Reno v. Koray – Oral Argument – April 24, 1995

Media for Reno v. Koray

Audio Transcription for Opinion Announcement – June 05, 1995 in Reno v. Koray

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William H. Rehnquist:

We’ll hear argument next in Number 74… correction, 94-790, Janet Reno v. Ziya Koray.

Mr. Estrada.

Miguel A. Estrada:

Thank you, Mr. Chief Justice, and may it please the Court:

Section 3585 of title 18 instructs the Bureau of Prisons to calculate a defendant’s sentence of imprisonment in two related steps.

Under subsection (a), the Bureau must first determine when the sentence began, which usually is when the defendant is received for transportation to the facility where he is to serve it.

Subsection (b) of the statute deals with the issue of credit for prior custody before the sentence began, and it generally requires that a defendant receive credit for any time he has spent “in official detention”.

The issue in this case is whether the Bureau is correct in denying sentence credit under subsection (b) to defendants who are released on bail within the meaning of the Bail Reform Act of 1984.

Sandra Day O’Connor:

Mr. Estrada, where is the respondent presently?

Miguel A. Estrada:

I am told, though I don’t think it is in the record, that he is–

Sandra Day O’Connor:

Is he in custody?

Miguel A. Estrada:

–He is on bail in… living in the State of New York, I believe, Justice O’Connor.

Sandra Day O’Connor:

Some kind of supervised release status?

Miguel A. Estrada:

Bail status.

After the judgment of the court of appeals, the judgment I think in the last footnote of the court’s opinion instructed the district court to grant bail to the defendant pending any hearing on the remand on just how jail-like the conditions of incarceration or of bail were.

Sandra Day O’Connor:

What would be the effect of our ruling if it were in your favor?

Miguel A. Estrada:

He would–

Sandra Day O’Connor:

Would he have more time to serve?

Miguel A. Estrada:

–Yes, he would.

Yes, he would.

The supposition of the court of appeals is that because the sentence that remained was so short, and practically most of it was subject to the dispute of credit, that in order not to render the case moot pending the hearing that the court ordered, the defendant should be granted bail, and that’s what the district court did on remand, and if we manage to persuade the Court to our view of the statute in this case, the result will be that he will have to surrender for custody and serve the remainder of the sentence.

The Third Circuit in this case rejected the Bureau’s interpretation and held that the words “official detention” must be read more broadly than the Bureau does in order to include a court order that releases a defendant in bail but subject to a condition that he remains in a privately run halfway house under the conditions that the court termed “jail-like”, and our argument in this Court has three principal points as to why the court of appeals was wrong.

First, that the context of the statutory language indicates that Congress used the word (b).

The second point that I’d like to make today is that Congress used the words 1984, and that it was by then settled in the courts of appeals under the antecedent statute that dealt with credit that somebody who was released on bail would not be eligible for credit toward a sentence of imprisonment, and the third point is that if… even if the court of appeals is right that it is possible to read the statute more broadly, the agency was not required to do so, and its view is reasonable, so it is entitled to deference.

Sandra Day O’Connor:

Did the Bureau of Prisons have a different interpretation under its 1979 program statement?

Miguel A. Estrada:

The contention is that it did.

Our view is they did not… that it did not.

There was a general rule that would have denied a defendant in the position of respondent credit even under the old policy statement, and in fact that general rule was cited by the warden when it turned down the first request by the inmate in this case.

There was an exception that came out of a case called Waldorf, as we discuss in our brief, that was basically to the effect that if the defendant was ordered to actually be in a jail as a condition of bail under the custody of prison officials, credit would be granted in these circumstances.

Antonin Scalia:

If it was jail-like conditions of bail.

Is that–

Miguel A. Estrada:

Well, the use… the policy actually used not the word “conditions” but “jail-like facilities”, and I am told by the Bureau that it was never interpreted in the way that the Third Circuit thought it might be interpreted.

I haven’t heard respondent offer an example as to any other time in which it was interpreted that broadly and, in fact, if it were, it would be inconsistent with the general thrust of the general rule, because if it were as broad as the court of appeals thought, it would swallow the entire rule that said that this class of people didn’t get credit, and–

Ruth Bader Ginsburg:

–Mr…. in that case, Mr. Estrada, was it… it was in a jail.

Was it daily, or was it just a weekend–

Miguel A. Estrada:

–The facts that gave rise to the narrow exception, Justice Ginsburg, were that he was required to go back to the jail during the nights and weekends, I believe.

Ruth Bader Ginsburg:

–But was out during the day.

Miguel A. Estrada:

That’s correct.

Ruth Bader Ginsburg:

One other question I had about the background of this.

Between the time that the sentence was received and the time he was sent to the Allen… was it Allenwood Penitentiary?

Miguel A. Estrada:

Yes, Justice Ginsburg.

Ruth Bader Ginsburg:

Did he get… he remained in the halfway house at that time.

Did he get credit for those?

Miguel A. Estrada:

No.

Ruth Bader Ginsburg:

That 4 weeks, too, didn’t count?

Miguel A. Estrada:

No.

Ruth Bader Ginsburg:

Even though it was postsentence.

Miguel A. Estrada:

That’s right, because the statute splits up the world into not the… based on the time when the sentence starts, not when the sentence is imposed, and under subsection (a), the sentence starts when usually he shows up at the jail where he is to serve that sentence.

Ruth Bader Ginsburg:

Is the claim here being made for those 4 weeks as well as–

Miguel A. Estrada:

That’s correct.

That’s correct, and–

Sandra Day O’Connor:

–So–

Miguel A. Estrada:

–And under our view, none of that is warranting of credit under the statute.

If I could go back to make one final point in response to Justice O’Connor’s question, the 1979 program statement that does contain the exception was republished in 1993 virtually in identical form, except that the 1993 version does not state that exception.

Sandra Day O’Connor:

–Was there any statutory basis for that change, or was it just a decision of the Bureau of Prisons to change the language?

Miguel A. Estrada:

There is no record as to why, when the Bureau republished the 1993 version, it took out the old Waldorf exception.

