Before Wagner, Chief Judge, Terry, Steadman, Schwelb, Farrell,
Ruiz, Reid, and Glickman, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
Appeals from the Superior Court of the District of Columbia Civil Division, Special Proceedings Branch (Hon. Iraline Green Barnes, Trial Judge)
Argued En Banc March 16, 2000
Opinion for the court by Associate Judge Glickman.
Concurring and dissenting opinion by Associate Judge Ruiz at page 47.
Two years ago, in United States Parole Comm'n v. Noble, 693 A.2d 1084, 1095 (D.C. 1997), op. adopted, 711 A.2d 85 (D.C. 1998) (en banc), this court resolved a decade-old dispute regarding "street time," the colloquial term for time that a convicted offender spends serving his sentence while on parole. We held that a law enacted by Congress in 1932, providing for loss of accrued street time when parole is revoked, was not repealed by the Council of the District of Columbia in 1987, and remains in full force and effect. Our holding required the District of Columbia Department of Corrections to change its method of computing the amount of time that prisoners in its custody had left to serve on their sentences, because the Department had been allowing parole violators to retain credit for street time on the erroneous understanding that the Council had repealed the 1932 law by implication.
The present case presents a question that we reserved in Noble: whether our holding would apply retroactively. Appellants are three D.C. Code offenders whose paroles were revoked prior to our decision in Noble. In computing the time remaining on appellants' sentences following their reincarceration, the Department of Corrections initially credited them with their street time. After our decision in Noble, however, the Department recomputed appellants' remaining sentences by withdrawing credit for street time, thereby increasing the amount of time that appellants had left to serve.
Appellants contend that our holding in Noble announced a new rule of law which enhances the punishment imposed on D.C. Code offenders if they violate the terms of their parole. Claiming that there was widespread reliance in the District of Columbia on the pre-Noble understanding that parole revocation would not result in loss of street time, appellants invoke the equitable balancing test that this court adopted in Mendes v. Johnson, 389 A.2d 781 (D.C. 1978) (en banc), to argue that Noble must be applied prospectively only. Appellants further argue that retroactive application of Noble to increase their sentences would not only be inequitable under Mendes, but would also violate the Ex Post Facto and Due Process Clauses of the Constitution.
A division of this court upheld the retroactive application of Noble to appellants, with one judge dissenting. We vacated the decision of the division and granted rehearing en banc, in part because recent retroactivity decisions of the Supreme Court have undermined the viability of Mendes.
We conclude that the Department of Corrections acted properly when it recomputed appellants' sentences in accordance with Noble. In reaching that conclusion, we hold, first, that the retroactive application of Noble does not violate the Ex Post Facto or Due Process Clauses. Second, we hold that the time has come for us to jettison the retroactivity jurisprudence that we adopted in Mendes. Instead of using a balancing test, we follow the lead of the Supreme Court and adopt a firm rule of retroactivity for our rulings. Applying that rule in this case, we hold that Noble must be applied retroactively so long as it is Constitutional to do so.
This case has its genesis in a purported conflict between two statutes relating to street time. The first statute was enacted by Congress in 1932, and provides that a D.C. Code offender forfeits his accrued street time if he violates the conditions of his parole and is reincarcerated. The language of this statute is unequivocal: "If the order of parole shall be revoked, . . . [t]he time a prisoner was on parole shall not be taken into account to diminish the time for which he was sentenced." D.C. Code § 24-206 (a) (1996). The revocation of parole results in the prolongation of the time that an offender serves on his sentence by the amount of street time that is lost.
The second statute was enacted fifty-five years later by the Council of the District of Columbia as part of the Good Time Credits Act of 1986 ("GTCA"), D.C. Law 6-218, § 5, 34 D.C. Reg. 484 (1987). This statute, which took effect in 1987, provides among other things that D.C. Code offenders get credit for their street time against the service of their sentences. The language of the statute is that "[e]very person shall be given credit on the maximum and the minimum term of imprisonment for time spent in custody or on parole as a result of the offense for which the sentence was imposed." D.C. Code § 24-431 (a) (1996). Unlike § 24-206 (a), however, the GTCA does not specifically address whether a D.C. Code offender forfeits his street time credit if his parole is revoked.
