Interpretation of District of Columbia Good Time Credits Act of 1986 ( 1988 )

Interpretation of District of Columbia Good Time Credits Act of
1986
T he D istrict o f C olum bia G ood T im e Credits A ct o f 1986, w hich requires that prisoners “ be given
credit on the m axim um .. . term o f im prisonm ent for tim e sp e n t. . . on parole” does not im pliedly
repeal another provision o f the D.C. Code, that requires that recom m itted parole violators not re­
ceive credit against their sentences for tim e spent on parole.
June 8, 1988
M em o ran d u m O p in io n f o r t h e C h a ir m a n
U n it e d S t a t e s P a r o l e C o m m is s io n
You have requested the opinion of this Office on whether section 5(a) of the
District of Columbia Good Time Credits Act of 1986, D.C. Code § 24-431 (Supp.
1987), repeals by implication D.C. Code § 24-206(a) (1981). For the reasons set
forth in this memorandum, we believe that section 5(a) of the 1986 Act does not
repeal D.C. Code § 24-206(a).
Background
The District of Columbia, like virtually every jurisdiction, affords most pris­
oners an opportunity to serve a portion of their sentences on parole. Parolees are
required to report periodically to their parole officers and to observe the condi­
tions of their paroles, but they are not confined in correctional institutions and
generally enjoy substantial freedom.
If a parolee violates the conditions of his parole (the most common violation
being the commission of a new offense), the parole may be revoked and the
parolee recommitted to a correctional institution. In all jurisdictions of which we
are aware, when a parole violator is returned to prison, the time he spent on pa­
role prior to the revocation is not credited against his sentence. Until recently that
was unquestionably the rule in the District of Columbia, for D.C. Code
§ 24—206(a) (1981) provides that:
If the order of parole shall be revoked, the prisoner, unless sub­
sequently reparoled, shall serve the remainder of the sentence
originally imposed less any commutation for good conduct which
may be earned by him after his return to custody. For the purpose
of commutation for good conduct, the remainder of the sentence
originally imposed shall be considered as a new sentence. The
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time a prisoner was on parole shall not be taken into account to
diminish the time for which he was sentenced.
On April 11,1987, however, the District of Columbia Good Time Credits Act
o f 1986, D.C. Code §§ 24-428 - 24—434 (Supp. 1987), took effect. Section 5(a)
o f the Act, D.C. Code § 24-431 (Supp. 1987), provides that:
Every person shall be given credit on the maximum and the min­
imum term of imprisonment for time spent in custody or on pa­
role as a result of the offense for which the sentence was imposed.
When entering the final order in any case, the court shall provide
that the person be given credit for the time spent in custody or on
parole as a result of the offense for which sentence was imposed.
The question thus arises whether the first sentence of section 5(a), which requires
that prisoners “be given credit on the maximum . . . term of imprisonment for
time s pe nt . . . on parole,” impliedly repeals D.C. Code § 24-206(a), which re­
quires that recommitted parole violators not receive credit against their sentences
for time spent on parole.
The United States Parole Commission, which supervises District of Columbia
offenders committed to federal prisons, believes that section 5(a) does not im­
pliedly repeal D.C. Code § 24—206(a). Memorandum for Clair Cripe, General
Counsel, United States Bureau o f Prisons, from Patrick J. Glynn, General Coun­
sel, United States Parole Commission (Sept. 16, 1987). The Commission relies
heavily upon the familiar principle of statutory construction that repeals by im­
plication are not favored and will be found only where two statutes are irrecon­
cilable. Id. at 2-3. The Commission concludes that section 5(a) is not irreconcil­
able with D.C. Code § 24-206(a); the former merely states a general principle,
namely that time served on parole is credited toward service of the maximum
sentence, while the latter states an exception to that general rule, namely that in
cases of parole revocation, time spent on parole will not be credited toward the
maximum term of imprisonment. Id. at 3. Viewed in this light, there is no in­
consistency between the two statutes. Indeed, the provision of D.C. Code
§ 24—206(a) that parole violators will not have time spent on parole credited
against their sentence necessarily implies that parolees who successfully com­
plete parole will receive credit against their maximum term of imprisonment.