Sandra Day O’Connor:

Does the Bureau of Prisons have rulemaking authority?

Miguel A. Estrada:

Not as to these matters.

Sandra Day O’Connor:

Then what deference do we owe to the Bureau of Prison’s interpretation, do you think?

Miguel A. Estrada:

Well, the same deference that you would owe to any other agency’s reasonable interpretation of a statute that you have found it is charged with administering.

Once you have held under Wilson, in our view, that this statute was something that Congress envisioned would be administered by the Bureau within the narrow confines of what it is, they would get, in effect, the delegated implicit authority to fill out the details as to how better to make the statute work.

Miguel A. Estrada:

It is obviously a basic premise of that argument that the court in Wilson found that Congress had an intent to delegate to the Bureau these sorts of computations.

Obviously, if this were a statute the administration of which is confined solely to the courts like any other criminal statute, that is not an argument that we would be making here, but once the court ruled in Wilson that there was to some extent at least an implicit delegation to the Bureau to administer this statute, in our view they’re entitled to deference on their reasonable views as to what the statutory terms mean.

Of course, that is our fallback argument.

We think that the statute is best read in the way that we have argued.

That is to say that the words 1984 act.

In the case of Block v. Rutherford, for example, which is cited in our reply brief, the Court dealt with the constitutional requirements that apply to a State’s holding pre-trial detainees, and the Court said that detainees, by definition, are people who have not made bail.

Stephen G. Breyer:

I can understand… the part that… I understand your fallback argument, because I can understand saying the States have so many different varying programs and these may or may not resemble each other, and it would be a total nightmare to find an absolute rule.

That’s basically your fallback argument, I think.

Miguel A. Estrada:

That’s correct, Justice Breyer.

Stephen G. Breyer:

Yes, all right.

Then… but I don’t understand the basic argument as well, because what do you do?

Does it turn on the magic word “bail”?

I mean, how do we know that the States will always use the magic word “bail”?

Perhaps what they’ll do is they’ll just say, we have a person in front of us, trial is 4 weeks from today until trial, what you will do is you will report nights and weekends to the house on 14th and 95th Streets, and there’s a house there, and the person gets in the house, and he comes in at night, he comes in on the weekend, he goes off during work during the day, work of different kinds… I mean, there are a thousand variations on that theme.

So I understand the rule that the circuit has.

You look to jail-type conditions.

I understand the possibility of saying it’s all up to the Bureau of Prisons, but I don’t understand this third possibility.

What is the actual rule that we’re supposed to interpret this statute to say?

Miguel A. Estrada:

Well–

Stephen G. Breyer:

If they use the word “bail”, then it isn’t, even if you put them in, like, Marion, during–

Miguel A. Estrada:

–No–

Stephen G. Breyer:

–or if you do use the word “bail” and you don’t use… how does that work, that third one?

Miguel A. Estrada:

–Our basic contention here, Justice Breyer, is that the word 1984 is evidence of what is usually understood–

Stephen G. Breyer:

My problem is, suppose the State doesn’t use the word “bail”?

Miguel A. Estrada:

–Well, the point I was going to make is that the plain meaning of the word looks to the consequences of the bail decision, not to the label that the State attaches to it, which is to say–

Stephen G. Breyer:

So then, what is the result in the example I gave?

Miguel A. Estrada:

–The result is that if you are in the custody of State prison officials, you’re entitled to credit, and–

Stephen G. Breyer:

Fine.

What it is, is it’s exactly the circumstance of this person here.

Miguel A. Estrada:

–No, it is not.

Stephen G. Breyer:

No, I’m imagining a case.

I’m imagining the State having done to a different prisoner precisely what’s true here.

Nights and weekends in a house made of concrete, and during the day the person goes off with a marshall close behind but not always present.

I mean, they never use the word “bail”.

Miguel A. Estrada:

That’s correct, Justice Breyer.

Stephen G. Breyer:

Now, what is the result?

Miguel A. Estrada:

The result is that person gets no credit, because if the person is not in that house, as I understand your hypothetical, under the custody and under the control of State prison officials who may take him out without going to the court to ask for authority, and who may do to him many of the things that are done to both convicted prisoners and–

Stephen G. Breyer:

And then if the judge happens to say, I’m not giving you bail, I’m keeping you confined.

You’re going to go to the house on 14th and 95th Streets, and that exactly happens, just what I said.

Miguel A. Estrada:

–I think I understand your hypothetical, Justice Breyer, and the answer is that under our view of the statute the word “detention” connotes… the word “detention” as used in the credit statute connotes custody by State prison authorities, the old bars example, and it doesn’t matter what the State court calls it, it doesn’t matter what the prisoner calls it.

If he was–

Ruth Bader Ginsburg:

Does it matter, Mr. Estrada, whether the prisoner has any notice of the difference?

As I recall these facts, this man was detained in jail for the first 2 months, so he got credit for that.

Then he asked to be released on bail, and he got this confining bail.

Did he know that there was this change when he got those rather restrictive bail conditions and… yes, well, tell me if he knew first, and then I would like to ask if he didn’t know, wasn’t he entitled to notice?

Miguel A. Estrada:

–Let me take that in two answers.

As to the first point, the answer is, we don’t know, because all of the records from the original case in Baltimore are sealed, so what was actually placed on the record is not in front of the Court, and it is not in the record in front of the Court.

Nonetheless, my answer to that is that by the time this happened the issue of whether somebody could get credit for time spent in a halfway house had been litigated in the circuits, the Bureau had a policy, both of those things had clear rules, and certainly that gives better notice to a person who thinks that he should be entitled to it than the rule that the Third Circuit came up in this case, which basically says that if it later should turn out that the person was held under jail-type conditions, then maybe, depending on the outcome of a hearing, he’ll get credit.

Ruth Bader Ginsburg:

Mr. Estrada, this is my concern.

You say that the Bureau had a policy, and there’s a statute that could be interpreted in one way or another, but the rules are so careful, Rule 11, to say when somebody makes a plea, that the judge with meticulous care had to tell all the consequences of that.