Disagreement over whether the street time forfeiture provision of § 24-206 (a) remained in force surfaced almost immediately after the GTCA went into effect. The District of Columbia Corporation Counsel advised the Department of Corrections that in its opinion the GTCA implicitly repealed the provision of § 24-206 (a) that required forfeiture of street time upon revocation of parole. See Noble, 693 A.2d at 1095. In reliance on the Corporation Counsel's opinion, the Department of Corrections issued an order, and thereafter a formal regulation, providing that henceforth revocation of parole would not result in the loss of credit for street time toward service of the sentence for which parole had been granted. See 35 D.C. Reg. 1077, 1078 (1988).
The United States Parole Commission promptly took issue with the Corporation Counsel's statutory interpretation. See Noble, 693 A.2d at 1095-96. The Commission concluded that the Council did not repeal the street time forfeiture provision of § 24-206 (a) by implication when it enacted the GTCA, but merely recognized the general rule that a sentence of imprisonment could be served on parole as well as in custody. Consistent with this conclusion, the Commission promulgated its own formal regulation to provide that D.C. Code prisoners under federal supervision would continue to lose credit for street time upon the revocation of their parole. See 28 C.F.R. § 2.65 (i) (1999).
Because the Commission and the District disagreed over whether the GTCA repealed the street time forfeiture provision of § 24-206 (a), offenders sentenced in the District to imprisonment were subject to disparate treatment upon revocation of their parole. The disparity depended on where the Attorney General chose to designate them to serve their sentences. Pursuant to D.C. Code § 24-425 (1996), the Attorney General has custody over all prisoners convicted in the District and has unfettered discretion to designate them to prisons maintained by the District of Columbia government or by the federal government. See District of Columbia v. Cooper, 483 A.2d 317, 322 (D.C. 1984); Curry-Bey v. Jackson, 422 F. Supp. 926, 932 (D.D.C. 1976). While District authorities supervise prisoners who are confined to D.C. correctional facilities, the Commission supervises parole of D.C. offenders housed at federal facilities. *fn1 See D.C. Code §§ 24-206 (b) and 24-209 (1996); Franklin v. Ridley, 635 A.2d 356, 357 n.2 (D.C. 1993); Goode v. Markley, 195 U.S. App. D.C. 391, 394, 603 F.2d 973, 976 (1979). Under § 24-209, the Commission must apply D.C. (rather than federal) parole law to these inmates. See Walker v. Luther, 830 F.2d 1208, 1217 (2d Cir. 1987). See also D.C. Code § 24-1231 (c) (2000 Supp.). In the case of the GTCA, however, the Commission applied its construction of that law rather than the Corporation Counsel's construction. Hence in the years following the enactment of the GTCA, D.C. Code offenders supervised by the Commission continued to forfeit street time upon revocation of parole while locally supervised offenders did not.
Predictably, the Commission's interpretation of the GTCA was soon challenged by a federally designated D.C. Code offender who was deprived of street time credit when his parole was revoked. Joseph Michael Tyler instituted this challenge by means of a habeas corpus petition in federal district court in Alaska after his parole was revoked in early 1988. The district court denied relief, and the Court of Appeals for the Ninth Circuit affirmed in Tyler v. United States, 929 F.2d 451 (9th Cir. 1991). Invoking the "cardinal rule" of statutory construction that repeals by implication are disfavored, *fn2 and specifically rejecting the D.C. Corporation Counsel's statutory analysis as "cursory," "ill-conceived" and "overly simplistic," id. at 456, the Ninth Circuit held that "the GTCA did not impliedly repeal the longstanding requirement of section 24-206 that parole violators forfeit their street time." Id. at 457. The court further held that Tyler was not entitled to retain credit for his street time merely because prisoners in the District did not lose street time upon revocation of their parole: "We cannot seriously entertain an argument that an erroneous statutory interpretation should be perpetuated simply because it would favor a prisoner who has not yet benefited from it." Id.
