Johnson v. United States
Opinion of the Court
delivered the opinion of the Court.
The issue in this case grows out of an Ex Post Facto Clause challenge to the retroactive application of 18 U. S. C. § 3583(h), which authorizes a district court to impose an additional term of supervised release following the reimprisonment of those who violate the conditions of an initial term. The United States argues that district courts had the power to do so under the prior law, and that this cures any ex post facto problems. We agree with the Government as to the interpretation of prior law, and we find that consideration of the Ex Post Facto Clause is unnecessary.
I
In the Sentencing Reform Act of 1984, § 212(a)(2), 98 Stat. 1999, Congress eliminated most forms of parole in favor of
In October 1993, petitioner Cornell Johnson violated 18 U. S. C. § 1029(b)(2), a Class D felony. In March 1994, the United States District Court for the Eastern District of Tennessee sentenced him to 25 months’ imprisonment, to be followed by three years of supervised release, the maximum term available under § 3583(b) for a Class D felony. Johnson was released from prison on August 14, 1995, having received good-conduct credits, and began serving his 3-year term of supervised release. Some seven months into that term, he was arrested in Virginia and later convicted of four state forgery-related offenses. He was thus found to have violated one of the conditions of supervised release made mandatory by § 3583(d), that he not commit another crime during his term of supervised release, and one imposed by the District Court, that he not leave the judicial district without permission.
Johnson appealed his sentence, arguing that § 3583(e)(3) gave district courts no such power and that applying § 3583(h) to him violated the Ex Post Facto Clause of the Constitution, Art. I, § 9. The Sixth Circuit, joining the majority of the Federal Courts of Appeals, had earlier taken Johnson’s position as far as the interpretation of § 3583(e)(3) was concerned, holding that it did not authorize a district court to impose a new term of supervised release following revocation and reimprisonment. See United States v. Truss, 4 F. 3d 437 (CA6 1993).
II
The heart of the Ex Post Facto Clause, U. S. Const., Art. I, § 9, bars application of a law “that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed . . . .” Calder v. Bull, 3 Dall. 386, 390 (1798) (emphasis deleted). To prevail on this sort of ex post facto claim, Johnson must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted. See California Dept. of Corrections v. Morales, 514 U. S. 499, 506-507, n. 3 (1995).
A
The Sixth Circuit, as mentioned earlier, disposed of the ex post facto challenge by applying its earlier cases holding the application of § 3583(h) not retroactive at all: revocation
While this understanding of revocation of supervised release has some intuitive appeal, the Government disavows it, and wisely so in view of the serious constitutional questions that would be raised by construing revocation and reimpris-onment as punishment for the violation of the conditions of supervised release. Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. See 18 U.S.C. § 3583(e)(3) (1988 ed., Supp. V). Where the acts of violation are criminal in their own right, they may be the basis for separate prosecution, which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the initial offense, however (as most courts have done), avoids these difficulties. See, e. g., United States v. Wyatt, 102 F. 3d 241, 244-245 (CA7 1996) (rejecting double jeopardy challenge on ground that sanctions for violating the conditions of supervised release are part of the original sentence); United States v. Beals, 87 F. 3d 854, 859-860 (CA7 1996) (noting that punishment for noncriminal violations must be justified by reference to original crimes), overruled on other grounds, United States v. Withers, 128 F. 3d 1167 (1997); United States v. Meeks, 25 F. 3d 1117, 1123 (CA2 1994) (noting absence of constitutional procedural protections in revocation proceedings). Cf. Gagnon v. Scarpelli, 411 U. S. 778, 782 (1973) (“Probation revocation... is not a stage of a crimi
B
Since postrevocation penalties relate to the original offense, to sentence Johnson to a further term of supervised release under § 3583(h) would be to apply this section retroactively (and to raise the remaining ex post facto question, whether that application makes him worse off). But before any such application (and constitutional test), there is a question that neither party addresses. The Ex Post Facto Clause raises to the constitutional level one of the most basic presumptions of our law: legislation, especially of the criminal sort, is not to be applied retroactively. See, e. g., Lynce v. Mathis, 519 U. S. 433, 439 (1997); Landgraf v. USI Film Products, 511 U. S. 244, 265 (1994). Quite independent of the question whether the Ex Post Facto Clause bars retroactive application of § 3583(h), then, there is the question whether Congress intended such application. Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests. See id., at 270.