Now here, if a man is in a jail and then gets transferred to this halfway house where he’s allowed out only once in 150 days, the notion that he would appreciate that that is not the kind of detention for which he’ll get credit, there’s this tremendous change, maybe he would have said if that’s the deal, I want to stay in jail.

Miguel A. Estrada:

Well, maybe yes and maybe no.

I rather suspect that the county jail, where he was in the first place, was sufficiently unpleasant that wouldn’t have been–

Anthony M. Kennedy:

Well, I was going to ask, Mr. Estrada, under at least the Federal system, is it open to the prisoner to say that he wants to start serving his time immediately in a detention facility?

Miguel A. Estrada:

–It is open to the prisoner to waive his right to bail, and the court of appeals in making the notice argument that Justice Ginsburg was just referring to in effect said that.

Anthony M. Kennedy:

Well, suppose the court said, we don’t have room for you in the jail, we’re going to put you in a concrete house at 14th Street, where you’re not under the supervision of correctional officials, until we have room for you.

Could he–

Miguel A. Estrada:

Well–

Anthony M. Kennedy:

–Could he object to that?

Miguel A. Estrada:

–As with all… well, let me take the question in two parts.

Miguel A. Estrada:

As with all waivers and most rights, the court doesn’t have to take it if there’s a public policy reason why it should not.

As to all matters that bear on what may later follow from the bail determination, it is important to emphasize that under the bail statute there is a right to appellate review, and if someone is dissatisfied with the conditions under which he has placed, he can take them up and say that, for example, they are too restrictive.

I–

Anthony M. Kennedy:

Well, do you think in a case, I assume it would be where there’s a short sentence, that if the prisoner wants to get it over with, he can tell the judge, I want to begin serving my time now, and the judge is bound by that?

Miguel A. Estrada:

–No.

In most cases I think the judge will give him his way.

I don’t think he has a legally enforceable right to do so, and if, as with many other things where people would like to do something that is not quite compelled by law, we will try to accommodate him, but I don’t think there’s any legal rule, if there are good reasons to the contrary, why he must have his way in that respect.

If I could go back to the–

John Paul Stevens:

Could I ask you, before you go back to that, Mr. Estrada, I want to follow up on Justice Breyer’s question.

Having the facts of this case in mind, supposing… I’ve got two alternatives.

Supposing the defendant asks for bail, and in one case the judge says, bail is granted on the conditions set forth here; in the second case, the judge says bail is denied, and until… for the present you will be confined in exactly the same way, have the rest of the order be exactly the same, would they require different results?

Miguel A. Estrada:

–Yes, but let me explain that as to the second hypothetical, the legal consequence under the bail statute of the court saying bail is denied is that he must be confined into the custody of the Attorney General, so therefore the Court doesn’t really have the authority under the bail statute, I don’t think, to sort of say, bail is denied, and I’m going–

John Paul Stevens:

Well, say he does it–

Miguel A. Estrada:

–to confine you–

John Paul Stevens:

–confined to the custody of the Attorney General, and that custody shall be carried out in the following manner.

You don’t think he could do that.

Miguel A. Estrada:

–No, I don’t think he can do that.

John Paul Stevens:

But what if the Attorney General then followed up by doing exactly what this judge ordered?

Miguel A. Estrada:

That would be a–

John Paul Stevens:

Then he’d get credit.

Miguel A. Estrada:

–That’s right, Justice Stevens, and it is not our view that the statute would–

John Paul Stevens:

I gather, then, in both cases there’s detention that’s only official detention if the Attorney General makes the decision.

It’s not official detention if the court makes the decision.

Miguel A. Estrada:

–In both cases there is detention in some sense of the English word, “detention”.

Only in the latter case is there official detention within the meaning of the statute.

John Paul Stevens:

It’s official if the Attorney General orders it; it’s not if the court orders it.

Miguel A. Estrada:

Well, in essence, yes, but let me make two points in response to that, Justice Stevens, because I agree with you that it is a troubling hypothetical.

The first one is that Congress passes a statute like the credit statute with reference to classes of people.

It is not a question as to how Congress would really think of a case that comes close to a line in some sense, but that wasn’t the class that Congress didn’t think of favoring when it conceived of the broad class at the outset.

The second point is that, as we point out in our reply brief, being in the custody of the Attorney General, even if she chooses to put you in a halfway house for some period of time, is quite different from being in the custody of a private person.

Miguel A. Estrada:

It has many legal consequences, including what the Attorney General–

John Paul Stevens:

I suppose there would be credit even if the Attorney General decided to let the person be free on his or her own recognizance, too.

That would still be official detention.

Miguel A. Estrada:

–Yes.

I don’t… it seems to me that if the Court found that the defendant should be detained, which is a finding that under the bail law may only be made after finding that the person is a risk of flight or a danger to the community, it would be fairly irresponsible for the Attorney General or anyone acting for her–

John Paul Stevens:

The Attorney General might be curious to find out what surveillance, what a person would do if he was out on his own.

There are situations in which you might want the person to wander around.

Miguel A. Estrada:

–Maybe.

I think that in most cases of the type that you hypothesize, Justice Stevens, it would be fairly irresponsible for the Attorney General to take somebody who has been found to be a danger to the community and put him or her in any place other than a secure environment.

But even as to cases that can be hypothesized, our basic point continues to be the same, that the statute deals with categories of what readily came to Congress’ mind as the classes most likely to be implicated by rulings of this type.

Sandra Day O’Connor:

Well, what language of the statute do you rely on in giving credit for time spent in State custody?

There’s no reference there to the Attorney General.

Miguel A. Estrada:

Once again, let me make the first answer to that question by emphasizing the answer that I gave to Justice Breyer, which is that it is not our contention that the credit statute incorporates in high verba the definitions of the Bail Reform Act.

It is that in the context of a statute of this type, the word “detention” has a plain meaning that connotes a denial of bail, and that an example of that is the Bail Reform Act.

