- stead are informal pronouncements akin to "inter- pretive rules" that "do not require notice-and- comment," Shalala v. Guernsey Memorial Hosp., 115 S. Ct. 1232, 1239 (1995), but which are nonetheless entitled "to some weight on judicial review." Martin v. OSHRC, 499 U.S. 144, 157 (1991). Respondent also relies on the court of appeals' view that the Bureau has abandoned the interpretation of custody that it followed under the predecessor statute. Resp. Br. 20-21. The change in policy, however, concerns only a limited class of people who were ordered to spend nights or weekends in the custody of correctional authorities. Respondent is not a member of that class and the change did not implicate him or those in his situation at all, because it has always been the Bureau's view that "[t]ime spent * * * in a residential community center * * * as a condition of bail or bond * * * is not creditable as jail time." Program Statement No. 5880.24 (Sept. 5, 1979) (Pet. App. 37a); cf. Ehlert v. United States, 402 U.S. 99, 105-107 (1971). Thus, with respect to the issue raised by the facts of this case, the Bureau's policy has remained consistent and unchanged. Indeed, in denying respondent's administrative request for sentence credit, the warden relied on the Program Statement issued under the predecessor statute as authority for his action. J.A. 30. 6. ___________________(footnotes) 6 As we explain in our opening brief (Br. 23-25), in 1975 the Bureau revised its policy with respect to jailed defendants who are nominally released on bail, after a federal court rejected the Bureau's argument that credit was not warranted even in those circumstances. Respondent does not challenge our explanation, does not offer any example in which that policy ---------------------------------------- Page Break ---------------------------------------- 13 4. Respondent also suggests that the rule of lenity requires adoption of his interpretation of Section 3585(b), because "there is a split of authority in the [c]ircuits concerning the reach of `official de- tention.'" Resp. Br. 34 & n.13. There is no ambigu- ity in this case of the type that calls into play the rule of lenity. Unlike the principle of administrative deference, which uses the concept of "ambiguity" to recognize that Congress intends that administrative agencies will fill in the details of how statutes operate, the rule of lenity applies only if a statute is "ambiguous" in the special sense that "after seizing every thing from which aid can be derived," Smith v. United States, 113 S. Ct. 2050, 2059 (1993) (internal quotation marks and brackets omitted); see also Chapman v. United States, 500 U.S. 453, 463 (1991), the court can "make no more than a guess as to what Congress intended." Ladner v. United States, 358 U.S. 169, 178 (1958). As we have explained, the ___________________(footnotes) was applied to anyone beyond the limited context of defendants who were ordered to spend time in the custody of correctional authorities, and does not give any legal reason why a policy adopted under the perceived compulsion of a federal district court should be deemed to embody the Bureau's view of the law. Cf. United States v. Williams, 112 S. Ct. 1735, 1740 (1992). Respondent simply claims without elaboration that the Bureau was "mistaken" in changing position, and that its purported error means that it is not entitled to any deference. Resp. Br. 21-22 n.9. But an agency "is not estopped from changing a view [it] believes to have been grounded upon a mistaken legal interpretation." Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151, 2161 (1993). Any change in the agency's position "might reduce, but would not eliminate," the deference owed to its interpretation. NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. CO., 115 S. Ct. 810, 817 (1995). ---------------------------------------- Page Break ---------------------------------------- 14 language, structure, history, and consistent administrative interpretation of Section 3585(b) and of related sentencing statutes all support the conclusion that restrictive conditions of bail are not "official detention." This accordingly is not a case in which the Court is left with an ambiguous statute "at the end of the process of construing what Congress has expressed." Callanan v. United States, 364 U.S. 587, 596 (1961); see also National Organization for Women, Inc. v. Scheidler, 114 S. Ct. 798,806 (1994). That conclusion is not changed by the division of authority on which respondent relies. A statute "is not "'ambiguous' for purposes of lenity merely because it [is] possible to articulate a construction more narrow than that urged by the Government," or because there is "a division of judicial authority" over the proper construction. Moskal v. United States, 498 U.S. 103, 108 (1990); see also Smith v. United States, 113 S. Ct. at 2059. If that were sufficient, "one court's unduly narrow reading of a criminal statute would become binding on all other courts, including this one." Moskal v. United States, 498 U.S. at 108; see also Chapman v. United States, 500 U.S. at 467- 468. 