The Government offers nothing indicating congressional intent to apply § 3583(h) retroactively. The legislative decision to alter the rule of law established by the majority interpretation of § 3583(e)(3) (no authority for supervised release after revocation and reimprisonment) does not, by itself, tell us when or how that legislative decision was. intended to take effect. See Rivers v. Roadway Express,
Nor, finally, has Congress given us anything expressly identifying the relevant conduct in a way that would point to retroactive intent. It may well be that Congress, like the Sixth Circuit, believed that § 3583(h) would naturally govern sentencing proceedings for violations of supervised release that took place after the statute’s enactment, simply because the violation was the occasion for imposing the sanctions.
Given this conclusion, the case does not turn on whether Johnson is worse off under § 3583(h) than he previously was under § 3583(e)(3), as subsection (h) does not apply, and the ex post facto question does not arise. The case turns, in
f — I H — I
• Section 3588(e), at the time of Johnson’s conviction, authorized a district court to
“(1) terminate a term of supervised release and discharge the person released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the person released and the interest of justice;
“(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and . . . modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;
*704 “(3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for the time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission ....”
The text of subsection (e)(3) does not speak directly to the question whether a district court revoking a term of supervised release in favor of reimprisonment may require service of a further term of supervised release following the further incarceration. And if we were to concentrate exclusively on the verb “revoke,” we would not detect any suggestion that the reincarceration might be followed by another term of supervised release, the conventional understanding of “revoke” being simply “to annul by recalling or taking back.” Webster’s Third New International Dictionary 1944 (1981). There are reasons, nonetheless, to think that the option of further supervised release was intended.
First, there are some textual reasons, starting with the preceding subsection (e)(1). This is an unequivocal provision for ending the term of supervised release without the possibility of its reimposition or continuation at a later time. Congress wrote that when a court finds that a defendant’s conduct and the interests of justice warrant it, the court may “terminate a term of supervised release and discharge the person released,” once at least a year of release time has been served. If application of subsection (3) had likewise been meant to conclude any possibility of supervised release later, it would have been natural for Congress to write in like terms. It could have provided that upon finding a defendant in violation of the release conditions the court could “terminate a term of supervised release” and order the de
As it was written before the 1994 amendments, subsection (3) did not provide (as it now does) that the court could revoke the release term and require service of a prison term equal to the maximum authorized length of a term of supervised release. It provided, rather, that the court could “revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release . . . .” So far as the text is concerned, it is not a “term of imprisonment” that is to be served, but all or part of “the term of supervised release.” But if “the term of supervised release” is being served, in whole or part, in prison, then something about the. term of supervised release survives the preceding order of revocation. While this sounds very metaphysical, the metaphysics make one thing clear: unlike a “terminated” order of supervised release, one
Without more, we would have to admit that Congress had used “revoke” in an unconventional way in subsection (3), but it turns out that the unconventional sense is not unheard of. See United States v. O’Neil, 11 F. 3d 292, 295-296 (CA1 1993). Webster’s Third New International Dictionary (our edition of which was issued three years before the 1984 Act) reveals that “revoke” can mean “to call or summon back,” without the implication (here) that no further supervised release is subsequently possible. It gives “recall” as a synonym and comments that “RECALL in this sense indicates a calling back, suspending, or abrogating, either finally as erroneous or ill-advised or tentatively for deliberation ....” Ibid
A final textually based point is that the result of recognizing Congress’s unconventional usage of “revoke” is far less remarkable even than the unconventional usage. Let us suppose that Congress had legislated in language that un
There is, then, nothing surprising about the consequences of our reading. The reading also enjoys the virtue of serving the evident congressional purpose. The congressional policy in providing for a term of supervised release after incarceration is to improve the odds of a successful transition