Despite the decision in Tyler, the Corporation Counsel neither abandoned its interpretation of the GTCA nor sought a clarifying statutory amendment from the Council. See Noble, 693 A.2d at 1102-03. Instead, the Corporation Counsel continued to adhere to the view that the Council implicitly repealed the street time forfeiture provision of § 24-206 (a) when it enacted the GTCA. For its part, the Department of Corrections also ignored Tyler and continued to credit prisoners in its custody with street time notwithstanding the revocation of their parole.
For several years after Tyler the issue of implied repeal of § 24-206 (a) by the GTCA did not come before this court. In a few habeas corpus cases brought by federally designated prisoners, judges of the Superior Court agreed with the District that the GTCA abrogated the street time forfeiture provision of § 24-206 (a). See, e.g., Beaty v. Ridley, No. SP 138-93 (D.C. Super. Ct. Jan. 26, 1993). None of those decisions, however, were appealed. Our opinions did contain dicta suggesting that we would agree with the District's position. See Franklin v. Ridley, 635 A.2d 356, 358 (D.C. 1993); Luck v. District of Columbia, 617 A.2d 509, 514 and 514 n. 6 (D.C. 1992). The Luck court commented that the alternative construction of the GTCA approved in Tyler was "plausible" but "curious." Id. However, the court also stated in Luck that we adhere strongly to the canon of statutory construction that repeals by implication are disfavored, and that we would deviate from that canon "only in exceptional cases." Id.
The issue was finally joined in a lawsuit commenced in 1995 in the United States District Court for the District of Columbia by a federally designated prisoner named Matthew Noble. The district court granted Noble habeas corpus relief, holding that the GTCA impliedly repealed § 24-206 (a) and required the Commission to credit Noble for time he spent on parole for a D.C. offense even though his parole had been revoked. See Noble v. United States Parole Comm'n, 887 F. Supp. 11 (D.D.C. 1995). On appeal, however, the United States Court of Appeals for the District of Columbia Circuit certified the question of implied repeal of § 24-206 (a) to this court for resolution. See Noble v. United States Parole Comm'n, 317 U.S. App. D.C. 304, 82 F.3d 1108 (1996). The D.C. Circuit found that there was no controlling precedent in our decisions and that we had "sent mixed signals" regarding the implied repeal question in Luck and Franklin. Id., 317 U.S. App. D.C. at 307-08, 82 F.3d at 1111-12.
A division of this court answered the certified question in United States Parole Comm'n v. Noble, 693 A.2d 1084 (D.C. 1997). The following year the en banc court adopted the division's opinion. See 711 A.2d 85 (D.C. 1998) (en banc). Agreeing with the Ninth Circuit's 1991 decision in Tyler, we held that the Council did not repeal § 24-206 (a) by implication when it enacted the GTCA, and that the District had therefore erred in crediting prisoners with street time after their parole had been revoked. Noble, 693 A.2d at 1095.
Because this court was addressing only the narrow question of law certified to it by the D.C. Circuit, we were not called upon in Noble to decide whether our ruling would apply "retroactively." We expressed no opinion on that issue, though we recognized that prisoners might claim to have relied upon the Department of Corrections regulation which credited them with street time despite the revocation of their parole. Flagging the question of whether Matthew Noble himself had a legitimate reliance interest in that regulation, however, we observed that this was not a case of unconstitutional ex post facto legislation, because the legislature had not "given credits toward completion of a sentence and then taken them away" retroactively. Id. at 1104. We also noted that the Ninth Circuit issued its decision in Tyler over two years before Noble's parole was revoked. Id.