Even if it were our contention that the statute simply incorporates the related statutes so that we were faced with the notion of this being limited only to the Attorney General, the Bureau has taken the view that it can extend that a little bit based on the legislative history of the ’66 act which we mentioned in our reply brief, and on the settled practice, before the statute took its current form in 1984, which Congress chose not to disturb.

Now, I understand that if one gets to that level of the analysis, it is possible to quibble with whether the Bureau is right in taking those two matters to in effect impeach the plain meaning of the statute, but I would argue to you, Justice O’Connor, that if that’s true, the remedy is to tell us, do not give credit to State prisoners, not to say that everything else goes, and we think that within all of the normal tools of statutory construction, we have a fairly coherent view of the statute that accounts for the fairly unique nature of giving credit toward a sentence of imprisonment that the other side simply does not have.

John Paul Stevens:

May I ask one other question?

What… where do you place category… the cases in which the defendant is granted bail but doesn’t have the money to put up a bond?

Miguel A. Estrada:

We place those in the category of detention, Justice Stevens, and the reason for that is that the Bail Reform Act uses the word “detention” not only to refer to the type of–

John Paul Stevens:

Well, that category of cases, then, the Attorney General would not necessarily be irresponsible to let a person who cannot afford bail free on his own recognizance, would he?

Miguel A. Estrada:

–I’m sorry, Justice Stevens.

John Paul Stevens:

You suggested earlier that it would be irresponsible for a judge to let a person who is remanded to the custody of the Attorney General free on his or her recognizance, because there would necessarily have been a finding of danger to the community or risk of flight.

Miguel A. Estrada:

That’s right.

John Paul Stevens:

But supposing a person could not make bail and there was no such finding.

Miguel A. Estrada:

Well–

John Paul Stevens:

Then it would not be irresponsible to turn him loose, would it?

Miguel A. Estrada:

–That is not right, Justice Stevens, for the following reason.

The judgment to set bail under that condition is a judgment that the safety of the community and the defendant showing up will not be assured unless the bail condition is met.

If he cannot meet the condition, the Attorney General’s judgment would in effect put us in the same place as the earlier hypothetical, which is, the judge has found that this will not be assured in the absence of the condition, and the Attorney General is nonetheless disregarding that judgment and setting the person free anywhere.

Mr. Chief Justice, if I may, I would like–

Stephen G. Breyer:

Can I–

Miguel A. Estrada:

–to reserve the remainder of my time.

Stephen G. Breyer:

–I want to see if I can get one additional.

I’m going back to the same question, but it is what’s bothering me.

You can make your clear meaning of the statute work in the Federal system, I think, all right, but to focus on what I think is bothering several people, I once saw a film that showed what the systems are in Alabama called intermediate punishments.

Now, I don’t know if you’ve seen that or not, but you can get the idea.

Miguel A. Estrada:

I haven’t, Justice Breyer.

Stephen G. Breyer:

Well, but there are a whole range of things called intermediate punishments, and so it’s easy for me to think of this wide range of different degrees of confinement, et cetera, and to ask how your clear statement meaning works in that context.

One way to make it work is to say, jail or not jail.

That’s what the circuit did.

Another way to make it work is to say, did they use the magic word “bail”?

But they may not have used that word in this State.

I don’t know if they did or not.

A third way is to say, look to see if they’re in the custody of the State Attorney General.

States may not use that kind of concept.

So how does your absolute system work in the world of intermediate punishments which could also be imposed as conditions of bail without using the word bail?

Miguel A. Estrada:

Our system is based on the notion that most of the States have an authority that puts people in jail and keeps them there, and therefore that is the authority who, if they had custody legally over the defendant, they get the defendant credit, and if that does not happen, then the defendant does not get credit.

Mr. Chief Justice, if I could reserve–

William H. Rehnquist:

Yes, very well, Mr. Estrada.

Mr. Rochman, we’ll hear from you.

Irwin Rochman:

Mr. Chief Justice, and may it please the Court:

I’d like to begin by following up on Justice Stevens’ hypothetical and asking the Court to imagine the following.

Let us assume that on the same date that the court ordered Mr. Koray confined to the premises of the halfway house under a release on conditions order, which commits him to the custody of pretrial services, that there was a codefendant, and that on that same day the court ordered that codefendant detained under a detention order, but the court also recommended to the Attorney General that that codefendant be placed in a community based program or residence, which the Bureau of Prisons in its own program statement suggests the court may do.

I’m looking particularly at the petition for cert, the appendix, at page 46a.

It’s the very top of the page.

Let us assume the Bureau of Prisons takes that recommendation in this hypothetical and confines the codefendant to the same halfway house that Mr. Koray was confined to, and let us assume that both men, they may be dorm mates, they may be roommates, but for those same 150 days they are subject to the same, as Mr. Koray alleges, jail-type rules that prevail in that halfway house.

According to the interpretation of the Bureau of Prisons of the meaning of the words “official detention” this anomalous result occurs.

Ruth Bader Ginsburg:

Could Mr. Koray have said, when he was acquainted with the terms of his bail, if that’s bail, I don’t want it?

Could he have said that and withdraw… he requested bail.

He was in jail and he requested bail.

Ruth Bader Ginsburg:

Could he–

Irwin Rochman:

That’s not… I’m sorry, Justice Ginsburg.

Ruth Bader Ginsburg:

–Could he have withdrawn the request once he heard the terms of the bail?

Irwin Rochman:

I think he could have withdrawn the request.

Respectfully, the record is not clear that the request was made by him, and I would suggest to Your Honor that, given the chronology of this case, that is not at all clear.

Mr. Koray was detained under a detention order from the time of his arrest until 1 week after he had entered a plea of guilty.

At the time the order confining him to the premises of the halfway house was entered, he had already entered a plea of guilty.

Under the sentencing guidelines there was then a certainty of a jail sentence.

It seems to me highly unlikely, given the realities of the situation, that a defendant simply coming forward and asking for some kind of bail release, that would have been granted.

What seems to me at least equally plausible and more likely is that the court may, for its own reasons, have wanted to place him in a halfway house.