Prisoners may, of course, vary in the degree of help needed for successful reintegration. Supervised release departed from the parole system it replaced by giving district courts the freedom to provide postrelease supervision for those, and only those, who needed it. See id., at 125 (“In effect, the term of supervised release provided by the bill takes the place of parole supervision under current law. Unlike current law, however, probation officers will only be supervising those releasees from prison who actually need supervision, and every releasee who does need supervision will receive it”). Congress aimed, then, to use the district courts’ discretionary judgment to allocate supervision to those releasees who needed it most. But forbidding the reimposition of supervised release after revocation and reimprisonment would be fundamentally contrary to that scheme. A violation of the terms of supervised release tends to confirm the judgment that help was necessary, and if any prisoner might profit from the decompression stage of supervised release, no prisoner needs it more than one who has already tried liberty and failed. He is the problem case among problem cases, and a Congress asserting that “every releasee who does need supervision will receive it,” ibid., seems very un
The idea that a sentencing court should have authority to subject a reincarcerated prisoner to further supervised release has support, moreover, in the pre-Guidelines practice with respect to nondetentive monitoring, as illuminated in United States v. O’Neil, 11 F. 3d 292 (CA1 1993). The Sentencing Guidelines, after all, "represent an approach that begins with, and builds upon,” pre-Guidelines law, see USSG, ch. 1, pt. A, intro, comment. 3, and when a new legal regime develops out of an identifiable predecessor, it is reasonable to look to the precursor in fathoming the new law. Cf. INS v. Cardoza-Fonseca, 480 U. S. 421, 432-434 (1987) (examining practice under precursor statute to determine meaning of amended statute).
Two sorts of nondetentive monitoring existed before the introduction of supervised release: probation and parole. Of these pre-Guidelines options, the one more closely analogous
In thinking about this ease, it is striking that the provisions of the former parole scheme dealing with the consequences of violating parole conditions repeatedly used the verb “revoke.” See, e. g., 18 U. S. C. § 4214(d)(5) (1982 ed.) (repealed 1984, Pub. L. 98-473, §§ 218(a)(5), 235, 98 Stat. 2027, 2031) (revocation of parole); 21 U. S. C. § 841(c) (1982 ed.) (repealed 1984) (revocation of special parole). And yet there seems never to have been a question that a new term of parole could follow a prison sentence imposed after revocation of an initial parole term.
As seen already, “revoke” is no such bar, and we find no other. The proceeding that follows a violation of the conditions of supervised release is not, to be sure, a precise reenactment of the initial sentencing. Section 3583(e)(8) limits the possible prison term to the duration of the term of supervised release originally imposed. (If less than the maximum has been imposed, a court presumably may, before revoking the term, extend it pursuant to § 3583(e)(2); this would allow the term of imprisonment to equal the term of supervised release authorized for the initial offense.) The new prison term is limited further according to the gravity of the original offense. See § 3583(e)(3). But nothing in these specific
In sum, from a purely textual perspective, the more plausible reading of § 3583(e)(3) before its amendment and the addition of subsection (h) leaves open the possibility of supervised release after reincarceration. Pre-Guidelines practice, linguistic continuity from the old scheme to the current one, and the obvious thrust of congressional sentencing policy confirm that, in applying the law as before the enactment of subsection (h), district courts have the authority to order terms of supervised release following reimprisonment.
The judgment of the Court of Appeals for the Sixth Circuit is
Affirmed.
The current version of § 3583(e)(3) reads slightly differently, but for reasons discussed below, we focus on the law in effect at the time of Johnson’s initial crime.
Of the 11 Circuits to consider the issue, 9 had reached this conclusion. See, e. g., United States v. Koehler, 973 F, 2d 132 (CA2 1992); United States v. Malesic, 18 F. 3d 205 (CA3 1994); United States v. Cooper, 962 F. 2d 339 (CA4 1992); United States v. Holmes, 954 F. 2d 270 (CA5 1992); United States v. Truss, 4 F. 3d 437 (CA6 1993); United States v. McGee, 981 F. 2d 271 (CA7 1992); United States v. Behnezhad, 907 F. 2d 896 (CA9 1990); United States v. Rockwell, 984 F. 2d 1112 (CA10 1993); United States v. Tatum, 998 F. 2d 893 (CA11 1993). Two, the First and the Eighth, found that § 3583(e)(3) did grant district courts such power. See United States v. O’Neil, 11 F. 3d 292 (CA1 1993); United States v. Schrader, 973 F. 2d 623 (CA8 1992).
