The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_790/94_790.zd

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SUPREME COURT OF THE UNITED STATES
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No. 94-790
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JANET RENO, ATTORNEY GENERAL, et al., PETI-
TIONERS v. ZIYA K. KORAY
on writ of certiorari to the united states court
of appeals for the third circuit
[June 5, 1995]

  Justice Stevens, dissenting.
  Pursuant to an order entered by a federal judicial
officer, respondent was -confined to premises of [Volun-
teers of America (VOA)],- a private halfway house.  The
order of confinement-euphemistically styled a -release-
order-provided that respondent -shall not be authorized
to leave for any reason unless accompanied by Special
Agent Dennis Bass.-  While at VOA, respondent -had to
account for his presence five times a day, he was subject
to random breath and urine tests, his access to visitors
was limited in both time and manner, and there was a
paucity of vocational, educational, and recreational
services compared to a prison facility.-  Koray v. Sizer,
21 F. 3d 558, 566 (CA3 1994).  Except for one off-site
medical exam, respondent remained at VOA 24 hours a
day for 150 days.  In my opinion, respondent's confine-
ment was unquestionably both -official- and -detention-
within the meaning of 18 U. S. C. 3585(b).
  Both the text and the purpose of 3585(b) clearly
contemplate that a person who is locked up for 24 hours
a day, seven days a week, pursuant to a court order, is
in -official detention.-  Such a person is surely in
custody, and that custody is no less -official- for being
ordered by a court rather than the Attorney General.
Indeed, even the majority acknowledges the force of this
plain meaning argument.  Ante, at 11.  Moreover, the
manifest purpose of 3585(b) is to give a convicted
person credit for all time spent in official custody as a
result of the offense that gave rise to his conviction.
When that confinement is in a facility that has all the
restraints of a typical prison, it should not matter
whether that facility is operated by a State, a county, or
a private custodian pursuant to a contract with the
government.
  Purporting to establish the contrary conclusion, the
Court labors to prove the rather obvious proposition that
all persons in the custody of the Attorney General
pursuant to a detention order issued under 18 U. S. C.
3142 (1988 ed. and Supp. V), as well as all persons
confined in an -official detention facility- under 3585(a),
are also in -official detention- within the meaning of
3585(b).  However, proof that confinement under 3142
or 3585(a) constitutes official detention certainly is not
proof that no other form of confinement can constitute
official detention.  The majority thus fails to demon-
strate that respondent should not receive sentencing
credit for his court-ordered full-time confinement in a
jail-type facility.
  Moreover, the Court's restrictive interpretation creates
an anomalous result.  Under the Court's view that only
a person -committed to the custody of the Attorney
General- can be in -official detention,- 3585(b) does not
authorize any credit for time spent in state custody, -no
matter how restrictive the conditions.-  Ante at 9, 13,
n. 5.  This conclusion is so plainly at war with common
sense that even the Attorney General rejects it.  See
Brief for United States 11 (-[T]he Bureau grants credit
for time spent in state custody-); see also Reply Brief for
United States 7-8.
  The majority attempts to escape its self-created
anomaly by suggesting that it -need not and do[es] not
rule- on the propriety of giving credit for confinement
under state law.  Ante, at 13, n. 5.  But that contention
simply collapses the majority's house of cards.  For
either the -text- of the Bail Reform Act limits -official
detention- to custody of the Attorney General, in which
case the majority adopts an interpretation that even the
Attorney General rejects, or the -text- does not limit the
meaning of official detention, and then there is abso-
lutely no reason for concluding that court-ordered 24-
hour-a-day confinement is not official detention.  The
majority cannot have it both ways.
  Given the anomalous implications of the Court's
decision, one may fairly question how the majority
justifies its result.  It is surely not the plain language
of the statute, because the majority's reading requires
that a judicially mandated, 24-hour-a-day confinement in
a jail-type facility is neither -official- (because it is
ordered by a judge and not the Attorney General) nor
-detention- (because the judicial order is labeled -re-
lease-).  Nor does the majority rely on the nature of the
facility itself, because the majority concedes that if the
Attorney General rather than the court had confined
respondent in the exact same facility, respondent's
confinement would have been -official detention- under
the statute.  The majority purports to rely on some sort
of Chevron deference, ante, at 11, but it is indeed an
odd sort of deference given that (as I have noted above)
the majority adopts an interpretation that the BOP itself
has rejected.
  The majority suggests at one point that it relies on
the history of the interpretation of the word -custody,-
arguing that Congress did not intend to change the
settled meaning of -custody- that existed prior to the
Bail Reform Act.  However, not one of the cases cited by
the majority, ante, at 8-9, stands for the proposition
that custody does not include confinement in a jail-type
facility.  Instead, all of those cases involved situations
in which the defendant was at large.  See Polakoff v.
United States, 489 F. 2d 727, 730 (CA5 1974) (defendant
faced -travel and social restrictions and was required to
report weekly to a probation officer-); United States v.
Robles, 563 F. 2d 1308, 1309 (CA9 1977) (defendant
required to -obey all laws, remain within the jurisdiction
unless court permission was granted to travel, obey all
court orders, and keep his attorney posted as to his
address and employment-); Ortega v. United States, 510
F. 2d 412, 413 (CA10 1975) (-released on personal
recognizance-); United States v. Peterson, 507 F. 2d 1191,
1192 (CADC 1974) (defendant -at large on conditional
release-).  Moreover, at least one Court of Appeals
(albeit after the passage of the Bail Reform Act) inter-
preted the word -custody- under 3568 as including
-enforced residence under conditions approaching those
of incarceration.-  Brown v. Rison, 895 F. 2d 533, 536
(CA9 1990).  Thus, though I agree with the majority
that Congress intended to incorporate the understanding
of -custody- that existed under 3568, I fail to see how
that intention supports the majority's result.
  Simply accepting the plain meaning of the statutory
text would avoid the anomalies created by the Court's
opinion, would effectuate the intent of Congress, and
would provide fair treatment for defendants who will
otherwise spend more time in custody than Congress has
deemed necessary or appropriate.  For these reasons, I
agree with the persuasive opinion of the Court of
Appeals and would affirm its judgment.