William H. Rehnquist: We'll hear argument now in Number 99-7504, Christopher A. Lopez v. Randy J. Davis. Mr. Meierhenry.
Mark V. Meierhenry: Mr. Chief Justice, and may it please the Court, Ms. Brinkmann: This case comes to you out of the State of South Dakota, and I'd like to briefly put the setting for all of you. This is from Yankton, South Dakota, which was the first territorial capital of the Dakota Territory. As a result of that, certain institutions were created, one of which was Yankton College. It was the oldest college in the Dakotas and Montana. It's now closed. It closed in the 1980's, and it's now a Federal prison camp. That Federal prison camp has no walls. It looks like Yankton College did for over a century until it was closed. At that place resides today Chris Lopez. Chris Lopez came to the Yankton prison camp from the State of Iowa. He drove across the State of Iowa and was allowed to do so by the district court to self-report to this college campus, now Federal prison camp. We're here today to talk about 18 U.S.C. 3621(e). That statute at the time that Chris Lopez was a convicted person, before he was a prisoner, unambiguously grants to him an incentive, and before he knocked on the door to be let into prison it said to him, if you are a drug abuser, which he admits he is, and if you agree to undergo the program, which he does, if you've been convicted of a nonviolent offense, Congress has made a deal with you. We will allow you, if you successfully complete the program, to be let out of prison up to 1 year early. He had 72 months to serve.
Ruth Bader Ginsburg: But counsel, that's not what the statute says. The statute says the Bureau of Prisons may reduce the sentence up to 1 year. It doesn't say you have a right or an entitlement, does it?
Mark V. Meierhenry: No. I don't urge this Court that that is the case, that it's an entitlement. The legislative history is clear that that was considered by Congress, and Congress did not wish to make it a right that if you simply go through the program yet you led the gang on the campus, or you created other disciplinary problems, that the Bureau of Prisons shouldn't have control over the prisoner while that prisoner was incarcerated, but this is something I'd like--
Antonin Scalia: Excuse me. You're saying that it... that... I mean, that doesn't go far enough. All you're acknowledging is that the Bureau of Prisons didn't have to give you that benefit unless you successfully completed the program, right?
Mark V. Meierhenry: --That's correct.
Antonin Scalia: But you're still maintaining that if you successfully complete the program, if you're a model prisoner and everything else, you had a right to get that benefit?
Mark V. Meierhenry: Justice, I think that's the next case. What we're here arguing today is whether Chris--
Ruth Bader Ginsburg: Well, what does the statute say?
William H. Rehnquist: It says may.
Mark V. Meierhenry: --The statute says may, but let's consider the structure of it. 3621(a) is very clear. 3621(a) tells the Bureau of Prisons that they may not release a prisoner until the expiration of the term imposed, or there's a good conduct section 3624, so when (e) was enacted... and the legislative history is Congress also amended section 3621(b), which says the bureau shall make available appropriate substance abuse treatment for each prisoner the bureau determines has a treatable condition of substance addiction or abuse. All right, they enact that. But 3621(a) would not allow anyone to be released early, so they enacted subsection (c), which is entitled, substance abuse treatment, so section (e), Your Honors, had to be amended to give permission to the Bureau of Prisons that if people took the substance abuse treatment there would be some incentive. The congressional hearings are clear.
William H. Rehnquist: Well, you're talking about legislative history, Mr. Meierhenry, and those of us who resort to legislative history usually do so only where something is ambiguous. We're dealing with the word may here in section (b), and what is ambiguous about the word may?
Mark V. Meierhenry: I don't think there's anything necessarily ambiguous if you use another meaning of the word, give permission to. I urge Your Honor that until the enactment of (e), if you had substance abuse treatment, if you had an incentive, the Bureau of Prisons could not turn anyone loose under any circumstances. What I am urging is a plain reading of this. Before Mr. Lopez, so to speak, becomes a prisoner, as you read this you would... it would indicate that if you're a substance abuse user and you go through the program and you substantially complete it... in other words, obey the rules within the institution.
William H. Rehnquist: And you may... your sentence may be reduced.
Mark V. Meierhenry: Right, but--
William H. Rehnquist: See, you've got to deal with that word may, Mr. Meierhenry. You're speaking as if it said will be reduced.
Mark V. Meierhenry: --No, I'm... what happened in this case, Your Honor, was that Chris Lopez, before he ever walked in the institution, has been categorically eliminated because he has a sentence enhancement for preconviction activity. He is categorically denied because of something that did not occur under the--
Speaker: But that... that may be a perfectly good argument, but it... and it seems to me it takes cognizance of the word may, that Congress has already decided the categories of sentences, but I don't think just bobbing and weaving around the word may does your argument any good.
William H. Rehnquist: --Well, maybe I'm not being clear that--
Speaker: You're not--
Mark V. Meierhenry: --That the Congress gave to the Bureau of Prisons certain discretion, and that discretion is over prisoners, not over creating categories of prisoners. Now, this is not a case where my client has any opportunity to successfully complete for purposes of the incentive the program. He's been shut out of the program. To use an analogy, this statute clearly says if you go to drug class, and the class--
John Paul Stevens: --May I interrupt you? He's not shut out of the program, is he?
Mark V. Meierhenry: --No. No, and I don't want to mislead the Court.
John Paul Stevens: Okay.
Mark V. Meierhenry: He's not shut out of the program. It's the incentive. If I infer that... it's the incentive, obviously, we're talking about here. All prisoners, Congress declared... that's part of our argument. Congress declared that 100 percent of all prisoners by 1997 should have access to a drug treatment program.
Antonin Scalia: Mr. Meierhenry, how do you propose that the Bureau of Prisons implement the may? You don't want them to use categories like, all prisoners who have engaged in violent behavior in prison. Isn't that a category?
