Behind Bars

Not A Good Time For Prisoners

By Diane E. Schindelwig

“The court’s interpretation ... imposes tens of thousands of years of additional prison time on federal prisoners according to a mathematical formula they will be unable to understand ... comes at a cost to taxpayers of untold millions of dollars.” Dissent by Justice Kennedy; Barber v. Thomas, 2010.

On June 7, 2010 the Supreme Court of the United States made a 6-3 decision. This majority ruling rocked the world of federal prisoners with the precedent in the case Barber v. Thomas. The high court sided with the Federal Bureau Of Prisons (BOP) and agreed with their methodology of setting federal prisoners “good time” allowances.

In summation, it means the difference between a federal prisoner earning 47 days v. 54 days per year “good time” credit to be deducted from their sentence. It may not seem like much of a loss of time but seven days—a week—to prisoners serving many months and years, even one day extra, is an injustice. An example: Based on a ten-year (120 months/3650 days) sentence, a prisoner would have earned 540 days “good time.” Now with this raw deal of a decision, that same prisoner will only earn 470 days. To every federal prisoner, their family and friends, an additional 70 days is a significant amount of time and is a disservice to all.

The case was about what “time factor” to base the calculation of “good time” upon, either “time sentenced” or “time served.” The petitioners, Michael Gary Barber et aI, argued that using “time sentenced” was the correct and logical interpretation of the statute, the method using the actual term of imprisonment imposed by the judge.

The respondent, J. E. Thomas, Warden, based the calculations of “good time” by using “time served” which is the time a prisoner actually serves in prison. The majority of the Supreme Court Justices held after reading the code (18 U.S.C. 3624(b)) that the Bureau Of Prisons (BOP) method for computing “good time” credit pointed to the simple and true meaning of the statute, that it was lawful.

The entire concept behind the statute in awarding prisoners with “good time” is to encourage good behavior.

The “good time” credit is made up of days earned that will be deducted from the end of the sentence, to lessen the prisoner’s length of incarceration. The original amount of 54 days-per-year was a mere 15 percent (365/54) of credit, it was not a strong incentive to start with. Now with the “good time” credit being trimmed back to 47 days-per-year, a tad under 13 percent (365/47), it is not much of a motivation to prisoners to conduct themselves in a commendable fashion.

The federal sentencing law (18 U.S.C. 3624(b)) provides the BOP with direction on how to bestow credit towards the service of a sentence. The law states “prisoners…serving a term of imprisonment of more than one year...may receive credit towards the service of that sentence...of up to 54 days at the end of each year.” The statute gives the BOP discretionary room by stating that, during that year, a prisoner has to have maintained proper institutional behavior. (18 U.S.C. 3624(b)(1)), This section also explains, “…the last portion of a year of the term of imprisonment is prorated.” Towards the end of the sentence, when time remaining and the accumulated credits are less than one year BOP prorates the amount of credit proportional to the awards in the other years.

To study the full example of the BOP’s method of figuring the “good time” credit, one may need to be a mathematician to understand the complex mathematics used. Their computation of the “good time” allowance actually uses algebra equations in their calculations. After studying the BOP’s explanation, following its long complicated multiple step process, it can finally be summarized, by dividing total sentencing days by 1.148. This calculation will give the minimum number of days a prisoner must serve of the sentence. An example, based on a ten-year (120 months/3650 days) sentence’s minimum number of days to be served: take the total sentence days (3650) divide by 1.148, round up, equals 3180 days (3650/1.148 = 3180). To derive the maximum amount of “good time” credit that may be earned, take the total sentence days (3650), subtract the minimum number of days to be served of the sentence, (3180), equals 470 days (3650 - 3180 = 470). To a prisoner, the elaborate arithmetic is inconceivable and unwarranted, time behind bars is bona fide and frightening; a prisoner needs simple “good time” credit calculations to mark on the calendar.

There is a more straightforward approach to show the “good time” calculation in layman terms. It is important to remember that the BOP computes its “good time” credits on ‘‘time served” not “time sentenced.” Knowing this, the first thing is to get a base number of days for a years worth of “time served.” To get this number multiply 365 days by 15 percent, rounding up, equals 54 days (365 x .15 = 54) and then subtract the 54 days from 365 days equals 311 days (365 - 54 = 311). This is the base number of days in a year’s worth of “time served.” To get the actual amount of “good time” allowance in days, take the 311 days and multiply by 15 percent, round up, equals 47 days-per-year (311 x .15 = 47). Just in understanding how the BOP computes its credit does not make it any less devastating to prisoners who have behaved well. It is a slap in the face. It sends the wrong message back behind the concrete walls and iron bars that undermines the statute.

The awarded “good time” credits of 47 days at the end of each year the prisoner serves, is held back, set aside, not actually subtracted or given at the time it is earned. In reality this means that the earned credits are banked and are not vested. By the credits not being guaranteed or vested it permits the BOP to reduce or delete some or all of the prisoners hard-earned accumulated credits for disciplinary reasons at their will. So according to the statute, credits only vest “on the date the prisoner is released from custody.” (18 U.S.C. 3624(b)(2)). Just another added obstacle for prisoners approaching release date.

The outcome could have been different. When a court feels that a statute is unclear and confusing it may choose to use an option called “rule of lenity.” For “rule of lenity” to be applied the statute in question must be a criminal statute and the “good time” statute is exactly that, criminal. In conforming to the application, the “rule of lenity” would weigh in favor of the petitioners. It is important if relying on the rule of lenity, that it makes the statute clearly understood in common language—the meaning of the law and the consequences if the law is broken. In this case, the “rule of lenity” should have absolutely been used. The aftermath that has been caused by the high court’s not applying the rule has left oppressive results for a vast number of federal prisoners.

The United States Supreme Court majority decision has delivered disillusionment in place of justice. The high court has severely failed the people to whom they are sworn to serve. Beyond all the complicated arithmetic and slanted interpretations, the majority has made a grave legal error that will have adverse repercussions felt by federal prisoners for decades, The decision was negligent and a catastrophe to society as a whole by over-incarcerating hundreds of thousands of federal prisoners with significant amounts of additional time. The burden to the government’s already staggering budget is morally unacceptable and wasteful. A great injustice has been done to federal prisoners; they are genuine people serving genuine time. They need encouragement and hope but instead receive disappointment and frustration.

See: Barber v. Thomas, Case No. 09-5201, 2010 U.S. Lexis 4717; 22 Fla. L. Weekly Fed. S 419, Additional sources: FAMMGram, Spring 2010

—November 4, 2010