Fall Legal Fashions
One of the most useful paradigms for reflecting upon things legal is the distinction drawn by legal theorists between “standards” and “rules.” Rules are fixed and immutable (driving 56 mph in a 55-mph zone is illegal). Standards are mushier and more context-driven (driving “dangerously” in “bad weather” is illegal). Folks favoring standards prefer the case-by-case assessment of all surrounding facts. Proponents of rule-based systems distrust the uncertainty and subjectivity of standards-based regimes. They maintain it’s better to have notice of where the line in the sand is than to be forced to intuit where shifting lines might be applied at a judge’s discretion.
An example of a “standard” established by the Supreme Court is that attorneys and press (but not spectators) must wear “business attire.” Last week a reporter told me she had once been bounced from the front row of the press gallery for wearing a pantsuit. This week, the Washington Post’s Supreme Court reporter Joan Biskupic wrote about this code, and this morning, just before the oyezes ring out, Marshal Dale E. Bosley–who wears a gray morning coat with tails each day–is bantering with the clutch of reporters in attendance about whether or not such a code exists.
There is talk of another female reporter being redistricted out of the justices’ eyeshot this week, and Bosley maintains that no such anti-pants rule exists. What is indisputably true, however, is that a standard does exist–it’s just anyone’s guess as to what it may be. Anyone troubled by sartorial standards to begin with–what, for instance, is “matching” really?–might find the prospect of Chief Justice Rehnquist passing down notes removing journalists over their purple culottes rather terrifying.
More terrifying than that, however, is the prospect of Chief Justice Rehnquist passing down a note that says, “You are a Spring for God’s sake! No more camels and beiges for you.” With that in mind, the gavel goes down on United States vs. Johnson, a case very much about rules over standards.
In 1990, Roy Lee Johnson was convicted of five separate criminal offenses: two counts of drug possession with an intent to sell, two counts of using a gun during a drug-trafficking offense, and one count of possessing a firearm following a previous felony conviction.
Roy Lee is not the bingo caller at the First Presbyterian Church.
Here’s the math part: Roy Lee was sentenced to 171 months imprisonment, including three concurrent 51-month sentences for the drug possession and post-felony-firearm counts, plus two consecutive 60-month sentences for the two firearm charges. After that he was to serve three years supervised release (code for “parole” after the public decided that people on “parole” commit more crimes, whereas people on “supervised release” bake cobblers and fashion stylish lanyard jewelry).
Roy Lee trucked off to jail. In 1995, the Supreme Court decided Bailey vs. United States, changing the definition of firearm “use” in a drug-trafficking offense. Suddenly Roy Lee’s act of holding a gun during his drug sale did not constitute “use.” After all, maybe he was just accessorizing. His firearm convictions were vacated following Bailey, and Roy Lee was released, having served more than the 51 months time he owed on the valid counts. If you glazed over at the math bit, the upshot is that Roy Lee served an extra two and a half years in prison. He wanted that credited against his three years of supervised release.
The federal district court refused to credit the time. The Sixth Circuit reversed–finding that Roy Lee’s supervised release began the day he should have been released from prison as opposed to the day he actually heard the gates clang behind him. The Ninth Circuit agreed in a similar case. For those of you scoring at home, the First, Fifth, and Eighth Circuits went the other way–holding that supervised release is not interchangeable with jail time, and extra prison doesn’t warrant less parole.
The “rule” at issue is 18 U.S.C. Section 3624, which states (and pretty darn unequivocally) that “the term of supervised release commences on the day the person is released from imprisonment.” Lest this isn’t sufficiently clear, the statute also says that “a term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime.” So you don’t need to be able to read much better than Big Bird to know that Roy Lee’s extra jail time cannot be credited against his parole time.
Except that the Sixth Circuit managed to torture the statute into saying that Roy Lee was not “imprisoned in connection with a Federal crime” since he was wrongly imprisoned in the first place. The dissenter in the Appeals Court accused the majority of “fashioning an equitable remedy for a perceived injustice.” He says this as if it’s a bad thing. I call it a “standard” over a rule.
Indeed, both the Ninth and Sixth circuits pretty much ignore the statute and do what’s “right”–give the prisoner a break on parole since he already served more time than required. But Barbara McDowell, of the solicitor general’s office, is not about doing what’s “right.” Justice Scalia asks her what remedy a prisoner might have if the prison simply kept him there a few extra years. “No statutory remedy,” replies McDowell.
Here is where the government position is simply funny. McDowell submits that supervised release isn’t really punishment. It serves different purposes, protecting society, reintegrating the prisoner. Why, it’s fun! Justice Souter challenges her on this. What part of supervised release isn’t punishment he asks; what part really “eases him back into society?”
Well, answers McDowell, he is forced to have a job, work gainfully, be monitored. That’s rehabilitative. (Unless of course it’s just slavery …) McDowell sits down after 12 minutes. The justices love this. They beam.
Kevin Schad stands to speak for Roy Lee. Justice Breyer asks if it’s true that prisoners in these cases can seek discretionary relief from the district court under another statute. Scalia pops an entire set of neurons in the top of my head by cutting Breyer off: “And we know that all judges are thoroughly reasonable and come to the right decisions especially in favor of defendants.” Justice Scalia. The Prisoner’s Judge.
Schad miscalculates with his extra time. Instead of sitting down and making the justices beam, he tries to explain, using a goofy hypothetical, why Congress could not have intended the statute to mean what it means. Scalia and Rehnquist torch him for eight minutes on his hypo, even though it is not the case before the court.
This is a hard case not only because it pits rules against standards of general fairness, but also because it pits the hopes we’ve built into the criminal justice system against our fears. So many of the rationales behind punishment–deterrence, incapacitation, retribution–are at odds with our fundamental hope for rehabilitation; the belief that prisoners can change. We want to believe we are rehabilitating ex-convicts, easing them back into society, helping them along. But we also wait fearfully for them to recidivate so we can say something about leopards never changing their spots.
This is a fitting last case of the millennium. It pits our hope that people can change–quit smoking, stick to that diet, dress appropriately–against our fear that deep down no one ever really does.