Mark V. Meierhenry: Yes, but it's--
Antonin Scalia: All prisoners whom we do not believe will be safe to let out on the streets even after the program, isn't that a category? It seems to me that if you're being rational, if you're trying not to be arbitrary, you establish categories, so your argument that may cannot mean you establish categories just leaves me cold. It seems to me that that's exactly what you want the Bureau of Prisons to do, to be responsible, not to just arbitrarily say, yeah, you get it, you don't get it. That's arbitrary. That's irrational. But here they've tried to establish a rational scheme. What's the matter with that?
Mark V. Meierhenry: --Well, I could argue about, which I think is the next case, of whether it's rational to consider Mr. Lopez is a violent person when they put him in a--
David H. Souter: Oh, I didn't think they were considering him as a violent person. I thought they were considering him as a person who had committed his crime while, I guess, carrying a gun.
Mark V. Meierhenry: --He had--
David H. Souter: I didn't under... maybe I misunderstand the Government, because I didn't think the Government was saying that that qualified him as a violent person, because if that were the case we wouldn't be talking about any discretionary category.
Mark V. Meierhenry: --No, that's correct, and we've been through that litigation history of them defining a nonviolent offense as a violent offense, which was the Eighth Circuit case of Martin v. Gerlinski, but the answer to the problem, the problem is one of who gets in the classroom. Our argument today is very simple. Congress told the Bureau of Prisons who gets in the classroom... all--
David H. Souter: Well, everybody gets in the classroom. The question is, having been... not who is eligible for the program, but who is eligible for the early release afterwards. As you've said to Justice Stevens, there's no exclusion from the drug treatment program.
Mark V. Meierhenry: --That's correct.
Antonin Scalia: And the reason there's no exclusion from the program is that it says that the bureau shall establish the program. If you read through 3621, what is really... it just jumps out at you, is that it keeps using shall. Shall, shall, shall, until it gets to the period of custody section, and there all of a sudden it shifts from shall to may, which means discretion.
Mark V. Meierhenry: It means discretion, but it is not a grant of discretion to categorically deny nonviolent offenders consideration for the reduction.
Ruth Bader Ginsburg: May I clarify two things? If you are now leaving your argument that all people who complete the program successfully and are nonviolent offenders must be given this reduction, if you are leaving that, and shifting to an each individual is entitled to an individual determination, not a categorical exclusion, if you're doing that, then mustn't the bureau do the same thing for nonviolent offenders who weren't carrying any weapon? I mean, if it's going to be a one-by-one examination for a defendant that fits in your client's category, wouldn't it also be one-by-one for anyone?
Mark V. Meierhenry: It could be. I don't have a definitive answer of how to run the Bureau of Prisons, except I'm here saying that this statute clearly tells the Bureau of Prisons how people are to get into the program for the purposes of the incentive, and that is all nonviolent offenders are to be considered, and that's to occur after successfully completing the program. Here they've made that decision.
Ruth Bader Ginsburg: Well, could they make a decision categorically that all people who are nonviolent offenders who aren't carrying a firearm will get the reduction?
Mark V. Meierhenry: I think they've done that. I think that's the way it practically works, unless they've had disciplinary problems. I think 13 percent, according to one report, the Triad Report, indicates that they were not allowed because of disciplinary problems within the institution.
William H. Rehnquist: It seems to me your argument has got to be not that there can't be categorization by the bureau, but that Congress has limited the kind of categorization the bureau may use, that Congress has said nonviolent offenders, and the bureau can't go beyond that when it's talking about limiting the availability of early release.
Mark V. Meierhenry: Chief Justice, that... I guess that is essentially what I'm saying. I'm saying that for the purposes of the incentive, that everyone starts the program and everyone has the opportunity to successfully complete it, and call that a category if you may, that it's while they're in the institution that they may be... their activities may eliminate them from this category. It's not something that occurred at the time of sentencing, which was preconviction activity.
Antonin Scalia: You're saying that the only precondition category that the bureau can use is the precondition category which is set forth in the statute, and which implicitly excludes other pre-imprisonment categories, namely, violent offender.
Mark V. Meierhenry: Well, there are two categories when Chris... before Chris... when Chris Lopez is an offender. It's violent, and nonviolent. The courts have considered that the BOP's definition of that. When he hits prison there are two categories, violent and nonviolent, and my argument is that all of those activities have been considered by Congress, have been determined by Congress, and they wanted to broaden the program.
David H. Souter: Then why didn't they use the word shall, rather than the word may?
Mark V. Meierhenry: Because I don't think they wanted... Congress wanted to create a right that just based on completion of the program, without regard to their other activities as a prisoner, that just the completion of that program meant you were entitled to... and I think that's the word, entitled to reduction.
David H. Souter: You say you don't think that.
David H. Souter: I mean, is there something in the legislative history that specifically supports that argument?
Mark V. Meierhenry: Other than that it was clear, and I refer to the legislative history, the report. It's clear from the legislative history that Congress said that this subparagraph we're discussing, they use the word authorizes the Bureau of Prisons to shorten by up to 1 year the term of a prisoner who successfully completed a treatment program. They saw it as an authorization'--
David H. Souter: Yes, but authorization is not equivalent to mandate.
Mark V. Meierhenry: --But the converse is also true. Authorization is not a grant of power to create categories which overrule the two made by Congress, violent and nonviolent.
Antonin Scalia: Well, you know, your argument that it relates only to... your argument would be a lot stronger if the section, the relevant section, 2(b), didn't have the word successfully in it. I could understand Congress saying the Bureau of Prisons may cut a year off the term of somebody who completes the program. Then you could say, well, the bureau can, you know, can decide for itself whether this fellow, although he completed the program, has really been cured or not, or, you know, factors like that, but it doesn't say that. It says, it may release somebody who has successfully treated... completed the program. Now, what factors do you think the may was intended to let the Bureau of Prisons take into account? It isn't completion of the program. No matter how successfully he completed it, he still is not entitled to it. Now, what could disable him from the year, other than killing another inmate while he's in there?