5. Amicus USC Law Center contends that the Bureau of Prisons' interpretation of Section 3585(b) should be rejected, because it would raise "serious constitutional questions" under the equal protection component of the Due Process Clause of the Fifth Amendment. USC Br. 20. According to USC Law Center, the legislative scheme irrationally treats people like respondent differently from sentenced prisoners who may serve parts of their sentences in a ---------------------------------------- Page Break ---------------------------------------- 15 halfway house and from prisoners who are granted credit for periods of state custody. Id. at 21-23.7 As this Court has often emphasized, legislative classifications are "presumed to be valid," Lyng v. Automobile Workers, 485 U.S. 360, 370 (1988) (internal quotation marks omitted); see also Heller v. Doe, 113 S. Ct. 2637, 2643 (1993), especially "where the legislature must necessarily engage in a process of line-drawing," FCC v. Beach Communications, 113 S. Ct. 2096, 2102 (1993) (internal quotation marks omitted). That process "inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." Ibid.; see also Chapman v. United States, 500 U.S. at 464-465 (rational basis review applies to sentencing statute). Indeed, Congress may choose to further its object by drawing a line that simply serves adminis- ___________________(footnotes) 7 Although respondent raised an equal protection claim in his petition for habeas corpus, he waived that claim in the court of appeals (Pet. App. 3a n.1) and he has not renewed it here. No equal protection question as to his individual circumstances is therefore properly before the Court. See, e.g., United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60 n.2 (1981 ) (noting that the court does not decide issues raised by amici that were not decided by the court of appeals or argued by the interested party); Bell v. Wolfish, 441 U.S. 520, 531 n.13 (1979) (same). The only equal protection question before the Court is whether the statutory classification is sufficiently likely to be facially unconstitutional that the Court should reject the government's interpretation of the credit statute. Cf. Chapman v. United States, 500 U.S. 453, 464-466 (1991); Schall v. Martin, 467 U.S. 253, 268-269 n.18 (1984). Amicus has not demonstrated that here. ---------------------------------------- Page Break ---------------------------------------- 16 trative convenience. Vance v. Bradley, 440 U.S. 93, 109 (1979); see also United States v. Locke, 471 U.S. 84, 93 (1985) (statute requiring filing of claim "prior to December 31" not irrational when applied to bar claimants who filed on December 31); New York Transit Authority v. Beazer, 440 U.S. 568, 592 (1979). It was not irrational for Congress to provide credit only for defendants who are remanded to the custody of correctional authorities, since it will generally be true that defendants who are granted conditional release do not suffer, as a class, so great a deprivation of liberty as those who are remanded. Even if some forms of release on bond could be viewed as functionally equivalent to incarceration, as amicus USC Law Center contends, Congress was "not required to take an all-or-nothing approach," but could proceed "one step at a time, addressing itself to the phase of the problem that seem[ed] most acute to the legislative mind." Bowen v. Owens, 476 U.S. 340, 347 (1986) (quoting Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955)); FCC v. Beach Communi- cations, 113 S. Ct. at 2102. Contrary to amicus' submission, no principle of equal protection compelled Congress to "accept[] an intermediate point on an uncertain line," New York Transit Authority v. Beazer, 440 U.S. at 592, by choosing a functional case-by-case approach to the credit issue. 8. ___________________(footnotes) 8 Amicus notes (USC Br. 15 n.9) that the Eleventh Circuit accepted an equal protection argument in Johnson v. Smith, 696 F.2d 1334 (1983), That ruling was based solely on a concession by the attorney for the government, which the court treated as a waiver of the government's equal protection arguments. Id. at 1338-1339 & n.5. When the merits of the equal protection argument have been properly presented, the courts of appeals have uniformly rejected it, concluding that ---------------------------------------- Page Break ---------------------------------------- 17 6. Respondent emphasizes the purportedly limited rule announced by the decision below, which he believes will result in few awards of credit, and he contends that the Bureau of Prisons should have no difficulty applying that rule simply by consulting the terms of the bail form to ascertain whether the express terms of that order impose "total confine- ment.." Resp. Br. 29-30, 32-34; see also USC Br. 23-26 (Bureau can apply court of appeals' holding by looking at "court files"). Respondent did not seek habeas corpus on the theory that the order setting his conditions of release, by itself, demonstrated his entitlement to credit; he contended instead that the restrictions actually placed on his liberty were functionally no different from incarceration. See J.A. 23. Nor did the