Appeal from the Superior Court of the District of Columbia; Hon. Shellie F. Bowers, Trial Judge
Ferren and Schwelb, Associate Judges, and Mack, Senior Judge. Concurring opinion by Associate Judge Schwelb. Concurring opinion by Associate Judge Ferren. Dissenting opinion by Senior Judge Mack.
SCHWELB, Associate Judge, Concurring: Winters appeals from an order of the trial court denying his petition for a writ of habeas corpus. He contended below, and continues to maintain on appeal, that by declining to credit him with "good time," the District of Columbia Department of Corrections (DOC) has unlawfully prolonged the term that he must serve pursuant to his "mandatory minimum" sentence for first degree murder. *fn1 A majority of the division votes to affirm. I concur and state my reasons for doing so in this opinion. Judge Ferren concurs separately. Judge Mack Dissents.
This case involves the interplay between the District of Columbia's first degree murder statute, which was designed to ensure that those convicted of premeditated murder be adequately punished for their crimes, and its "good time credit" legislation, which was intended to relieve prison overcrowding, to encourage prisoners to rehabilitate themselves, and, implicitly, to temper Justice with mercy in those cases in which such tempering is appropriate. *fn2
On or about December 6, 1977, following a jury trial, Winters was convicted of murder in the first degree and of robbery. In conformity with the "mandatory minimum" provisions of D.C. Code § 22-2404 (b), he was sentenced to imprisonment for a term of twenty years to life on the murder count. He received a concurrent sentence of five to fifteen years for robbery. He remains incarcerated pursuant to his sentence for murder.
The statute under which Winters was sentenced provides that persons convicted of murder in the first degree must serve at least twenty years in prison without parole. It reads as follows:
§ 22-2404 Penalty for murder in first and second degrees.
(a) The punishment of murder in the first degree shall be life imprisonment.
(b) Notwithstanding any other provision of law, a person convicted of first-degree murder and upon whom a sentence of life imprisonment is imposed shall be eligible for parole only after the expiration of 20 years from the date he commences to serve his sentence.
(c) Whoever is guilty of murder in the second degree shall be imprisoned for life or not less than 20 years.
The District of Columbia Good Time Credits Act of 1986 (GTCA), D.C. Code § 24-428 et seq. (1989) became effective on April 11, 1987. Section 24-428 (a) provides in pertinent part that
every person who is convicted of a violation of a District of Columbia ("District") by a court in the District of Columbia, imprisoned in a District correctional facility, and whose conduct is in conformity with all applicable institutional rules is entitled to institutional good time credits in accordance with the provisions of this section.
Prior to the enactment of the GTCA, good time credit was allowed only against the maximum sentence, and the prisoner was required to serve his entire minimum sentence. See Solomon v. United States, 569 A.2d 1185, 1186 (D.C. 1990). The GTCA liberalized the law by allowing good time credit to reduce a defendant's minimum sentence. Id. A defendant serving a sentence of ten years or more may earn ten days good time credit for each month of his sentence. D.C. Code § 24-428 (a)(5).
The GTCA tempers mercy with Justice, and contains certain explicit exceptions from the benefits which it confers. Section 24-434 states that
institutional and educational good time credits shall not be applied to the minimum terms of persons sentenced under the District of Columbia Mandatory-Minimum Sentences Initiative of 1981, effective March 9, 1982 (D.C. Law 4-166, §§ 22-3202, 33-501 and 33-541).
In the 1981 initiative to which § 24-434 alludes, the voters of this jurisdiction adopted mandatory minimum sentences for persons convicted of certain armed crimes, D.C. Code § 22-3202 (1989), or of distribution of controlled substances and related offenses, D.C. Code § 33-541 (1988). See generally Lemon v. United States, 564 A.2d 1368, 1379 (D.C. 1989).
Persons imprisoned in the District of Columbia are placed in the custody of the District's Department of Corrections (DOC), which administers the sentence imposed by the court. In May 1987, one month after the effective date of the GTCA, the Director of the DOC issued a departmental order specifying that the Act does not apply to inmates serving twenty-year mandatory minimum sentences for first degree murder pursuant to § 22-2404 (b). See DOC Order No. 4340.2, at para. 10 (1987). Several months later, the Director adopted formal rules to the same effect. 35 D.C. Reg. 1077 (February 9, 1988). The effect of the order and of the subsequent rules was that defendants convicted of first degree murder would continue to serve the full twenty-year minimum term without parole, notwithstanding the enactment of the GTCA.