The D istrict’s Corporation Counsel takes a contrary view. He has opined that
there is an unavoidable inconsistency between D.C. Code § 24—206(a) and sec­
tion 5(a) of the Good Time Credits Act and therefore that the latter repeals the
former by implication. The Corporation Counsel acknowledges that repeals by
implication are disfavored, but notes that a harmonizing interpretation of two ar­
guably inconsistent acts must preserve the sense and purpose of each act. Letter
for Patrick J. Glynn, General Counsel, United States Parole Commission, from
Frederick D. Cooke, Jr., Corporation Counsel, District of Columbia at 2 (Oct. 30,
1987) (“Cooke letter”). The Corporation Counsel observes that one of the pri­
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mary purposes of the Good Time Credits Act was to deal with the “unprecedented
overcrowding problem” in the District’s prisons “by shortening the length of both
maximum and minimum sentences through the use of credit,” id. at 3 (quoting
Report of the Committee on the Judiciary, Council of the District of Columbia,
on Bill 6-505 at 2 (Nov. 12, 1986) (“Report”)), and concludes that giving sec­
tion 5(a) the meaning suggested by the Parole Commission would not effectuate
the purpose of the bill.
Additionally, the Corporation Counsel argues that repeals by implication will
be found where the later legislation is intended to cover the field in a compre­
hensive manner. The Corporation Counsel suggests that the Good Time Credits
Act “appears on its face to cover in a comprehensive manner the field of the ex­
tent to which time served in custody (i.e., confinement) and on parole shall be
credited toward the minimum and maximum sentence.” Id.Finally, the Corporation Counsel argues that the construction of section 5(a)
proffered by the Parole Commission would render the section meaningless as ap­
plied to parole. Since “preexisting law makes quite clear the general rule, namely
that time served on parole is time served in fulfillment of the maximum sentence,”
an interpretation of section 5(a) that limited the section to a restatement of that
general proposition would not change the law in any way. Id. at 4.
Analysis
It is, of course, a cardinal principle of statutory construction that repeals by
implication are not favored. Andrus v. Glover Constr. Co., 446 U.S. 608,618-19
(1980); United States v. United Continental Tuna Corp., 425 U.S. 164, 167-68
(1976); TVA v. Hill, 437 U.S. 153,189-90 (1978); Morton v. Mancari, 417 U.S.
535,549-50 (1974); United States v. Hansen, 772 F.2d 940,944 (D.C. Cir. 1985),
cert, denied, 475 U.S. 1045 (1986); Samuels v. District of Columbia, 770 F.2d
184, 194 n.7 (D.C. Cir. 1985); FAIC Securities v. United States, 768 F.2d 352,
362 (D.C. Cir. 1985); Izaak Walton League of America v. Marsh, 655 F.2d 346,
366-68 (D.C. Cir. 1981), cert, denied, 454 U.S. 1092 (1981); Executive Limou­
sine Serv. v. Goldschmidt, 628 F.2d 115, 120 (D.C. Cir. 1980). Courts will find
an implied repeal only where the earlier and later statutes are irreconcilable. TVA
v. Hill, 437 U.S. 153 (1978); Izaak Walton League o f America v. Marsh, 655 F.2d
346 (D.C. Cir. 1981), cert, denied, 454 U.S. 1092 (1981). Moreover, the princi­
ple that repeals by implication are not favored carries special weight when it is
suggested that a specific statute has been impliedly repealed by a more general
one. United States v. United Continental Tuna Corp., 425 U. S. 164(1976). Courts
have instead recognized that “ [a] statute dealing with a narrow, precise, and spe­
cific subject is not submerged by a later enacted statute covering a more gener­
alized spectrum.” Bradley v. Kissinger, 418 F. Supp. 64, 68 (D.D.C. 1976).