As I think Justice Kennedy indicated, there may have been overcrowding at the regular detention facility, and the court may have decided to place him in the halfway house to relieve that overcrowding.

Ruth Bader Ginsburg:

So there’s no showing… you say that he even requested a change from his jail confinement to his–

Irwin Rochman:

That is… the record is not clear, and I’m suggesting to the Court that a chronology of events makes it unlikely that he requested it or that if he requested it he got what he wanted.

Your Honor asked earlier about whether or not Mr. Koray was informed as to the consequences of his being confined at the halfway house as opposed to his earlier confinement under a detention order, and I think that Judge Sloviter in her opinion indicated a concern about the unfairness of now not crediting a defendant with this time if the defendant had not been advised at the time of the order.

Ruth Bader Ginsburg:

–But you just suggested he wouldn’t have had a choice anyway–

Irwin Rochman:

It’s–

Ruth Bader Ginsburg:

–that he may not have even asked for bail.

Irwin Rochman:

–It’s possible.

If the judge decided to change his status from that of being under a detention order to a release on conditions order, I don’t know that he had a choice.

The only argument that he does is that a release on conditions order, what is contained in the appendix here, requires, or at least has a… there is a place for the defendant to sign indicating his consent to the conditions that the order imposes, and in fairness, Koray did… his signature does appear.

Antonin Scalia:

Mr. Rochman, I’m concerned that our recording is not going to be able to get what you’re saying–

Irwin Rochman:

Thank you, sir.

Antonin Scalia:

–if you don’t stand near the microphone.

Irwin Rochman:

To continue–

Antonin Scalia:

It’s not a walk-around mike.

Irwin Rochman:

–I hope I’ve answered your question, Justice Ginsburg.

Antonin Scalia:

Yes.

Irwin Rochman:

To continue with my hypothetical, the anomalous result that would occur–

William H. Rehnquist:

Tell us again, what was it that Mr. Koray had signed?

Irwin Rochman:

–He signed… there is a portion of the release on conditions order which specifies the conditions of the release.

Irwin Rochman:

In this case, the significant condition of release was that Mr. Koray was

“confined to the premises of the Volunteers of America. “

which ran a halfway house in Baltimore, Maryland,

“and may not leave unless accompanied by special agent Dennis Bass. “

Those are the exact words of the order.

Antonin Scalia:

And that is jail-like.

Irwin Rochman:

It’s hard to imagine it’s anything but, sir.

Antonin Scalia:

Okay.

Now, we were speculating earlier in accordance with Justice Breyer’s questioning about what would satisfy the Government’s theory.

What would satisfy your theory of the case?

Suppose someone has to… he’s remanded to the custody of his parents, and has to be home evenings and weekends.

Is that jail-like?

Irwin Rochman:

That is not jail type confinement.

Antonin Scalia:

That is not jail-like.

His grandparents.

That’s still not jail-like.

An unrelated private party.

Irwin Rochman:

It is not jail-type confinement, sir, because the language of the statute now is “official detention”.

The language of the statute, it’s the predecessor statute which was in effect from 1960 to 1987, was “in custody”.

Antonin Scalia:

I don’t see what this has to do with what’s jail-like.

I want to know what is jail-like.

Irwin Rochman:

I… I’m sorry.

The answer to your question is no, that would not be jail-like, as I said.

Antonin Scalia:

When does it become jail-like?

Irwin Rochman:

It becomes–

Antonin Scalia:

A private party, so long as you’re remanded to the custody of a private party, related or unrelated, it doesn’t matter, right?

Irwin Rochman:

–Correct.

Antonin Scalia:

Even if this private… you have to report evenings, you have to stay there at night, and if you don’t, we’ll send a marshall out to bring you back.

Irwin Rochman:

The reason I was beginning to discuss the language of the statute and its history was in an attempt to be responsive to your question.

The answer is that jail-type confinement means equivalent to incarceration.

Irwin Rochman:

That is the way the courts have interpreted the word–

Antonin Scalia:

It doesn’t help me.

I mean, incarceration is just a fancy word for jail.

Irwin Rochman:

–Sorry?

Antonin Scalia:

So… I mean, if that makes it easier, let’s say, when does it become equivalent to incarceration?

Irwin Rochman:

When the person is totally confined, or where there are serious restrictions on the person’s liberty and the facility–

Antonin Scalia:

And being at a particular house every night and weekends is not a serious restriction on a person’s liberty?

Irwin Rochman:

–It could be, but it is not incarceration.

Antonin Scalia:

It is not incarceration.

I don’t–

What about being there all the time?

You cannot go out of this house at all, all week long.

Irwin Rochman:

The standard of the criterion that we’re looking for is one of jail-type confinement.

Antonin Scalia:

If it’s in a private house it’s not a jail, and that’s okay, then?

Irwin Rochman:

I’m attempting to answer.

If there is a confinement to a private home, certainly that’s a serious restriction on liberty, a complete confinement to the home, but it doesn’t meet the other part of the test of jail-type confinement.

It is not at a facility which has jail-type rules.

It is a combination of things.

It has to be a serious restriction on liberty in a facility which has jail-type rules.

William H. Rehnquist:

What are jail-type rules?

Would the fact that it’s very constant confinement with just getting out very rarely, that by itself does not mean jail-type rules?

Irwin Rochman:

Mr. Chief Justice, jail-type rules I think are best exemplified by the allegations Mr. Koray made as to the rules that prevailed at the halfway house that he was at.

He was subject to five security checks a day.

He was subject to random breath and urine tests.

There were severe limitations on his visitation rights, both in time and manner with respect to friends or counsel.

He was afforded significantly less in the way of vocational and educational and recreational facilities than would have been available to him at another Federal facility.

Antonin Scalia:

Well, I know some cases are easy.

I’m not worried about the easy cases.

I’m worried about where… you know, how we’re supposed to administer this line in the future.

There are some problems that have been brought out about administering the Government’s line.

Antonin Scalia:

I’m not sure that yours is any easier.