The Department of Corrections undertook to comply with our en banc ruling in Noble and the street time forfeiture requirement of § 24-206 (a) by recalculating the sentences of all parole violators who were still in custody. The District exercised its enforcement discretion not to reincarcerate inmates who had been released from custody (either on re-parole or because their sentences had expired) based on erroneously awarded street time credit. Nonetheless, as appellants emphasize, the practical effect of the Department's belated decision to rescind street time in accordance with § 24-206 (a) was to add months or years to the sentences of upwards of one thousand former parolees who were still subject to the Department's authority. *fn3
Meanwhile, the D.C. Circuit remanded Matthew Noble's habeas corpus petition to the district court for resolution in light of our decision. The district court held that Noble could not complain about the application of our ruling to him, because as a federal prisoner he had no legitimate expectation otherwise, since the Commission had never credited D.C. Code offenders in federal custody with street time following revocation of their parole. Accordingly the district court denied Noble's habeas corpus petition. See Noble v. United States Parole Comm'n, 32 F. Supp. 2.d 11 (D.D.C. 1998). In dictum, however, the court opined that the District ought not to apply our ruling in Noble retroactively to inmates under its supervision, since those persons did have "the right to rely on the District of Columbia's prior interpretation of its own laws." Id. at 14.
On appeal once again to the D.C. Circuit, Noble argued on equal protection grounds that our ruling in his case should not be applied retroactively to him, because it was not being applied retroactively to former D.C. prisoners whose sentences had expired "early" after the Department of Corrections mistakenly credited them with street time despite the revocation of their parole. The appeals court rejected this argument even assuming that Noble was similarly situated to D.C. prisoners, "because the difficulty of rearresting inmates who have already been released would provide a rational basis for the disparate treatment." Noble v. United States Parole Comm'n, 338 U.S. App. D.C. 362, 364, 194 F.3d 152, 155 (1999). Furthermore, the court stated, "[n]either authority nor common sense support the proposition that if the government erroneously confers a benefit on some people, then other people have a Constitutional right to receive the same windfall." Id. The court affirmed the denial of Noble's habeas petition.
Elsewhere, another federally designated D.C. Code offender named James F. Johnson challenged the retroactive application of our decision in Noble as a violation of due process rather than equal protection, on the theory that Noble effected an unforeseeable, after-the-fact increase in the statutorily authorized degree of punishment for D.C. offenses. In Johnson v. Kindt, 158 F.3d 1060 (10th Cir. 1998), the court of appeals rejected that challenge. The court agreed that retroactive operation of an unforeseeable judicial enlargement of a criminal statute would violate due process by depriving defendants of fair warning of the penal consequences of their acts. See id. at 1063. However, the court stated, the test of unforeseeability for purposes of due process is whether the judicial construction of the statute is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue." Id. (quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)). "Unforeseeable judicial decisions include expansion of a statute narrow and precise on its face beyond [its] terms, . . .; the overruling of precedent, . . .; or when `an in-depth inquiry by a dedicated and educated student of [the relevant] law would have revealed nothing to foreshadow the [controlling court] opinion,'. . ." Johnson, 158 F.3d at 1063 (citations omitted). In light of the early disagreement between federal and District authorities over the proper construction of the GTCA, and the Ninth Circuit's decision in Tyler holding that § 24-206 (a) remained in effect, the Tenth Circuit stated that it was "foreseeable that the Commission's view would ultimately prevail." Id. In addition, the court said, our decision in Noble "did not expand a narrow and precise legislative provision or overrule controlling precedent. Moreover, elementary legal research would have revealed the principle that repeals by implication are disfavored." Id. The Tenth Circuit accordingly found no due process bar to the retroactive application of our holding in Noble that the GTCA did not repeal the street time forfeiture provision of § 24-206 (a).