court of appeals rule for respondent on the basis of the text of his bail form; had the court done so there would have been no need to remand for a hearing on the restrictiveness of the conditions under which respondent lived while on bail. Pet. App. 23a-24a. And ___________________(footnotes) pre-trial and post-sentence claimants of credit are not similarly situated. See, e.g., Moreland v. United States, 968 F.2d 655, 660 (8th Cir.) (en banc), cert. denied, 113 S. Ct. 675 (1992); United States v. Edwards, 960 F.2d 278, 283-285 (2d Cir. 1992); United States v. Woods, 888 F.2d 653, 656-657 (l0th Cir. 1989), cert. denied, 494 U.S. 1006 (1990); Ramsey v. Brennan, 878 F.2d 995, 997 (7th Cir. 1989); see also Edwards v. United States, 41 F.3d 154, 157 (3d Cir. 1994), petition for cert. filed, No. 94-8467 (Mar. 1, 1995); United States v. Smith, 869 F.2d 835, 837 (5th Cir. 1989). The Eleventh Circuit has recently emphasized the limited scope of its Johnson decision in reject- ing, on the merits, the equal protection claim of a prisoner who, like respondent, was required to reside at a halfway house as a condition of bail. Dawson v. Scott, No. 93-6240 (Apr. 6, 1995), slip op. 19-30 & n.20. ---------------------------------------- Page Break ---------------------------------------- 18 reliance on the bail order alone would rarely be sufficiently informative about the actual conditions of release. Bail orders must describe whether the defendant was "detained" or "released," but the particular wording of conditions of release is up to the judicial officer, Even a condition of "total confinement" may well be subject to exceptions for outings with relatives, meetings with counsel or law enforcement agents, or for other purposes. In practice, the restriction may be far less onerous than appears from the face of the order. The fact that few prisoners may receive credit at the conclusion of litigation does not eliminate the substantial costs of the rule adopted by the court of appeals. Experience teaches that prisoners who were subjected to various forms of presentence constraint will actively litigate claims to credit based on their individual circumstances. 9. Indeed, after its decision in this case, the court of appeals considered whether a requirement of home confinement as a condition of bail required an award of sentencing credit. Edwards v. United States, 41 F.3d 154 (3d Cir. 1994), petition ___________________(footnotes) 9 See, e.g., Edwards v, United States, 41 F.3d at 155-156 (home confinement as a condition of bail); Fraley v. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (per curiam) (prisoners required to stay at home pending trial); Lahey v. Floyd, 992 F.2d 234, 235-236 (9th Cir. 1993) (same); United States v. Browning, 761 F. Supp. 681, 682 (C.D. Cal. 1991) (same); see also Grady v. Crabtree, 958 F.2d 874, 875 (9th Cir. 1992) (prisoner confined at halfway house as a condition of post-trial probation); United States v. Freeman, 922 F.2d 1393, 1396-1397 (9th Cir. 1991) (prisoner claiming credit for time on pre-trial "probation"); Malosh v. Crabtree, 758 F. Supp. 620, 621 (D. Or. 1991) (prisoner required to reside on a military base as a condition of pre-trial release). ---------------------------------------- Page Break ---------------------------------------- 19 for cert. filed, No. 94-8467 (Mar. 1, 1995). The court rejected the claim only after analyzing in detail the extent to which the Pretrial Services Agency, in whose custody the defendant had been placed, actually allowed the defendant to leave his home for social occasions or choir practice. Id. at 156-157. 10. Finally, respondent contends that information required by the court of appeals' rule should be easily available to the Bureau from court files. As was the case here (J.A. 9), however, most defendants released on bail with a condition of community confinement are placed in the legal custody of the Pretrial Services Agency for the district of their residence, which functions under the supervision of the court pursuant to specific statutory authority. See 18 U.S.C. 3152 et seq. Information collected by that agency is not freely available to the government. See 18 U.S.C. 3153(c)(1). While amicus contends that Presentence Investigation Reports prepared by the Probation Department "should" easily contain information about the defendant's conditions of release (USC Br. 24), there is no basis for assuming that the full range of information needed to satisfy the court of appeals' approach will be ascertainable from those reports (id. at 24-25). 11. As we have already ___________________(footnotes) 10 The Edwards case also illustrates the dangers of forum shopping and repetitive litigation that nationwide adoption of a "functional" approach to the credit issue is likely to create, because the defendant relied on the Third Circuit's approach to relitigate a claim that had already been rejected on the merits by the Second Circuit. See United States v. Edwards, 960 F.2d at 282-283. 