JOHN L. BANKS-EL, PETITIONER V. UNITED STATES OF AMERICA No. 89-6811 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The summary reversal order of the court of appeals (Pet. App. 1a) is unreported. JURISDICTION The judgment of the court of appeals was entered January 4, 1990. The petition for a writ of certiorari was filed February 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the District of Columbia Good Time Credits Act, which applies only to prisoners incarcerated in the D.C. prison system, violates the equal protection rights of D.C. Code offenders incarcerated in the federal prison system and subject to the less favorable federal good time credits program. STATEMENT Petitioner was convicted of a violation of the District of Columbia criminal code and incarcerated at the Federal Correctional Institution in Petersburg, Virginia. He sought habeas corpus relief pursuant to 28 U.S.C. 2241, alleging that, as a prisoner incarcerated in a federal facility, he was unlawfully denied the more favorable good time credits available to D.C. Code offenders incarcerated in D.C. prison facilities under the D.C. Good Time Credits Act, D.C. Code Section 24-428. The district court granted the petition based on its previous ruling in Moss v. Clark, 698 F. Supp. 640 (E.D. Va. 1988), that the District of Columbia good time credit statute, which applies only to Code offenders incarcerated in the D.C. prison system, violated petitioner's equal protection and due process rights. The court of appeals summarily reversed on the basis of its opinion in Moss v. Clark, 886 F.2d 686 (4th Cir. 1989), which reversed the decision relied upon by the district court. /1/ 1. Under D.C. Code Section 24-425 (1989), D.C. Code offenders are remanded to the custody of the Attorney General, who is authorized to transfer them to the Federal Bureau of Prisons to "relieve overcrowding or unhealthful conditions" in the D.C. prison system, "or for other reasons." District of Columbia Code offenders such as petitioner who are incarcerated in federal facilities receive good time credits according to the less generous federal scheme /2/ because the D.C. Good Time Credits Act, by its terms, applies only to offenders "imprisoned in a District correctional facility." D.C. Code Section 24-428(a). As a consequence of his incarceration in federal prison and the application to him of the federal good time scheme, /3/ petitioner is to become eligible for parole about one year later than if he were incarcerated in a D.C. facility. Pet. App. 3a. 2. In its opinion in Moss v. Clark, 698 F. Supp. 640 (E.D. Va. 1988), the district court concluded that the D.C. Good Time Credits Act violated the equal protection and due process rights of D.C. Code offenders incarcerated in federal prisons by failing to extend its beneficial good time credit system to such offenders. The court concluded that, because the classification made by the Act involved no suspect group and impaired no fundamental right, the equal protection claim should be analyzed under the rational basis, rather than strict scrutiny, standard of review. 698 F. Supp. at 648-650; Pet. App. 13a-14a. The court held that the Act failed to meet that standard because the statutory classification was not rationally related to any legitimate government purposes. 698 F. Supp. at 651-652; Pet. App. 14a-15a. With respect to the due process claim, the district court also determined that the Act created a liberty interest. The court concluded that the Act deprived federally incarcerated D.C. Code offenders of that interest because there was no rational relationship between the deprivation of liberty and the purposes of the Act. 698 F. Supp. at 652-653; Pet. App. 15a. The district court applied its rulings in Moss to petitioner's case and granted his petition for habeas corpus relief. Pet. App. 2a-4a. 3. The court of appeals reversed the Moss decision (Pet. App. 5a-8a) and applied that ruling to reverse the district court's decision in this case. Pet. App. 1a. The court of appeals agreed with the district court that the rational basis standard of review applies to the equal protection claim, but ruled that the statutory classification is rationally related to the legislative purpose of relieving severe overcrowding within the D.C. prison system. Id. at 7a. The court also concluded that the statutory classification serves the legitimate goal of "(p)reserving uniform treatment of inmates who are incarcerated together," thereby avoiding the erosion of morale and the administrative difficulties that would result from applying two different good time systems in federal prisons. Id. at 7a-8a. The court of appeals also disagreed with the district court's due process analysis. The court first concluded that