Mark V. Meierhenry: I think the traditional standards that are applied to good time clearly are going to be the type of criteria for good time release under section 36... 18 U.S.C. 3624, would obviously still be used. I mean, you have good-time release, which is the only other way you can get out... basically you can get out of prison early. That was not affected by this legislation. They added an incentive up to a year. I think you've got to wed those two together, and I think that's the discretion that the Bureau of Prisons has and must have, not to create defining categories of exclusion before they start, but you can eliminate the good time type criteria that the Bureau of Prisons is familiar with, and it would appear from Congress, Congress recognized that this must be a long-term program, 6 to 12 months, that it was not easy, and they said the committee believes that such an incentive is necessary to draw into treatment many inmates who may not be willing to undergo a difficult program otherwise. They recognize that there's an 800-percent greater chance of a drug-addicted person committing a future crime, and Congress--
Ruth Bader Ginsburg: May I ask how you would... the statute in your view would have meant anything different if the word may had been replaced by the word shall or must?
Mark V. Meierhenry: --I think then, successful completion. A prisoner would have said, I successfully completed this program, I must be allocated up to a year, some period of time off. It is a right of mine, it is a handshake Congress made with me, and I must be given it, even though I violated every criteria for good-time release, this and this alone--
Ruth Bader Ginsburg: What are those criteria?
Mark V. Meierhenry: --Well, obviously, obeying the rules of the institution, not having contraband, you know, those type of--
Ruth Bader Ginsburg: Because if you had contraband you would not have successfully completed this program.
Mark V. Meierhenry: --Exactly. That's the discretion that obviously Congress had to give to them, because part of successful completion of a program is to obey the rules of the institution as well.
Antonin Scalia: Then it should have used shall.
Mark V. Meierhenry: Well, but if you use--
Antonin Scalia: Because they could have said, you shall release him if he successfully completed the program, and you say that successfully completion of the program includes obeying all the rules in the institution.
Mark V. Meierhenry: --Well, maybe I misspoke in this sense--
Antonin Scalia: You certainly did.
Mark V. Meierhenry: --Because those are two different things. I mean, successful completion of the program... let me use my analogy of the classroom, all right. A student's in the classroom. It's clear the student has power over the student in the classroom, whether they complete the program, whether they obey, they're in charge of grading, correct, and here the Bureau of Prisons has that. But what the teacher does not have control over is which students enter the school. In this case, that's Congress. Congress has said, for the purpose of incentive, everybody with a nonviolent offense has a right to be a student and pass the course. Now, here the Bureau of Prisons says, well, all nonviolent offenders, yes, get to take the course, but we've already said you kids in this row, you people in this row will, even if you successfully do everything correctly, you don't qualify, not based on what Congress said--
John Paul Stevens: Yes, but supposing you had a rule that said, but there's a category of students who would normally get a gold star but if they threw an eraser at the teacher, they shall not get the gold star, and supposing you have here a program that said, you are entitled to the year, but if you have taken a poke at the warden you shall not be released. They just have a category, anybody who takes a poke at the warden, even though he's successfully completed the program, shall not get the 1-year benefit. Would that categorical denial be consistent with the statute, in your view?
Mark V. Meierhenry: --I think that is consistent, because it is activities in the prison over which the bureau--
John Paul Stevens: So it isn't the mere fact that it is a category. Your position is that if it's a pre-incarceration category, it's bad.
Mark V. Meierhenry: --That's correct. Congress took care of that. It created the two categories and left the administration to the Bureau of Prisons. The Bureau of Prisons here has created additional... numerous additional categories. In my client's case, a nonviolent offender drug case with a sentence enhancement for possession of a firearm. They've created these categories in advance. I'm not arguing that the Bureau of Prisons doesn't have discretion over its institution. That's what the statute clearly says.
John Paul Stevens: And they can exercise that discretion by creating categories as long as the categories are directed at postincarceration conduct.
Mark V. Meierhenry: To the activities of the prisoner while they're in prison, not to preconviction activities.
John Paul Stevens: It's a very sensible and logical theory, but what in the statute or the legislative history identifies that particular theory?
Mark V. Meierhenry: Nothing specifically identifies it that way as opposed to my colleague's way. To me, it is rational, it is something that makes sense, it is something that when you--
Antonin Scalia: It's more than that. I thought... I mean, come on, you're... you'll have to give us some text to hang on to. I assume that what your argument is, is the familiar argument, inclusio unius exclusio alterius, that in fact the statute does identify one pre-incarceration factor that will disqualify you from obtaining the year's benefit, and that pre-incarceration factor is conviction of a violent crime, and by adding another pre-incarceration factor, namely just merely possessing a firearm, you're contradicting the implicit exclusion of other pre-incarceration factors. Isn't that your argument? You're relying--
Mark V. Meierhenry: --Well--
Antonin Scalia: --upon the fact that a violent offender is explicitly excluded.
Mark V. Meierhenry: --Our argument is clearly this is an unambiguous statute.
William H. Rehnquist: Well now, you... but Justice Scalia asked you a particular question. Is that or is that not your argument, and I think you--
Mark V. Meierhenry: Well, it is my argument. I... what I was going to say, first we believe it's unambiguous, but if you get into the determination--
Antonin Scalia: --Excuse me. Why is it unambiguous? I don't understand what you mean by, it's unambiguous.
Mark V. Meierhenry: --Well, because of the way they constructed this. First of all, subsection (e) on substance abuse had never been the law of the land until Congress identified that this was a serious problem. Okay. So they've got to enact substance abuse treatment, which they do. They require the Bureau of Prisons to treat 100 percent, or make available 100 percent all prisoners. Then they recognize, this is a tough program, let's give an incentive. At first it was to all prisoners, then it was... the Senate created two categories, violent and nonviolent. Then it came down to substance abuse treatment. They added the incentive that said... and they couldn't give them any time off up until the passage of part B, period of custody, and they created two categories, violent, nonviolent, and they said to the Bureau of Prisons, as we have given you the discretion over the years on good-time decisions, we give you that discretion as well in determining who successfully completes a treatment program, but we don't want to go the next step and make it a right of release. We want the discretion for successfully completing the program. So the common sense reading appears to be, you don't have to, you can take into other considerations, but nothing in that step-by-step process said, Bureau of Prisons, you may create additional categories that categorically exclude prisoners based on preconditions.