Applying these principles to the instant case leads us to conclude that section
5(a) of the Good Time Credits Act did not implicitly repeal the preexisting man­
date of D.C. Code § 24-206(a). As has already been noted, D.C. Code § 24—206(a),
which provides that parole violators shall not have time spent on parole credited
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against their sentences, necessarily implies that other parolees will receive credit
for the time spent on parole. Section 5(a) can naturally be read, as the Parole
Commission suggests, as doing nothing more than stating this general rule, to
which D.C. Code § 24-206(a) is an exception.
The Corporation Counsel argues that section 5(a) cannot be interpreted as sim­
ply stating the general rule that time served on parole is time served in fulfill­
ment of the maximum sentence because that principle is already clearly stated in
the D.C. Code. The Corporation Counsel points to D.C. Code § 24-204(a), which
states in pertinent part:
While on parole, a prisoner shall remain in the legal custody and
under the control of the Attorney General of the United States or
his authorized representative until the expiration of the maximum
of the term or terms specified in his sentence . . . .
The Corporation Counsel is clearly correct in stating that this provision im­
plies that time served on parole will be credited against the sentence; if that were
not the case, it would be impossible for a prisoner to remain on parole until the
expiration of his sentence. The Corporation Counsel argues that to interpret sec­
tion 5(a) in the manner suggested by the Parole Commission would be to render
it superfluous in view of D.C. Code § 24—204(a), a violation of the principle that
no part of a statute should be presumed superfluous unless such a construction
cannot be avoided. That principle, however, is properly limited to consideration
of the superfluity of a portion o f a statute within the context of the statute itself,
not within the context of the entire corpus of the law. It is neither irrational nor
unusual for a statute to affirm explicitly a prior practice, particularly when the
statute deals comprehensively with a subject. Looking only to the Good Time
Credits Act, the provision relating to credit for time spent on parole clearly has
some meaning. The fact that it overlaps with another statute does not require that
the phrase be given a different meaning than that indicated by the statutory lan­
guage.
In addition to the general principle disfavoring repeals by implication, there
are several specific indications in the legislative history that section 5(a) was not
intended to repeal D.C. Code § 24—206(a). As originally introduced, the bill that
became the Good Time Credits Act provided, in pertinent part:
(a) Every person shall be given credit on the maximum term and
the minimum period of imprisonment for time spent in custody as
a result of the offense for which the sentence was imposed. When
entering the final order in any such case, the court shall provide
that the person be given credit for the time spent.
(b) In any case in which a person has been in custody due to a
charge that resulted in a dismissal or acquittal, the amount of time
that would have been credited against a sentence for the charge,
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had one been imposed, shall be credited against any sentence that
is based upon a charge for which a warrant or commitment de­
tainer was placed during the pendency of such custody.
(c) In any case in which probation is revoked, the time that the
person has served under the probation shall be considered time
served and shall be credited toward and considered a part of the
time the person was originally sentenced to serve.
(d) In any case in which parole is revoked for violations of the
conditions of parole and the person is recommitted to serve the
remainder of the maximum term, the person shall not forfeit good
time credits earned while on parole.
The bill was referred to the District of Columbia Council’s Committee on the
Judiciary, which held a public hearing on the bill on November 5, 1986. Among
those testifying was Hallem H. Williams, Deputy Director of the District’s De­
partment of Corrections. Williams testified in support of the bill generally, but
noted that subsection (c) would conflict with D.C. Code § 24—104 (Supp. 1986),
which provides that “[i]f probation is revoked, the time of probation shall not be
taken into account to diminish the time for which he was originally sentenced.”
Williams also observed that subsection (c) “would tend to weaken the incentive
of a probationer to observe the conditions of his probation, especially toward the
end of the probationary period, as revocation at such time could mean a signifi­
cantly shorter period of incarceration than the probation violator might otherwise
be required to serve.”
Presumably in response to Williams’ testimony, the version of the bill reported
by the Judiciary Committee eliminated subsection (c) on probation revocations.
The bill reported by the Committee provided, in pertinent part:
(a) Every person shall be given credit on the maximum term and
the minimum period of imprisonment for time spent in custody or
on parole as a result of the offense for which the sentence was im­
posed. When entering the final order in any case, the court shall
provide that the person be given credit for the time spent.
