Blogging from the Supreme Court: Oral Argument Comedy

I was able to attend oral arguments in Barber v. Thomas, 09-5201 (2010) yesterday. The question presented in that case was whether the "'term of imprisonment' in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require[s] the computation of good time credits on the basis of the sentence imposed?"

But an exchange between a few of the Justices and the Solicitor General's counsel during oral arguments provided more entertainment than the Court's endeavors to solve the mathematical puzzles in the case. Law.com provided a detailed account of the incident:

The issue before the Court in Barber v. Thomas is the interpretation of a "term of imprisonment" under the federal good-time credit statute. The petitioning federal inmates argue that they should be eligible for the statutory 54 days of good-time credit for each year of their entire sentence as originally imposed. The position of the Bureau of Prisons is that the calculation of good-time credit is based only on time actually served by the prisoner. . . .

Assistant to the Solicitor General Jeffrey B. Wall, arguing on behalf of the government, told the justices that the petitioners' method of calculating a year of imprisonment, subtracting the 54 days of credit, wrongly creates a 311-day cycle for good-time credit eligibility. "But what the statute says is you make the determination at the end of the year. And we don't read "year" to be a 311-day period. We read it to be a 365-day period," Wall said.

Ok, got that? Enter Justices Breyer and Stevens to comb through the arguments and the math:

Justice Stephen Breyer expressed concern about awarding good-time credit for what he at one point in the argument termed "phantom time" -- time sentenced but not actually served. A prisoner sentenced to 10 years, Breyer said, "is not actually in prison for 10 years. He is going to be released sometime late in year 8. And so why should we add 54 days? I mean maybe it would be a nice thing because sentences are awfully long, but -- but why would anybody want to add 54 days in respect to a year that's never going to be served?"

Breyer offered a somewhat lengthy and arithmetic-heavy reading of how the statute might apply to a prison term of 10 years: "At the end of the first year you write the number 54 on a piece of paper if [the prisoner] has done well. Suppose he comes in on Jan. 1, OK? So Jan. 2, after the first year, you write ... the number 54. And you do that each year. And by the time you get to the year eight, what you have done is you have got 432 days." . . . Breyer continued: "So then you subtract the 430 days from 10 years, and what you get is you are 67 days short of nine years. So now you look at the last sentence, and what you do is you take 67 days, subtract that from 365, and you've got 298, and you simply prorate for those 298. And you subtract that, too, so he gets another 10 days or so, or 15 days credit, and that's it.

Justice John Paul Stevens seemed concerned about the policy implications of the government's position, telling Wall: "You say there are 195,000 sentences affected by this rule. I don't know which way that cuts. If there are 195,000 people spending ... significantly more time in jail than they should, that's kind of troublesome." . . . "Justice Stevens, I think what I would say is the bureau has been doing it the same way since 1987. Congress has amended this statute five times in the last 20 years. It has never moved to alter the bureau's methods," Wall answered. . . .

"Probably they didn't understand it because it's an awfully hard statute to understand," Stevens offered.

"Justice Stevens, with all respect, Justice Breyer got it in the first five minutes," said Wall, to laughter from the audience in the courtroom.

"Well, he's a lot smarter than I am," Stevens quipped.

Justice Antonin Scalia jumped in with a mock-incredulous tone that ratcheted up the laughter: "Even Justice Breyer has got it! Whoa!"

Yes, even Justice Breyer got it.

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On a related note, a few of my classmates and I got the opportunity to attend a small Q&A session with Justice Stevens after oral arguments. He talked with us about a few recent cases, his views on cameras in the Supreme Court and baseball. I'll be blogging more about this later.