William H. Rehnquist: So your answer to Justice Scalia's question is basically yes. Is that correct?
Mark V. Meierhenry: Yes.
Ruth Bader Ginsburg: If the Bureau of Prisons had a categorical rule that extreme recidivists, someone who had been convicted four times, has been in and out of prison, that four-time offenders will not be released early, would that be impermissible?
Mark V. Meierhenry: I believe so, and I'm assuming your question is nonviolent--
Ruth Bader Ginsburg: Yes.
Mark V. Meierhenry: --for nonviolent offenses. I think that's correct, that Congress considered that. We may not like it, the Court may not like it. Clearly the Bureau of Prisons doesn't like it.
Ruth Bader Ginsburg: So... but essentially your argument then comes down to the may means shall. It wouldn't make any difference if the word shall had been used, or must, that in this context may means shall or must.
Mark V. Meierhenry: It would mean that again the door... in this case, there is no door to the prison wall, but it would make the difference between the natural discretion the Bureau of Prisons has over the activities of the prisoners inside, as opposed to their activities that occurred when they were just--
Antonin Scalia: So your answer is no. You don't want us to read may to be shall. You want us to read may to mean may, but that the scope of the discretion only excludes... only includes matters other than pre-incarceration convictions, at least, right?
Mark V. Meierhenry: --Correct. My argument is simply that Congress created the excluding category, and that was a violent offense, that the BOP, having created additional excluding... not based on any activity in the prison, excluding categories, nothing in this act, legislative history, or the purpose of this, supports reducing the number of prisoners available for the incentive. It is the opposite. It was an inclusive statute. Thank you, Mr. Chief Justice.
William H. Rehnquist: Thank you, Mr. Meierhenry. Ms. Brinkmann, we'll hear from you.
Beth S. Brinkmann: Mr. Chief Justice, and may it please the Court: The issue in this case is whether the Bureau of Prisons permissibly exercised its discretion under section 3621(e)(2)(B) as reflected in its regulation and program statement.
Sandra Day O'Connor: Ms. Brinkmann, I take it that discretion was exercised in the regulation adopted by the Bureau of Prisons.
Beth S. Brinkmann: The regulation and program statement that the Bureau of Prisons promulgated was a statement of policy of how the Bureau of Prisons will exercise its discretion.
Sandra Day O'Connor: I notice that in an amicus brief it's argued that the regulation was promulgated without following the notice and comment requirements of the Administrative Procedure Act, but I gather that issue was not developed below and is not here.
Beth S. Brinkmann: That's correct, Your Honor. It wasn't raised below nor in this Court, nor did the court below address it and, in fact, our understanding is that no court of appeals has addressed that argument, but we do believe, as we explain in a footnote in our brief, that it is not subject to the notice and comment requirement. It could go into effect as an interim regulation, because it is a statement of policy, the way in which the Bureau of Prisons will implement the statute, and then in each case there is a determination of whether a particular prisoner will be granted early release.
Anthony M. Kennedy: Are there any other instances of statutes... are there any instances of statutes where the Bureau of Prisons is explicitly authorized to make distinctions and decisions based on preconviction conduct?
Beth S. Brinkmann: Yes, Your Honor, many. In fact, the good conduct time statute that we... Mr. Meierhenry was discussing is in a neighboring provision. It's in section 3624. It talks about the Bureau of Prisons granting good conduct time, and there are two different standards, and they're dependent on whether or not the prisoner was convicted of a crime of violence, and in fact this program statement also applies to that statute, although there's no discretionary determination, so the crime of violence is determined by the statutory definition.
William H. Rehnquist: Well, do you think the bureau could switch back and forth under that section that you just referred to and say, although Congress said all nonviolent people should be treated this way, we think some of these should be treated the way violent people are?
Beth S. Brinkmann: No, Your Honor. We believe that that is a determination that Congress has made.
William H. Rehnquist: Why isn't the same true here, that Congress has said nonviolent offenders shall be eligible for this, and the Bureau of Prisons has said categorically some nonviolent offenders will not be eligible?
Beth S. Brinkmann: Because of the broad grant of discretion given the Bureau of Prisons by the express statutory language, Congress using the term may. There's nothing in the statutory text to suggest that the statutory eligibility requirements that Congress set, which are two, conviction of a nonviolent offense and successful completion of the program, in any way then eliminate the ability of the Bureau of Prisons to consider other factors in making their determination.
Antonin Scalia: Suppose the bureau says, we're not going to release in 1 year anyone guilty of a hate crime, violent or not, we don't like people who commit hate crimes, could they say that?
Beth S. Brinkmann: Yes, Your Honor. We think that would be subject to an arbitrary and capricious review, but very--
Antonin Scalia: Or offenses, you know, against the United States Treasury. It really gets us mad. I mean, it's one thing, you know, harming other private citizens, but boy, it really gets us mad when you steal something from the U.S. Treasury, so you're not going to be eligible for 1 year.
Beth S. Brinkmann: --Yes, Your Honor. It would be subject to arbitrary and capricious review. It's very similar to the situation before the Court in the case of INS v. Yang. That was a situation involving a waiver of deportation for persons who committed--
Antonin Scalia: Right.
Beth S. Brinkmann: --fraud at entry.
Antonin Scalia: Why is a firearm use not arbitrary and capricious, but... and hate crime, is that arbitrary and capricious, or not? You say that's okay?
Beth S. Brinkmann: We think within the broad expertise of the Bureau of Prisons and--
Antonin Scalia: That's okay.
Beth S. Brinkmann: --If the--
Antonin Scalia: Treasury, stealing from the Treasury is not okay. That's arbitrary and capricious. Why?
