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Ninth Circuit Says First Step Credits May Be Applied to Reduce Supervised Release Time
Opinion Acknowledges Split, Says Government’s Argument That Hours Spent on Job Training Only Cut Time in Custody Reduces Law to ‘Gobbledygook’
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday held that credit earned by federal inmates by taking job training and other courses, under a 2018 law aimed at incentivizing prisoners to complete programs aimed at reducing the risk of recidivism, may be applied not only to reduce the term of imprisonment but also to cut the period of supervision following release.
Saying that the plain language of the First Step Act of 2018 (“FSA”) and the purpose behind the legislation support the view that an inmate may earn early release from supervision, the court said that the arguments to the contrary render the statute’s language to be “gobbledygook” and accuses the government of raising an “overblown” “parade of horribles” in attempting to justify curtailing the relief.
At issue is a provision of the FSA found at 18 U.S.C. §3632(d)(4)(C), which provides:
“Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners…into prerelease custody or supervised release.”
Yesterday’s opinion, authored by Circuit Judge Salvador Mendoza Jr. and joined in by Circuit Judge Jacqueline H. Nguyen and Senior Circuit Judge A. Wallace Tashima, the court acknowledged that a division has developed among the federal courts to have considered the issue and said:
“Splits in authority are seldom so stark and consequential, but we have little difficulty reaching a conclusion. From the plain text and canons of construction, it is clear that Congress intended for the FSA’s earned time credits to reduce a prisoner’s supervised release term. To conclude otherwise, as the Government urges us to do, would require bending and twisting the statutory language and reading incongruence into criminal statutes.”
Habeas Petition
The question was raised in a petition for habeas corpus filed by former federal prisoner Leon Gonzalez. In 2016, Gonzalez was convicted of conspiracy to distribute a controlled substance and was sentenced to ten years in prison, to be followed by 5 years of supervised release; he was released on home confinement in 2020 due to the COVID-19 pandemic.
Two years into Gonzalez’s sentence, Congress enacted the FSA, which directs the Office of the U.S. Attorney General to evaluate federal prisoners and assign certain inmates to incentive-based programs offering benefits, such as increases in visitation and commissary privileges, as well as the opportunity to earn time credit against their sentences. Under the scheme, inmates can earn up to 15 days of credit for every 30 days of participation in a class.
Gonzalez took the government up on the offer, participating in business marketing, ceramics, nutrition, leather garment making, and other courses. In 2022, he sent multiple inquiries to the Bureau of Prisons (“BOP”), asking about his earned time credit under the FSA.
After his inquiries and ensuing administrative appeals went unanswered, he filed the habeas petition against BOP officials in December 2023, listing his anticipated release date as Sept. 26, 2024. He requested that his earned time credits be applied to end his home confinement early and to reduce the term of his supervision.
On Feb. 2, 2024, the BOP released him from home confinement, applying 237 of his 610 days of earned time credits. The agency then filed an opposition to the habeas petition, asserting that Gonzalez’s request was moot and that the remaining hours could not be used to cut his term of supervision.
District Court Judge Dale S. Fischer of the Central District of California (now on senior status) agreed with the government and dismissed the petition. Yesterday’s decision reverses and remands with instructions to grant the petition in part, directing the government to recalculate Gonzalez’s earned time credits and provide the recalculation to his probation officer.
Divergent Interruptions
Mendoza opined that “[a] thin slice of the United States Code controls this case” but said that “[d]ivergent interpretations of this language have led…to opposing conclusions concerning its effect.” He noted that some courts have interpreted the statutory term “toward” as “bringing an inmate closer” to supervised release by reducing their time in prison.
Rejecting that view, he pointed out that “toward” also means “for the partial payment of” and noted that other terms in the section relate to financial matters, saying, for example, that “credit” is a “clear reference” to the favorable balance in a person’s account. He reasoned:
“It is elegantly consistent, then, to apply earned time credits ‘for the partial payment of’ that ‘measurable duration.’…Not only does the statute indicate that earned time credits store value, but it also identifies a commodity for which they can be redeemed: time. With this context in mind, we are confident that Congress meant to say ‘for the partial payment of’ when it used the word toward.”
Saying the alternative definition promoted by the BOP renders the statutory language into “gobbledygook,” he commented:
“How does one apply credits ‘in the direction of’ time—are we meant to wave them towards the future? The Government advocates for applying time credits to reduce the time preceding supervised release. But §3632(d)(4)(C) does not mention the period of time preceding supervised release, it identifies only ‘time in prerelease custody or supervised release.’…(emphasis added). All the excess conceptual baggage the Government injects into the language—’accelerat[ing] the beginning of’ supervised release…—is simply not there.”
Noting that “[a]lthough we conclude…that the statutory language is unambiguous,” he declared that “[o]ut of respect for the split in authority, we shall apply the relevant interpretive tools toward the statute’s language to better understand its meaning.”
Other Interpretive Tools
Concluding that the other tools of statutory interpretation also support the court’s reading, Mendoza said that “Congress knows how to write a law creating time credits that only apply to custodial time” and that “[o]ur interpretation of § 3632(d)(4)(C) fits well into this broader framework.”
The BOP asserted that the court’s interpretation creates a tension with the legislation authorizing supervised release, as that statute was adopted for the purpose of allowing a prisoner to ease back into productive life outside of the prison walls. Finding no such conflict, Mendoza wrote:
“There is no…friction in purpose here. Supervised release and the FSA’s earned time credits system serve the same end. The prisoner who earns credits is rehabilitating, sensibly reducing his need for supervised release. The Government’s argument to the contrary is a simple second-guessing of Congress’s chosen path of reaching the twin goals of rehabilitation and reduced recidivism following release from imprisonment.”
He added:
“The Government offers a parade of horribles over the instant ruling. It insists that earned time credits may ‘be used to reduce the total time on supervision for an inmate who was deemed too risky to obtain early transfer out of prison.’…These policy arguments are unavailing and in the normal case we would dismiss them without comment, yet in light of the rhetoric and fractured authority on the subject, we find it appropriate to explain why these concerns are largely overblown.”
Writing that “the Government’s sky-is-falling argument is not persuasive,” the judge continued:
“There is no boogie man here. To start, prisoners convicted of many of the most serious crimes are statutorily excluded from earning FSA time credits….Thus, even if these prisoners pursued recidivism reduction programs, there is no risk of a premature end to their terms of supervised release. Further, to be released early, the prisoner must be found to be at a minimum or low risk level….It is therefore highly inappropriate (and illogical) to presume that the prisoners that might be let off supervised release early present a heightened or unwarranted level of risk, as the Government suggests.”
The case is Gonzalez v. Herrera, 24-2371.
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