11 Amicus also mistakenly suggests (USC Br. 24) that by requiring that the presentence report reflect the defendant's adjustment to supervision, the Administrative Office of the ---------------------------------------- Page Break ---------------------------------------- 20 noted, that was not the approach taken by the court of appeals nor is it one that is likely to be workable in light of the flexibility available to courts in framing conditions of release under the Bail Reform Act of 1984. * * * * * For the foregoing reasons and those stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General APRIL 1995 ___________________(footnotes) United States Courts has required a detailed description of any conditions of bail. As the Manual cited by amicus makes clear, what the report must describe is the defendant's attitudinal response to supervision, not the details of his bail package: If, as a condition of release, the defendant has been under pretrial supervision, describe the defendant's perform- ance. Positive adjustment, such as payment of restitution to the victim or successful completion of a residential substance abuse program, is included as well as negative adjustment[,] such as positive urinalysis or failure to report to the pretrial services officer as directed. Administrative Office of the United States Courts, The Presentence Investigation Report for Defendants Sentenced Under the Sentencing Reform Act of 1984 (Publication 107) at II-34 (rev. Mar. 1992). The only reference to bail that the report usually contains is that the "face sheet" or cover page sets forth a one- or two-line summary of the bail order. See id. at II-25 to II-26. The report prepared for respondent is typical of the minimal level of detail that is actually provided. Under the heading "custodial status" that report stated as follows: "Personal Recognizance coupled with Pre-trial Service super- vision and residency at Volunteers of America." See Presentence Investigation Report 1 (Sept. 16, 1991). ---------------------------------------- Page Break ---------------------------------------- APPENDIX Title 18, United States Code (1988 & Supp. V 1993)*, provides: CHAPTER 229-POSTSENTENCE ADMINISTRATION SUBCHAPTER C-IMPRISONMENT 3621. Imprisonment of a convicted person (a) Commitment to custody of Bureau of Prisons-A person who has been sentenced to a term of imprisonment pursuant to the provisions of subchapter D of chapter 227 shall be committed to the custody of the Bureau of Prisons until the expiration of the term imposed, or until earlier released for satisfactory behavior pursuant to the provisions of section 3624. (b) Place of imprisonment. -The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering- (1) the resources of the facility contemplated; ___________________(footnotes) * As amended by the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1801. (1a) ---------------------------------------- Page Break ---------------------------------------- 2a (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence- (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28. In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economic status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another. The Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse. (c) Delivery of order of commitment. -When a prisoner, pursuant to a court order, is placed in the custody of a person in charge of a penal or correctional facility, a copy of the order shall be delivered to such person as evidence of this authority to hold the prisoner, and the original order, with the return endorsed thereon, shall be returned to the court that issued it. ---------------------------------------- Page Break ---------------------------------------- 3a (d) Delivery of prisoner for court appearances- The United States marshal shall, without charge, bring a prisoner into court or return him to a prison facility on order of a court of the United States or on written request of an attorney for the Government. (e) Substance abuse treatment- (1) Phase-in In order to carry out the requirement of the last sentence of subsection (b) of this section, that every prisoner with a substance abuse problem have the opportunity to participate in appropriate substance abuse treat- ment, the Bureau of Prisons shall, subject to the availability of appropriations, provide residential substance abuse treatment (and make arrange- ments for appropriate aftercare)- (A) for not less than 50 percent of eligible prisoners by the end of fiscal year 1995, with priority for such treatment accorded based on an eligible prisoner's proximity to release date; (B) for not less than 75 percent of eligible prisoners by the end of fiscal year 1996, with priority for such treatment accorded based on an eligible prisoner's proximity to release date; and (C) for all eligible prisoners by the end of fiscal year 1997 and thereafter, with priority for such treatment accorded based on an eligible prisoner's proximity to release date. (2) Incentive for prisoners' successful com- pletion of treatment program- (A) Generally Any prisoner who, in the judgment of the Director of the Bureau of Prisons, has successfully completed a program ---------------------------------------- Page Break ---------------------------------------- 