See, e. g., United States v. Eske, 189 F. 3d 636, 539 (CA7 1999); United States v. Lominac, 144 F. 3d 308, 312 (CA4 1998); United States v. Dozier, 119 F. 3d 239, 241 (CA3 1997); United States v. Collins, 118 F. 3d 1394, 1397 (CA9 1997); United States v. Meeks, 25 F. 3d 1117, 1124 (CA2 1994) (addressing § 3583(g)). In contrast to these cases, the First and Eighth Circuits, relying on their broader construction of § 3583(e)(3), concluded that application of § 3583(h) did not violate the Ex Post Facto Clause. See United States v. Sandoval, 69 F. 3d 531 (CA1 1995) (unpublished), cert. denied, 519 U. S. 821 (1996); United States v. St. John, 92 F. 3d 761 (CA8 1996).
Indeed, the Sentencing Guidelines identify the effective date of § 3583(h) as September 13, 1994. United States Sentencing Commission, Guidelines Manual §7B1.3, comment., n. 2 (Nov. 1998) (USSG). So, too, have the federal courts. See, e. g., United States v. Hale, 107 F. 3d 526, 529, n. 3 (CA7 1997).
The failure to specify an effective date evidences at least arguable diffidence on this point. Another section of the same Act that added § 3583(h) amended 18 U. S. C. §3553 to limit the applicability of some statutory minimum sentences. See § 80001,108 Stat. 1985. That amendment, the section made explicit, “shall apply to all sentences imposed on or after the 10th day beginning after the date of enactment of this Act.” § 80001(c), 108 Stat. 1986.
We took a similar approach in Cisneros v. Alpine Ridge Group, 508 U. S. 10 (1993). The respondents in that case were private developers who had entered into contracts with the Department of Housing and Urban Development. When the Department sought to recalibrate payments it owed under the contracts, the developers sued, and the Ninth Circuit ruled that the Department’s proposed method of calculating payments was prohibited by the contracts. Congress subsequently passed legislation explicitly authorizing that method of calculation. The developers resisted application of that legislation to their contracts on the grounds that it retroactively deprived them of vested contractual rights, in violation of the Due Process Clause. We ruled (disagreeing with the Ninth Circuit’s earlier holding) that the Department’s methodology was acceptable under the contracts as signed. Finding the governmental action permitted by the old law, we declined to consider the constitutional consequences of a legislative attempt to change the applicable law.
The dissent offers an erudite explanation of the different senses of the two words, intending to demonstrate that Congress displayed “an admirably precise use of language,” by using “revoke” to mean “annul” and “terminate” to indicate that “[t]he supervised release is treated as fulfilled, and the sentence is complete.” Post, at 717 (opinion of Scalia, J.). That is virtuoso lexicography, but it shows only that English is rich enough to give even textualists room for creative readings. This one encounters serious difficulties; the very same section of the statute (as in effect at the time of Johnson’s offense) provides that if the person released is found in possession of a controlled substance, “the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release.” 18 U. S. C. § 3588(g) (1988 ed.).
Justice Scalia, post, at 721, thinks the “term” survives only as a measure of duration, but of course the statute does not read “require the person to serve a term in prison equal to all or part of the term of supervised release ...
While this sense is of course less common, the most recent editions of the most authoritative dictionaries do not tag it as rare or obsolete. The Oxford English Dictionary gives five examples of this usage, albeit hardly recent ones: three are drawn from the late 16th century and the most recent from 1784. 13 Oxford English Dictionary 838 (2d ed. 1989). But the OED is unabashedly antiquarian; of its examples for the more common meaning of “revoke,” the most recent dates from 1873. Ibid. Webster’s, it should be noted, includes the less common meaning, without antiquarian reproach, in its third edition. Webster’s Third New International Dictionary 1944 (1981).
