Monday, October 31, 2005

Welcome to BOP Land, Where "54 Days" Does Not Mean 54 Days

Eliot S. Sash v. Michael Zenk, Docket No. 04-6206-pr (2d Cir. Oct. 26, 2005) (Sotomayor, Wesley, Brieant (by designation)): In this case, brought pursuant to 28 U.S.C. § 2241 by a prisoner in BOP custody and litigated by David Lewis of this Office, the Circuit upholds as "reasonable" the BOP's odd & stingy interpretation of the good-conduct time statute, 18 U.S.C. § 3624(b). This statute states in sum and substance that a "prisoner who is serving a term of imprisonment of more than 1 year . . . 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." While Sash reads this statute to mean that he should receive up to 54 days of credit for each year of the sentence imposed, the BOP reads the statute to mean that Sash should receive up to "54 days credit . . . for each year served." 28 C.F.R. § 523.20 (emphasis added). The tangible difference in Sash's case (he received a 27-month sentence) was he was entitled to 121 days' good-conduct time under his interpretation but only 105 days under the BOP's interpretation.

The Court concluded that § 3624(b) was ambiguous, but also that the rule of lenity did not apply because the "the regulation at issue here interprets neither the substantive ambit of a criminal prohibition nor the penalty it imposed." Op. at 4. Rather, traditional Chevron deference applied. And because the BOP's interpretation was a "reasonable" one, the Court must defer to its reading.

[A note about a typographical error. Judge Sotomayor writes: "The statutory ambiguity of § 3624(b) does result in any lack of notice to potential violators of the law of the scope of the punishment that awaited them, because the award or withholding of credit under § 3624(b) is not part of that punishment." Op. at 5. We are quite certain that the Judge intended to insert the word "not" between the words "does result".]

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