4a of residential substance abuse treatment provided under paragraph (1) of this subsection, shall remain in the custody of the Bureau under such conditions as the Bureau deems appropriate. If the conditions of confinement are different from those the prisoner would have experienced absent the successful completion of the treatment, the Bureau shall periodically test the prisoner for substance abuse and discontinue such conditions on determining that substance abuse has recurred. (B) Period of custody- The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve. (3) Report- The Bureau of Prisons shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives on January 1, 1995, and on January 1 of each year thereafter, a report. Such report shall contain- (A) a detailed quantitative and qualitative description of each substance abuse treatment program, residential or not, operated by the Bureau; (B) a full explanation of how eligibility for such programs is determined, with complete information on what proportion of prisoners with substance abuse problems are eligible; and ---------------------------------------- Page Break ---------------------------------------- 5a (C) a complete statement of to what extent the Bureau has achieved compliance with the requirements of this title. (4) Authorization of appropriations There are authorized to be appropriated to carry out this subsection- (A) $13,500,000 for fiscal year 1996; (B) $18,900,000 for fiscal year 1997; (C) $25,200,000 for fiscal year 1998; (D) $27,000,000 for fiscal year 1999; and (E) $27,900,000 for fiscal year 2000. (5) Definitions. -As used in this subsection- (A) the term "residential substance abuse treatment" means a course of individual and group activities, lasting between 6 and 12 months, in residential treatment facilities set apart from the general prison population- (i) directed at the substance abuse problems of the prisoner; and (ii) intended to develop the prisoner's cognitive, behavioral, social, vocational, and other skills so as to solve the prisoner's substance abuse and related problems; (B) the term "eligible prisoner" means a prisoner who is- (i) determined by the Bureau of Prisons to have a substance abuse problem; and ---------------------------------------- Page Break ---------------------------------------- 6a (ii) willing to participate in a resi- dential substance abuse treatment pro- gram; and (C) the term "aftercare" means placement, case management and monitoring of the participant in a community-based substance abuse treatment program when the participant leaves the custody of the Bureau of Prisons. (6) Coordination of Federal assistance.-The Bureau of Prisons shall consult with the Department of Health and Human Services concerning substance abuse treatment and related services and the incorporation of applicable components of existing comprehensive approaches including relapse prevention and aftercare services. 3622. Temporary release of a prisoner The Bureau of Prisons may release a prisoner from the place of his imprisonment for a limited period if such release appears to be consistent with the purpose for which the sentence was imposed and any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2), if such release otherwise appears to be consistent with the public interest and if there is reasonable cause to believe that a prisoner will honor the trust to be imposed in him, by authorizing him, under prescribed conditions, to- (a) visit a designated place for a period not to exceed thirty days, and then return to the same or another facility, for the purpose of- (1) visiting a relative who is dying; (2) attending a funeral of a relative; ---------------------------------------- Page Break ---------------------------------------- 7a (3) obtaining medical treatment not otherwise available; (4) contacting a prospective employer; (5) establishing or reestablishing family or community ties; or (6) engaging in any other significant activity consistent with the public interest; (b) participate in a training or educational program in the community while continuing in official detention at the prison facility; or (c) work at paid employment in the community while continuing in official detention at the penal or correctional facility if- (1) the rates of pay and other conditions of employment will not be less than those paid or provided for work of a similar nature in the community; and (2) the prisoner agrees to pay to the Bureau such costs incident to official detention as the Bureau finds appropriate and reasonable under all the circumstances, such costs to be collected by the Bureau and deposited in the Treasury to the credit of the appropriation available for such costs at the time such collections are made. 3623. Transfer of a prisoner to State authority The Director of the Bureau of Prisons shall order that a prisoner who has been charged in an indictment or information with, or convicted of, a State felony, be transferred to an official detention facility within such State prior to his release from a Federal prison facility if- ---------------------------------------- Page Break ---------------------------------------- 8a (1) the transfer has been requested by the Governor or other executive authority of the State; (2) the State has presented to the Director a certified copy of the indictment, information, or judgment of conviction; and (3) the Director finds that the transfer would be in the public interest. If more than one request is presented with respect to a prisoner, the Director shall determine which request should receive preference. The expenses of such transfer shall be borne by the State requesting the transfer. 