You can give me an easier… easy case.

You say that your client’s case is an easy one using this… you know, incarceration-like test, but I can think of a lot of very difficult cases, and I don’t know what your criterion is, except “jail-like rules”, or actually you should say incarceration-like rules.

Irwin Rochman:

Well, if Your Honor would be kind enough to give me an example.

What I’m suggesting to you is that the standard is a meaningful one and one that can be applied.

It is neither amorphous nor illusive.

If there is a serious restriction on liberty in a facility at which there are… which jail-type rules prevail… let me bring it back to the reality of the way… what conditions are actually imposed by district courts and magistrates.

Most of the… the most common conditions are home confinement, under this test clearly not… clearly not… incarceration.

The referral to a drug facility or an alcohol facility.

Again, the… that, I think, gets a little closer, but again it is not incarceration, as Judge Sloviter pointed out in her–

Antonin Scalia:

Why not?

Even if they give you random urinalysis to see if you’re following their regime?

Irwin Rochman:

–The reason, I think, that incarceration is something that merits sentence credit, or confinement that’s equivalent to incarceration is something that merits sentence credit and home confinement and residing in a halfway house but being permitted to go on work release and being referred to a drug treatment facility are not the basis for sentence credit… this is in essence a kind of fairness argument.

Judge Sloviter pointed out first that with respect to Mr. Koray, most of the benefits, if not all of the benefits, went to the Government.

It assured his presence in court.

It kept him off the street.

It got the benefit of the lower cost, because it is significantly cheaper to house someone in a halfway house than it is in an ordinary Federal prison, and it got… the space was saved for more dangerous prisoners.

Judge Sloviter pointed out it seemed unfair, with the Government getting all of those benefits and Koray getting almost none, if any, not to give him sentence credit.

All of the other things, Justice Scalia, that you have mentioned are forms of a sentence of imprisonment.

Home confinement, residing in a halfway house, for instance, may be a condition of a sentence of probation.

William H. Rehnquist:

But what about the drug treatment center, where it seems to me, as Justice Scalia suggested, you could be subject to what you have previously called jail–

Irwin Rochman:

Yes.

William H. Rehnquist:

–Wait till I finish my question–

Irwin Rochman:

I’m sorry.

I’m sorry, sir.

William H. Rehnquist:

–if you please.

Irwin Rochman:

I’m sorry, sir.

William H. Rehnquist:

You could be subjected to jail… the sort of jail-like conditions you previously mentioned, urine tests, monitoring several times a day, so how do you distinguish that from what you would call incarceration?

Irwin Rochman:

Forgive me for interrupting you, sir.

I thought you had finished.

Irwin Rochman:

I’m sorry.

The answer, I believe, is that being confined in, or being ordered to remain in a drug treatment facility, is one of the discretionary conditions of a probationary sentence under section 3563.

It is not part of a sentence of incarceration.

That is the view of Congress.

In other words, one of the conditions a court may impose as part of a sentence of probation is that the person remain at a facility for drug or alcohol treatment, and what that statute, 3563, provides is that that is only a permissible condition of probation.

William H. Rehnquist:

Well then–

Irwin Rochman:

If the person is there… I’m sorry.

William H. Rehnquist:

–this is an exception, then, to your more general rule that if you have jail-like conditions it is incarceration, but it’s not if it comes under this other section?

Irwin Rochman:

I don’t think, Mr. Chief Justice, that I’m suggesting it’s an exception.

I’m saying that it is not a form… it is not a… it’s not within the traditional view of incarceration.

William H. Rehnquist:

Well, is that still another qualification, then?

Even though you have all these jail-like terms of confinement, if it’s not within the, what you call the traditional concept of incarceration, it still isn’t incarceration?

Irwin Rochman:

I have been arguing basically what Judge Sloviter suggested would not be considered incarceration, and I think she is correct simply because, as I said, the statute, 3563, indicates that that kind of confine… if you want to call it… I don’t call it confinement.

That kind of referral to a drug or alcohol treatment facility is not considered a sentence of imprisonment.

It is simply considered a sentence of probation.

David H. Souter:

Well then, why don’t we let the statute be the criterion across the board, and Mr. Estrada says the easiest way to do that is to identify the State official who customarily has the legal custody of those who are committed to jails and prisons, and if, during the time in question, the individual is committed to that official’s custody, it’s detention, if not to that custody, it’s not detention.

If the statutory reference is good for the argument or the answer that you’re making to the Chief, why isn’t it equally good as a general criteria?

Irwin Rochman:

Because the statute, sir, that we are interpreting, unlike 3563, is not clear, and although we say it has a clear… there’s a plain meaning to be found, but the words “official detention”–

David H. Souter:

Well, if you construe it the way Mr. Estrada argues, it probably is pretty clear.

There are going to be close cases on either side of the line in which one could argue it doesn’t seem quite fair to treat this person with… give this person credit and that person not, but it’s clear.

Irwin Rochman:

–It’s certainly true that the one virtue that the Bureau of Prisons’ position has is that it offers a bright line test, but what we respectfully submit is that the test that can also be proposed, although it may not be a bright line test, still has considerable wattage, and that is simply that the notion of incarceration, defined, again… I don’t want to repeat… defined as I have defined it provides a clear standard for courts.

All that has to be done is to look at the release on conditions order to determine, in the first instance, what the conditions of confinement, if any, are, and the release on conditions order under section 3142, I believe it’s (h), the Bail Reform Act, the court is required to set out in writing the specific conditions of the confinement.

Ruth Bader Ginsburg:

How does this play out if it were in a State… wholly in a State system?

Justice Breyer asked you about the person who was in… was being held in a State system, then he’s transferred to Federal authority, but suppose we were entirely within a State system, New York or New Jersey, is it any different?

Irwin Rochman:

When Your Honor asks, is it any different, the 3585(b)(2) has language broad enough to permit credit, sentence credit for presentence custody by State courts, or in State facilities.

Ruth Bader Ginsburg:

I’m just asking if you had this kind of case wholly within the State court–

Irwin Rochman:

Yes.