On May 15, 1989, however, Honorable Joyce Hens Green held in Cunningham v. Williams, 711 F. Supp. 644 (D.D.C. 1989), app. pending Nos. 89-1571, 89-5203 (U.S. App. D.C), that a prisoner who had been convicted of first degree murder was entitled to receive the benefits of the GTCA. Rejecting the District's contention that the phrase "notwithstanding any other provision of law" in § 22-2404 (b), when coupled with the policy disfavoring repeals by implication, supported the DOC's construction of the Act, Judge Green wrote that
the natural meaning of the phrase notwithstanding any other provision of law is law existing at the time § 22-2404 (b) was passed. The Good Time Credits Act was passed subsequent to § 22-2404 (b). Accepting the position urged by intervenor would mean that the Council could never modify former law. The Court refuses to endorse such a patently untenable position. Furthermore, as stated above, the D.C. Council spoke in no uncertain terms when it enacted the Good Time Credits Act. Had it desired to exclude § 22-2404 (b) from the Act's reach, it clearly knew how to do so and it could have done so, but it did not do so. The Act's language is clear.
711 F. Supp. at 646 (emphasis in original).
The Council's reaction to Judge Green's decision was swift and emphatic. On May 30, 1989, fifteen days after the Cunningham opinion was issued, the Council unanimously passed the District of Columbia Good Time Credits Amendment Emergency Act of 1989, D.C. Act 8-41, which proscribed the application of the GTCA to persons convicted of first degree murder. The Council also passed the cumbersomely styled "Good Time Credits Amendment Act of 1989 Emergency Declaration Resolution of 1989," *fn3 the operative sections of which read as follows:
Sec. 2. (a) There exists an immediate crisis regarding the application of good time credits to the minimum sentence of persons convicted for first degree murder.
(b) On May 15, 1989, U.S. District Court Judge Joyce Hens Green rendered a decision in the case of Eugene Jerome Cunningham v. Hallem H. Williams, 711 F.Supp. 644 in which she decided that the District of Columbia Good Time Credits Act of 1989, effective April 11, 1987 (D.C. Law 6-218; D.C. Code, sec. 24-428 et seq.) ("the Act"), must be applied to persons convicted of first degree murder under section 801 of An Act To establish a code of law for the District of Columbia, approved March 3, 1901 (31 Stat. 1321; D.C. Code, sec. 22-2404 (b)) ("Criminal Code").
(c) The application of the Act to persons convicted of first degree murder would reduce the minimum term for persons convicted after the effective date of the Act by approximately one third and reduce the minimum sentence of persons convicted before the effective date of the act to a period of less than 20 years.
(d) The Council of the District of Columbia never intended the Act to apply to persons convicted for first degree murder.
(e) The Council of the District of Columbia believed that the "notwithstanding any other provision of law" language of section 801 of the Criminal Code (D.C. Code, sec. 22-2404 (b)) would exclude first degree murder from coverage of the Act as it applies to minimum sentences.
(f) The enactment of the proposed emergency legislation will clarify the Council's intent with regard to first degree murder by specifically excluding that crime from the coverage of the Act as it applies to minimum sentences.
Sec. 3. The Council of the District of Columbia determines that the circumstances enumerated in section 2 constitute emergency circumstances making it necessary that the District of Columbia Good Time Credits Emergency Amendment Act of 1989 be adopted after a single reading.
Sec. 4. This resolution shall take effect immediately.
36 D.C. Reg. 4283-4284 (1989).
In order to assure that there would be no "gap" between the expiration of the Emergency Act and the enactment of permanent legislation, see United States v. Alston, 580 A.2d 587 (D.C. 1990), the Council also enacted temporary legislation containing essentially the same language as the Emergency Act and excluding persons convicted of first degree murder from the benefits of the GTCA. 36 D.C. Reg. 4740 (1989). On July 11, 1989, the Council passed permanent legislation to the same effect. *fn4 36 D.C. Reg. 5761 (1989). Following the required period of Congressional review, the amendment became effective on January 30, 1990.
The District concedes, as it must, that Winters' case is governed by the GTCA as it read prior to its amendment in 1989. It is not contended that the 1989 amendment may be applied to Winters retroactively. The District maintains, however, that the Council's actions in 1989 provide persuasive evidence of its intent in 1986, and that persons convicted of first degree murder were never intended to ...