As Justice Scalia remarks, in relying on an uncommon sense of the word, we are departing from the rule of construction that prefers ordinary meaning, see post, at 715. But this is exactly what ought to happen when the ordinary meaning fails to fit the text and when the realization of clear congressional policy (here, favoring the ability to impose supervised release) is in tension with the result that customary interpretive rules would deliver. See, e. g., Commissioner v. Brown, 380 U. S. 563, 571 (1965) (recognizing “some ‘scope for adopting a restricted rather than a literal or
Justice Scalia attributes the strong preference for supervised release at the conclusion of a prison term to this Court, post, at 724, when that view of penal policy comes not from the Court but from Congress. The point is crucial. Our obligation is to give effect to congressional purpose so long as the congressional language does not itself bar that result. See, e. g., Holloway v. United States, 526 U. S. 1, 9 (1999) (noting that statutory language should be interpreted in light of congressional policy); Caron v. United States, 524 U. S. 308, 315 (1998) (rejecting petitioner’s reading of a statute because it “yields results contrary to a likely, and rational, congressional policy”). One who believes that courts must not look beyond text might well find any invocation of policy unjustified (even willful), at least when the policy does not rise unbidden from the words of the statute, but we have never treated the text as such a jealous guide and have traditionally sought to construe a statute so as to reach results consistent with what Chief Justice Taney called “its object and policy.” See United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849). And in what Chief Justice Marshall called the attempt “to discover the design of the legislature,” we have “seize[d] every thing from which aid can be derived.” United States v. Fisher, 2 Cranch 358, 386 (1805).
The same is true of special parole, part of the required sentence for certain drug offenses. Though the special parole statute did not explicitly authorize reimposition of special parole after revocation of the initial term and reimprisonment, the Parole Commission required it. See 28 CFE § 2.57(c) (1999). Some courts have recently decided that this regulation is inconsistent with 21 U. S. C. § 841(c) (1982 ed.), see, e. g., Evans v. United States Parole Comm’n, 78 F. 3d 262 (CA7 1996), but this does not affect the backdrop against which Congress legislated in 1984.
As for probation, the sentencing court’s power to order a new term following revocation was the subject of some disagreement. The pre-Guidelines statute authorized the court to “revoke the probation and . . . impose any sentence which might originally have been imposed.” 18 U. S. C. §3653 (1982 ed.) (repealed). The statute thus clearly specified that the options for postrevoeation sentencing were those available at the original sentencing; courts disputed only whether probation was a “sentence” that could be imposed. See O’Neil, 11 F. 3d, at 298-299 (collecting eases). The dispute over what counted as a sentence does not affect the broader point that a court’s powers at the original sentencing are the baseline from which powers at resentencing are determined. Nor is our
The dissent seems to misconstrue our discussion of pre-Guidelines practice, see post, at 724-726, claiming that the practice is unilluminating because the possibility of parole inhered in any prison sentence. But our point simply is that, metaphysics aside, Congress gave no indication that it thought supervised release after reincarceration would be less valuable than reparole after reincarceration had been.
Nor does our traditional rule of lenity in interpreting criminal statutes demand a contrary result. Lenity applies only when the equipoise of competing reasons cannot otherwise be resolved (not the case here), and in any event the rule of lenity would be Delphic in this case. There is simply no way to tell whether sentencing courts given the option of supervised release will generally be more or less lenient in fixing the second prison sentence.
Concurring Opinion
concurring in part.
The Court holds that 18 U. S. C. § 3583(e)(3), as it stood before the amendment adding what is now subsection (h), permits a trial court to impose further incarceration followed by a period of supervised release after revoking an earlier supervised release because the conditions were violated. In my view this is the correct result. The subsection permits a court to “require [a] person to serve in prison all or part of the term of supervised release” originally imposed. 18 U. S. C. § 3583(e)(3) (1988 ed., Supp. V). This indicates that after the right to be on supervised release has been revoked there is yet an unexpired term of supervised release that can be allocated, in the court’s discretion, in whole or in part to confinement and to release on such terms and conditions
I would not go on to suggest, as the Court does, that a court could extend a term of supervised release pursuant to § 3583(e)(2) prior to revoking the term under § 3583(e)(3). Ante, at 712. The subparts of § 3583(e) are phrased in the disjunctive; and § 3583(e)(3) must stand on its own. This suggests the term of imprisonment plus any further term of supervised release imposed under § 3583(e)(3) may not exceed the original term of supervised release that had been imposed and then violated.
Nor would I invoke 18 U. S. C. § 3583(a), ante, at 708, which raises more issues than it resolves, not the least of which is the description of the District Court’s action as “imposing a sentence.” Petitioner’s sentence was imposed upon conviction. What is at issue in this case is the appropriate adjustment to make to that sentence when the prisoner has violated the conditions of supervised release.
