SUPREME COURT OF THE UNITED STATES

No. 94–790

JANET RENO, ATTORNEY GENERAL, et al., PETITIONERS v. ZIYA K. KORAY

on writ of certiorari to the united states court of appeals for the third circuit

[June 5, 1995]

Justice Stevens, dissenting.

Pursuant to an order entered by a federal judicial officer, respondent was "confined to premises of [Volunteers of America (VOA)]," a private halfway house. The order of confine ment—euphemistically styled a "release" order—provided that respondent "shall not be authorized to leave for any reason unless accompanied by Special Agent Dennis Bass." While at VOA, respondent "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." Koray v. Sizer, 21 F. 3d 558, 566 (CA3 1994). Except for one off-site medical exam, respondent remained at VOA 24 hours a day for 150 days. In my opinion, respondent's confinement was unquestionably both "official" and "detention" within the meaning of 18 U. S. C. §3585(b).

Both the text and the purpose of §3585(b) clearly contemplate that a person who is locked up for 24 hours a day, seven days a week, pursuant to a court order, is in "official detention." Such a person is surely in custody, and that custody is no less "official" for being ordered by a court rather than the Attorney General. Indeed, even the majority acknowledges the force of this plain meaning argument. Ante, at 11. Moreover, the manifest purpose of §3585(b) is to give a convicted person credit for all time spent in official custody as a result of the offense that gave rise to his conviction. When that confinement is in a facility that has all the restraints of a typical prison, it should not matter whether that facility is operated by a State, a county, or a private custodian pursuant to a contract with the government.

Purporting to establish the contrary conclusion, the Court labors to prove the rather obvious proposition that all persons in the custody of the Attorney General pursuant to a detention order issued under 18 U. S. C. §3142 (1988 ed. and Supp. V), as well as all persons confined in an "official detention facility" under §3585(a), are also in "official detention" within the meaning of §3585(b). However, proof that confinement under §§3142 or 3585(a) constitutes official detention certainly is not proof that no other form of confinement can constitute official detention. The majority thus fails to demonstrate that respondent should not receive sentencing credit for his court-ordered full-time confinement in a jail-type facility.

Moreover, the Court's restrictive interpretation creates an anomalous result. Under the Court's view that only a person "committed to the custody of the Attorney General" can be in "official detention," §3585(b) does not authorize any credit for time spent in state custody, "no matter how restrictive the conditions." Ante at 9, 13, n. 5. This conclusion is so plainly at war with common sense that even the Attorney General rejects it. See Brief for United States 11 ("[T]he Bureau grants credit for time spent in state custody"); see also Reply Brief for United States 7–8.

The majority attempts to escape its self-created anomaly by suggesting that it "need not and do[es] not rule" on the propriety of giving credit for confinement under state law. Ante, at 13, n. 5. But that contention simply collapses the majority's house of cards. For either the "text" of the Bail Reform Act limits "official detention" to custody of the Attorney General, in which case the majority adopts an interpretation that even the Attorney General rejects, or the "text" does not limit the meaning of official detention, and then there is absolutely no reason for concluding that court-ordered 24-hour-a-day confinement is not official detention. The majority cannot have it both ways.

Given the anomalous implications of the Court's decision, one may fairly question how the majority justifies its result. It is surely not the plain language of the statute, because the majority's reading requires that a judicially mandated, 24-hour-a-day confinement in a jail-type facility is neither "official" (because it is ordered by a judge and not the Attorney General) nor "detention" (because the judicial order is labeled "release"). Nor does the majority rely on the nature of the facility itself, because the majority concedes that if the Attorney General rather than the court had confined respondent in the exact same facility, respondent's confinement would have been "official detention" under the statute. The majority purports to rely on some sort of Chevron deference, ante, at 11, but it is indeed an odd sort of deference given that (as I have noted above) the majority adopts an interpretation that the BOP itself has rejected.

The majority suggests at one point that it relies on the history of the interpretation of the word "custody," arguing that Congress did not intend to change the settled meaning of "custody" that existed prior to the Bail Reform Act. However, not one of the cases cited by the majority, ante, at 8–9, stands for the proposition that custody does not include confinement in a jail-type facility. Instead, all of those cases involved situations in which the defendant was at large. See Polakoff v. United States, 489 F. 2d 727, 730 (CA5 1974) (defendant faced "travel and social restrictions and was required to report weekly to a probation officer"); United States v. Robles, 563 F. 2d 1308, 1309 (CA9 1977) (defendant required to "obey all laws, remain within the jurisdiction unless court permission was granted to travel, obey all court orders, and keep his attorney posted as to his address and employment"); Ortega v. United States, 510 F. 2d 412, 413 (CA10 1975) ("released on personal recognizance"); United States v. Peterson, 507 F. 2d 1191, 1192 (CADC 1974) (defendant "at large on conditional release"). Moreover, at least one Court of Appeals (albeit after the passage of the Bail Reform Act) interpreted the word "custody" under §3568 as including "enforced residence under conditions approaching those of incarceration." Brown v. Rison, 895 F. 2d 533, 536 (CA9 1990). Thus, though I agree with the majority that Congress intended to incorporate the understanding of "custody" that existed under §3568, I fail to see how that intention supports the majority's result.

Simply accepting the plain meaning of the statutory text would avoid the anomalies created by the Court's opinion, would effectuate the intent of Congress, and would provide fair treatment for defendants who will otherwise spend more time in custody than Congress has deemed necessary or appropriate. For these reasons, I agree with the persuasive opinion of the Court of Appeals and would affirm its judgment.