Ruth Bader Ginsburg:

–where the State court judge had said, release on bail under these conditions, would that or would that not count against… for credit against sentence?

Irwin Rochman:

Under our interpretation?

Ruth Bader Ginsburg:

No.

Ruth Bader Ginsburg:

I just would… if there… if it’s just as unclear, just as debatable under State law, I was just wondering whether the State systems are similar to the Federal system.

Has this question come up?

Irwin Rochman:

Not that I’m aware.

Not all States have the same dichotomy that the Bail Reform Act has between detained versus released.

Some States still use bail and don’t have… they use the old-fashioned notion of remand as opposed to detain.

There are just simply varying systems in the States, as I understand it, but I don’t believe I’ve fully answered your question.

The problem with the Solicitor General’s rationale… I should say, the Bureau of Prisons rationale, what they argue is that the touchstone, or the relevant condition is custody by the Attorney General, and in the hypothetical that I attempted to suggest to the Court earlier, it is the application of what they say the meaning of official detention is that results in that absurd, unreasonable, and glaringly unjust result.

Because the application of that principle, making the touchstone custody of the Attorney General, results in the codefendant confined in exactly the same conditions, in exactly the same place by a judicial order, although not called a detention order, but certainly as official as a detention order–

Stephen G. Breyer:

But do you… I was actually not… I was being slightly dim, because you think, too, they have a clear, bright line test.

But what is their clear, bright line test?

That’s what I’m having a hard time figuring that out, when it’s the State… I understand in the–

Irwin Rochman:

–That’s what–

Stephen G. Breyer:

–Because the words in the Federal order say custody by the Attorney General.

That’s normal.

But if you… you practice, probably, in the State systems, too.

Irwin Rochman:

–As well as the Federal, yes.

Stephen G. Breyer:

Right, so is there, if you try… you have to apply this to the States.

How does their… is there a clear bright line you can similarly apply to the States?

Irwin Rochman:

I think the answer is no, and the fact that that test doesn’t work for State custody it seems to me is yet an additional argument that it is an unreasonable reading of the statute.

Antonin Scalia:

Why doesn’t it work for State custody?

States don’t have Bureaus of Prisons?

They do not have an officer who is in charge of prisoners who have been convicted of crimes?

Irwin Rochman:

They may–

Antonin Scalia:

I thought every State had somebody like that.

Irwin Rochman:

–They may well have, Justice Scalia, but that is not the Solicitor’s test.

The Solicitor’s test is, and the Bureau of Prisons’ position is, it’s custody by the Attorney General.

Antonin Scalia:

No, I thought–

–No.

I thought it was broader.

I thought it was custody by the officer responsible.

Irwin Rochman:

Well–

David H. Souter:

Mr. Estrada I thought answered the question saying each State identifies some official as the one to have custody of those who are denied bail.

Irwin Rochman:

–Well, that may be what Mr. Estrada said today, but that may fall into the category of a post hoc rationalization of a Government lawyer for a position that’s not the actual position–

David H. Souter:

Well, let’s assume that we want to consider that position.

Why would that be difficult to apply?

Irwin Rochman:

–I don’t think it would be necessarily difficult to apply, because again, there is probably some officer within the State, but I think it would do violence to the language of the statute based on the Government’s interpretation.

The Government wants to limit–

David H. Souter:

Well, but you’re rejecting the hypoth… I mean, you’re rejecting the position.

You’re saying, well, the Government used to say it had to be the Attorney General, and now he’s saying it could be a State official.

You’re saying there’s an inconsistency there.

I’m not sure that I think there is, but let’s assume the Government’s position is that when we are talking about an issue of State “custody” the official we look to is the State official.

As long as we can identify that official as the one customarily with custody of those who are denied bail under the State system, why is that difficult to administer, and I think your answer is, it really isn’t.

Irwin Rochman:

–It may well be, but it can result in the same anomalous harsh–

David H. Souter:

It can result in a situation in which there are going to be two cases in which the conditions seem to be about the same but one is on one side of the line and one is on the other.

That’s your argument, and I agree with you; that’s a problem.

Irwin Rochman:

–And I think that that potential for resulting unfairness is particularly significant in construing this statute.

This is a statute whose purpose… whose purpose is to assure fairness in sentencing by crediting presentence confinement–

David H. Souter:

Well–

Irwin Rochman:

–against the sentence.

David H. Souter:

–But don’t we also have to accept the fact that even under your own argument, and under any argument I can imagine you making, there isn’t going to be complete fairness in sentencing.

You may very well have a halfway house confinement or halfway house assignment, I guess I will say, before sentencing which isn’t going to give you any credit, and yet at the end of a sentence being served, there may very well be assignment to a halfway house during a work release period, credit is going to be granted.

There’s… you know, that’s unfair, too.

There’s some unfairness, I suppose, no matter how we try to make it–

Irwin Rochman:

I think that… I’m not so sure that I agree, sir, that that is an unfairness.

I understand why you think I might think that.

David H. Souter:

–But I mean, the actual conditions are exactly the same in each case.

Irwin Rochman:

Well, they are except that when a sentenced prisoner is given home confinement, or is given–

David H. Souter:

Halfway house–

Irwin Rochman:

–Halfway house confinement, but it’s not confinement.

They’re told… they reside at halfway houses and they go on work release.

Irwin Rochman:

That’s something they have earned, and it makes sense to count that as part of their sentence.

Antonin Scalia:

–Well, now, we’re not talking about fairness here, we’re talking about the word, the phrase, “official detention”.

I mean, if you’re talking about fairness, even if nobody thinks it’s official detention… the Government doesn’t, you don’t, nonetheless, if you have to be home 5 nights a week, let’s say custody of your parents 5 nights a week and all weekends, shouldn’t you be given at least 1/100th of that time as credit against your sentence?

It’s not being in jail, but it’s a pain in the neck, and if you want to be perfectly fair you should get some degree of credit for it, shouldn’t you?

Well, it’s not a perfect world.