Concurring Opinion
concurring in the judgment.
I agree with the Court’s textual analysis of 18 U. S. C. § 3583(e)(3) (1988 ed., Supp. V), and think that analysis sufficient to resolve this case. I agree with Justice Kennedy that the Court’s discussions of § 3583(a), ante, at 707-708, and § 3583(e)(2), ante, at 712, are unnecessary to the result. I would not rely, as the Court (ante, at 708-710) and Justice Kennedy (ante this page (opinion concurring in part)) do, on any apparent congressional purpose supporting the Court’s reading of § 3583(e)(3). With these observations, I concur in the judgment.
Dissenting Opinion
dissenting.
I agree with Parts I and II of the Court’s opinion, and thus, like the Court, believe that the case ultimately turns on the meaning of 18 U. S. C. § 3583(e)(3) (1988 ed., Supp. V). I do not agree, however, with the Court’s interpretation of that provision. The section provides that when the conditions of supervised release are violated, the court may “revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision.” Finding in this an authorization for imposition of additional supervised release is an act of willpower rather than of judgment.
The term “revoke” is not defined by the statute, and thus should be construed “in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U. S. 471, 476 (1994). As the Court recognizes, the ordinary meaning of “revoke” is “ ‘to annul by recalling or taking back.’ ” Ante, at 704 (quoting Webster’s Third New International Dictionary 1944 (1981)); see also American Heritage Dictionary 1545 (3d ed.
The Court is not content with this natural reading, however, and proceeds to adopt what it calls an “unconventional” reading of “revoke,” ante, at 706, as meaning “to call or summon back” without annulling, ibid.
The Court claims textual support for its “unconventional” reading in the fact that subsection (e)(S), at issue here, uses the term “revoke,” while subsection (e)(1) uses the term “terminate.” Since, the Court reasons, the two terms should not be interpreted to have exactly the same meaning, (1) the statute must intend a “less common” meaning of “revoke,” namely, “call back,” see ante, at 706, and n. 9; and (2) this “less common” meaning authorizes the later imposition of supervised release. Each part of this two-step analysis is patently false.
The dictionary support that the Court seeks to enlist for its definition is fictitious. It is indeed the ease that both the Oxford English Dictionary and Webster’s Third New International Dictionary give as a meaning of “revoke” “to call or summon back”; but neither of them adds the fillip that is essential to the Court’s point — that the thing called back “retain vitality.” Ante, at 707. They say nothing at all about the implication of calling or summoning back — which, in the case of calling or summoning back an order or decree, is necessarily annulment.
Further, if one assumes, as the Court does, that a revoked term somehow “survives the . . . order of revocation,” ante, at 705, and retains effect (even without any statutory authorization for reimposition or reactivation), then it would follow that whatever part of it is not required to be served in prison is necessarily still in effect. Thus the district court would have no discretion not to require the remainder of the term to be served on supervised release. Yet the Court seems to view further supervised release as only an “option.” Ante, at 704, 713, n. 13; accord, ante, at 713-714 (Kennedy, J., concurring in part).
The Court’s confusing discussion of how § 3583(a) would produce consequences similar to those its opinion achieves— and consequences that are entirely reasonable — if § 3583(e)(3) read differently from the way it does read, ante, at 707-708, is entirely irrelevant. I do not contend that the result the Court reaches is any way remarkable, only that it is not the result called for by the statute. The Court carefully does not maintain — and it could not, for reasons I need not describe — that subsection (a) justifies imposition of post-
The Court next turns to questions of policy — framed as an inquiry into “congressional purpose.” Ante, at 708. Citing legislative history (although not legislative history discussing the particular subsection at issue), ante, at 709-710, the Court explains what it views as the policies Congress seeks to serve with supervised release generally, and then explains how these general policies would be undermined by reading § 3583(e)(3) as written. “Our obligation,” the Court says, “is to give effect to congressional purpose so long as the congressional language does not itself bar that result.” Ante, at 710, n. 10. I think not. Our obligation is to go as far in achieving the general congressional purpose as the text of the statute fairly prescribes — and no further. We stop where the statutory language does, and do not require explicit prohibition of our carrying the ball a few yards beyond. In any event, as read by any English speaker except one who talks of revoking a dog, the statute does “bar” the result the Court reaches here. The proper canon to govern the present case is quite simple: “[W]here, as here, the statute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms,’ ” United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U. S. 470, 485 (1917)).
