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SUPREME COURT OF THE UNITED STATES
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No. 92-1662
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UNITED STATES, PETITIONER v. RALPH STUART
GRANDERSON, Jr.
on writ of certiorari to the united states court
of appeals for the eleventh circuit
[March 22, 1994]

  Justice Kennedy, concurring in the judgment.
  The Court's holding that the drug proviso in 18
U. S. C. 3565(a) calls for a mandatory minimum
sentence of two months in prison rests upon two prem-
ises: first, that the term -original sentence- means the
maximum Guidelines sentence that the district court
could have, but did not, impose at the initial sentencing;
and, second, that the verb -sentence- means only
-sentence to imprisonment.-  Neither premise is correct.
As close analysis of the text and structure of the statute
demonstrates, the proviso requires a mandatory mini-
mum sentence of a probation term one-third the length
of the initial term of probation.  I concur in the judg-
ment only because Granderson, under my reading of the
statute, was entitled to release from prison.

                      I
  Section 3565(a) provides, in relevant part:
-If the defendant violates a condition of probation at
any time prior to the expiration or termination of
the term of probation, the court may . . .
     -(1) continue him on probation, with or without
extending the term or modifying or enlarging the
conditions; or
     -(2) revoke the sentence of probation and impose
any other sentence that was available under sub-
chapter A at the time of the initial sentencing.
     -Notwithstanding any other provision of this
section, if a defendant is found by the court to be in
possession of a controlled substance, thereby violat-
ing the condition imposed by section 3563(a)(3), the
court shall revoke the sentence of probation and
sentence the defendant to not less than one-third of
the original sentence.-  (Emphasis supplied.)
  The Court construes the term -original sentence- to
refer to the maximum sentence of imprisonment avail-
able under the Guidelines at the initial sentencing.  I
accept, in substantial part, The Chief Justice's critique
of the Court's strained interpretation, and agree with
him that -original sentence- refers to the sentence of
probation a defendant in fact received at the initial
sentencing.  It is true that the term ``original sentence,''
standing alone, could be read to encompass the entire
original sentence, including any fine imposed.  When
considered in context, however, it is preferable to
construe the term to refer only to the original sentence
of probation.  The proviso instructs the district court to
``revoke the sentence of probation,'' but says nothing
about the fine imposed at the initial sentencing.  Given
this, the subsequent reference to ``one-third of the
original sentence'' is better read to mean the probation
component of the original sentence, and not the whole
sentence.
   I disagree with both the Court and The Chief Jus-
tice, however, in their conclusion that the verb -sen-
tence- in the proviso means only -sentence to imprison-
ment.-  Given the statutory text and structure, the verb
-sentence- can mean either -sentence to probation- or
-sentence to imprisonment.-  It follows, in my view, that
the drug proviso calls for a mandatory minimum sen-
tence equal to a probation term one-third the length of
the original term of probation.
  Before 1984, fines and imprisonment were the only
sentences in the federal system; probation, by contrast,
was an alternative to sentencing.  See 18 U. S. C. 3651
(1982).  In the Sentencing Reform Act of 1984, Congress
altered this understanding and made probation a kind
of sentence.  See 3561(a) (defendant -may be sentenced
to a term of probation-); United States Sentencing
Commission, Guidelines Manual ch. 7, pt. A2(a), at 379
(Nov. 1993) (-[T]he Sentencing Reform Act recognized
probation as a sentence in itself-).  Probation no longer
entails some deviation from a presumptive sentence of
imprisonment, as the facts of this case illustrate.
Granderson's conviction for destruction of mail, when
considered in light of his criminal history category,
placed him in Zone A of the Guidelines Sentencing
Table, which carries a presumptive sentence of 0 to 6
months.  The Sentencing Guidelines authorize a sen-
tence of probation for defendants falling within Zone A,
see USSG 5B1.1(a)(1), and set a maximum probation
term of five years for the subset of Zone A defendants
of which Granderson is a member, see 5B1.2(a)(1).  For
defendants like Granderson, then, probation is a sen-
tence available at the initial sentencing, no less so than
a sentence of imprisonment.  See 18 U. S. C. 3553(a)(4)
(the court, in determining sentence, -shall consider . . .
the kinds of sentence and the sentencing range estab-
lished for the applicable category of offense . . . as set
forth in the guidelines-) (emphasis supplied).  Because
the term -to sentence,- if left unadorned, can bear any
one of three meanings, Congress took care, as a general
matter, to specify the type of punishment called for
when it used -sentence- as a verb in Chapter 227 of
Title 18, the sentencing provisions of the criminal code.