Beth S. Brinkmann: --We... I don't believe it would be arbitrary and capricious.
Antonin Scalia: Oh.
Beth S. Brinkmann: I think that--
Antonin Scalia: So all of those are okay.
Beth S. Brinkmann: --They very well may be, Your Honor. They would only be subject to arbitrary and capricious to determine if there was some lack of total penalogical reason for that.
David H. Souter: Well, but isn't this argument available to just that point, that it is perfectly clear from the legislative history that the object of allowing the 1-year reduction is to provide an incentive without which the drug treatment program could not be expected to work. I gather it's a difficult thing, and there just isn't enough inducement for somebody to force himself through this unless there really is going to be a substantial reward, and it seems odd to me that if that is the object, that Congress would have wanted, for example, to exclude the entire class of gun carriers who are obviously much more dangerous gun carriers, I assume, when they're under the influence of drugs, from the inducement that would lead, if the statistics are correct, to a reduction in the number of drug-using gun-carriers. Why would they exclude the inducement from all of these serious categories?
Beth S. Brinkmann: Several answers, Your Honor. First of all, there is a significant participation in the substance abuse treatment program of those who are not eligible for early release. More than one-third of the prisoners that participate in this program--
David H. Souter: Well, that may be, but the concern of the Congress was that we need an inducement to make our program effective.
David H. Souter: Why... if that is their premise, why would they exclude such large categories, or entire categories of offenders from that inducement?
Beth S. Brinkmann: --Congress' determination was that they would give the Bureau of Prisons the authority to grant that kind of incentive because, as Mr. Meierhenry said, otherwise the bureau--
David H. Souter: Well, that's the conclusion, but in providing authority, why would they want to give the Bureau of Prisons the authority to exclude entire categories from an inducement which they thought was necessary to make the program work?
Beth S. Brinkmann: --The legislative history does not support the proposition that the incentive is necessary for participation. Certainly it enhances participation, but what Congress did was give that authority to the Bureau of Prisons consistent with its repeated grant to the Bureau of Prisons of broad authority in recognition of the bureau's expertise--
David H. Souter: Okay.
Beth S. Brinkmann: --in penalogical matters.
David H. Souter: May I interrupt? Help me out on the facts, then. I had thought that there was an indication in the legislative history that there was a distinct difference between the expected successful completion rate with an inducement and the expected, or the actual successful completion rate without an inducement. What am I thinking, if it's not in the legislative history?
Beth S. Brinkmann: There was certainly evidence that there were State prison systems that had this type of incentive, and it was quite effective. Congress--
David H. Souter: Where was the evidence? Was it brought before the Congress?
Beth S. Brinkmann: --I believe it was in some hearings, and there was some discussion in some of the reports concerning some... a program in New York, for example, but Congress did not then mandate that the Bureau of Prisons grant early release to everyone who successfully completed the program.
David H. Souter: But don't you... can we not fairly infer, might we perhaps not infer, be able to infer simply from the text itself--
Beth S. Brinkmann: No, we don't believe--
David H. Souter: --that Congress thought the inducement was important, and if it thought the inducement was important, why would it want to preclude the inducement from working in whole categories like this?
Beth S. Brinkmann: --It wanted to give the Bureau of Prisons the authority to decide--
David H. Souter: But that... with respect, I don't think that goes to my question. My question is, why would it want to allow the Bureau of Prisons to eliminate this inducement entirely?
Beth S. Brinkmann: --The Bureau of Prisons has not eliminated the inducement entirely--
David H. Souter: For the categories... for the categories.
Beth S. Brinkmann: --only for certain categories. For the very reason that Congress repeatedly delegates authority to the Bureau of Prisons in these matters. Categorizing prisoners is the bread and butter of the Bureau of Prisons. They do it all the time.
David H. Souter: So you're saying we've got to look beyond this statute to the fact that there is a whole universe of statutes in which the Bureau of Prisons is given quite extraordinary discretionary powers.
Beth S. Brinkmann: We point to that to support the clear text of the statute. The statute does not mandate early release for any prisoner.
John Paul Stevens: No, but the clear text just talks about discretion. The question is, what is the category of discretion in which it can operate. You emphasize the expertise of the Bureau of Prisons, which it does seem to me is terribly important. They're experts on how well the prisoners have done in prison, but are they experts in classifying which people should be eligible for this offense?
John Paul Stevens: Why are they experts in saying, for example, hate crimes should be excluded but heroin possession might not, or something like that? Why are they experts in that? They don't even... the whole notion of abolishing parole suggested that the prison expertise is just about what happens in prison, not what happened before.
Beth S. Brinkmann: Your Honor, we would disagree with that. The Bureau of Prisons has expertise on a daily basis of categorizing prisoners, for example, for security classifications. The first thing that happens to a prisoner when they are placed in the custody of the Bureau of Prisons is a determination of what kind of housing that person should be in. The main part of that determination is their criminal history, their past conduct--
Anthony M. Kennedy: But that all applies to the conditions of his confinement while he's there. Do they have any expertise in determining recidivism and making judgments accordingly?
Beth S. Brinkmann: --Absolutely, Your Honor. They make decisions about--
Anthony M. Kennedy: What are the statutes which allow them to do that?
Beth S. Brinkmann: --They make decisions about furlough. That's granted authority to them by Congress, about the good conduct release, about placement in community correction centers.
John Paul Stevens: But those are things that happen in... good conduct release determines the conduct in prison. The furloughs depends on conduct in prison.
Beth S. Brinkmann: Your Honor, also it depends on the criminal history of the individual, as does placement in a community correction facility. We would also point out that the statutory text granting this authority does not have any restrictions on other factors that the Bureau of Prisons consider and, as I mentioned before, it's very analogous in that respect to INS v. Yang, where the Court recognized that although Congress had provided a statute that allowed the Attorney General to grant a deportation waiver to an alien who had committed entry fraud, that that nonetheless still allowed the Attorney General to take into account circumstances surrounding the fraud in exercising their discretion whether or not to grant that waiver, and that's particularly the situation here.