Perhaps there is a scrivener’s error exception to that canon, see, e. g., Holloway v. United States, 526 U. S. 1, 19, n. 2 (1999) (Scalia, J., dissenting); Green v. Bock Laundry Machine Co., 490 U. S. 504, 527-528 (1989) (Scalia, J., concurring in judgment), but the words of today’s author in another case well describe why that is inapplicable here: “This case is a far cry from the rare one where the effect of implementing the ordinary meaning of the statutory text would be patent absurdity or demonstrably at odds with the inten
Finally, the Court appeals to pre-Guidelines practice with regard to nondetentive monitoring. But this cannot cure the lack of statutory authorization for additional supervised release. Even if the language of § 3583(e)(3) were ambiguous (which it is not), that history would be of little relevance, since the Sentencing Reform Act’s adoption of supervised release was meant to make a significant break with prior
This is not an important case, since it deals with the interpretation of a statute that has been amended to eliminate, for the future, the issue we today resolve. But an institution that is careless in small things is more likely to be careless in large ones; and an institution that is willful in small things is almost certain to be willful in large ones. The fact that nothing but the Court’s views of policy and “congressional purpose” supports today’s judgment is a matter of great concern, if only because of what it tells district and circuit judges. The overwhelming majority of the Courts of Appeals — 9 out of 11 — notwithstanding what they might have viewed as the more desirable policy arrangement, reached the result unambiguously demanded by the statutory text. See ante, at 698, n. 2. Today’s decision invites them to return to headier days of not-too-yore, when laws meant what judges knew they ought to mean. I dissent.
Describing the Court’s reading as “unconventional” makes it sound perfectly O. K. There are, after all, unconventional houses, unconventional hairdos, even unconventional batting stances, all of which are fine. Houses, hairdos, and batting stances, however, have an independent existence apart from convention, whereas words are nothing but a convention— particular sounds which by agreement represent particular concepts, and (in the case of most written languages) particular symbols which by agreement represent particular sounds. Thus, when the Court admits that it is giving the word “revoke” an “unconventional” meaning, it says that it is choosing to ignore the word “revoke.”
The Court is correct, ante, at 705, n. 7, that my suggested explanation of the difference between “terminate” and “revoke” does not comport with the use of “terminate” in § 3583(g). But the use of the term in that subsection also contradicts the Court’s explanation of the difference between the two terms — viz., that “terminate,” unlike in its view “revoke,” “eon-elude[s] any possibility of supervised release later,” ante, at 704. For the Court evidently believes (contrary to the use of “terminate” in § 3583(g)) that further supervised release is available when a supervisee is reimpris-oned for possession of a controlled substance. It would be “fundamentally contrary” to the congressional scheme, the Court asserts, if supervised release following reimprisonment were not available for “one who has already tried liberty and failed,” ante, at 709. But the use of “terminate” in
As the Court suggests in its quotation of Webster’s Third’s definition of “RECALL,” see ante, at 706, the annulment may be only temporary (a “suspension”); but that is so only if there is some authority for repromúlgation after the revocation — which leaves the Court no further along than it was before it dipped into the more obscure meanings of “revoke”: it must identify some authority to reimpose supervised release. This blends into the next point made in text.
Whether one attributes any currency to “revoke” in the sense of “call back” depends, I think, on whether one counts as current usage figurative usage. The OED, while not showing the meaning “to call back” as obsolete, does indicate that its current usage is “chiefly fig[urative].” 13 Ox
The Court chastises this example, suggesting that only a tippling hunter would “revoke” his bird dog, as “dogs cannot be revoked, even though sentencing orders can be.” Ante, at 707, n. 9. I could not agree more. However, the definition the Court employs (“call back” without the implication of cancellation) envisions that dogs can be revoked — thus illustrating its obscurity. The OED definition on which the Court relies, see ante, at 706, n. 9, defines “revoke” as “to recall; to call or summon back ... an animal or thing.” 13 OED 838 (2d ed. 1989). The first example it gives of this usage is as follows: “These hounds ... being acquainted with their masters watchwordes, eyther in revoking or imboldening them to serve the game.” Ibid. Of course the Court’s “not unheard of” usage, ante, at 706, is not limited to recalling dogs — oxen can be revoked as well, as the OED’s third example illustrates: “Ye must revoke The patient Oxe unto the Yoke.” 13 OED 838.