See, e.g., 3561(a) (-sentenced to a term of probation-),
3572(e) (-sentenced to pay a fine-), 3583(a) (-impos[e]
a sentence to a term of imprisonment-).
  Congress was less careful when drafting the provision
now before us, which does not specify whether the dis-
trict court should impose a fine, imprisonment, or
another term of probation when revoking the original
term of probation on account of drug possession.  The
Government brushes aside this significant ambiguity,
contending that -the language of the statute, in context,-
demonstrates that Congress -plainly intended- to require
imprisonment.  Brief for Respondent 14, 15.  The Gov-
ernment is correct to say that we must examine the con-
text of the proviso to ascertain its meaning.  See Davis
v. Michigan Dept. of Treasury, 489 U. S. 803, 809
(1989).  Close attention to that context, however, leads
me to conclude that Congress did not intend to require
imprisonment upon revocation of the original term of
probation.
  Congress enacted the drug proviso as 7303(a)(2) of
the Anti-Drug Abuse Act of 1988 (1988 Act).  Pub. L.
100-690, 102 Stat. 4181, 4464.  Section 7303(b)(2) of
the 1988 Act, which concerns defendants serving a term
of supervised release, provides that -[i]f the defendant is
found by the court to be in the possession of a controlled
substance, the court shall terminate the term of super-
vised release and require the defendant to serve in
prison not less than one-third of the term of supervised
release.-  102 Stat. 4464, codified at 18 U. S. C.
3583(g) (emphasis supplied).
  Sections 7303(a)(2) and (b)(2) are, as the Government
puts it, -parallel and closely related.-  Brief for United
States 26.  Both pertain to the consequences of drug
possession for defendants under some form of non-
custodial supervision.  They differ, of course, in one
fundamental respect: Section 7303(b)(2) explicitly pro-
vides for a revocation sentence of imprisonment, while
7303(a)(2) does not.  The difference is significant.
-`[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts in-
tentionally and purposely in the disparate inclusion or
exclusion.'-  Gozlon-Peretz v. United States, 498 U. S.
395, 404 (1991), quoting Russello v. United States, 464
U. S. 16, 23 (1983) (internal quotations omitted).  The
presumption loses some of its force when the sections in
question are dissimilar and scattered at distant points
of a lengthy and complex enactment.  But in this case,
given the parallel structure of 7303(a)(2) and (b)(2)
and the fact that Congress enacted both provisions in
the same section of the same Act, the presumption is
strong.  The disparate use of the term -to serve in
prison- is compelling evidence that Congress intended to
mandate incarceration as a revocation punishment in
7303(b)(2), but not in 7303(a)(2) (the 3565(a) drug
proviso).
  The Government interposes a structural argument of
its own.  Before enactment of the drug proviso in the
1988 Act, 3565(a) consisted only of subsections (a)(1)
and (a)(2), which, for all relevant purposes, took the
same form as they do now.  Those provisions grant
courts two options for defendants who violate probation
conditions that do not involve drugs or guns.  Section
3565(a)(1) permits a court to continue the defendant on
probation, with or without extending the term or modi-
fying or enlarging the conditions.  As an alternative,
3565(a)(2) permits a court to -revoke the sentence of
probation and impose any other sentence that was avail-
able . . . at the time of the initial sentencing.-  Accord-
ing to the Government, the two provisions make clear
that the consequence of revocation under 3565(a)(2)
is that, in light of 3565(a)(1), the court must impose a
sentence other than probation, namely imprisonment.
The meaning borne by the phrase -revoke the sentence
of probation- in 3565(a)(2), the Government concludes,
must carry over when the same phrase appears in the
drug proviso.
  This argument, which the Court accepts, see ante, at
5, is not convincing.  The conclusion that 3565(a)(2)
demands imprisonment upon revocation of the original
sentence of probation does not rest upon anything
inherent in the phrase -revoke the sentence of proba-
tion.-  Rather, it follows from the structure
of 3565(a)(1) and (a)(2).  Congress set off subsection
(a)(2) as an alternative to subsection (a)(1), which
provides for every conceivable probation option.  Thus,
in order to make sense of the statutory scheme,
3565(a)(2) should be read to require a punishment of
something other than probation: imprisonment.  That
consequence, however, is due to the juxtaposition of
subsection (a)(2) with subsection (a)(1), not to Congress'
use of the phrase -revoke the sentence of probation- in
3565(a)(2).  Taken by itself, that phrase requires ter-
mination of the original sentence of probation, but does
not indicate the kind of sentence that must be imposed
in its place.  The meaning assumed by the phrase -re-
voke the sentence of probation- in the particular context
of 3565(a)(2), then, does not travel when the same
phrase appears in a different context.