John Paul Stevens: So it would be permissible, I suppose, for the Bureau of Prisons to decide that any person who entered the country illegally would be ineligible for this program.
Beth S. Brinkmann: Subject to arbitrary and capricious review.
John Paul Stevens: Well, it wouldn't be arbitrary. They just have experience that these people tend to be recidivists, or something like that.
Beth S. Brinkmann: Yes, Your Honor, and all this does is eliminate one incentive to the program. As I mentioned, there is substantial participation without it, and the Bureau of Prisons in its exercise of its expertise and broad authority has also implemented other incentives through regulation for the program.
Ruth Bader Ginsburg: Ms. Brinkmann, may I ask how the Bureau of Prisons implements this with respect to possession of drug offenders who do not carry firearms? Is that also categorical? That is, does everyone who commits a nonviolent offense without using a gun, who successfully completes the program, do they as a category get a reduction?
Beth S. Brinkmann: Yes. Any prisoner who successfully completes the program is granted... and is convicted of a nonviolent offense is granted early release. It may not be the full 12 months.
Ruth Bader Ginsburg: How is that? You've just answered my first inquiry about, it's discretion both ways, exercises discretion to have categories of inclusion, exclusion. If you fit that category you get released, so it's not that they're doing it case-by-case for people who commit nonviolent offenses without guns, but categorically for the other.
Beth S. Brinkmann: Your Honor, it is case-by-case. Except, it's incorporated in this categorical determination of successful completion of the program. That incorporates any type of infractions, disciplinary problems--
Ruth Bader Ginsburg: Yes, but we passed that hurdle. Everyone--
Beth S. Brinkmann: --After all of that is completed, yes, that is when early release is granted. It may not be up to 12 months, because in the exercise of discretion the Bureau of Prisons tempers the amount of early release, depending on the completion of the program. For example, if a prisoner is sent to the community corrections facility the bureau ensures that they complete the 6-month transitional drug abuse program there, and that may cut into their year of early release. They may end up only getting 6 months of early release, for example.
William H. Rehnquist: --Let's take the case of a nonviolent offender who does not come within the bureau's regulation as the gun, and so forth. Do all of them get some form of early release, even though it's not the full 12 months?
Beth S. Brinkmann: If they successfully complete the program, yes, Your Honor. There are other categories, of course, as we point out in the brief, that are categorically denied early release, and for similar reasons in the expertise of the Bureau of Prisons has determined that they pose a greater threat to the community when they're released, prisoners with prior convictions for serious crimes such as homicide, aggravated rape and assault, and also prisoners whose current offense involves sexual abuse of children. Those are also categorical determinations, and it is consist--
William H. Rehnquist: And they are regarded as nonviolent offenses?
Beth S. Brinkmann: --In some instances they may be, Your Honor, and the Bureau of Prisons has set forth this regulation in order to further its purpose of consistency and even-handedness in applying this program, and to give fair notice to prisoners. I'd also like to emphasize that looking at the prior convictions and circumstances surrounding an offense, it's reasonable when predicting and looking at the threat to the danger of the community, because in fact that is all conduct that occurs in the community. One can say it's more rational, perhaps, to look at a prisoner's use of a gun when they were in a community when deciding what their conduct may be when they return to the community as a postinfraction during their term--
David H. Souter: The difficulty with that argument, that assuming that the incentive does increase the success rate of the scheme, the Bureau of Prisons argument seems to say, we would rather have gun-carriers using drugs released a year later than former gun-carriers not using drugs released a year earlier, and that doesn't seem quite so rational.
Beth S. Brinkmann: --We think that's precisely the type of expertise, though, that Congress relies on the Bureau of Prisons to bring to this type of decision. That's why Congress did not--
David H. Souter: No, but the way I just stated it, it seems irrational, and are you saying that the Bureau of Prisons has a reason to say that my factual assumptions just don't operate, that in fact the gun-carriers just do not seem to be subject to this inducement and therefore it's better not even to get into the question of early release? Is that their reason?
Beth S. Brinkmann: --Their theory, as they set forth in the program statement, is that the use of a gun in the course of a drug transaction increases the likelihood of use of force and violence, and for that reason granting early release is not appropriate. The full deterrent effect of serving the entire sentence is something that the Bureau of Prisons has determined is appropriate in those types of cases.
Antonin Scalia: Ms. Brinkmann, can I go back to one of your responses to the Chief Justice? When he pressed you on the question of previous convictions for violent crimes for... you mentioned some specific crimes, and he asked, are they nonviolent crimes, and you said in some instances they are, but in some instances... or in some instances they aren't, you said. But in some instances they are.
Beth S. Brinkmann: Yes.
Antonin Scalia: And I assume that if we read the may, or more precisely if we read the excluded category of violent, of persons in prison for a violent offense as being exclusive, so that the Bureau of Prisons cannot add to that category, the result, I gather, would be that you could have somebody who happens to be in this time for a nonviolent offense, but who was convicted five times before of the most heinous, violent offenses, including murder, and that person would have to be released.
Beth S. Brinkmann: Precisely, Your Honor. It's the situation where the instant offense is a conviction for money laundering of the hit man who has many, perhaps even a series of convictions, whether in the Federal or the State system. That's exactly the type of categories that the Bureau of Prisons looked to in deciding to exercise its discretion--
Antonin Scalia: So it's quite plausible that when Congress was enacting this thing, that one thing was obvious, we don't want someone--
Beth S. Brinkmann: --Yes.
Antonin Scalia: --who's in there for a violent offense to get out a year early, and there may be some other categories, too. We don't want to trouble to list all of them. We'll leave the rest to the Bureau of Prisons. You're asserting that that's what they did.