3624. Release of a prisoner (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). If the date for a prisoner's release falls on a Saturday, a Sunday, or a legal holiday at the place of confinement, the prisoner may be released by the Bureau on the last preceding weekday. (b) Credit toward service of sentence for satisfactory behavior.- (1) A prisoner (other than a prisoner serving a sentence for a crime of violence) who is serving a term of imprisonment of more than one year, other than a term of imprisonment for the duration of the prisoner's life, shall receive credit toward the service of the prisoner's sentence, beyond the time served, of fifty-four days at the end of each year of ---------------------------------------- Page Break ---------------------------------------- 9a the prisoner's term of imprisonment, beginning at the end of the first year of the term, unless the Bureau of Prisons determines that, during that year, the prisoner has not satisfactorily complied with such institutional disciplinary regulations as have been approved by the Attorney General and issued to the prisoner. A prisoner who is serving a term of imprisonment of more than 1 year for a crime of violence, other than a term of imprison- ment 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 such institutional disciplinary regulations. If the Bureau determines that, during that 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 to be appropriate. The Bureau's determination shall be made within fifteen days after the end of each year of the sentence. Credit that has not been earned may not later be granted. Credit 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. (2) Credit toward a prisoner's service of sen- tence shall not be vested unless the prisoner has earned or is making satisfactory progress toward a high school diploma or an equivalent degree. ---------------------------------------- Page Break ---------------------------------------- 10a (3) The Attorney General shall ensure that the Bureau of Prisons has in effect an optional General Educational Development program for inmates who have not earned a high school diploma or its equivalent. (4) Exemptions to the General Educational Development requirement may be made as deemed appropriate by the Director of the Federal Bureau of Prisons. (c) Pre-release custody. -The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the prisoner's re-entry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement. The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody. (d) Allotment of clothing, funds, and transporta- tion Upon the release of a 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, not more than $500, determined by the Director to be consistent with the needs of the offender and the public interest, unless the Director determines that the financial position of the offender is such that no sum should be furnished; and ---------------------------------------- Page Break ---------------------------------------- 11a (3) transportation to the place of the prisoner's conviction, to the prisoner's bona fide residence within the United States, or to such other place within the United States as may be authorized by the Director. (e) Supervision after release. -A prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer who shall, during the term imposed, supervise the person released to the degree warranted by the conditions specified by the sentencing court. The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned, in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days. No prisoner shall be released on supervision unless such prisoner agrees to adhere to an installment schedule, not to exceed two years except in special circumstances, to pay for any fine imposed for the offense committed by such prisoner. (f) Mandatory functional literacy requirement- (1) The Attorney General shall direct the Bureau of Prisons to have in effect a mandatory functional literacy program for all mentally capable inmates who are not functionally literate in each Federal correctional institution within 6 months from the date of the enactment of this Act . ---------------------------------------- Page Break ---------------------------------------- 12a (2) Each mandatory functional literacy program shall include a requirement that each inmate participate in such program for a mandatory period sufficient to provide the inmate with an adequate opportunity to achieve functional literacy, and appropriate incentives which lead to successful completion of such programs shall be developed and