  The Government's argument that -revoke the sentence
of probation,- standing alone, must import a sentence of
imprisonment also fails to account for how similar
language is used in 7303(b)(2) of the 1988 Act.  That
provision, as noted above, states that -the court shall
terminate the term of supervised release and require the
defendant to serve in prison not less than one-third of
the term of supervised release- if a defendant is found
in possession of drugs.  18 U. S. C. 3583(g) (emphasis
supplied).  The statutory text suggests that a subsequent
sentence of imprisonment is not implicit in the phrase
-the court shall terminate the term of supervised
release-; had it been, Congress would not have felt it
necessary to mandate imprisonment in an explicit
manner.  So there is little reason to think that Congress
believed imprisonment to be implicit in the parallel
phrase -the court shall revoke the sentence of probation-
in the 3565(a) drug proviso, 7303(a)(2) of the 1988 Act.
  The Government's view suffers from a final infirmity.
The term -original sentence- refers to the sentence of
probation imposed at the initial sentencing.  So if the
proviso imposed a minimum punishment of incarceration,
the length of incarceration must be tied to the length of
the revoked sentence of probation.  That would be an
odd result.  -[I]mprisonment is an `intrinsically different'
form of punishment- than probation.  Blanton v. North
Las Vegas, 489 U. S. 538, 542 (1989), quoting Muniz v.
Hoffman, 422 U. S. 454, 477 (1975).  Without belaboring
the point, probation is a form of -conditional liberty,-
Black v. Romano, 471 U. S. 606, 611 (1985), while im-
prisonment is nothing of the sort.  Transforming a sen-
tence of probation into a prison term via some mathe-
matical formula would, in the words of one court to have
considered this issue, constitute a form of -legal al-
chemy.-  United States v. Gordon, 961 F. 2d 426, 433
(CA3 1992).  In all events, it is not what one would ex-
pect in the ordinary course.
  The Chief Justice is correct, of course, to say that it
would not be irrational for Congress to tie a mandatory
minimum sentence of imprisonment to the length of the
original probation term.  Post, at 7.  He is also correct
to observe that Congress would have been within its
powers to write such a result into law, and that Con-
gress indeed provided for a similar result in 7303(b)(2)
of the 1988 Act, 18 U. S. C. 3583(g).  Post, at 8.  But
these observations do not speak to the only relevant
question: whether Congress did so in the text of the
3565(a) drug proviso, viewed in light of the statutory
structure.  For all of the above reasons, in my view it
did not.
  In sum, the drug proviso does not mandate incarcera-
tion, but rather must be read to permit a revocation
sentence of probation.  Concluding that the mandatory
minimum sentence is a term of imprisonment would be
inconsistent with this reading, and would also lead to
the anomaly of tying the length of the mandated prison
term to the original term of probation.  It follows that
the mandatory minimum sentence required by the drug
proviso is a probation term equal to one-third the length
of the original term of probation.  Given that Congress
did not eliminate the possibility of incarceration (for
example, by drafting the proviso to require a -sentence
of probation-), the proviso gives the district court the
discretion to impose any prison term otherwise available
under the other portions of 3565(a), which is more
severe than the mandatory minimum sentence of
probation.

                     II
  It is unfortunate that Congress has drafted a criminal
statute that is far from transparent; more unfortunate
that the Court has interpreted it to require imprison-
ment when the text and structure call for a different
result; but most unfortunate that the Court has chosen
such a questionable path to reach its destination.  I
speak of the Court's speculation that Congress drafted
the 3565(a) drug proviso with the pre-1984 federal sen-
tencing regime in mind.  See ante, at 13-14.  Reading
the proviso to require Granderson to serve a 2-month
mandatory minimum sentence of imprisonment, the
Court reasons, -would fit the [pre-1984] scheme pre-
cisely.-  Id., at 14.  And viewing the proviso in that
light, the Court adds, would avoid problems with both
Granderson's and the Government's interpretations.  See
ibid.  Although the Court purports not to place much
reliance upon this venture in interpretive archaeology,
its extended discussion of the matter suggests otherwise.