Beth S. Brinkmann: Absolutely, Your Honor, and that is totally supported by the text, because of the point I think Your Honor and some of the other members of the Court made, when you look at the language of the neighboring statute using the word shall to mandate the provision of the substance abuse treatment program. The Bureau of Prisons does not have discretion to not make available the substance abuse program to prisoners who are eligible, and the terminology in the statute for that is someone who--
Antonin Scalia: That's not the point. I mean, we're all agreed that it has discretion. The issue is not whether it has discretion or not. It's really... it isn't the may that's the issue here. The issue is whether that other provision, namely the disqualification of non... of violent offenders is meant to be exclusive. That's really the crucial provision here.
Beth S. Brinkmann: --And we believe it's clearly not, Your Honor. That sets a statutory eligibility requirement, a threshold, but there's no indication that then the Congress intended to impose restriction on factors that may be related to that eligibility.
Antonin Scalia: Do we give the bureau chevron deference on that question as to whether that provision was meant to be exclusive or not?
Beth S. Brinkmann: Yes, we believe so, Your Honor, and we believe that it's regulation here is a authoritative statement of its implementation of the statute.
John Paul Stevens: May I ask about the regulation? The whole regulation isn't quoted in your brief, but the part that you have quoted on page 4 refers to the offense for which... the current offense is a felony, b) that involved the carrying and so forth of a gun, so the regulation we're fighting about in this case is one that speaks only to the current offense.
Beth S. Brinkmann: That's correct, Your Honor.
John Paul Stevens: Then is there another regulation that disqualifies people because of their recidivism character?
Beth S. Brinkmann: Yes, Your Honor. Petitioner had actually provided the full regulation in their brief. It's in the blue brief, the appendix, beginning on page 3, and--
Speaker: 3 of the appendix?
Beth S. Brinkmann: --Yes, and carrying over to page... well, page 3, you have to see that (a)(1) explains that in the exercise of discretion the Director of the Federal Bureau of Prisons is deeming certain categories of inmates not eligible for the early release. The first one is INS detainees, then we go on to pretrial inmates, contractual boarders, all of which are ineligible for reasons that are clear to the Bureau of Prisons in their expertise of the management of prisons. Subparagraph (4) talks about inmates who have a prior felony or misdemeanor conviction for homicide, forcible rape, robbery, or aggravated assault, or child sexual abuse offenses. The next category has to do with prisoners who are ineligible for the community-based corrections program. Then we get down to subcategory (6), which talks about inmates whose current offense is a felony, and then there are four subcategories of those, one being the subcategory at issue here, a felony that involved the carrying, possession, or use of a firearm or other dangerous weapon. One of those other categories are offenses that are felony... that involve sexual abuse committed against children. The other two have to do with the actual attempt or threatened use of physical force. The other is a felony that by its nature or conduct presents a serious potential risk of physical force against that person or property.
Antonin Scalia: Would that be a violent offense? Probably not, I guess, huh?
Beth S. Brinkmann: One of the reasons that the Bureau of Prisons set forth these was to ensure that it had exercised its discretion in a regulatory manner because of problems that had arisen with inconsistent statutory interpretations by the lower Federal courts, which create inordinate problems for the Bureau of Prisons because of the... not only that they have personnel in different areas of the country implementing different standards, but also prisoners are frequently transferred between different circuits. So they set forth... and as pointed out, some of these offenses could also be covered under the violent offense category, but they wanted to set forth, out of fairness to prisoners also, notice beforehand, and also for the even-handed administration of the incentive.
Ruth Bader Ginsburg: One argument that's made is, because a couple of circuits said the bureau was wrong initially when it typed people who carried guns in connection with possession offenses, drug possession offenses, typed them violent and then said the... and then the prison responded, Bureau of Prisons responded by saying, we're not... no longer categorizing them as violent offenders, we're exercising our discretion to exclude them. That could be characterized as trying to do an end run around the court of appeals decisions that said, these crimes are not crimes of violence.
Beth S. Brinkmann: Your Honor, we do believe that the Bureau of Prisons' initial regulation actually was a permissible regulation. They ran into problems in some circuits because the courts... because of their reference to 924(c). The court then held that they, the Bureau of Prisons, could not look to anything beyond the elements of the offense. That was really the problem there. So the Bureau of Prisons came back and decided to, as a matter of discretion, exercise that authority and make clear. We don't think there's anything impermissible about that. In fact, it's consistent with well-established administrative law principles that a agency's hands cannot be tied because of the inartful drafting of a prior regulation.
John Paul Stevens: You're saying end runs--
William H. Rehnquist: --Ms. Brinkmann, if you'll go back to section 6 of appendix 4 of the petitioner's brief it says, sets forth four categories, has an element, the actual attempted or threatened use of physical force against the person or property of another, involve the carrying, possession, or use of firearm or other dangerous weapons or explosives, c) that by nature conduct presents a serious potential risk. What isn't included, other than embezzlement and false tax returns?
Beth S. Brinkmann: Any kind of drug offenses, Your Honor, that don't involve the use or carrying of a firearm, certainly, and all kinds... I mean, this doesn't just have to be drug-related offenses. I can tell you, there's a substantial participation, Your Honor. The Bureau of Prisons informed me that currently there are approximately 16,800 prisoners participating in the program at one of... either on the wait list, in the residential program, or in the transitional program currently, and--
Anthony M. Kennedy: Who are eligible?
Beth S. Brinkmann: --No, Your Honor. 30 percent--
Anthony M. Kennedy: Well, but that's not responsive, is it?
Beth S. Brinkmann: --But Your Honor, at least one-third of those prisoners are not eligible for early release. The real incentive in this program, Your Honor, is a life change, and that in fact--
Anthony M. Kennedy: But then you're saying the congressional... Congress was wrong in providing an incentive.
Beth S. Brinkmann: --No, Your Honor.
Anthony M. Kennedy: It wasn't needed.