(c) When parole is revoked for violations of the conditions of pa­
role and the person is recommitted to serve the remainder of the
maximum term, the good time credit shall be computed on the ba­
sis of the original maximum sentence and the inmate shall not for­
feit good time credit previously earned on the current sentence.
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As enacted, the Good Time Credits Act adopted subsection (a) of the committee
markup version with only minor stylistic changes,1 but eliminated the subsection
on parole revocations entirely.2
The provision on probation revocations, which the D.C. Council refused to en­
act, would have accomplished explicitly for probation violators precisely what
the Corporation Counsel argues the bill as enacted obliquely accomplishes for
parole violators. It is not at all clear, however, why the same policy considera­
tions that led the Council to reject credit for time served on probation for subse­
quent probation violators would not apply equally to parole violators. Moreover,
assuming that the Council did discern some policy consideration that would jus­
tify differential treatment between probation violators and parole violators, it is
puzzling that the Council did not clearly express its desire that parole violators
receive credit toward their sentences for time served on parole.3 Certainly the ex­
istence of the probation revocation provision in the original bill suggests that the
Council was capable of expressing that idea unambiguously.
A second indication that section 5(a) was not intended to repeal D.C. Code
§ 24—206(a) is that section 9 of the Good Time Credits Act, D.C. Code § 24—405
(Supp. 1987), explicitly repeals the existing D.C. law on good time credits. In
addition, the Judiciary Committee report on the bill, under the heading “Impact
of [sic] Existing Law,” states that “Bill 6—505 would repeal D.C. Code 24—405,
the D istrict’s current good time credits statute and create a comprehensive sys­
1 The committee m arkup had referred to “ the maximum term and the minimum period o f imprisonment,” while
the enrolled bill speaks o f “the maximum an d the minimum term of imprisonment.” Also, the second sentence of
the com m ittee m arkup referred only to “credit for the time spent,” a reference to the “time spent m custody or on
parole as a result o f the offense for which th e sentence was imposed” as set forth in the preceding sentence. The
enrolled bill repeats that phrase in the second sentence.
2 The Corporation Counsel suggests that subsection (d) o f the original bill evinces an “unmistakable general in­
tent . that, even where parole is revoked, the time served on parole should to some extent be credited against the
rem ainder o f the maximum sentence.” C ooke letter at 3. The Counsel further argues that the phrase “or on parole”
was added to subsection (a) by the Judiciary Committee as a substitute for original subsection (d) thus perpetuat­
ing the “ unmistakable general intent” of that subsection.
This argument is clearly without m erit. Original subsection (d) on parole revocation was not omitted by the
Judiciary Committee; it simply became new subsection (c) after the provision on probation revocation (to which
Hallem W illiams had objected) was eliminated from the bill. At the same time the Committee added the phrase “or
on parole” to the jail time provision of subsection (a). Thus the phrase “or on parole” in subsection (a) is not a sub­
stitute for original subsection (d), since both provisions appear together in the Judiciary Committee markup. The
fact that original subsection (d) (subsection (c) of the committee markup) was eliminated from the bill before pas­
sage suggests that, w hatever the intent of original subsection (d), it cannot be imputed to the bill as enacted.
3 Section 5(a) is unclear in at least three ways. First, unlike original subsections (c) and (d), it does not explic­
itly address the issue o f revocation. Second, section 5(a) requires time spent on parole to be credited toward both
the minimum and maximum terms of imprisonment. Since the minimum term of imprisonment means the minimum
period o f confinem ent before parole eligibility, a prisoner would always have to serve his minimum period of im­
prisonm ent before he could obtain the parole that would then be credited agamst his minimum eligibility date. In
short, the provision is circular as applied to parole. Finally, section 5(a) also requires the court to note the credit for
time spent in custody or on parole in its final order. Since prisoners obviously have not served any time on parole
at the tim e o f their original sentencing, and since parole revocation is accomplished by administrative rather than
judicial action, it is not clear that this provision has any meaning in the parole context. The Corporation Counsel
concedes this and recommends that “[T]he words ‘or on parole’ in the second sentence of § 5(a) should be disre­
garded.” Memorandum for W alter B. Ridley, Acting Deputy D irector for Operauons, Department o f Corrections,
from M argaret L. Hines, D eputy Corporation Counsel, District o f Columbia at 3 (Apr. 23,1987) (“Hines memo”)
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tem of awarding and administering good time credits which will be applied to
both the maximum and minimum sentence.” Report at 6. The explicit repeal of
one section of the D.C. Code suggests that only that section of the code was to
be repealed by the law. Similarly, the section of the report stating that the bill
would repeal one section of the D.C. Code implies that other sections of the code
would be unaffected by the bill.