plaintiffs could claim "no lack of procedural due process." The D.C. Good Time Credits Act, the court of appeals explained, "does not apply to federal prisoners," and thus "conferred no protectible liberty interest on (D.C. Code offenders) upon their assignment to federal facilities," where such assignment was "plainly left to the discretion of the Attorney General." Pet. App. 8a. Moreover, because the D.C. statute was rationally related to a legitimate government purpose, the court held that it did not violate principles of substantive due process. ARGUMENT Petitioner renews his argument that the D.C. Good Time Credits Act violates the equal protection and due process rights of D.C. Code offenders incarcerated in federal facilities. 1. With regard to the equal protection claim, petitioner implicitly acknowledges (Pet. 8-10) that the D.C. statute does not discriminate against any suspect class or burden any fundamental right. /4/ He therefore accepts that the rational basis standard of review applies. Petitioner also concedes (Pet. 10) that the more generous provision of good time to prisoners housed in D.C. facilities is "arguably rationally related to the government's legitimate purpose of easing prison overcrowding in the District of Columbia." He maintains, however, that the failure to apply the D.C. good time scheme to all D.C. Code offenders, regardless of location, violates the Equal Protection Clause. Ibid. The fallacy of this contention has been well explained in the opinion of the district court in Jackson v. Thornburgh, 702 F. Supp. 9, 12-13 (D.D.C. 1988), which upheld the D.C. Good Time Credits Act against a similar equal protection challenge: The District (of Columbia) Council bore no affirmative obligation to extend the benefits of the Act to any prisoner, and when it determined to do so, it had every right under the rational basis test to extend those benefits in such a manner as to address only the immediate problem at hand. * * * The problem before the Council was overcrowding in its own prisons; there can be little question that the Act addresses that problem in a manner that is at once limited, yet sufficiently comprehensive to accomplish its ends. Were the Act to deny its benefits to any prisoner housed in an overcrowded prison within the District's jurisdiction, perhaps equal protection principles would be offended. However, that is not the case here. This Court has never held that benefits must be extended beyond the category that serves the purpose of the legislation. On the contrary, the Court has explained that the "legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill." Plyler v. Doe, 457 U.S. 202, 216 (1982); see also Bowen v. Owens, 476 U.S. 340, 347 (1986). Here, the D.C. Council was justified in awarding generous good time credits only to D.C. Code offenders incarcerated in D.C. facilities because extending such credits to offenders housed elsewhere would do nothing to alleviate the problem of overcrowding in D.C. prisons. Thus, the Council created a classification that "approximate(d) the nature of the problem perceived." As petitioner recognizes (Pet. 15 n.12), this case is very similar to McGinnis v. Royster, 410 U.S. 263 (1973), in which this Court considered the constitutionality of a New York State statute that denied good time credits to state prisoners for preconviction periods of incarceration in county jails, but gaved full credit to persons who made bail and therefore served their entire sentence in state prison facilities. The Court held that the statute created a rational legislative classification because one of the objectives of the good time credits statute -- to promote rehabilitation -- was served by extending good time credits to prisoners in state facilities having rehabilitation programs, but not by allowing good time credits for prisoners housed in county jails, which were not designed to rehabilitate prisoners but only to detain them. Analogously, the objective of the D.C. good time credit statute -- relieving overcrowding in the D.C. prison system -- is served by extending the more generous good time credits to shorten the period of incarceration of those housed in the District of Columbia. Because that objective would not be advanced by extending the beneficial good time credit program to persons incarcerated elsewhere, the statutory classification has a rational basis. Moreover, it is rational to avoid the administrative and morale problems within federal prisons that would result if D.C. Code violators incarcerated there were permitted to accumulate good time credits under the more generous D.C. schedule. Petitioner attempts to distinguish McGinnis (Pet. 15 n.12) by arguing that the D.C. Act, unlike the New York statute at issue in that