We’re dealing with a statute that took a rough cut at eliminating some of the inequities, and the phrase it used is “official detention”, so let’s work with that.

Irwin Rochman:

But I think in order to work with the phrase, “initial detention”, one has to consider where the phrase came from, and that brings us to the legislative history of the statute.

1973.

Over the course of the years, the bail reform statute… pardon me, the sentence credit statute was enacted in 1960.

It has the word… it was in section 3568, and it had the words “in custody” in it.

Because the Congress in, or various Congresses in various purported attempted revisions of the statute used the phrases “official detention”, “official custody”, “custody”, and “confinement” interchangeably, every court of appeals that has addressed the question, and the Solicitor General agrees, has determined that no change in the meaning of the statute was intended by the change of words from “in custody” to “official detention”.

If “official detention” and “in custody” mean the same thing, as that legislative history and the court’s opinion say they do, then there are… then court opinions which interpreted the words “in custody” should have direct bearing on the meaning of the words in the statute, and the courts have interpreted the word… the courts interpreted the word “in custody”, or “custody”, to mean total incarceration.

I understand that there is an argument, certainly, for crediting parts of residing at a halfway house, or crediting the one-fifth of the 1 day or the 1 night, but the word that was used, the words that were used, “official detention”, don’t… didn’t emerge full-blown.

They come with a history, and that history says that “official detention” means the same thing as “custody”, and that courts have interpreted “custody” to mean total incarceration.

John Paul Stevens:

Does that mean, just so I have your position clear, that if in this very facility the order had provided that the inmate, if you want to call him that, could have gone out during the day and attended to his work but had to spend the nights and weekends in the facility, that would not be total confinement?

Irwin Rochman:

I think that’s clear from Judge Sloviter’s opinion, and that would not be… that would not be total incarceration and therefore would not be official detention.

Antonin Scalia:

Mr. Rochman, why do you say official detention means custody?

What’s your basis for–

Irwin Rochman:

Again, sir… I’m sorry.

I say that because the original statute, the predecessor statute, used the phrase “custody”.

Antonin Scalia:

–But this was before the Bail Reform Act.

Isn’t it conceivable that this new terminology was adopted in connection with the Bail Reform Act, and that the best way to decide what it means is to read it in conjunction with the Bail Reform Act?

Irwin Rochman:

That… pardon me, sir.

That would be correct, Justice Scalia, if the appearance of the phrase 1984 when this statute was enacted, and in 1987 when it went into effect, but as I tried to make clear earlier, the words 1973, well before the Bail Reform Act, well before the creation of the detention order.

They’re not fraternal twins, and that is why I say that the court… every court of appeals that has considered the question, the Solicitor General concedes and agrees that this is so, that the use of the words “official detention” connotes no change in the meaning of the statute from the previous language, which was “custody”, and “custody”, according… in the unanimous interpretation of the courts, “custody” means total incarceration.

And that is why I believe in her well-reasoned opinion Judge Sloviter limited the sentence credit that she permitted to situations involving total confinement or incarceration, and had to reject, and as she pointed out, reject things like residing in a halfway house but being permitted to go on work release, or home confinement.

The… there are other arguments here, but I see the light.

Antonin Scalia:

Excuse me, I thought the predecessor statute didn’t use the term “official detention” but it used the term “custody”.

Irwin Rochman:

Yes, sir.

That’s what I said.

Antonin Scalia:

I thought you were saying that the predecessor… I thought you said that the phrase “official detention” did not come full-blown at the time that the Bail Reform Act was enacted, but that it had a long history.

Irwin Rochman:

Yes.

Antonin Scalia:

What had a long history is a statute with the word “custody” in it.

Irwin Rochman:

Yes, sir, but in–

Antonin Scalia:

Not a statute with the word “official detention” in it.

Irwin Rochman:

–That is correct, but what I said was that in the legislative history, starting in 1973, there were various attempts to amend or revise the statute, and in those suggested revisions of the statute over the years, from 1973 up until 1984, the various Congresses used interchangeably the phrases “custody”, “official custody”, “detention”, and “official detention”.

William H. Rehnquist:

Thank you, Mr. Rochman.

Irwin Rochman:

Thank you, sir.

William H. Rehnquist:

Mr. Estrada, you have 2 minutes remaining.

Miguel A. Estrada:

Thank you, Mr. Chief Justice.

I would just like to emphasize that the standard that was adopted by the court of appeals and is being urged by respondent is unworkable.

What respondent has done in effect is to ask the Court to come up with a set of essentially legislative classifications based in part on what would be considered probation under 3563.

In that connection, I would like to highlight, as we did in our reply brief, that if you took all of the conditions that respondent had in this case and asked what those would be called if it were a sentence under the Federal system, the answer would be that it is a sentence of probation, not a sentence of imprisonment, and I would refer the Court to section 3563(b)(12), which identifies what happened here as a permissible condition of probation.

Antonin Scalia:

But you don’t care about that.

That’s just in case we don’t accept your rationale of the case.

Miguel A. Estrada:

Well–

Antonin Scalia:

You’re saying even if we accept the incarceration rationale, you’d say this still wouldn’t be incarceration.

Miguel A. Estrada:

–Well, it shows as one of our statutory arguments, Justice Scalia, that what Congress was trying to do here was to provide credit for only one type of Federal sentence.

This is a statute that deals with credit only for one of the many possible Federal sentences that may be imposed, and the fact that if we took everything that happened here and asked what it would be called if it were a sentence, and the answer is not what the statute gives credit for, we think it’s a very powerful textual indication that this is not the type of case for which credit was contemplated.

On the issue of lack of notice, I would like to refer the Court to 18 U.S.C. 3142(h), which is part of the bail statute, and has a specific list of matters that the defendant must be advised of when he is granted bail, including his duties under their bail bond and the absence or any consequence as to credit is not one of them.

Thank you.

Ruth Bader Ginsburg:

But, is not one of them, so you–

Miguel A. Estrada:

Is not one of them.

William H. Rehnquist:

Thank you, Mr. Estrada.

The case is submitted.