Finally, subsection (c) of the Judiciary Committee markup version provided
that “[w]hen parole is revoked for violations of the conditions of parole and the
person is recommitted to serve the remainder of the maximum term, the good
time credit shall be computed on the basis of the original maximum sentence.”
This provision would have been in direct conflict with another part of D.C. Code
§ 24-206(a), which provides that when a parole violator is returned to prison
“ [f]or the purpose of commutation for good conduct, the remainder of the sen­
tence originally imposed shall be considered as a new sentence.” The Council,
however, amended the bill as reported from the Judiciary Committee and this
provision was not included in the bill as passed. This action suggests that the
Council was aware of potential conflicts with section 24—206(a), and that by re­
jecting subsection (c) of the committee markup the Council intended to retain the
status quo in regard to D.C. Code § 24-206(a).4
4 In the Hines memo the Corporation Counsel argues that subsection (c) on parole revocation was in effect sub­
sumed in section 2(c) of the enrolled bill. That secuon provides “[gjood time credits applied to the minimum term
of imprisonment shall be computed solely on the basis o f the minimum term of imprisonment. Good time credits
applied to the maximum term o f imprisonment shall be computed solely on the basis of the maximum term o f im­
prisonment ” The Corporation Counsel concludes that section 2(c) of the Good Time Credits Act impliedly repeals
that portion o f section 24-206(a) o f the D.C. Code that provides that in cases of recommitment after a parole vio­
lation “ [t]he remainder o f the sentence originally imposed shall be considered as a new sentence.” The Corpora­
tion Counsel considers this provision to be incompatible with the requirement that good time credits toward the
maximum term o f imprisonment be computed solely on the basis o f the maximum term of imprisonment.
We believe that the Corporation Counsel has misconstrued the import o f section 2(c) D.C. Code § 24-206(a)
states that the sentence o f a recommitted parole violator shall be the remainder of his original term. Section 2(c) of
the Good Time Credits Act requires that good time credits toward the maximum term of imprisonment under that
sentence be computed solely on the basis of the maximum term of imprisonment This provision of the Act is ad­
dressed to the fact that, since the amount of credits earned is based on the length of the sentence, see D.C Code
§ 24-428(a)( 1)-(5) (Supp. 1987), a single prisoner earns good time credits at two different rates, a slower rate based
on the shorter minimum term of imprisonment and a faster rate based on the longer maximum term of imprison­
ment Section 2(c) thus ensures that credits earned at the faster maximum term rate will not be used to speed up pa­
role eligibility, and conversely that credits earned at the slower minimum term rate will not be used to delay final
release. D.C. Code § 24-206(a) addresses the wholly separate issue o f defining the sentence (i.e , the maximum
term of impnsonment) of a recommitted parole violator. Absolutely nothing in section 2(c) of the Good Time Cred­
its Act requires that the computation of the maximum term o f impnsonment be made on the basis of the original
sentence; that section merely requires that once the sentence is defined, good time credits be awarded at the rate set
for the maximum term of impnsonment under that sentence
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Conclusion
For the foregoing reasons, we conclude that section 5(a) of the District of Co­
lumbia Good Time Credits Act of 1986 does not effect a repeal by implication
of D.C. Code § 24-206(a) and that parole violators subject to that section of the
code cannot receive credit toward their maximum sentence for time served on
parole.
M ic h a e l C a r v in
Deputy Assistant Attorney General
Office o f Legal Counsel
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