implemented. (3) As used in this section, the term "functional literacy" means- (A) an eighth grade equivalence in reading and mathematics on a nationally recognized standardized test; (B) functional competency or literacy on a nationally recognized criterion-referenced test; or (C) a combination of subparagraphs (A) and (B). (4) Non-English speaking inmates shall be required to participate in an English-As-A- Second-Language program until they function at the equivalence of the eighth grade on a nationally recognized educational achievement test. (5) The Chief Executive Officer of each institution shall have authority to grant waivers " for good cause as determined and documented on an individual basis. (6) A report shall be provided to Congress on an annual basis summarizing the results of this program, including the number of inmate parti- cipants, the number successfully completing the program, the number who do not successfully complete the program, and the reasons for failure to successfully complete the program. ---------------------------------------- Page Break ---------------------------------------- 13a 3625. Inapplicability of the Administrative Pro- cedure Act The provisions of sections 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the making of any determination, decision, or order under this subchapter. 3626. Appropriate remedies with respect to prison crowding (a) Requirement of showing with respect to the plaintiff in particular- (1) Holding.- A Federal court shall not hold prison or jail crowding unconstitutional under the eighth amendment except to the extent that an individual plaintiff inmate proves that the crowding causes the infliction of cruel and unusual punishment of that inmate. (2) Relief.- The relief in a case described in paragraph (1) shall extend no further than necessary to remove the conditions that are causing the cruel and unusual punishment of the plaintiff inmate. (b) Inmate population ceilings.- (1) Requirement of showing with respect to particular prisoners.- A Federal court shall not place a ceiling on the inmate population of any Federal, State, or local detention facility as an equitable remedial measure for conditions that violate the eighth amendment unless crowding is inflicting cruel and unusual punishment on particular identified prisoners. (2) Rule of construction.- Paragraph (1) shall not be construed to have any effect on Federal judicial power to issue equitable relief other than ---------------------------------------- Page Break ---------------------------------------- 14a that described in paragraph (l), including the requirement of improved medical or health care and the imposition of civil contempt fines or damages, where such relief is appropriate. (c) Periodic reopening Each Federal court order or consent decree seeking to remedy an eighth amendment violation shall be reopened at the behest of a defendant for recommended modification at a minimum of 2-year intervals. * * * * * CHAPTER 305-COMMITMENT AND TRANSFER 4082. Commitment to Attorney General; re- sidential treatment centers; extension of limits of confinement; work furlough (a) The willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed to an institution or facility designated by the Attorney General, shall be deemed an escape from the custody of the Attorney General punishable as provided in chapter 35 of this title. (b)(1) The Attorney General shall, upon the request of the head of any law enforcement agency of a State or of a unit of local government in a State, make available as expeditiously as possible to such agency, with respect to prisoners who have been convicted of felony offenses against the United States and who are confined at a facility which is a residential community treatment center located in the geographical area in which such agency has jurisdiction, the following information maintained by the Bureau of Prisons (to the extent that the Bureau of Prisons maintains such information)- ---------------------------------------- Page Break ---------------------------------------- 15a (A) the names of such prisoners; (B) the community treatment center addresses of such prisoners; (C) the dates of birth of such prisoners; (D) the Federal Bureau of Investigation num- bers assigned to such prisoners; (E) photographs and fingerprints of such prisoners; and (F) the nature of the offenses against the United States of which each such prisoner has been convicted and the factual circumstances relating to such offenses. (2) Any law enforcement agency which receives information under this subsection shall not disseminate such information outside of such agency, (c) As used in this section- the term "facility" shall include a residential community treatment center; and the term "relative" shall mean a spouse, child (including stepchild, adopted child or child as to whom the prisoner, though not a natural parent, has acted in the place of a parent), parent (including a person who, though not a natural parent, has acted in the place of a parent), brother, or sister. ---------------------------------------- Page Break ----------------------------------------