  This interpretive technique, were it to take hold,
would be quite a novel addition to the traditional rules
that govern our interpretation of criminal statutes.
Some members of the Court believe that courts may look
to -the language and structure, legislative history, and
motivating policies- when reading a criminal statute in
a manner adverse to a criminal defendant.  See United
States v. R. L. C., 503 U. S. ___, ___ (1992) (plurality
opinion) (slip op., at 13) (internal quotation marks
omitted).  Others would eschew reliance upon legislative
history and nebulous motivating policies when construing
criminal statutes.  See id., at ___-___ (Scalia, J., con-
curring) (slip op., at 2-3).  But, to my knowledge, none
of us has ever relied upon some vague intuition of what
Congress -might . . . have had in mind- (ante, at 13)
when drafting a criminal law.  And I am certain that we
have not read a criminal statute against a criminal de-
fendant by attributing to Congress a mindset that re-
flects a statutory framework that Congress itself had
discarded over four years earlier.
  Of course, the Court thinks it has done Granderson
and probationers like him a great favor with its guess-
work: Assuming that the drug proviso mandates incar-
ceration, the Court's intuitions lead it to conclude that
the mandatory minimum sentence of imprisonment here
is 2, rather than 20, months.  But in its rush to achieve
what it views as justice in this case, the Court has
missed a broader point: The statute, by word and de-
sign, does not mandate a punishment of imprisonment
on revocation.  In my respectful submission, had the
Court adhered to the text and structure of the statute
Congress enacted and the President signed, rather than
given effect to its own intuitions of what might have
been on Congress' mind at the time, it would have come
to a different conclusion.  See Deal v. United States, 508
U. S. ___, ___ (1993) (slip op., at 7-8).  And the fortuity
that Granderson himself does not contend that the
proviso permits a revocation sentence of probation, see
ante, at 15, n. 12, is no reason to overlook that option
here, given that our interpretation of the statute binds
all probationers, not just Granderson.  Cf. Elder v.
Holloway, ___ U. S. ___, ___, and n. 3 (1994) (slip op. at
4-6, and n. 3).
  Perhaps the result the Court reaches today may be
sensible as a matter of policy, and may even reflect
what some in Congress hoped to accomplish.  That re-
sult, however, does not accord with the text of the
statute Congress saw fit to enact.  Put in simple terms,
if indeed Congress intended to require the mandatory
minimum sentence of imprisonment the Court surmises,
Congress fired a blank.  See Puerto Rico Dept. of Con-
sumer Affairs v. Isla Petroleum Corp., 485 U. S. 495,
501 (1988) (-[U]nenacted approvals, beliefs, and desires
are not laws-).  It is beyond our province to rescue
Congress from its drafting errors, and to provide for
what we might think, perhaps along with some members
of Congress, is the preferred result.  See Smith v.
United States, 508 U. S. ___, ___, n. 4 (1993) (slip op.,
at 7, n. 4) (Scalia, J., dissenting) (-Stretching language
in order to write a more effective statute than Congress
devised is not an exercise we should indulge in-); Pavelic
& LeFlore v. Marvel Entertainment Group, 493 U. S.
120, 126 (1989) (-Our task is to apply the text, not to
improve upon it-); United States v. Locke, 471 U. S. 84,
95 (1985) (-[T]he fact that Congress might have acted
with greater clarity or foresight does not give courts a
carte blanche to redraft statutes in an effort to achieve
that which Congress is perceived to have failed to do-).
This admonition takes on a particular importance when
the Court construes criminal laws.  -[B]ecause of the
seriousness of criminal penalties, and because criminal
punishment usually represents the moral condemnation
of the community, legislatures and not courts should
define criminal activity,- United States v. Bass, 404
U. S. 336, 348 (1971), and set the punishments therefor,
see Bifulco v. United States, 447 U. S. 381 (1980).
  Under any of the three interpretations set forth in the
opinions filed today, there are bound to be cases where
the mandatory sentence will make little sense or appear
anomalous when compared with sentences imposed in
similar cases.  Some incongruities, however, are inherent
in any statute providing for mandatory minimum
sentences.
  In my view, it is not necessary to invoke the rule of
lenity here, for the text and structure of the statute
yield but one proper answer.  But assuming, as the
Court does, that the rule comes into play, I would have
thought that it demands the interpretation set forth
above.  For these reasons, I concur only in the judg-
ment.