Sash v. Zenk, Docket No. 04-6206-pr (2d Cir. Feb. 22, 2006) (denial of petition for rehearing) (Sotomayor, Wesley, Brieant (by desig’n)): The Circuit denies Sash’s petition for rehearing in this published opinion. In its earlier opinion, Sash v. Zenk, 428 F.3d 132 (2d Cir. 2005) (click here for this Blog’s discussion), the Circuit upheld 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 read the statute to mean that he should receive up to 54 days of credit for each year of the sentence imposed, the BOP read the same to mean that Sash should receive up to “54 days credit . . . for each year served.” 28 C.F.R. § 523.20 (emphasis added). The Circuit sided with the BOP and, among other things, refused to apply the rule of lenity to the admittedly ambiguous law because “the regulation at issue here interprets neither the substantive ambit of a criminal prohibition nor the penalty it imposed.”
In his rehearing petition, Sash (represented by David Lewis of this Office) argued that the Panel erred in concluding that “the calculation of sentencing credit is not ‘criminal’ for purposes of the rule of lenity.” Op. 3. Among other things, Sash pointed out that “this holding contradicts Supreme Court precedent establishing that such calculations are criminal for purposes of an ex post facto analysis.” Id.; see Lynce v. Mathis, 519 U.S. 433, 439 & n.12 (1997).
The Circuit rejects this argument after concluding that what may be considered “criminal” for purposes of ex post facto analysis is broader than what may be considered the same for determining whether the rule of lenity should be applied. “There are good reasons to treat the ex post facto doctrine as more expansive than the rule of lenity,” the Court explained, because while “both are concerned with notice and fair warning . . . , the two rules have different purposes.” Op. 5. While “[t]he rule of lenity concerns situations in which a legislature fails to give notice of the scope of punishment by leaving a ‘grievious ambiguity or uncertainty in the language and structure of the statute’ . . . , in which case the rule of lenity tips the scales in favor of the defendant by requiring the court to impose the lesser of two penalties, . . . the ex post facto doctrine concerns situations in which the legislatures give adequate notice, but then affirmatively changes its instructions in a way that disadvantages the defendant.” Op. 5-6. In short, while “the rule of lenity deals with notice that is inadequate, [] the ex post facto doctrine deals with notice that turns out to be affirmatively and harmfully misleading.” Op. 6.
The “ex post facto doctrine is concerned not just with notice, but with the inherent injustice associated with retroactivity itself.” Id. And according to the Court, there is “a greater potential for unfairness when a legislature changes the law pertaining to a criminal offender’s sentence than when the legislature merely leaves a question open for future regulation by an administrative agency.” Op. 8. This difference, in turn, yields an appropriately broader reading of what is “criminal” for purposes of determining whether the ex post facto prohibition has been violated than for determining whether the rule of lenity applies. Op. 7. As the Court concludes, “Because the inherent injustice associated with retroactivity is not present in the context of the rule of lenity, the rule of lenity is more narrowly focused than the ex post facto doctrine and should be more narrowly applied.” Op. 6.
The relevant Supreme Court cases are contrary to the opinion. Those cases hold that a good time statute imposes punishment because it is “one determinant of [a prisoner’s] prison term — and … his effective sentence is altered once this determinant is changed,” and that there is punishment when the result “lengthens” the time the prisoner serves. Lynce v. Mathis, 519 U.S. 433, 445-46 (1997); Weaver v. Graham, 450 U.S. 24, 32-33 (1981). Since the Supreme Court has repeatedly stated that the purpose of the rule of lenity is to prevent “men languishing in prison unless the lawmaker has clearly said they should,” ” United States v. R.L.C., 503 U.S. at 305; United States v. Bass, 404 U.S. 336, 348 (1971), it is inescapable that the purpose of the rule of lenity is precisely to prevent a sentence being “lengthened,” as the government’s interpretation does, when a statute is ambiguous. The panel’s lenghty opinion fails to show that a construction of an ambiguous statute that “lengthens” a sentence does not result in prisoners’ “languishing in prison” without the lawmaker “clearly [having] said they should,” thus offending the purpose of the rule.
The opinion claims that extending a prison sentence is not punishment and that the Executive, rather than Congress and the Courts, has the last word on what the statutory punishment is. I predict that the Supreme Court will soon reject both these propositions for lack of fidelity to its opinions and for lack of common sense.