The concurrence adjusts for that inconvenient fact by simply changing the object of the verb, concluding that “after the right to be on supervised release has been revoked there is yet an unexpired term of supervised release that can be allocated ... in whole or in part to confinement and to release . . . Ante, at 713 (Kennedy, J., concurring in part) (emphasis added). The statute, however, does not revoke “the right to be on supervised release”; it revokes the “term of supervised release” itself, see § 3583(e)(3), which is utterly incompatible with the notion that the term remains in place. Switching the object of “revoke” is no fair in itself, and it leaves the provision entirely redundant, since revoking “the right to be on supervised release” adds nothing to “requir[ing] the person to serve in prison all or part of the term,” § 3583(e)(3).
United States Sentencing Commission, Guidelines Manual eh. 1, pt. A, intro, comment. S (Nov. 1998) (USSG), is not to the contrary. The Court quotes the comment for the broad proposition that “[t]he Sentencing Guidelines, after all, ‘represent an approach that begins with, and builds upon,’ pre-Guidelines law.” Ante, at 710. The comment itself, however, makes the much more narrow point that data on sentences imposed pre-Guidelines were used as a “starting point” in devising sentencing ranges under the Guidelines. The sentence from which the Court quotes states: “Despite . . . policy-oriented departures from pre-guidelines practice, the guidelines represent an approach that begins with, and builds upon, empirical data.” USSG ch. 1, pt. A, intro, comment. 3. This sheds no light on the extent to which prior practice in matters other than length of sentence underlay the Guidelines, much less on the extent to which such prior practice is a meaningful guide to statutory interpretation in general — and even less to statutory interpretation pertaining to supervised release, which the Guidelines elsewhere refer to as “a new form of post-imprisonment supervision created by the Sentencing Reform Act,” id., eh. 7, pt. A, intro, comment. 2(b).
The Court also appeals to pre-Guidelines practice regarding probation and special parole. Ante, at 711-712, n. 11. The pre-Guidelines probation practice is altogether inapt, since the governing statute explicitly provided for resentencing, after violation, and specifically allowed the court to “impose any sentence which might originally have been imposed.” 18 U. S. C. §3653 (1982 ed.) (repealed). This makes it quite impossible for probation practice to support the Court’s “broader point that a court’s powers at the original sentencing are the baseline from which powers at resentencing are determined,” ante, at 711, n. 11; all it proves is that they are the baseline where the statute says so. Indeed, the fact that the statute found it necessary to say so tends to contradict the Court’s position.
Special parole, while more akin to supervised release than either parole or probation, hardly provides dear support for the Court’s reading of § 3583(e)(3). In fact, the majority of Courts of Appeals have read the relevant statute regarding special parole, 21 U. S. C. § 841(c) (1982 ed.) (repealed), as not allowing reimposition of special parole in circumstances analogous to those at issue here. See Manso v. Federal Detention Center, 182 F. 3d 814, 817 (CA11 1999) (citing eases). The Court’s reliance on the Parole Commission’s 1977 interpretation of the special parole statute, see 28 CFR § 2.57(e) (1999), is misplaced. The principle that Congress is presumed to legislate in light of existing administrative interpretations does not stretch to cover an administrative interpretation of a statute dealing with a different subject, of recent vintage, and unsupported by judicial opinion. Cf. Bragdon v. Abbott, 524 U. S, 624, 645 (1998) (repetition of existing statutory language assumed to incorporate “uniform body of administrative and judicial precedent” that had “settled the meaning” of existing provision); Haig v. Agee, 453 U. S. 280, 297 (1981) (assuming congressional awareness of “longstanding administrative construction”). Further, some courts have found it unclear whether the Parole Commission’s regulation itself envisions reimposition of special parole. See, e. g., Fowler v. United States Parole Commission, 94 F. 3d 835, 841 (CA3 1996).
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