Like Matthew Noble and James F. Johnson, appellants in the present case were reimprisoned after violating the conditions of their parole during the interregnum between the enactment of the GTCA in 1987 and the decision in Noble a decade later. *fn4 However, unlike Noble and Johnson, who were in federal custody, appellants were in the custody and under the supervision of local agencies, the D.C. Department of Corrections and the D.C. Board of Parole. When their parole was revoked, appellants were officially informed by the Department of Corrections that, in accordance with its administrative regulation and the then prevailing local understanding of the GTCA and § 24-206 (a), they would retain credit against their sentences for street time accrued while on parole prior to revocation. *fn5 But in response to our decision in Noble, the Department of Corrections recomputed appellants' sentences by subtracting their street time credit.
Seeking to limit the resultant lengthening of the time that they would spend serving their sentences, appellants filed petitions for writs of habeas corpus in the Superior Court challenging the District's retroactive application of Noble to them. Those petitions were denied, and on consolidated appeal a division of this court affirmed with one judge dissenting. We vacated the decision of the division and granted rehearing en banc, in order to reconsider the propriety of applying Noble to appellants and others similarly situated in conjunction with a reconsideration of the basic principles governing retroactive application of decisions of this court that announce "new" rules of law.
Emphasizing that Noble invalidated a formal regulation of the Department of Corrections and reversed the understanding, in the District of Columbia at least, that revocation of parole entails no loss of street time credit, appellants urge us to declare our holding in Noble to be purely prospective in effect, i.e., not applicable to persons who committed their offenses before the issuance of our decision. Appellants argue that in light of widespread reliance on the District's pre-Noble interpretation of the GTCA, any retroactive application of Noble's "new rule of law" would be unfair and contrary to this court's equity-based retroactivity jurisprudence. Appellants also argue that since the practical impact of Noble was to increase the potential punishment for commission of a criminal offense, any retroactive application of that decision would violate the Constitutional prohibition against ex post facto laws and amount to a denial of due process of law.
Appellants advocate these positions with admirable force and imagination, but in the end we are not persuaded. Taking appellants' arguments in reverse order, which we think analytically useful, we conclude first that nothing in the Constitution requires that our ruling in Noble be limited to purely prospective application. The Constitutional proscription of ex post facto laws applies only to retrospective legislation. That proscription therefore has no bearing on this case, inasmuch as the street time forfeiture provision of § 24-206 (a) went into effect long before appellants committed their offenses and was never repealed. Appellants cannot base an ex post facto claim on the existence of an administrative regulation that purported to preserve street time credit after revocation of parole, because insofar as that regulation was contrary to the express command of § 24-206 (a), it was invalid.
The Due Process Clause does not bar retroactive enforcement of Noble either, because our decision in that case, even if contrary to the District's position and not expected by appellants or others in the District, was not unforeseeable. Rather, in rejecting the argument that the GTCA impliedly repealed the street time forfeiture provision of § 24-206 (a), Noble employed accepted principles of statutory interpretation and approved the same construction of the GTCA that the United States Parole Commission adopted when that legislation first took effect, and that the Ninth Circuit endorsed in 1991. In the decade between the enactment of the GTCA and our decision in Noble, it was foreseeable to every D.C. Code offender that revocation of parole might result in loss of street time pursuant to § 24-206 (a) notwithstanding the GTCA, depending on whether the offender was designated to the custody of federal or District authorities, or on whether the federal or the District view of the effect of the GTCA ultimately prevailed.
We also conclude that equitable considerations such as those advanced by appellants do not justify prospective-only operation of Noble. Taking this occasion to reconsider our retroactivity jurisprudence and conform it to that of the Supreme Court, we adopt today a firm rule of retroactivity for our decisions expounding District of Columbia law. Our holding in Noble was a definitive statement of that law, and of what the Council did and did not do when it enacted the GTCA. In the absence of any due process or other Constitutional ...