case, grants automatic good time credits without the need for affirmative good conduct. That distinction is irrelevant to the rationality of the D.C. statute. Unlike the statute in McGinnis, which was designed for a rehabilitative purpose that could be advanced only if good time credits were granted as a reward for good behavior, the D.C. statute serves a goal -- to relieve prison overcrowding by facilitating earlier release -- that is served by the provision of more generous good time regardless of the basis on which such credits are awarded. But in any event, it is not true that good time credits under the D.C. statute bear no relation to prisoner conduct. Although D.C. system prisoners are granted good time credits automatically, they must maintain good conduct in order to retain those credits; bad conduct can lead to forfeiture. Thus, the distinction between the provision at issue in McGinnis and the D.C. statute at issue here is only procedural. Under the former, good time credits are conferred only after the prisoner is determined to merit them; under the D.C. statute, the prisoner's failure to maintain good conduct (as determined after a hearing) will result in the loss of good time credits that were automatically earned. But that procedural difference does not amount to a distinction of constitutional significance. 2. Also without merit is petitioner's claim (Pet. 14-16) that the court of appeals' opinion in Moss is inconsistent with a number of this Court's equal protection cases. Califano v. Goldfarb, 430 U.S. 199 (1977), did not involve application of the rational basis test. Rather, this Court applied a heightened level of scrutiny to a gender-based classification in Social Security benefits and, in reliance on previous cases rejecting such gender-based distinctions, found an equal protection violation. In City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), this Court found that a zoning ordinance failed the rational basis test because it "rest(ed) on an irrational prejudice against the mentally retarded." Id. at 450. In Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985), the Court considered a state tax benefit that discriminated between classes of Vietnam veterans based entirely on the date the veterans began to reside in the State. The Court found that the classification created by statute, which favored established residents over new residents, violated the Equal Protection Clause because it served no legitimate state purpose. 472 U.S. at 623. Finally, in Zobel v. Williams, 457 U.S. 55 (1982), thed Court struck down a state benefit scheme that distinguished among its citizens on the basis of length of residency. The Court found that no legitimate state purpose justified conferring the benefit on one group but not another. In summary, the Court in Cleburned, Hooper, and Zobel determined that the classifications created by the provisions at issue advanced no legitimate state purpose. Here, in contrast, even petitioner acknowledges that the relief of prison overcrowding is a valid goal, and that the D.C. statute serves that purpose. /5/ 3. There is also no basis for petitioner's contention (Pet. 16) that the denial of D.C. good time credits to those incarcerated in federal prison violates a protected liberty interest. Because any liberty interest petitioner might have in serving less than the full term of his sentence is necessarily a creature of statute, see Wolff v. McDonnell, 418 U.S. 539, 557 (1973), only those who come within the reach of the statute can claim a violation of their due process rights. It is expressly a condition of coverage by the D.C. statute that the prisoner be housed in a District of Columbia facility. By its terms, the Act thus has no application to offenders such as petitioner who are incarcerated in federal prison. Petitioner therefore has no legitimate expectation of receiving the more generous good time credits under the D.C. statute, and cannot claim an infringement of his liberty interest in being deprived of those benefits. See Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 12 (1979). 4. Petitioner concedes (Pet. 12-13 & n.10) that, although cases raising the issue of the constitutional validity of the D.C. Good Time Credits Act are pending in the Third, Seventh, and District of Columbia Circuits, /6/ there is as yet no disagreement among the circuits on the constitutionality of the D.C. statute. In light of the absence of any conflict among the circuits, review by this Court is unwarrantged. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General RICHARD A. FRIEDMAN Attorney APRIL 1990 /1/ No petition for certiorari was filed in the Moss case. /2/ Relevant provisions of D.C. and federal law are set forth at Pet. App. 56a-63a. The federal good time statute, codified at 18 U.S.C. 4161 et seq. (1982), applies to petitioner (who was sentenced in 1980). That provision was repealed on November 1, 1987. As noted by the court of appeals in Moss v. Clark, 886 F.2d at 689 n.3, Section 4161 remains in effect for five years from the date of repeal for individuals who committed offenses prior to November 1, 1987. After November 1, 1992, computation of good time is controlled by the Federal Good Time Act, enacted as part of the Sentencing Reform Act of 1984, 18 U.S.C. 3624 (1986). The new provision eliminates most types of good time credits. /3/ Under 18 U.S.C. 4161 (1982), the Bureau of Prisons applies good time credits to the prisoner's maximum sentence, which moves the mandatory release date forward. Good time credits are not applied to reduced the minimujm term required to be served before an inmate becomes eligible for parole. Under the District of Columbia scheme, good time credits are applied to reduce the minimum term of imprisonment, which determines the date of parole eligibility, as well as to reduce the maximum term of imprisonment, which determines the date of mandatory release. D.C. Code Section 24-428(b). Under the federal system applicable to petitioner, the Burea of Prisons awards "good conduct" credits of five to ten days per month (based on the length of the sentence) to those prisoners demonstrating good behavior. 18 U.S.C. 4161 (1982). The amount is credited monthly as earned. Under the District of Columbia system, in contrast, an inmate incarcerated in a D.C. prison automatically is entitled to a maximum of ten days institutional good time credit per month, which is awarded at the beginning of the sentence. D.C. Code Section 24-428(a). The credits cannot be revoked without a hearing. D.C. Code Section 24-432 (1989). In addition to these automatic good conduct credits, extra good time credits are available under both systems, but with some variations. See 18 U.S.C. 4162; 28 C.F.R. 523.1-523.17; D.C. Code Section 24-429 (1989). /4/ Also, there is no allegation in this case of any improper discrimination practiced by the Attorney General in his selection of D.C. Code offenders to be transferred to the federal prison system. /5/ Likewise distinguishable are the lower court cases cited by petitioner (Pet. 13-14) in which the denial of good time credits to certain categories of prisoners was found to be unlawful. In Sawyer v. Sigler, 320 F. Supp. 690, 698 (D. Neb. 1970), aff'd, 445 F.2d 818 (8th Cir. 1971), the district court invalidated a prison policy of withholding statutory good time from prisoners who were unable to work due to illness. The court concluded that the applicable Nebraska good time statute, which permitted withholding of good time only for misconduct, did not authorize the elimination of statutory good time for failure to perform work which a prisoner, by virtue of illness, was under no duty to perform. Although the court noted that the invalidity of the State's application of its statute precluded the need to consider the constitutional validity of the prison policy, the court nevertheless found that, because withholding credits from such prisoners would not advance the purpose of the good time statute -- to foster responsibility and develop good work habits -- the policy lacked a rational basis. In Greiss v. Colorado, 624 F. Supp. 450 (D. Colo. 1985), aff'd, 841 F.2d 1042 (10th Cir. 1988), plaintiff prisoners sued for damages for deprivation of constitutional rights under 42 U.S.C. 1981 and 1983. The district court decided that denial of good time credits for a period of presentence confinement credited to the total length of sentence, when such credit was available to those able to make bail and serve their entire sentence after conviction, constituted unjustified wealth-based discrimination in violation of the Equal Protection Clause. However, the court granted summary judgment for defendant on absolute immunity grounds. The court of appeals upheld the decision, but it did not affirm the district court's ruling that the statutory classification violated equal protection. Rather, the court decided that because the equal protection claim did not rest on a "clearly established right," but was a matter of "considerable debate" within the circuit and in other courts, the district could should have granted summary judgment on the ground that the individual defendants (Colorado prison officials) were entitled to qualified immunity from plaintiff's suit for compensatory damages. /6/ See Jackson v. Thornburgh, appeal docketed, No. 89-5017 (D.C. Cir. Feb. 1, 1989); Hillard v. Keohane, appeal docketed, No. 90-5173, (3d Cir. Mar. 12, 1990); Pryor v. Brennan, appeal docketed, No. 89-3415 (7th Cir. Nov. 6, 1989).