Beth S. Brinkmann: No, Your Honor, it is an incentive. It's a useful tool for the Bureau of Prisons to use in implementing the drug abuse program and, as I mentioned before, the Bureau of Prisons has, in fact, by regulation promulgated other incentives having to do with the prisoner being able to obtain the maximum time in a community correction facility. There are financial incentives for completion of the various phases of the program. So that is the Bureau of Prisons implementing the program and fulfilling the mandate that they make available this program to any prisoner who has a substance abuse program and wants to participate in it.
John Paul Stevens: May I just ask, the 16,800 is a large number, but compared to how many people in prison?
Beth S. Brinkmann: Approximately 130 to 140,000--
John Paul Stevens: About 10 percent, then.
Beth S. Brinkmann: --is the current population.
Sandra Day O'Connor: But how many are eligible as nonviolent offenders, of that total number?
Beth S. Brinkmann: Out of the 130 to 140--
Sandra Day O'Connor: Yes. How many are there because of nonviolent offenses and therefore eligible for this program?
Beth S. Brinkmann: --I don't have that information. That was not ascertainable, and I also must say, Your Honor, out of that number you'd have to winnow it down to the prisoners who are actually statutorily eligible under (e)(1), which means a prisoner who has a documented substance abuse program and who are willing to participate in this very rigorous program.
John Paul Stevens: Clarify one thing for me. You don't have to be not... nonviolent is only for eligibility for the 1-year shortening of the sentence, but even a person guilty of a violent offense is eligible for the program, aren't they?
Beth S. Brinkmann: That's correct, Your Honor.
John Paul Stevens: Yes.
Beth S. Brinkmann: And they're also eligible for the other incentives that the Bureau of Prisons provides.
Antonin Scalia: But to get either in the program or the 1 year, you would have to have a history of drug abuse, so I... is that--
Beth S. Brinkmann: Yes, to be able to get into the program, that's correct.
Antonin Scalia: --So I guess if you were unfortunate enough not to have a history of drug abuse, you can't get that 1 year.
Beth S. Brinkmann: That's true, Your Honor.
Antonin Scalia: That's sort of tough, isn't it?
Beth S. Brinkmann: That was Congress' determination, because--
Antonin Scalia: I guess a lot of prisoners are trying to show they had a history of drug abuse, right? [Laughter]
Beth S. Brinkmann: --The bureau... unfortunately, there is a very high percentage of Federal prisoners that do have problems, but again it goes back to the determination that Congress wanted to provide the Bureau of Prisons with this authority that it could grant this early release. The Bureau of Prisons does not have any authority or discretion without this statutory provision to grant anyone early release. If there's nothing further, Your Honor.
William H. Rehnquist: Thank you, Ms. Brinkmann. Mr. Meierhenry, you have 4 minutes remaining.
Mark V. Meierhenry: Thank you, Mr. Chief Justice.
Anthony M. Kennedy: Counsel, I assume under your argument that we would have to strike down subsection 4 of the regulation, which applies to inmates who have a prior felony or misdemeanor.
Mark V. Meierhenry: Yes, Your Honor, I think that's correct. To answer statistically, and my source is the website of the Bureau of Prisons, there... as of August of 2000 there were 63,621 inmates, or 56.9 percent of all the inmates in Federal prison were there for drug-related charges. The Bureau of Prisons also shows on their website that 2,633 people in 1999 got the incentive.
Antonin Scalia: Could I ask you about your response to Justice Kennedy? I suppose you could have a theory that the only thing that's explicitly excluded is an additional disqualification based upon the offense for which you're sentenced, because use of a gun involves the very offense for which he's serving, right? You don't have to carry the burden of saying that recidivism or a prior violent crime can't be taken into account, because that is not the condition that Congress has set forth. The only condition Congress spoke to was the very offense for which you're sentenced.
Mark V. Meierhenry: Correct, as a convicted person, and maybe my definition isn't quite right, but I mean, when you... even when you get the chevron, the gap here, there is no gap. Congress didn't create a gap. Nonviolent, convicted person. What they left the discretion to is the treatment or the actions of the prisoners, and those judgments within... once he was prisoner. I mean, the section where--
William H. Rehnquist: Well, but Justice Scalia's question would push it further than that and say it also, as I understood it, would leave discretion to acts committed long before you were sentenced this time.
Mark V. Meierhenry: --And I don't... Congress did not address that. Congress did not address that.
William H. Rehnquist: Well, even if-- --Well, if Congress didn't address it, why doesn't it fall within the... I mean, it doesn't really affect your case, it but affects the argument perhaps. Why doesn't that thing fall within the bureau's discretion?
Mark V. Meierhenry: Because Congress, in creating the incentive--
Antonin Scalia: Why do you want to hold that ground? You should... it seems to me your position is, subparagraph (6) would have to go entirely, not just (6)(b), but subparagraph (4) would not have to go under that theory. Right.
Mark V. Meierhenry: --I think one of the questions asked by one of the members of the bench in the INS v. Yang that my colleague brought up, some 4 years ago, she was asked about the authority of the Attorney General, and the question was, it's a longer question, but the last part was, would it be within her, the Attorney General's discretion to say, I will never exercise my discretion in favor of a waiver, and Ms. Brinkmann answered, yes, Your Honor, we believe it would be. In the opinion, joined by all of you, it said, it could be argued that if the Attorney General determined that any entry, fraud or misrepresentation, no matter how minor, no matter what the attendant circumstances, would cause her to withhold waiver, she would be exercising... she would not be exercising the conferred discretion at all, but would be making a nullity of the statute. That's my argument. The BOP is making a nullity of the incentive.
Antonin Scalia: We didn't say that argument was right.
Mark V. Meierhenry: I understand that--
Antonin Scalia: We just said it could be argued, right?
Mark V. Meierhenry: --but I think it summarized--
Antonin Scalia: And you're proving that it can be argued. [Laughter]
Mark V. Meierhenry: --Your Honors, we would ask the Court to overrule the Eighth Circuit Court of Appeals and find that the discretion that the BOP has is attendant to within-the-prison and not preconviction activities. Thank you.
William H. Rehnquist: Thank you, Mr. Meierhenry. The case is submitted.